The Death of Liens
From the Desk Of:
Barry A. Saperstein, Esq.
Shareholder Attorney, San Bernardino
Certified Specialist, Workers' Compensation Law,
The State Bar of California, Board of Legal Specialization
I have calendared most of my Lien Conferences after July 1, 2017. In the meantime, I have been receiving tons of Supplemental Liens from various lien claimants. Even regarding liens I have resolved!
The reason is that under Senate Bill 1160's changes to Labor Code section 4903.05, lien claimants, whose liens were filed between 1/01/2013 and 12/31/2016, must adhere to specific requirements under the statute, including the filing of a Supplemental Lien, as follows:
"(a) Every lien claimant shall file its lien with the appeals board in writing upon a form approved by the appeals board. The lien shall be accompanied by a full statement or itemized voucher supporting the lien and justifying the right to reimbursement and proof of service upon the injured worker or, if deceased, upon the worker's dependents, the employer, the insurer, and the respective attorneys or other agents of record."
Basically, if the lien claimant merely filed a lien, without an itemized billing statement or voucher in support of its lien, it has not complied with the statute. I know this may be like Star Wars, where we saw Episodes IV, V & VI, prior to I, II & III, but this is the best order to view the statute:
"(c)(2) Lien claimants shall have until July 1, 2017, to file a declaration pursuant to paragraph (1) for any lien claim filed before January 1, 2017, for expenses pursuant to subdivision (b) of Section 4903 that is subject to a filing fee under this section."
This is why July 1, 2017 is so significant.
"(c)(3) The failure to file a signed declaration under this subdivision shall result in the dismissal of the lien with prejudice by operation of law. Filing of a false declaration shall be grounds for dismissal with prejudice after notice."
This is the good part; if the lien claimants do not file the Supplemental Lien prior to July 1, 2017, then their liens Die, Dismissed by Operation of Law. With prejudice!
Here are the requirements for the Supplemental Lien (Section 8, 4903.05 (c)(1)):
"(c)(1): For liens filed on or after January 1, 2017, any lien claim for expenses under subdivision (b) of Section 4903 that is subject to a filing fee under this section shall be accompanied at the time of filing by a declaration stating, under penalty of perjury, that the dispute is not subject to an independent bill review and independent medical review under Sections 4603.6 and 4610.5, respectively, that the lien claimant satisfies one of the following:
(A) Is the employee's treating physician providing care through a medical provider network.
(B) Is the agreed medical evaluator or qualified medical evaluator.
(C) Has provided treatment authorized by the employer or claims administrator under Section 4610.
(D) Has made a diligent search and determined that the employer does not have a medical provider network in place.
(E) Has documentation that medical treatment has been neglected or unreasonably refused to the employee as provided by Section 4600.
(F) Can show that the expense was incurred for an emergency medical condition, as defined by subdivision (b) of Section 1317.1 of the Health and Safety Code.
(G) Is a certified interpreter rendering services during a medical-legal examination, a copy service providing medical-legal services, or has an expense allowed as a lien under rules adopted by the administrative director."
In the event the lien claimant claims to qualify under one of these qualifiers, and it is determined the lien does not fall under one of these categories, the lien claimant could face sanctions, and the lien may be dismissed. Please note, lien claimants whose liens were filed on 1/01/2017 have their own special rules. The liens must contain the declaration under Labor Code section (c)(1), as well as:
(4903.05 (a)) .....For liens filed on or after January 1, 2017, the lien shall also be accompanied by an original bill in addition to either the full statement or itemized voucher supporting the lien. Medical records shall be filed only if they are relevant to the issues being raised by the lien."
Basically, if the original bills, itemized billing statement or voucher, and declaration are not filed with the lien, then my position is the lien is defective, due to the "Shall" language in the statute. Others opine the lien claimant can correct the defect prior to the statutory period to file their lien ends.
We shall see!