Liens

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.

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).

 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.

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.

Torok v. County of San Diego (BPD) (2018 Cal. Wrk. Comp. P.D. LEXIS 6)

 

The Workers Compensation Judge issued an order disallowing a lien for back surgery by a private healthcare plan before applicant filed a claim with the employer.

The lien claimant filed a Petition for Reconsideration that was granted by the Appeals Board which remanded the matter for the taking of further evidence. The WCAB held there was no evidence lien claimant knew or should have known that the treatment was provided for a work-related condition.

The WCAB noted that pursuant to Labor Code §4903.1 (b), if the medical treatment provider “either knew or in the exercise of reasonable diligence should have known that the condition being treated was caused by the employers present or prior employment,” the medical treatment provider could not recover from either the injured worker or the employer and unless specified exceptions were met.

The Appeals Board held that the defendant had the initial burden of establishing that either the applicant or the lien claimant had knowledge of industrial injury prior to surgery.

The WCAB remanded the matter for the WCJ to determine the dates of knowledge and whether lien claimant could recover pursuant to Labor Code §4903.1.

Ramirez v. Rancho Harvest (BPD) (83 CCC399:

 

The WCJ found lien claimant, interpreting service entitled to $1,905.00 for services rendered prior to January 1, 2003 and not entitled payment for services rendered after January 1, 2003.

The WCJ applied Regulation 9795 for the interpreter fees prior January 1, 2013. The WCJ then ruled that although 9795 would not normally be considered a fee schedule these provisions do provide for fees for interpreters. The WCJ then ruled that interpreter bills after January 1, 2003 are subject to IBR and lien claimant did not file for second review and therefore was bound by the first bill review.

Lien claimant and defendant filed Petitions for Reconsideration. The WCAB found that lien claimant was entitled to the $1,905.00 for services provided prior to January 1, 2013 and deferred the issue of lien claimant’s entitlement to fees after January 1, 2013 and returned the matter to the trial level.

The WCAB stated that Labor Code §4600 (g), which was enacted effective January 1, 2013 provides that the administrative director shall adopt a fee schedule for interpreter services in accordance with this section. A fee schedule for interpreter services has not been adopted pursuant to the authority granted by this section.

Labor Code §§4603.2, 4603.3 and 4603.6 provides for the system for payment of medical treatment bills per the fee schedule and provides for bill review, second review an independent medical review.

Rule 9795 sets forth the medical-legal fee schedule, provides that the schedule of fees set forth in that section shall be prima facie evidence of the reasonableness of fees charged for medical-legal evaluation reports and fees for medical-legal testimony.

The WCAB stated that even if they were to construe rule 9795.3 as a “fee schedule”, because the rule pre-dates SB 863, it was not adopted as an applicable fee schedule for purposes of IBR.

Therefore, disputes or fees under rule 9795.3 are not subject IBR.

The WCAB then indicated they are returning the matter to the trial level for the WCJ to determine the amount due lien claimant for services rendered after January 1, 2013. As to defendant’s argument regarding the statute of limitations the Appeals Board stated that defendant’s contention that lien is barred by the statute of limitations relies on the premise that billing disputes for services rendered after January 1, 2013 or subject IBR. Because the disputes are not subject IBR, the lien was timely filed.

Pedro Hernandez v. Henkel Loctite Corporation; Zurich American Ins. Co., administrated by Zurich North America (Appeals Board en banc)(___CCC____):

On December 29, 2017, a WCJ issued a Findings of Fact wherein she found that lien claimant Monrovia Memorial Hospital (lien claimant) is not barred from proceeding on its lien in the above captioned matter due to a “dismissal” notation in the Electronic Adjudication Management System (EAMS) pursuant to Jose Guillermina Rodriguez v. Garden Planting Co., et al. (2017) 82 Cal.Comp.Cases 1390 (Appeals Bd. en banc).

The WCJ then found that lien claimant had until the close of business at 5:00 p.m. on Monday, July 3, 2017 to file a lien claim declaration pursuant to Labor Code section 4903.05.

Defendant contends that lien claimant’s lien is dismissed by operation of law because its §4903.05(c) declaration was not timely filed before the close of business, i.e., 5:00 p.m., on Friday, June 30, 2017 pursuant to §4903.05, subsection (c)(2); and because it was unsigned in violation of subsection (c)(3).

Rodriguez held Lien claimants who filed declarations pursuant to §4903.05(c) and WCAB Rule 10770.7 on July 1, 2 and 3, 2017 may proceed to litigate liens pending an evidentiary finding that the declaration was not timely filed.

The Appeals board noted that Rodriguez did not address whether or not §4903.05(c) declarations filed after the close of business at 5:00 p.m. on Friday, June 30, 2017, through the close of business at 5:00 p.m. on Monday July 3, 2017, were timely filed.

Labor Code §4903.05(c)(2) states that lien claimants “shall have until July 1, 2017” to file the declaration identified in Labor Code section 4903.05(c)(1), thereby establishing the last date for performance of an act required by statute as July 1, 2017, a Saturday.

When the last date for performance of an act required by any workers’ compensation statute falls on a weekend or holiday, “the act or response may be performed or exercised upon the next business day.” (Cal. Code Regs., tit. 8, § 10508; see Code Civ. Proc., § 12a(a) and Gov. Code, § 6707.)

Section 4903.05(c)(2) states that lien claimants “shall have until July 1, 2017” to file the declaration identified in §4903.05(c)(1), thereby establishing the last date for performance of an act required by statute as Saturday, July 1, 2017.

Given that July 1, 2017 fell on a Saturday, lien claimant had until 5:00 p.m. on Monday, July 3, 2017 to file the declaration. (See Code Civ. Proc., §§ 12, 12a, 12b; Gov. Code, § 6707; and Cal. Code Regs., tit. 8, §§ 10508, 10392.) It is undisputed that lien claimant succeeded in filing the declaration before 5:00 p.m. on Monday, July 3, 2017. Therefore, lien claimant’s Supplemental Lien Form and Section 4903.05(c) Declaration was timely filed.

The Appeals Board not address the merits of defendant’s contention that an electronics signature is insufficient to comply with §4903.05(c)(3) because the issue was deferred by the WCJ.

The WCAB did note that their rules require all liens, including the supportive required documentation, to be electronically filed on an e-form approved by the Appeals Board and submitted by the Administrative Director’s electronic filing or JET-filing procedures. (Cal. Code Regs., tit. 8, § 10770(b)(1)(A), (B), and (C)(i).) The Administrative Director’s approved electronic filing technical requirements allow the use of an “S Signature,” which shall be “rebuttably presumed to be that of the individual whose name is on the document signature line.” (BR-16 S Signatures; Guide, p. 42.)

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