In several recent WCAB opinions, including a panel decision, a Significant Panel Decision, and an En Banc decision, a pattern is emerging which is consistent with no-nonsense enforcement of SB 863 and the now statutory mandate of holding lien claimant representatives to the same standards of practice of attorneys appearing before the WCAB.
For example, in a case defended by GMK at the Los Angeles District Office, a recent Board panel decision issued in which the WCAB removed to itself a decision to issue a 10 day notice of intention to impose sanctions against an interpreter/lien claimant’s representative that frivolously filed an untimely petition for reconsideration that included misstatements of fact and law to the WCAB.
GMK was engaged to defend numerous liens arising out of a previously settled AOE/COE denied claim. An interpreting company with a claim of over $20,000 failed to appear at a properly noticed lien conference and a notice of intention to dismiss the lien issued that was served on it by GMK. When the lien claimant failed to object to the notice of intent an order dismissing the lien claim issued. The lien claimant then filed an untimely petition for reconsideration which contained misrepresentations of fact and law. GMK argued in its answer that the timing and contents of the petition constituted bad faith by the lien claimant’s representatives.
The WCAB agreed and directed the trial court to issue a notice of intention to impose sanctions of up to $2500 against the interpreter/lien claimant’s billing and collections company as well as the individual who represented that lien claimant. Recognition in this matter goes to GMK attorney Abel Calderon.
In a Significant Panel Decision on April 5, 2013, the WCAB emphasized that the payment of the lien activation fee required by Labor Code §4903.06 must occur prior to the time that a lien conference is scheduled and not when the case is called. A defendant’s failure to serve medical reports or engage in settlement negotiations does not excuse the payment of the activation fee and a notice of intention to dismiss is not required before the lien is dismissed with prejudice.
This Significant Panel Decision, Figueroa v. B.C. Doering Co. was made an En Banc decision of the Appeals Board on April 25, 2013. In so doing, the decision becomes binding precedent upon all workers’ compensation judges in the state.
The Figueroa case creates an absolute requirement that a WCJ shall dismiss with prejudice any lien claim for which the activation fee has not been paid prior to the commencement of the conference. Additionally, a lien claimant must be able to produce proof of payment of the activation fee at any lien conference. Failure to do so requires that the lien be dismissed with prejudice.
In another Significant Panel Decision issued April 5, 2013, Maria Elena Mendez v. Le Chef Bakery, the WCAB addressed the narrow factual issue of payment of a lien activation fee prior to a lien trial in 2013 where the lien conference had previously been held in 2012 (prior to SB 863) and there was no intervening lien conference in 2013. In this decision the WCAB held that the payment of a lien activation fee was not required for a lien trial occurring in 2013. This decision narrowly construes a limited set of facts in which a lien claimant had filed a Declaration of Readiness to Proceed in 2012, a lien conference was held in 2012 and the matter was put over for lien trial in 2013. The WCAB’s decision is notable because it seems to imply that if a lien conference occurred in 2012 and was continued to a new date in 2013, that the payment of the lien activation fee would have been required. However, on these specific facts, where there was no intervening lien conference in 2013 the lien claimant was not required to pay the activation fee at the date of trial.
WHAT THIS MEANS FOR YOU
These cases are encouraging and reflect the WCAB’s intention to enforce SB 863 with respect to lien procedures and the conduct of lien claimants and their representatives.
Both in trial courts and in appellate decisions we continue to see a trend toward imposing sanctions on lien claimants and their representatives where they engage in inappropriate behavior before the WCAB. However this works both ways. Any inappropriate conduct by the defense, lack of preparation or failure to engage in good faith lien settlement negotiations may have the same consequences for employers and insurance carriers. In the meantime these decisions reinforce our commitment to effective advocacy to enforce the provisions of SB 863 in the dismissal and litigation of lien claims.
The WCAB Significant Panel and En Banc decisions may be accessed on the DWC website at the following address: