EX PARTE COMM ON A RECON! NEED SOME ASSISTANCE (California)

The filing and enforcement of liens (different states refer to these with different terms) to secure payment for services or goods against a workers' compensation award is complex and filled with special rules - this category is for questions and discussion of this special area of work comp law.

EX PARTE COMM ON A RECON! NEED SOME ASSISTANCE (California)

Postby FULIENSERVICES on Fri Aug 06, 2010 10:16 am

Good Morning,

Well I got an interesting situation i need some help with.

I may have an ex parte recon that was done on a lien trial by def...I just got a letter today regarding that matter from the court of appeals. I dont want to say that is 100% accurate, I am going to go pull my clients file today, but I think this may be correct.

History - (Details are accurate to the best of my knowledge at this current time until i pull the file back from the client)

applicant stipped on the c&r to receiving "all required MPN notices." The C&R proposal was sent, 5 days later from the POS the order was approved...

I was arguing that that we did not sign the C&R, the def. still needs to meet their burden to provide They complied with the applicable law persuant to Bruce Knight case. Def. provided no exhibits to meet this burden at the time of trial, only objection letters.

Trial proceeded, lien claimants were awarded omfs, p&i to be adjusted by parties, jurisdiction retained by the board. The judge found they had a valid mpn, but allowed liens as there was no evidence the lien claimants were not a part of the mpn. Subsequent discussions in passing were done, however def. paid the omfs awarded...i was calling to settle p&i, no return call and a recon was done. AGain at this time I do not know if my client receive and did not inform me...I am awaiting to confirm this today as If i were informed I would have definitely responded.

I got a mess to clean up, and I do not know where to start.

The board served and answer to the recon and copied me with their recommendation...I requested it by email from counsel and by voice message, but no response was given. Today I receive the Appeals board decision, and it overturned the decision and dismissed the liens. (I would assume this woudl constitute an exparte comm also, as teh board had me listed as a prty to serve notice to, so def. was obligated to serve me also...and i should have responded at the notice of trial judges decision 2 weeks ago when i got it, however I did not...)

Some other facts, decision was made based on the fact it was our burden to prove we were part of the mpn at this point, and that the applicant is responsible for out of network tx (however on the C&R the def. held harmless the applicant from liens)

I want to know if I can still respond since the appeals board decision post appeal decision, or does it have to be a writ. And if thats the case, I do not want there to be bad case law set on this that requires all lien claimants to prove they are part of the mpn in order to get paid (again on this one the applicant stipped on the C&R) .

Any assistance would help...Thanks
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Re: EX PARTE COMM ON A RECON! NEED SOME ASSISTANCE (California)

Postby jonbrissman on Fri Aug 06, 2010 9:18 pm

First, go pull your client's file and ascertain the facts. Your suppositions need to be borne out or discarded. Maybe your client was served and they didn't inform you.

Second, any party aggrieved by a Decision Upon Reconsideration may file a Petition for Reconsideration directly to the WCAB (the trial judge is no longer a party). Note the 20-day time limit (plus five days for mailing time). If that time limit expires and the decision becomes final, you still have 45 days from the date of the decision to file a petition for a writ of review with the Court of Appeal (a licensed attorney must file the writ).

Third, since defendant paid per OMFS, are you only fighting about the increase (penalty) and interest? It is not likely that defendant can obtain restitution on a voluntarily-made payment while reconsideration was pending. Is the fight going to be cost-effective?

Fourth, the indemnity clause (applicant held harmless) means defendant has liability regardless. If payment is denied by the WCAB, the provider files suit in civil court against the patient (L.C. 3751 no longer applies in your circumstances) and defendant must satisfy any judgment rendered. But you are facing a significant amount of time, effort, energy, and expense to obtain the civil judgment and then another ordeal to enforce it.

Yes, you have a mess. Get busy.

JCB
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Re: EX PARTE COMM ON A RECON! NEED SOME ASSISTANCE (California)

Postby ymcgavin@socal.rr.com on Sat Aug 07, 2010 7:50 am

Hi Fulienservices,

In addition to the excellent advice provided you by Jon, I am curious as to whether you served on the defendant, and filed with the WCAB, a letter of representation on behalf of your client. If so, you should have been served with the petition seeking reconsideration from counsel for the defendant. If not, this could be a violation of the rules of practice and procedure that has prejudiced your client --- particularly as you would have been deprived of the opportunity to file a reply to the defendant's petition seeking reconsideration.

Just a thought.

York McGavin
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Re: EX PARTE COMM ON A RECON! NEED SOME ASSISTANCE (California)

Postby FULIENSERVICES on Sat Aug 07, 2010 3:14 pm

The problem with this case is that I had three lien claimants at the lien conf., the others did not give me their files until it was set on lien trial.

I prepared all the liens to submitted, however the Judge would not allow all of them to continue on trial, even though we mutual agreed to proceed on all liens. Our options were to go otoc, or go back to to a lien conf. My opponent had nothing in evidence to support their mpn, I wasnt going to open the door... so I proceeded with the trial.

I have three liens remaining with no payments...correct me if I am wrong...the restitution of these other three liens depends on how this issue resolves. Two of them are surgery centers.

And the notice of Rep...This was not done on the first three liens...although at both trials I gave the defense and the reporter a card. Which I am currently receiving all communications from the board...summary of evidence for both trial setting...I got the judges recommendation to deny the petition for reconsideration (which sparked me to email the def and demand the docs service of the recon). I have several email communications with the defendants pre and post trials. They are now ignoring me. Its obvious I am a party, but no I do not have one.

Regarding the service at my clients office...They said no service of this petition but I wouldnt bet their life on it. If I get an affidavit on that, would that hold weight?

I will be sending one out on all other lien claimants TODAY (notice of representation). I think I will have my hands full for the next week or two.

Mr. Brissman and Mr. Mcgavin your assistance is much appreciated...

Respectfully,

Frank U.
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Re: EX PARTE COMM ON A RECON! NEED SOME ASSISTANCE (California)

Postby jonbrissman on Sat Aug 07, 2010 6:31 pm

Yes, payment for the unsatisfied liens does depend on the outcome of this case.

While you are scrambling around to locate documents, I think you should send a letter to the WCAB Recon Unit, describe the circumstances, and ask for a brief waiver of time to file a petition for reconsideration. I have no idea if they will grant it, if they will respond prior to the expiration of the 20 days, or even if they have the power to extend the deadline. I do think the WCAB is vigilant about respecting the due process rights of litigants, so maybe they will look favorably on your request.

Serve a subpoena duces tecum on defense attorney and demand service of all non-privileged documents. Defendant's petition for reconsideration is not privileged. Be aware that the clock is ticking on your filing date (unless the WCAB grants you an extension).

You should obtain affidavits from your clients addressing whether or not they received defendant's petition for reconsideration. Since attachments are not allowed on recons, you should simply declare in the body of your petition that you now possess such affidavits (and serve defendant with copies thereof).

Maybe defense counsel did something underhanded, maybe not -- you need to nail down the facts.

In retrospect, you should have written the WCAB Recon Unit as soon as you received the WCJ's report and recommendation on reconsideration, therein relating that you were unaware that defendant had filed a petition and asking that it postpone its consideration until you acquired a copy and filed an answer. Further, be rigorous in filing and serving letters of representation as soon as a matter is assigned to you.

JCB
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Re: EX PARTE COMM ON A RECON! NEED SOME ASSISTANCE (California)

Postby Puzzled on Wed Aug 11, 2010 3:41 pm

“[A] licensed attorney must file the writ.”

Jon, any authority behind this assertion?
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Re: EX PARTE COMM ON A RECON! NEED SOME ASSISTANCE (California)

Postby jonbrissman on Wed Aug 11, 2010 6:12 pm

California Rules of Court, Title 8, Section 8.10(3) specifies that for appellate purposes, a party includes an attorney for a that party. There is no provision for a non-attorney representative for a party to file an appeal.

From my law school days, I think I recall that If the appealing party is a natural person, he has standing to appeal. However, an appellant who is a corporation, LLC, or other non-natural-person entity must retain counsel to file. But I have not researched the Rules of Court to confirm my recollection.

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Re: EX PARTE COMM ON A RECON! NEED SOME ASSISTANCE (California)

Postby Puzzled on Wed Aug 11, 2010 7:26 pm

Thank you, Jon.

The reason I ask is that a lien claimant asked me if he could appeal for a writ of review of a case on his own, without an attorney. There is little money involved. I guess it is just on principle or to set a precedent.
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Re: EX PARTE COMM ON A RECON! NEED SOME ASSISTANCE (California)

Postby stewshe on Thu Aug 12, 2010 4:01 pm

Puzzled,

I agree with Jon. Your friend as an individual should be able to file for himself if he is seeking recovery as a person, e.g., sole proprietor. If he is employed by a corporation, perhaps not?

I checked my Work Comp Index and under "Writ of Review," page 977, I found

<<
 • Attorney filing writ must be active member of State Bar of Calif.: FRANCISCO
RODRIGUEZ 61 CCC 894
>>

I went to the case and it concludes:

<<
"The petition for writ of review is dismissed on the ground that a person who is not an active member of the State Bar may not file, on another party's behalf, a petition for writ of review in this court. (Bus. & Prof. Code, §§ 6125[Deering's], 6126[Deering's] Merco Constr. Engineers, Inc. v. Municipal Court (1978) 21 Cal. 3d 724, 729-733, 581 P.2d 636, 147 Cal. Rptr. 631 Clean Air Transport Systems v. San Mateo County Transit Dist. (1988) 198 Cal. App. 3d 576, 578-579, 243 Cal. Rptr. 799 see 2 St. Clair, Cal. Workers' Compensation Law & Practice (4th ed. 1990) Attorneys & Representatives, § 17.1, p.798.) Had the petition been reviewed on the merits, it would have been denied."
>>

Thus, you have to be an attorney AND a member of the Calif. State Bar to file a petition for writ of review for a party.

L.C. §5950 begins, "Any person affected by an order, decision or award..." may file for a writ of review.

Stew
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