Lien Filing SOL (LBO) (California)

[mjpogs]

One of my hearing reps at LBO informed me that one of my liens had to be withdrawn because the WCJ threatened possible sanctions for pursuing a lien that WCJ claimed was past SOL.
The last DOS was in May 2014, and the lien was filed in August 2015, so only 15 months have past and we were within SOL to file the lien.
The WCJ had issue with the lien being filed only 1 week before the Lien Conf and cited the following:

4903.5 (c) The injured worker shall not be liable for any underlying obligation if a lien claim has not been filed and served within the allowable period.

Saying since the lien was only filed 1 week before the Lien Conf there was not adequate time for the lien to be served, thus past SOL.

Is this really going on in LBO?
Can the WCJ really sanction us for pursuing this lien, and are these grounds valid?
Are there any Judge's Decisions on this issue?

[LawAdvocate]

Sure, they can.

The en banc decision in Torres v. ACJ Sandblasting stated:

“(1) Labor Code sections 3202.5 and 57052 mandate that a lien claimant must prove by a preponderance of the evidence all elements necessary to establish the validity of their lien before the burden of proof shifts to the defendant. Keifer and Garcia, insofar as they held that a lien claimant can establish a prima facie right to recovery simply by introducing a billing statement showing that services were provided to a worker in connection with a claimed injury, have been nullified by sections 3202.5 and 5705 and subsequent case law.

(2) Proceeding to trial without any evidence or with evidence that is utterly incapable of meeting its burden of proof is frivolous and constitutes bad faith within the meaning of section 5813 justifying an award of sanctions, attorney’s fees and costs against the party or lien claimant, its attorney(s) or hearing representative(s), individually or jointly and severally.”

The Torres decision also contains statements outlining the fact that lien claimants repeatedly waste calendar time with frivolous arguments. In pertinent part:

While this decision does not annunciate any new legal principles, we deem it necessary to act en banc because of a number of lien claimants who persist in disregarding existing law as to their burden of proof and repeatedly proceed to trial on lien claims that are so lacking in evidentiary support and/or presented with such a total disregard of existing law as to be frivolous. These lien claimants overburden the system, waste the limited resources of the Workers’ Compensation Appeals Board (WCAB) and squander valuable calendar time, which otherwise could be used to address the claims of injured workers.

Torres clearly outlines the codified principle that lien claimants have the burden of proof on all elements of their claim. Statute of limitations is therefore a threshold issue, if you can't sustain your burden of proof your risk costs and sanctions.

[LawAdvocate]

But as an aside, if your time line is correct and your last date of service was May 2014, you had until November 2015 to file the lien, so I would not have withdrawn.

[steve appell]

The only SOL 5 day time line I am aware of is service of the Notice of Representation, not service of the lien itself.

[LawAdvocate]

However the notice of representation can be served by hand as well on the day of the lien conference.

[mytwocents]

I believe the statute of limitation is an affirmative defense and thus the defendant has the burden of proof, not the lien claimant. A few years ago, the WCAB issued a panel decision in a case called Kindelberger in which they expressed the opinion that the last date of treatment is the controlling date for the SOL. In this case, the Board noted that treatment had been continuous without interruption over a 12 year period and that therefore, it was reasonable to assume that the language of the statute, "the date the services were provided," meant the last date of treatment. Otherwise, there would be a separate SOL for every individual treatment date. This makes sense as long as it was a continuous course of treatment. In your case, if, for example, treatment ended in 2010 and the provider performed some service in May 2014 for which it generated a bill, for the sole purpose of getting around the SOL, I don't think the Kindelberger doctrine would apply. However, if May 2014 truly marked the end of active and continuous treatment, the provider would still have time to file a lien within the SOL.

[lacompfun]

What was the service? Treatment, photocopy etc..

[rosellavera]

How can a lien claimant file a petition to have their lien paid if the case in chief is still pending?I thought that a lien claimant is technically not a "party" to a workers' compensation case until the underlying case in chief was resolved.