Liens

  1. Santa Clara Valley Transportation Authority v. WCAB (W/D) (81 CCC 382):

 

Applicant sustained an admitted injury to his low back.

 

EDD paid applicant disability payments at the rate of $568 covering the period from March 20, 2014 through May 28, 2014, for a total $2300.

 

Defendants also paid temporary disability benefits and $2300 for the same period.

 

Subsequently, the case-in-chief was settled by Stipulation’s with a disability rating of 46%, which took into account 15% non-industrial apportionment. The apportionment was based on the reporting of the Agreed Medical Evaluator.

 

At the time of settlement, EDD requested that it’s a lien against applicant’s permanent disability in the amount of $2,300.00 be deducted from applicant’s recovery.

 

Defendants agreed to pay, just or litigate EDD’s lien on applicant’s behalf.

 

The WCJ approved the settlement and ratified the apportionment found by the Agreed Medical Evaluator.

 

The WCJ awarded EDD, following a hearing, $2,300.00 from permanent disability owed the applicant because the applicant was awarded permanent disability.

 

Defendant sought reconsideration, contending in relevant part that, prior to 1993, Labor Code §4904 did not allow EDD to claim a lien against permanent disability advances, and that after 1993 §4904 was amended to allow EDD to assert a lien against permanent disability. Defendant contended, however that, pursuant to the Legislative changes, EDD is allowed the lien against overlapping PD benefits only to the extent that EDD’s payment or solely from the same injury or illness. Defendants contended that, because applicant’s permanent disability had been apportioned, the permanent disability payments were not for the same injury or illness for which EDD paid benefits.

 

Defendant also contended that EDD it failed to establish the injury or illness from which they had paid benefits to applicant, but that, assuming that EDD benefits had been paid in connection with applicant’s low back condition, that condition had been apportioned to nonindustrial causes and that, therefore EDD could not claim and its payments were so we do to the industrial injury at issue.

 

Defendant continued that Labor Code §4904 was meant to prevent duplicate compensation, and that the amendments to the Code Section recognize that PD and TD serve different purposes, that TD compensated for wage loss, where PD compensated for the loss of future earning capacity, and that Labor Code §4904 (b) acknowledged that PD was subject to apportionment whereas TD was not.

Defendant stated that, when an applicant’s award of PD was reduced by apportionment, it would be fundamentally unfair to allow applicant’s award to be further reduced by EDD’s lien claim.

 

The WCJ recommended that reconsideration be denied. The WCJ indicated in relevant part that the Legislative intent apparent in Labor Code §§4903 and 4904 was an employee was not to recover under both the unemployment benefits program and the worker’s compensation program for the same wage loss, whatever the reason for the wage loss. The WCJ further indicated that the law was, that EDD paid benefits for the same day’s applicant also received TD benefits, and that EDD was, therefore entitled to reimbursement in the total amount of $2,300.00, payable by defendant.

 

The WCAB granted reconsideration because defendant raised the issue that EDD did not offer any testimony or evidence at trial to support its lien. Without any evidence in the record and without any express stipulation as to compensability of EDD’s lien the WCAB could not find a lean compensable. They did recon and return the matter to the trial level to develop the record on this issue.

 

The WCAB noted that defendant’s primary argument was that EDD was not entitled to a lien when PD disability have been apportioned. The WCAB indicated that defendants misinterpreted the laws resulting solely from the same injury or illness in Labor Code §4904 (b) (1) as requiring that EDD liens come from and on apportioned award of permanent disability indemnity. The WCAB indicated Labor Code §4904 (b) require only that EDD lien attached to the same injury or illness for which permanent disability was awarded.

 

The WCAB added that defendants had improperly confused the two concepts of causation and apportionment. The defendant improperly concluded that 15% of the cause of applicant’s permanent disability was nonindustrial, therefore the cause of applicant’s injury that resulted in EDD benefits was also 15% nonindustrial. Such an assumption is incorrect.

 

The WCAB stated that causation of injury is not apportionable. However, it is possible in appropriate circumstances to apportion causation of disability. The WCJ concluded that the fact that applicants PD had been apportioned to nonindustrial causes had no bearing on whether EDD was entitled to reimbursement on its lien.

 

The writ was denied.

 

  1. Rancaneli v. Farmers Insurance Group (BPD) (2016 Cal. Wrk. Com. P.D. LEXIS 134):

 

The WCJ held that the Employment Development Department was not entitled to recover benefits paid to applicant’s insurance adjuster, when EDD’s payments, although they overlapped with retroactive permanent disability awarded and applicants workers compensation case, were only for nonindustrial conditions and were not related to applicant’s industrial injury.

 

The WCAB found that Labor Code § 4904 (b) (1) allows for reimbursement of benefits paid by EDD for workers’ compensation permanent disability award resulting solely from the same injury or illness.

 

Based on the language in Labor Code §4904(b)(1) the Legislature did not contemplate reimbursement of EDD liens in situation where the condition which prompted payment of the disability was independent of the condition or injury from which workers comp was awarded.

 

Even if there was arguably overlapped some disability between applicant’s industrial condition and his nonindustrial condition, applicant did not file a workers’ compensation claim for the nonindustrial condition, and there is no question that EDD’s payments to applicant were not solely the result of the same injury or illness which is subject to the industrial claim so as to justify award of reimbursement pursuant to Labor Code §4904(b)(1).

 

  1. Perez v. Universe Facilities (BPD) (2016 Cal. Wrk. Comp. P.D. LEXIS 101):

 

This case holds that the lien Statute of Limitations pursuant to Labor Code §4903.5 (a) requires that the lien be received by the WCAB within the time frame set forth in the Code Section or the case is barred by the Statute of Limitations.

 

In this case lien claimant served their lien upon defendants. The lien was filed with the WCAB or six years after the date of last medical treatment.

 

The WCAB held the lien was not timely even though was served on the opposing party. The WCAB held liens are deemed filed only on the date they are received by the WCAB.

 

  1. Ozuma v. Kern County Superintendent of Schools (BPD) (2016 Cal. Wrk. Comp. P.D. LEXIS 98)

 

The WCJ denied full reimbursement of the lien of a photocopy service because there was no evidence that the Agreed Medical Evaluator reviewed all of the copied records.  Lien claimant filed a petition for reconsideration.

 

The WCAB held there is no requirement that it lien claimant prove that each of the records that it copied was specifically relied on to resolve any issue in dispute in order to have a valid lien claim for copying the records.  Photocopying is compensable if it was reasonably undertaken in an effort to discover information that is relevant are potentially relevant to the case.

 

Compensation may be claimed even if the service of a subpoena yields no records because that fact is itself information that may be relevant to an attorney’s evaluation and understanding of the case.

 

The matter was remanded to determine the reasonable fee for the services.

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