A recent WCAB En Banc decision held that lien claimants who filed lien declarations prior to the close of business at 5:00 p.m. on Monday, July 3, 2017, for liens filed prior to January 1, 2017, were timely.
By way of history, Senate Bill 1160 amended Labor Code Section 4903.05 to add subsection (c) which is known as the declaration requirement, became effective on January 1, 2017. Labor Code Section 4903.05(c)(1) holds that liens filed on or after January 1, 2017, for medical treatment or medical-legal expenses must be accompanied with a declaration at the time of the filing of the lien. Pursuant to Labor Code Section 4903.05(c)(2), lien claimants who had filed liens prior to January 1, 2017, had until July 1, 2017, to file their declarations. Labor Code Section 4903.05(c)(3) states a failure to file the declaration shall result in the dismissal of the lien with prejudice by operation of law.
As July 1, 2017, fell on a Saturday, many lien claimants filed their declarations on Monday, July 3, 2017. In August 2017, the Division of Workers’ Compensation (DWC) announced that it was dismissing 292,000 liens pursuant to section 4903.05(c) and posted a searchable database of liens dismissed by operation of law.
In response to having their liens dismissed, multiple lien claimants filed Petitions for Reconsideration challenging the action of the DWC in dismissing their liens alleging that their 4903.05(c) declarations were timely. On October 3, 2017, the DWC reversed the dismissal of all section 4903.05(c) declarations filed between July 1, 2017, and July 3, 2017. The DWC noted that the workers’ compensation administrative law judges would adjudicate the timeliness of the liens on a case-by-case basis.
The Appeals Board issued an En Banc decision, Jose Guillermina Rodriguez v. Garden Planting Co., 82 Cal. Comp. Cas. 1390, on October 26, 2017, addressing the Petitions for Reconsideration filed by the lien claimants. The Appeals Board held that the Petitions for Reconsideration were moot as the DWC removed the notations of dismissal. The Appeals Board did not provide a decision regarding the issue of timeliness of the declarations filed by the lien claimants, noting that a party may raise the issue of timeliness and proceed to a hearing on the issue. The Appeals Board also held that lien claimants were not barred from proceeding on their lien without a finding that their declaration was untimely.
On March 22, 2018, the Appeals Board issued an En Banc decision, Pedro Hernandez v. Henkel Loctite Co.; Zurich American Ins. Co., 83 Cal. Comp. Cases 698, addressing the timeliness of declarations filed by lien claimants who filed liens prior to January 1, 2017. A workers’ compensation administrative law judge (WCJ) issued a Finding of Fact on the issue of whether Monrovia Memorial Hospital was in compliance with Labor Code Section 4903.05. Monrovia Memorial Hospital filed their lien on May 29, 2013. On July 3, 2017, at 8:00 a.m. Monrovia Memorial Medical filed its Supplemental Lien Form and Section 4903.05(c) Declaration. The WCJ found that the lien claimant was not barred from proceeding with their lien due to a dismissal notation in the Electronic Adjudication Management System (EAMS) pursuant to Rodriguez. Additionally, the WCJ found that the lien claimant had until the close of business at 5:00 p.m. on Monday, July 3, 2017, to file a lien declaration pursuant to Labor Code Section 4903.05.
The Appeals Board in Hernandez confirmed that the lien claimant’s lien falls within the holding of Rodriguez as the supplemental lien form and declaration were filed on July 3, 2017. Therefore, the lien claimant was entitled to proceed to trial. The Appeals Board ruled that the declaration filed by Monrovia Memorial Hospital on July 3, 2017, was timely as July 1, 2017, fell on a Saturday. The Board noted the general long-standing rule that when the last day to perform a task required by any workers’ compensation statute falls on a weekend or holiday, the task may be performed prior to 5:00 p.m. the next business day.
This decision determines that Labor Code Section 4903.05(c) declarations for liens filed prior to January 1, 2017, are timely if filed prior to the close of business at 5:00 p.m. on Monday, July 3, 2017. Practitioners should be prepared to present other defenses in order to disqualify the lien or reduce the lien amount.
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