WCAB Sanctioning Lien Claimants for Questionable Activities
As almost everybody in the workers’ compensation system knows, lien claimants are becoming a significant part of the case management and litigation activities. The Workers’ Compensation Appeals Board has acknowledged that their calendars are crowded by Lien Conferences and appearances dealing almost solely with liens. It is not uncommon now to see cases where the case is settled in chief and you’re left with a dozen or more lien claimants to handle.
The more aggressive defense of the MPN list has led to a tremendous amount of self-procured medical expenses which are being contested by defendants. The WCAB is also getting on board with this as I have seen several instances now of the Court not only dismissing the lien claims but awarding sanctions to the defendant for lien claimants who do not properly pursue their lien claims.
A recent case, Campos v. Zurich North American cited in 40 CWCR 45, highlights some of the Board’s actions. The actions in this case appear to me to be fairly typical of a lot of lien claimants and the Courts appear to be moving forward to try and clear their calendars.
In the case of Campos v. Zurich North American, ADJ2989434, the Board properly dismissed an interpreter’s lien claim and imposed sanctions. They stated that the sanctionable conduct included bringing a claim that is indisputably without merit and making arguments that were not warranted under existing law. Furthermore, the Court noted that the applicant had not one but two opportunities to be heard in this case and did not present any evidence to support their lien other than a billing statement. Therefore, after Trial, the WCJ filed a Finding and Order disallowing the lien and imposing a sanction of $2,500.00 plus a share of the defendant’s costs. A WCAB panel upheld the Judge’s decision.
As we see locally, there are many times when a lien claimant does not show up for the MSC indicating that they “have a conflict” or a “shortage of staff” and are available by telephone. I do not believe that necessarily excuses them from presenting their evidence in the case and a lot of times the defendants can go ahead and fill out the Pre-Trial Conference statement listing their evidence and getting a Trial date. If the lien claimant does not properly notice their evidence and the case does get to Trial, they have no evidence to support for the Trial and then pursuing that Trial then becomes a sanctionable event, in my opinion.
I have seen in certain case reporting that the Workers’ Compensation Appeals Board has lost patience with these serial lien claimants who are doing nothing but showing up and expecting to extract a settlement simply by showing that there is a bill out there. If the defendants work their case properly including documenting the MPN list, their objections and having all of the evidence ready to go, these claims can not only be defeated but sanctions for unreasonable activity can be obtained.
What we can learn from this recent decision is that if you are prepared and willing to go forward in these cases, not only can you get the lien dismissed in its entirety but you might recover sanctions and/or costs for your efforts in doing so. Hopefully this trend will continue and the repeated defeats of their liens will help solve the medical bill issues that seem to perpetuate in the workers’ compensation system.