California Lien Filing Fees and Multiple Case Numbers: WCAB Panel Applies AD Rule 10208

California Lien Filing Fees and Multiple Case Numbers: WCAB Panel Applies AD Rule 10208

  By David Bryan Leonard, Esq.
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Workers’ compensation injuries can occur from a specific incident or be caused by cumulative events. (Labor Code Section 3208.1. [LC 3208.1]) When multiple injuries are alleged, a separate Application for Adjudication must be filed.(AD Rule 10401 [R 10401]) Each separate injury, and accompanying Application for Adjudication of Claim, is assigned an individual case number (AD Rule 10400 [R 10400]). For lien claimants, a service subject to a Labor Code Section 4903 [LC 4903] lien may involve one or more case numbers. As a result, lien claimants subject to the lien activation fees may be faced with the dilemma of multiple case numbers.
While caution must be applied to determine which body parts are addressed in any individual case, a panel of Commissioners has provided guidance on the lien activation protocol in case of Hinks v. Pavlo Weinberg/SCIF (2013) ADJ 2499103 and ADJ 3239580, 2013 Cal. Wrk. Comp. P.D. LEXIS --.
In Hinks, the injured worker alleged that she sustained multiple industrial injuries. A specific injury was alleged to have occurred on January 6, 1996, and a cumulative trauma injury during the span of January 6, 1998 to August 25, 1998. Each date of injury was assigned an individual case number, i.e., ADJ2499103 and ADJ3239580, respectively. As the case proceeded, it appears that ADJ2499103 was dismissed and that formal notices of dismissal were not sent.
On January 7, 2004, a lien claimant filed a lien using the dismissed case number ADJ2499103. The lien claimant paid the activation fee using the dismissed case number. Ultimately, the matter proceeded to lien conference. At the conference, the WCJ noted the dismissal of Applicant’s claim in ADJ2499103. The lien claimant argued that its lien and activation fee also applied to the remaining active case number. The WCJ disagreed and dismissed lien claimant’s lien for non-payment of the $100 activation fee. The lien claimant sought reconsideration, arguing that notice of dismissal was never provided and that the lien claimant’s activation fee and treatment services apply to both the dismissed case number and the active case number.
In its Report and Recommendation on Reconsideration, the WCJ reiterated that the lien claimant was dismissed for failing to pay the activation fee on the open case ADJ3239580.
The WCAB panel of Commissioners reviewed the parties’ contentions and the WCJ’s recommendation. It concluded that Reconsideration was warranted. The Board panel stated that Labor Code 4906.03(a) [sic] (Board meant to cite LC 4903.06(a) [LC 4903.06(a)]) requires that:
Any lien filed pursuant to subdivision (b) of Section 4903 prior to January 1, 2013, and any cast that was filed as a lien prior to January 1, 2013, shall be subject to a lien activation fee unless the lien claimant provides proof of having paid a filing fee as previously required by former Section 4903.05 as added by Chapter 639 of the Statutes of 2003.
Furthermore, Administrative Director (AD) Rule 10208, subdivision (a) [R 10208(a)] states that:
Any lien filed pursuant to Labor Code section 4903(b) filed prior to January 1,2013, and any cost filed as a lien prior to January 1, 2013, shall be subject to a lien activation fee in the sum of one hundred dollars ($ 100.00), payable to the Division of Workers' Compensation prior to filing a Declaration of Readiness to Proceed for a lien conference by that party, prior to appearing at a lien conference for a case, or on or before January 1, 2014, whichever occurs first. The $100 fee is payment for the activation of a lien. A lien activation fee is required for each lien filed prior to January 1, 2013, and for each cost filed as a lien prior to January 1, 2013; however, where one or more liens or one or more costs filed as lien is filed in one or more cases involving the same injured worker and same service or services by the same lien claimant, only one lien activation fee is required. (Emphasis added by author)
Rather than address whether a formal case dismissal had issued, the WCAB focused instead on Rule 10208(a). The WCAB panel concluded that a lien claimant is required to pay only one (1) lien activation fee in cases where a lien is filed in one or more case numbers involving the same injured worker for the same services by the same lien claimant. The Board’s rational recognizes that one injured worker may have several different dates of injury to the same and/or related body parts. Because separate injuries are based on a time of occurrence calculation, multiple case numbers for the same body part may exist. For the purposes of lien activation, the activation of one case is tantamount to filing a lien in all cases claimed by the injured worker for the body part at issue so long as the related case numbers involve the same injured worker and same service or services by the same lien claimant.
The lien dismissal was reversed and the case remanded back to trial court for additional proceedings consistent with the panel’s decision.
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