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Thread Title: Lien/Eams ?
Created On Thursday January 29, 2009 10:07 AM


LTDclaimant
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Thursday January 29, 2009 10:07 AM

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I have many legacy cases where I have filed liens with all parties. However, I am now e-filing and would like access to the cases through EAMS.

What I would like to do is to e-file an identical lien serving only the district office through EAMS. The proof of service would only show the district office.

Are there any legal issues I need to contend with?

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davidd
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Thursday January 29, 2009 10:14 AM

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You don't "serve" the district office. You file... You "serve" the parties to the case, and if you don't you violate Reg 10770 and your lien will declared void by the WCJ. Why would you not serve the parties? And, if you previously filed and served liens, then why repeat the action? If you don't believe that your legacy liens are being reflected in EAMS, then refile in EAMS just like you did for your legacy case - with service to all parties. You can't get around service on all parties. There is no exception to 10770. It is mandatory. You file, and you serve. And don't forget your 10770.5 declaration as well, which most lien claimants seem to be ignorant of.

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jonbrissman@verizon.net
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Thursday January 29, 2009 11:06 AM

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David, I cannot find 10770.5 anywhere. Was this something that was proposed but not adopted? Or maybe it was adopted under a difference Regulation number? I appreciate your help.

JCB

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davidd
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Thursday January 29, 2009 11:10 AM

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Regulation: 10770.5
Title: Verification to Filing of Lien Claim or Application by Lien Claimant


(a) Any lien claim or application for adjudication filed under Labor Code section 4903(b) shall have attached to it a verification under penalty of perjury which shall contain a statement specifying in detail the facts establishing that one of the following has occurred:

(1) Sixty days have elapsed since the date of acceptance or rejection of liability for the claim, or the time provided for investigation of liability pursuant to Labor Code section 5402(b) has elapsed, whichever is earlier.


(2) The time provided for payment of medical treatment bills pursuant to Labor Code section 4603.2 has elapsed.


(3) The time provided for payment of medical-legal expenses pursuant to Labor Code section 4622 has elapsed.


(b) In addition, if an application for adjudication is being filed, the verification under penalty of perjury also shall contain:

(1) A statement specifying in detail the facts establishing that venue in the district office being designated is proper pursuant to Labor Code section 5501.5(a)(1) or Labor Code section 5501.5(a)(2); and


(2) A statement specifying in detail the facts establishing that the filing lien claimant has made a diligent search and has determined that no adjudication case number exists for the same injured worker and same date of injury at any district office. A diligent search shall include contacting the injured worker, contacting the employer or carrier, or inquiring at the district office with appropriate venue pursuant to Labor Code section 5501.5(a)(1) or Labor Code section 5501.5(a)(2).


(c) The verification shall be in the following form:

I declare under penalty of perjury under the laws of the State of California that one of the time periods set forth in Rule 10770.5(a) has elapsed and, if an application for adjudication is being filed, that venue is proper as set forth in Rule 10770.5(b) and that I have made a diligent search and have determined that no adjudication case number exists for the same injured worker and the same date of injury. In determining that no adjudication case number exists for the same injured worker and the same date of injury, I have made a diligent search consisting of the following efforts (specify):





_____________________________________________


_____________________________________________


_____________________________________________


s/s __________________ on __________________





Failure to attach the verification or an incorrect verification may be a basis for sanctions.



Note: Authority cited: Sections 133, 5307, 5309 and 5708, Labor Code. Reference: Sections 4903 and 4903.6, Labor Code.


HISTORY

1. New section filed 11-17-2008; operative 11-17-2008. Submitted to OAL for
printing only (Register 2008, No. 47).

8 CCR ᄃ 10770.5, Link to previous search terms8 CA ADC ᄃ 10770.5Link to next search terms
1CAC



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jonbrissman@verizon.net
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Thursday January 29, 2009 2:29 PM

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Thanks, David.

I find it curious that 8 CCR Sect. 10770.5 is not listed on the DIR website for Regulations (http://www.dir.ca.gov/samples/search/querydwc.htm), nor was it published in the 2009 edition of Workers' Compensation Laws of California [LexisNexis]. Maybe the websites will catch up someday?

JCB

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LTDclaimant
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Thursday January 29, 2009 2:38 PM

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My liens are not showing in the files at the district offices. I have "served" all parties and "filed" with the district office prior to EAMS. I arrive at hearings and the lien is not reflected in anything the district office has. So apparently, an additional cost is being imposed upon me as a result of the incompetence, and/or the inability to make the system, that the state has imposed, work. That is why I wanted to know if I could e-file with EAMS alone as all the parties have already been served.

Edited: Thursday January 29, 2009 at 2:45 PM by LTDclaimant

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davidd
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Friday January 30, 2009 4:28 AM

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LTD - the regs are clear and I would not deviate from them. If you are going to FILE then you must also SERVE. You risk violation of 10770 and thus, even if you could prove earlier file and serve, denial of your lien. Penny wise, pound foolish - your call. DWC has also been very clear that even if you filed previously, file a "new" lien regardless of whether you filed before because EAMS won't know what an "amended" lien was. Finally, there is a HUGE backlog - liens are literally being put on shelves at some boards without filing because the paper jam created by OCR filing and elimination of electronic lien filing has been greater than anticipated.

JonB - You can not count on DWC regs website. It is chronically out of date. I don't know about Lexis - they are typically very good at staying up to date (though I like to think that WCC's databases are more current more regularly and more often - and I think they are of course, and in addition are linked to relevant case law, statutes, and our famous Flowchart). The final word is OAL's (Office of Administrative Law) website at http://ccr.oal.ca.gov/linkedslice/default.asp?SP=CCR-1000&Action=Welcome (powered by West's) since nothing is final until it gets approved by OAL, so they get first crack at publication.

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LTDclaimant
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Friday January 30, 2009 9:00 AM

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Thanks.

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