Liens

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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