Eliezer Figueroa v. B.C. Doering Co.: Employers Compensation Insurance Co.,

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1 WORKERS’ COMPENSATION APPEALS BOARD 2 STATE OF CALIFORNIA 3 4 Case No. ADJ3274228 (AHM 0120365) ELIEZER FIGUEROA, 5 Applicant, 6 vs. OPINION AND DECISION AFTER RECONSIDERATION 7 8 B.C. DOERING CO.; EMPLOYERS COMPENSATION INSURANCE CO., 9 Defendants. 10 11 On March 25, 2013, we granted the Petition for Reconsideration filed by lien claimant Orthomed 12 LLC (Orthomed) in order to allow sufficient opportunity to further study the factual and legal issues 13 presented. In this case, at a January 9, 2013 lien conference, the workers’ compensation administrative 14 law judge (WCJ) dismissed Orthomed’s medical treatment lien claim with prejudice based on its failure 15 to pay the lien activation fee required by Labor Code section 4903.06.1 16 defendant’s failure to serve required documents and failure to engage in settlement negotiations prior to 17 the lien conference excuses Orthomed from paying the lien activation fee required by section 4903.06. Orthomed contends that 18 We hold that, where a lien claim falls within the lien activation fee requirements of section 4903.06: 19 1. the lien activation fee must be paid prior to the commencement of a lien conference, which is 20 the time that the conference is scheduled to begin, not the time when the case is actually 21 called; 22 2. if the lien claimant fails to pay the lien activation fee prior to the commencement of a lien 23 conference and/or fails to provide proof of payment at the conference, its lien must be 24 dismissed with prejudice; 25 26 27 30 1 Unless otherwise specified, all statutory references are to the Labor Code. 1 3. a breach of the defendant’s duty to serve required documents or to engage in settlement 2 negotiations does not excuse a lien claimant’s obligation to pay the lien activation fee; and 3 4. a notice of intention is not required prior to dismissing a lien with prejudice for failure to pay 4 the lien activation fee or failure to present proof of payment of the lien activation fee at a lien 5 conference. 6 Applicant, while employed as a machine operator on June 25, 2004, sustained an industrial injury 7 to his back, neck and psyche. On April 15, 2011, the WCJ filed a Findings, Award & Order, awarding 8 benefits. On July 30, 2012, a lien claimant, not Orthomed, filed a Declaration of Readiness to Proceed 9 (DOR) requesting a lien conference. 10 The lien conference was set for January 9, 2013, at 8:30 a.m. Orthomed did not appear at the 11 conference. Because Orthomed did not submit proof of prior timely payment of the lien activation fee, 12 and because the WCJ reviewed the record and determined that the lien activation fee had not in fact been 13 paid, the WCJ dismissed Orthomed’s lien with prejudice, without first issuing a notice of intention. 14 On reconsideration, Orthomed contends that the activation fee is not payable where defendant has 15 not served supporting documents, thus depriving lien claimant of the opportunity to resolve the lien. 16 Orthomed also contends that “the new lien regulations lacks [sic] latitude in allowing certain 17 circumstances that are not just black and white.” Orthomed does not claim on reconsideration that it paid 18 the lien activation fee. We have not received an answer from defendant. 19 Section 4903.06, effective January 1, 2013, provides that with certain exceptions “[a]ny lien filed 20 pursuant to subdivision (b) of Section 4903 prior to January 1, 2013, and any cost that was filed as a lien 21 prior to January 1, 2013, shall be subject to a lien activation fee.” (Lab. Code, § 4903.06(a).) 22 activation fee is $100. (Lab. Code, § 4903.06(a)(1).) A lien claimant that files a DOR must include proof 23 of payment of the fee with the DOR. (Lab. Code, § 4903.06(a)(2).): In relevant part, section 4903.06 2 The lien 24 25 26 27 30 2 The exceptions to payment of the lien activation fee are if: (1) the lien claimant proves it had paid the filing fee that was in effect from 2004 through 2006 under former section 4903.05 (Lab. Code, § 4903.06(a)); or (2) the lien claimant is a specified health care service plan, a group disability insurer, a self-insured employee welfare benefit plan, a Taft-Hartley health and welfare fund, or a publicly funded program providing medical benefits on a nonindustrial basis (Lab. Code, § 4903.06(b)). FIGUEROA, Eliezer 2 1 further provides: “All lien claimants that did not file the declaration of readiness to proceed and that 2 remain a lien claimant at the time of a lien conference shall submit proof of payment of the activation fee 3 at the lien conference. If the fee has not been paid or no proof of payment is available, the lien shall be 4 dismissed with prejudice.” (Lab. Code, 4903.06(a)(4).) 5 Administrative Director Rule 10208(a) (Cal. Code Regs., tit. 8, § 10208(a)), which is an 6 emergency regulation that became operative January 1, 2013, provides in relevant part: “Any lien filed 7 pursuant to Labor Code section 4903(b) filed prior to January 1, 2013, and any cost filed as a lien prior to 8 January 1, 2013, shall be subject to a lien activation fee in the sum of one hundred dollars ($100.00), 9 payable to the Division of Workers’ Compensation prior to filing a Declaration of Readiness to Proceed 10 for a lien conference by that party, prior to appearing at a lien conference for a case, or on or before 11 January 1, 2014, whichever occurs first.” 12 We interpret the payment “at the lien conference” language of section 4903.06(a)(4) and the 13 payment “prior to appearing at a lien conference” language of emergency Rule 10208(a) to mean that a 14 lien activation fee must be paid prior to the commencement of a lien conference, which is the time that 15 the conference is scheduled to begin, not the time when the case is actually called. Any payment made 16 after the noticed hearing time is not timely. Therefore, the lien of Orthomed was correctly dismissed 17 with prejudice. 18 Furthermore, section 4903.06(a)(4) mandates that a lien “shall” be dismissed with prejudice 19 where the fee has not been paid or where no proof of payment is submitted. This obligation is not 20 excused by the breach of defendant’s duty to serve documents or to conduct settlement negotiations. 21 Finally, we note that where a lien claimant has failed to pay the lien activation fee or to present 22 proof of payment of the fee prior to the commencement of a lien conference, there is no requirement that 23 dismissal of the lien be preceded by a notice of intention to dismiss the lien. Section 4903.06(a)(4) 24 requires that the lien claimant submit proof of payment of the lien activation fee at the lien conference. If 25 a lien claimant fails to do so, dismissal with prejudice of the lien is mandatory without the necessity of 26 any intervening procedure. 27 /// FIGUEROA, Eliezer 30 3 1 For the foregoing reasons, 2 IT IS ORDERED, as the Decision After Reconsideration of the Appeals Board, that the January 3 9, 2013 order dismissing the lien claim of Orthomed LLC with prejudice is AFFIRMED. 4 WORKERS’ COMPENSATION APPEALS BOARD 5 6 7 /s/ Deidra E. Lowe______________________________ 8 9 I CONCUR, 10 11 12 /s/ Ronnie G. Caplane____________________ 13 14 15 /s/ Frank M. Brass________________________ 16 17 18 DATED AND FILED AT SAN FRANCISCO, CALIFORNIA 19 4/5/2013 20 21 22 23 24 SERVICE MADE ON THE ABOVE DATE ON THE PERSONS LISTED BELOW AT THEIR ADDRESSES SHOWN ON THE CURRENT OFFICIAL ADDRESS RECORD. INNOVATIVE MEDICAL MANAGEMENT ORANGE ORTHOMED LLC ROBERTO BOHM SANTA ANA TOBIN LUCKS SANTA ANA 25 26 MR/ara 27 FIGUEROA, Eliezer 30 4

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