ymcgavin@socal.rr.com
Senior Member
Posts: 1351
Joined: Jun 2002
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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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Hi york..how do you get to the "Brief Bank" section of WCC. I would like to see your brief on repayment of liens.
