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Replying to Thread: REIMBURSEMENT OF LIEN FILING FEES
Created On Wednesday 22, June, 2005 4:47 PM by CANWETALK


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CANWETALK
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Wednesday June 22, 2005 4:47 PM

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ANY EXPERIENCES, GOOD OR BAD, REGARDING RECOVERING LIEN FILING FEES AT WCAB
IF GOOD, NEED TO KNOW LC CODE.

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Zorro
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Thursday June 23, 2005 7:52 AM

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The provision is in the second paragraph under LC 4603.2(b)(1)(B), but I'm not aware how the pursuit of reimbursements is playing out.

     Z

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ymcgavin@socal.rr.com
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Thursday June 23, 2005 8:00 AM

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Hi Canwetalk,

If the payor refuses to reimburse you the lien filing fee (LC 4903.05) voluntarily, at the same time as settling the outstanding principle balance due, you will need to take the entire matter to trial and seek the principle due, as well as the interest, and if the payor failed to object timely, the statutory increase (commonly called the penalty).

The applicable Labor Code is LC 4603.2(b)(1)(B): "If an employer contests all or part of an itemization, any amount determined payable by the appeals board shall carry interest from the date the amount was due until it is paid. If any contested itemization is determined payable by the appeals board, the defendant shall be ordered to reimburse the provider for any filing fees paid pursuant to Section 4903.05."

If you go to the 'Brief Bank' section here in the WCC forums, you will find a brief I have prepared to assist providers in obtaining the principle due, the statutory increase (if due), the interest, as well as repayment of the lien filing fee.

It is important to note that if you settle the matter with a "stipulation and order to pay lien claimant" that does not include the lien filing fee, you have waived obtaining reimbursement of the lien filing fee. If the payor refuses to reimburse the lien filing fee voluntarily at the same time as settling the entire lien, the lien claimant must take the matter to trial in order to obtain reimbursement of the lien filing fee.

The phrase underlined above, "any amount determined payable by the appeals board" does not include a "stipulation and order to pay lien claimant." The stip and order is an informal resolution between the parties.

Simply put, if you want to obtain reimbursement of the lien filing fee, you will need to take the matter to trial.

As a tactic, at the status (lien) conference, I will offer to waive any increase/interest that may be due, to resolve my outstanding lien at OMFS with a "stipulation and order to pay lien claimant" ----- but only if the lien filing fee is included. If the payor refuses to accept this offer, I will set the matter for trial and seek reimbursement of my charges at OMFS, with the increase/interest, and repayment of the lien filing fee.

The WCJ at the status conference can do much to assist you in resolving this matter. If the payor is admitting that it owes the lien claimant funds, but is unwilling to reimburse the lien filing fee despite the fact you are willing to waive the increase/interest, the WCJ will often browbeat the payor's representative (the DA) into accepting your offer. This is because if you, as the lien claimant, obtain even one penny on the outstanding lien, you are automatically entitled to repayment of the $100.00 lien filing fee.

Interestingly enough, I am representing a lien claimant who was paid for all services, except for two office visits (OVs) necessary to submit a PR-2. The total outstanding amount of the lien is about $121.00. The lien claimant attempted to obtain reimbursement for these two OVs, but the adjuster just dug in her heels and firmly said no. The lien claimant paid the $100.00 filing fee and filed a lien for approximately $121.00. The settlement conferece WCJ was persuaded that the OVs were due to submit a PR-2, particularly in light of the fact that the payor had already paid for a number of previous OVs, necessary to submit a PR-2, on this very same claim. The WCJ informed the DA that if lien claimant prevailed, the payor would be on the hook for the lien filing fee.

The DA does not want to take this matter to trial, and knows that the outcome will be unfavorable for the DA's client ----- but the DA is unable to get the adjuster to budge. This obdurate adjuster may be looking for another job after the lien trial is completed.

Sooo, we are set for trial next month. I have listed as additional issues, bad-faith as outlined in CCR 10109(e), as well as costs and sanctions as outlined in CCR 10561. ("A frivolous bad faith action or tactic is one that is done for an improper motive or is indisputably without merit.") Particularly, due to the small amount due, the payor might just have to pony up more than a thousand dollars over this $121.00 dispute. And, that does not include the DA's fees to the payor.

After prevailing at the lien trial, as I am confident I will, I am going to refer the matter to the DWC's Audit Unit, in a complaint, on the CCR 10109(e) issue. If I am able to obtain costs/sanctions, this will futher bolster my complaint to the Audit Unit. As a result, the payor may just suffer an audit for unfair claims handling practices ----- that very well may be widespread with this payor.

Canwetalk, go to the 'brief bank' here on the WCC forums and download the brief. When you encounter this situation again, come to court with a copy already filled out and serve it on the DA ----- I'll bet that the DA reconsiders and voluntarily reimburses the lien filing fee rather than going to a lien trial.

York McGavin
ymcgavin@socal.rr.com

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Zorro
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Thursday June 23, 2005 8:27 AM

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Sorry for butting in, York, but I thought this was going to go unnoticed. An educated contribution was needed.

By the way, you brought up something that has been on my mind for a few weeks: compensation for bad faith actions or tactics. It would be interesting to see how the approach you suggest plays out, unless you have gone through this before...

     Z

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ymcgavin@socal.rr.com
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Saturday June 25, 2005 10:31 AM

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Hi Zorro,

In your previous post, you asked:

"By the way, you brought up something that has been on my mind for a few weeks: compensation for bad faith actions or tactics. It would be interesting to see how the approach you suggest plays out, unless you have gone through this before..."

First of all, you are not butting in ----- after all, this is a forum where all comments, questions, querys, and answers are welcomed with open arms ------ if done with respect.

Actually, in response to your question, this is the first case I have handled where I see CCR 10109(e) and CCR 10561 / LC 5813 being appropriate issues to litigate. I am set for trial next month and will let you know the outcome.

I consistently, and persistently, file petitions for costs and sanctions (CCR 10561) in factual situations where my company has repeatedly asked to be served with copies of medical reports relating to the claim pursuant to CCR 10608(a), only to have our requests fall on deaf ears ------- and I am not served prior to a MSC, a status (lien) conference, or a trial.

Due to the fact the vast majority of cases settle, and few go to trial, the failure to serve medicals reports relating to the claim is of primary importance when I appear at a status (lien) conference and I am offered less than full value (OMFS) for my lien on the basis my services were not medically necessary per the defendant's report of Dr. Washout.

Consistently, and persistently, I show the DA my numerous prior requests, received via certifed return-receipt mail ------ then get the WCJ to issue a Minute Order for the defendant to serve me with all medical reports relating to the claim, and a continuance to a second status (lien) conference on a certain date in the future.

After receiving the medical reports from the DA, I serve and file a Petition for Costs due to my wasted time spent driving to, appearing at, and returning from, the first aborted status (lien) conference. I have yet to lose one case in this type of factual situation.

However, there have been a multitude of times where the DA appears at the second status (lien) conference, after being served with my Petition for Costs, and the DA then offers to pay my lien in full (OMFS) with repayment of the lien filing fee ------ if I will just withdraw my Petition for Costs. I will usually agree to accept OMFS with repayment of the lien filing fee and withdraw the Petition for Costs. However, I am now ramping up my demands to include the interest as well.

An old adage comes to mind: "He/she/they will not see the light until he/she/they feels the heat."

This is particularly true for the ratained DA. If the Petition for Costs is directed at the retained DA, and the retained DA is ordered to pay costs of $1,000.00 or more, the retained DA can will have to self-report himself/herself to the State Bar ----- and can result in disciplinary action. The failure of the retained DA to self-report costs of $1,000.00 or more assessed against him/her to the State Bar, is by itself, a distinct event that can result in additional disciplinary action.

York McGavin
ymcgavin@socal.rr.com

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Zorro
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Sunday June 26, 2005 3:06 PM

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This was quite educational. Thank you for taking the time, York.

     Z

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haley94
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Thursday July 07, 2005 5:49 PM

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Hi york..how do you get to the "Brief Bank" section of WCC. I would like to see your brief on repayment of liens.

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ymcgavin@socal.rr.com
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Thursday July 07, 2005 7:03 PM

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Haley94,

We are now on the thread titled "war stories." Click on "All Forum's Topics" then scroll down to "Brief Bank" and and click on it. You will find my posting. It is now the second from the top.

York McGavin
ymcgavin@socal.rr.com

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MikeB
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Friday June 23, 2006 7:44 AM

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There are strong rumors that the filing fee will go bye bye July 2006.
It seems that the WCAB has their funding decreased in the amount of the fees they collect.
So they do more work for the same revenue.

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