Recently stricter limitations have been put on lien claimants in order for a lien claimant to collect expenses in a workers’ compensation case. One such limitation is that the statute of limitations to file a lien with the Workers’ Compensation Appeals Board was reduced from three years from the date services were provided to 18 months from the date services were provided, if the services were provided after July 1, 2013 per Labor Code Section 4903.5(a). What remains unsettled is which statute of limitation would apply in a situation where some services were provided by the lien claimant before July 1, 2013, when the three year statute of limitation would apply, and some services were provided after July 1, 2013, when the 18 month statute of limitations would apply.

The argument from lien claimants continues to be that the three year statute of limitations should apply since not all of the services were provided after the July 1, 2013 cut off. Lien claimants also rely on a finding in Kindelberger v. City of Los Angeles, 2013 Cal. Wrk. Comp. P.D. LEXIS 209 that would seem to allow the three year statute of limitation in the above situation if the services were continuous, as the court found that the last date of service was to be used for statute of limitation purposes. However, multiple recent panel decisions disagree, and have found that applying the 18 month statute of limitations is not unreasonable when services are provided both before and after July 1, 2013, and denied lien claimant’s petition for reconsideration in the defendant’s favor.

The four panel decisions of Miranda v. El Super Market (2016) Cal. Wrk. Comp. P.D. LEXIS 434 (Miranda), Escamilla v. Pelican Products, Inc., (2016) Cal. Wrk. Comp. P.D. LEXIS 451 (Escamilla), Guerrero v. Easy Staffing, (2016) Cal. Wrk. Comp. P.D. LEXIS 123 (Guerrero), and Gladys Paz, v. Tech Flex, (2016) Cal. Wrk. Comp. P.D. LEXIS 464 (Paz) bared lien claims for failing to conform to the 18 month statute of limitations per Labor Code Section 4903.5(a). These panel decision have not been labeled as “significant panel decisions” which means they are persuasive authority rather than binding authority. However, it is promising that these panel decisions seem to be taking a more strict interpretation of the statute of limitations for lien claimants, as this is favorable for defense counsel when litigating liens in a Workers’ Compensation Case.

The facts surrounding these various panel decisions vary slightly, but in essence all the lien claimants provided services continuously both before and after July 1, 2013 and then did not file a lien within 18 months after the last date of service. The lien claimants argued that the three year statute of limitations applied, rather than the 18 month statute of limitations since some services were provided before the cut off of July 1, 2013. The panel decisions of Paz, Escamilla, Miranda, and Guerrero all found that applying the 18 month statute of limitation was not unreasonable because the amendments to the statute of limitation became effective on January 1, 2013, thus there was a reasonable time within which to timely file a lien within 18 months after the last date services were provided.

The court notes the case of Coachella Valley Mosquito & Vector Control Dist. V. California Public Employment Relations Bd. (2005) 35 Cal.4th 1072, 1091-1092 as authority for applying a shortened time period for a cause of action to be filed when the party has a reasonable time within which to timely file its claim. This same reasoning has been applied by the Workers’ Compensation Appeals Board regarding the expiration of the right of vocational rehabilitation, as the repeal was noted to occur in the future, giving employees a reasonable time to avail themselves of vocational rehabilitation before the repeal would become effective (Weiner v. Ralphs Company (2009) 74 Cal. Comp. Cases 736).

In Escamilla the court noted that in the case of Archibald et. Al. V. RCD Painting et. Al. (Access Mediquip) (2014) Cal. Wrk. Comp. P.D. LEXIS 587, the court expressed that they do not believe the legislature intended to create two alternative statutes of limitations for the exact same services. Similarly, in the case of Guerrero the panel found that the lien claim was barred by the 18 month statute of limitations even though some of the services were provided before July 1, 2013, and some of the services were provided after July 1, 2013. In Guerrero the panel found that the lien claimant had sufficient time to file its lien as sufficient time had passed since the enactment of the new limitations period. The lien claimant’s petition for reconsideration was denied in the defendant’s favor in Guerrero. The same reasoning and the same results occurred in the panel decisions of Paz, Escamilla, and Miranda.

The take away: continuous service does not necessarily give the lien claimant the ability to choose between the three year statute of limitation and the 18 month statute of limitation when some of the services fall both before and after the date of July 1, 2013, as noted in Labor Code Section 4903.5(a). The argument can be made that the lien claimant had sufficient time to file its lien within the 18 month statute of limitation despite some services being performed prior to July 1, 2013. Thus, if the lien claimant failed to file its lien within 18 months of the last date of service it could be argued that the lien claim is barred, and the four panel decisions of Guerrero, Paz, Escamilla, and Miranda can be utilized as persuasive authority for this argument.