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Workers' Compensation

California: Presiding Judge Jorja Frank Holds Hearing on Los Angeles WCAB District Office’s Notice of Intent to Consolidate Interpreting Liens

Pursuing her endeavor to reduce the huge and mounting number of lien claims that are being filed at the Los Angeles WCAB, on October 25, 2010 Judge Frank, again with the assistance of Associate Chief Judge Mark Kahn, presided over a hearing in connection with her notice of intent to consolidate liens filed by interpreting services. Judge Frank informed the audience that interpreting liens are the second largest group of liens being filed at the Los Angeles Board and that with ongoing hiring freezes there is simply not enough staff or judges to handle the liens that are being filed.

Judge Frank and Judge Kahn sought input from the audience, consisting primarily of interpreting services and their representatives as well as some applicant attorneys and defendants and their attorneys, to identify the common issues of law and fact that would create the bases for consolidation of such liens.

Judge Kahn initially identified interpreting liens as consisting of two types. The first, pursuant to Labor Code §5811, are so-called "cost liens” including deposition preparation and deposition appearances, appearances at the Board, medical-legal evaluations and as otherwise specified in Board Rule §9795.3(a). The second are "treatment liens”, generally considered to be services rendered by interpreters in connection with medical treatment including, for example, physician office visits, physical therapy, chiropractic and acupuncture treatment, sleep studies, etc. It was noted that treatment liens are more difficult to deal with because of the reasonableness and necessity standard relating to medical treatment in general.

Although Judge Frank made it clear that she wanted comments from individuals in the audience to be framed in the form of questions that would elucidate common issues of law and fact, much of the commentary from the individuals present on behalf of the interpreting community consisted of demands of the Board for enforcement of existing Labor Code statutes and regulations including demands for sanctions in circumstances when defendants do not pay uncontested amounts within 60 days after receipt of the interpreter’s bill as required by Board Rule §9795.4(a)

Numerous times Judge Frank or Judge Kahn had to remind the lien claimants that what they were asking for required changes in current regulations; for example, a suggestion that lien claimants be permitted to walk through petitions for their fees. It was noted by Judge Kahn that with the pending election and change of administration in Sacramento there would not likely be any regulatory changes for 12 to 18 months.

Common issues of law and fact raised by the defendants included whether lien claimants are entitled by Labor Code §5811 to be paid in full for interpreting services for each case when they make appearances at the Board on behalf of multiple applicants, entitlement to payment for medical treatment including appearances at chiropractic, physical therapy, acupuncture, sleep studies, etc., the value of the interpreting services at treatment examinations with and without certified interpreters and whether there a "market rate", what it is, and when does it apply.

Judge Frank did also note that, inasmuch as the new EAMS Declaration of Readiness to Proceed form now has a space specifically permitting a request for a hearing solely to resolve outstanding lien claim issues, all district offices of the WCAB statewide would be issuing sanctions up to $1000 if any party requests a Status Conference instead of a Lien Conference when the only issue concerns payment of outstanding liens. In that circumstance the Board would consider the inappropriate request for a Status Conference instead of a Lien Conference a "material misrepresentation". Judge Kahn called the current situation a reflection of "dire times".

As the judges had done at the October 6, 2010 hearing concerning compound pharmaceuticals and topical medications, it was again noted that the Board prefers that defendants or lien claimants be the parties to file the petitions for consolidation. However it became clear by the end of the hearing that the interpreter community is generally opposed to the Board granting a consolidation of their liens concerning any issue relating to interpreting services.

No decision was made with respect to whether the Board would order a consolidation of interpreting liens. Judge Frank concluded the hearing by requesting that defendants that wish to do so file their petitions for consolidation by November 12, 2010 with either her or Judge Kahn. The interpreters will then have until December 2, 2010 to submit their oppositions to the petitions for consolidation that might be filed. A further hearing on this topic was scheduled to take place on December 6, 2010 at 10:00 am at the WCAB in Los Angeles .

What This Means for You

It is too early to know precisely what the effect will be of the Board's eventual action or inaction on the subject. However, each defendant and lien claimant is free to take whatever action it perceives as in its best interest regardless of the ultimate decision by the Board whether to go forward with a consolidation on its own motion.

As with regard to the Board's prior notice of intention to consolidate compound pharmaceutical and topical medication liens, GMK believes that it is premature to file a petition for consolidation in the next few weeks. The Board's request for petitions for consolidation by November 12, 2010 should not include any defendant from either joining an existing petition for consolidation or filing its own.

© Copyright 2010 Goldman, Magdalin & Krikes, LLP. All rights reserved. Reprinted with permission.