RE: GEORGE THE BARTENDER AND THE AND VALENTINE’S DAY LET DOWN OR IT TAKES TWO PARTIES TO TANGO AND RESOLVE LIENS1
FROM THE LOBBY BAR AT THE HYATT:
After a long day at the board I found myself enjoying my favorite Belgian beer at the Lobby Bar, along with your friend and mine, Joe Truce. As we sat there talking shop noted defense attorney Frank Falls arrived, looking a bit disheveled and vexed.
He pulled up a stool next to us and I motioned to George to get Frank a drink. I then asked Frank what was the matter. He explained that he had two problems. The first is that he had not heard from Kim, the breathtakingly beautiful cocktail waitress, for going on two weeks now after having taken her on a lunch date for Valentine’s Day.
Secondly, he was worried that two lien conferences he had the next morning would not resolve as quickly as he had hoped, resulting in an increase in legal fees charged to one of his clients. Previously the judge issued a Notice of Intent to Dismiss the last lien in each case but the lien claimants objected, arguing that Frank was required to call them from the WCAB and that he failed to do so. Frank wasn’t optimistic about a favorable outcome of the conferences in light of his misstep.
Joe looked Frank in the eyes and said, “It takes two parties in court. And in love. You may have struck out with Kim but I think my friend Mark here can help you with your cases.”
I explained to Frank that prior to his arrival Joe and I were discussing a similar situation I had faced with a lien claimant last year, the June 18, 2019 non-published panel decision Rosa Renteria v. Los Angeles Unified School District(ADJ3025610/ADJ2399189/ADJ616704/ADJ2590395).2 I pulled up a copy on my handy tablet and showed it to Frank.
The Judge in this case issued a Notice of Intent to Dismiss for the lien claimant’s failure to appear at a lien conference. The lien claimant filed a Petition for Reconsideration, indicating their failure to appear was due to a calendar error and that lien claimant believed defendant had “an obligation to contact the Lien Claimant or its representative office to attempt settlement, rather than request a Notice of Intent to Dismiss its Lien” at the lien conference.
I told Frank that the Panel upheld the dismissal of the lien for failure to appear at the lien conference, stating:
Pursuant to former WCAB Rule 10562, when a lien claimant fails to appear for a lien conference, the WCJ may: “(1) dismiss the lien claim after issuing a ten (10) day notice of intention to dismiss with or without prejudice….” (Cal. Code Regs, tit. 8, Section 10562.) … Furthermore, lien claimant’s argument that defendant has an obligation to contact lien claimant to pursue settlement, rather than seek dismissal, is unpersuasive and fails to establish good cause for its failure to appear at lien conference.
Ultimately, the lien claimant failed to demonstrate good cause for relief and the Panel upheld the WCJ’s decision to dismiss the lien for failure to appear and denied reconsideration. I told Frank that he should argue to the court that it’s not his obligation to call the lien claimant if they fail to appear. The lien claimant has an obligation to appear at a duly noticed lien conference or lien trial or in unforeseen circumstances notify the parties and the court why they failed to appear.
Joe cautioned however that we didn’t want to forget the recent update to the California Code of Regulations, as the regulation number I had cited in my argument had changed. However, the basic requirement for lien claimants to appear at lien conferences did not. He told Frank that he should utilize Title 8, California Code of Regulations, Chapter 4.5, Subchapter 2, Workers’ Compensation Appeals Board–Rules of Practice and Procedure, Article 18, §10888 which deals with the resolution of liens.
Joe also pointed out that in addition to §10562 being replaced by §10888, another noteworthy change was made to §10563 and §10563.1, which were repealed and replaced with §10752 which regulates required appearances. The change meant that there was no longer the requirement for a lien claimant to appear in person for case-in-chief mandatory settlement conferences and trials, however, they are required to appear at lien conferences pursuant to §10888. Finally, Joe added that for remaining lien claimants that appear at lien conferences a Judge may proceed to submit those liens for decision at the lien conference if the Pre-Trial Conference Statement does not identify witnesses listed.
Our dissertation on liens completed, Frank was partially relieved and showed his gratitude by ordering us a round of drinks. We were only sorry that we couldn’t mend his broken heart.
All characters at the Lobby Bar aside from Joe, George, Kim and I are fictional and the storyline is simply a product of my lively imagination.
While Renteria lacks the designation “significant panel decision,” Joe always liked to remind me of one of his favorite portions of the Labor Code, subtitled “Specific Additional Evidence Allowed,” §5703 (g) which states in relevant part as follows:
The appeals board may receive as evidence either at or subsequent to a hearing, and use as proof of any fact in dispute, the following matters, in addition to sworn testimony presented in open hearing: … (g) Excerpts from expert testimony received by the appeals board upon similar issues of scientific fact in other cases and the prior decisions of the appeals board upon similar issues. (emphasis added)
He would also draw our attention to California Evidence Code §452(d), which provides that judicial notice may be taken of “Records of (1) any court of this state or (2) any court of record of the United States or of any state of the United States.”
The Workers’ Compensation Appeals Board’s Rules of Practice and Procedure have changed as of January 1, 2020. The changes can be viewed here:
I would encourage everybody to give them a good reading as there are many more changes than the ones we highlight here.
Make mine a double, George.
1 For those new patrons to the Lobby Bar, George the Bartender’s workers’ compensation case involves an injury to his elbow, epicondylitis (tennis elbow), sustained from the repetitive serving of martinis to Joe Truce. If there ever was an admitted industrial injury, this is it!
2 A copy of Renteria can be obtained via email request.