Lien Resolved via Telephone but Not Paid as Agreed (Californ

[intrepidymb]

Here is a case where I need you to enlighten me. Lien resolved via telephone after not being served with the documents I requested before. The agreement said not to be paid after a certain date or face sanctions by LC4603.2 (b). That date passed without getting paid. Tried to reach adjustor with no response calling and faxing messages. Someone filed a DOR for same case and I took advantage. At that hearing found out thru defense attorney that this check was sent to the wrong address but sent almost 30 days after the time limit. Adjustor on the phone offered about 50% to what the P&I should be in top of the settled amount. I refused. Then defense tells judge they withdraw from agreement. I pushed for a lien trial but the judge advised me that my chances for a clerical error to get P&I are slim. That advice robbed my confidence. Maybe the judge did not listen the part where this check was sent late. I had a change of heart. My request was granted for OTOC and put on the record to serve me with docs. What do you think is my best recourse to prevail? Hungry for your feedback.

[chirple]

Resolved by phone. Did you get an agreement in writing after the phone call? Was it ever approved by the WCJ? Your only chance is if yes to either or both of above.

[mgmlienservice]

I had a pissing fight with a DA over oral contracts. Here's a case I found to be on point.

Webster Surgery Center, Petitioner v. Workers' Compensation Appeals Board, Safeway, Inc., PSI, (Dorin Lee), Respondents (73 CCC 1486)

Applicant sustained an industrial ankle injury ending on 10/22/2001, while working for Defendant Safeway, Inc. As a result of the injury, Applicant underwent right ankle surgery at Webster Surgery Center. Defendant partially paid Webster's facility fee, and Webster filed a lien for the balance of the fee. Subsequently, Defendant's litigation adjuster, [**2] Mr. Owen Curtis, verbally negotiated with Webster's lawyer, Ms. Lisa Ivancich, to settle all outstanding lien claims held by Webster against Defendant. During the negotiations, Mr. Curtis and Ms. Owens agreed that Webster's liens would be resolved for 47.5 percent of the billed amounts, less credit for sums paid. The agreement was memorialized in a letter dated 9/15/2005 from Ms. Ivancich to Mr. Curtis.

A dispute arose over payment of the agreed-upon sum, and the matter proceeded to a trial on the issue of whether there was a valid agreement to resolve Webster's lien. On 4/15/2008, the WCJ issued an F&A, in which she found that the 9/15/2005 letter from Ms. Ivancich to Mr. Curtis formed an enforceable contract entitling Webster to 47.5 percent of the billed amount for services rendered, less payments made by Defendant in the amount of $15,032.78. All other issues were deferred.

Defendant filed a Petition for Reconsideration, contending in relevant portion that the WCJ erred in finding that an oral contract regarding payment of Webster's liens was enforceable. Webster also filed a Petition for Reconsideration, essentially contending that, while it waived interest on amounts [**3] due for the period prior to the contract, it was entitled to interest from the date the contract was made to the present. Webster further contended that the WCJ improperly issued a finding on a deferred issue, i.e., Webster's entitlement to interest.

The WCJ recommended that reconsideration be denied. In her report, the WCJ reiterated the basis for her finding that an enforceable contract was formed, as set forth in her 4/15/2008 Opinion on Decision. First, the WCJ noted, under Code of Civil Procedure § 1624(b)(3)(C), an oral agreement may be binding when written confirmation is sent to a party no later than the fifth business day after the contract is formed, and when the party does not object to confirmation within three business days from receipt of the confirmation. Defendant did not object to Ms. Ivancich's 9/15/2005 letter within three days; therefore, the WCJ found that an enforceable contract was formed. Additionally, the WCJ noted in relevant respects:


" Defendant argues that the contract should not be enforceable because no exact number was agreed upon, because there was no discussion of interest, because there was no description of time or manner of payment, [**4] because there was no discussion of confidentiality and because there was no discussion of the scope of the release. Defendant contends that these items are essential to the formation of a contract. Of all these items, I believe the only essential one is interest. It is true that Ms. Ivancich in her deposition could not recall if she discussed [*1488] interest with Mr. Curtis during the many conversations they had when trying to reach resolution of these liens. At trial, Ms. Ivancich stated that it was her usual custom and practice to waive the interest as an incentive to get defendants to settle these liens. This makes sense and is further corroborated by the September 15, 2005 [sic] that does not ask for interest as part of the settlement.

Furthermore, I do not buy that defendant had insufficient information to determine what 47.5% of the billed amount was. That information had been sent to defendant by lien claimant by fax and letters in June 2005. (See joint exhibit Lien Claimant's Number 12 and Defendant's Number C.) As to the question of whether the contract should fail because of the other items listed above, I conclude that those items were waived when defendant [**5] failed to object to the September 15, 2005 letter within three working days. At most they would be considered conditions subsequent that would not necessarily invalidate the contract.

It must also be remembered that in workers compensation different practices have developed. I have seen thousands of letters from defendants to lien claimants that simply say here is your check for ''x'' dollars payable in full satisfaction of your lien without any accompanying settlement document.

Also, we continually issue orders that leave amounts to be informally adjusted by between [sic] the parties when dealing with issues of medical treatment, self-procured medical treatment, attorney's fees, retroactive temporary disability and liens.

For all the above reasons I conclude that the contract is enforceable."


With regard to Webster's claim that it was entitled to interest from the date of the contract forward, the WCJ pointed out that there was nothing about interest in the letter that formed the contract. Accordingly, the WCJ found that Webster was not entitled to interest.

The WCAB denied reconsideration and adopted and incorporated the WCJ's report, without further [**6] comment on the issues raised.

Webster filed a Petition for Writ of Review, contending in relevant portion that the WCAB erred in refusing to allow interest on the amounts due from Defendant for the period following formation of the contract and forward and/or damages for breach of contract under Civil Code § 3302.

Defendant filed an Answer, substantially contending that Webster was not entitled to post-contract interest or damages for breach of contract, and that Webster waived its right to raise the issue of damages for breach of contract because the issue was not raised in its Petition for Reconsideration. Defendant also requested an award of reasonable attorney's fees under Labor Code § 5801 and costs pursuant to Labor Code § 5811. [*1489]

WRIT DENIED and Defendant's request for attorney's fees and costs DENIED October 2, 2008.

[intrepidymb]

"Resolved by phone. Did you get an agreement in writing after the phone call? Was it ever approved by the WCJ? Your only chance is if yes to either or both of above."

Thanks for your feedback. It helped to be more clear. Yes I did get an agreement in writing and signed by both parties right after the phone call. It was not an agreement approved by the judge.

At a lien conference, the judge saw that agreement in writing but told me I would not get Penalties and Interest just because of a clerical error of sending check to the wrong lien claimant's address even though I mentioned that this payment was sent late according to what the adjuster said over the phone.

The defendant's attorney mentioned to the judge their position is to withdraw from such agreement because I refuse to only accept payment without the penalties and interest by LC 4603.2(b) as it was written on such agreement.

Under these circumstances, do you think the defense has any valid argument to withdraw from the agreement In addition to this, do you think it was a good move to change my mind of not requesting a lien trial so that I require the defense to serve me with AME and settlement document of the case in chief? I am thinking that if I see in the AME or QME report and settlement docs of the CIC a strong argument to back me up to ask for more money for my client I can also withdraw from agreement and go another way. Most likely I think I am going to have to go all the way to a lien trial either way since I am also thinking of filing for sanctions for cost for having to go to so many lien conferences. BTW, I've never done preparation for lien trial, but that would be another good whole other topic to talk about.

[earthwake@aol.com]

Did you stipulate in the agreement where the monies are to be sent too? Or was the W-9 correct? It does not matter if it was a clerical error, that is why there is a time frame on payment some people do 20 to 30 days that is ample time to pay on time to the correct address. Take it to trial and if you don't feel comfortable fighting it email me and I can help you. Good Luck!