Early this month an Appeals Board significant panel decision held that where a lien claim falls within the lien activation fee requirements of Labor Code section 4903.06: (1) the lien activation fee must be paid prior to the commencement of a lien conference, which is the time that the conference is scheduled to begin, not the time when the case is actually called; (2) if the lien claimant fails to pay the lien activation fee prior to the commencement of a lien conference and/or fails to provide proof of payment at the conference, its lien must be dismissed with prejudice; (3) a breach of a defendant’s duty to serve required documents or to engage in settlement negotiations does not excuse a lien claimant’s obligation to pay the lien activation fee; and (4) a notice of intention is not required prior to dismissing a lien with prejudice for failure to pay the lien activation fee or failure to present proof of payment of the lien activation fee at a lien conference.

The facts of the case showed that a lien conference was set for January 9, 2013, at 8:30 a.m. and one of the lien claimants, Orthomed, did not appear at the conference. Because Orthomed did not submit proof of prior timely payment of the lien activation fee, and because the WCJ reviewed the record and determined that the lien activation fee had not in fact been paid, the WCJ dismissed Orthomed’s lien with prejudice, without first issuing a notice of intention. The WCAB sustained the dismissal in a case classified as a significant panel decision.

Significant panel decisions are not binding precedent. Their intent is to augment the body of binding appellate court and en banc decisions. A panel decision will be deemed significant if: (1) it involves an issue of general interest to the workers’ compensation community; and (2) all Appeals Board members review the decision and agree that it is significant. (Elliott v. Workers’ Comp. Appeals Bd. (2010) 182 Cal.App.4th 355, 361, fn. 3 [75 Cal.Comp.Cases 81]; Larch v. Workers’ Comp. Appeals Bd. (1999) 64 Cal.Comp.Cases 1098, 1099-1100 (writ den.).)

To ensure uniform application of the law concerning payment of the lien activation fee and consequences for failure to do so, the Appeals Board voted to grant reconsideration of the April 5 significant panel decision on Board motion (Lab. Code, § 5911; see also §§ 5900(b), 5906, 5315) and the Chairwoman of the Appeals Board, upon a majority vote of its members, reassigned this case to the Appeals Board as a whole for an en banc decision. (Lab. Code, § 115.)

Thus the WCAB sitting en banc rescinded the April 5, 2013 significant panel decision and issue a new en banc decision, Eliezer Figueroa v B.C. Doering Co., Employers Compensation Insurance Co that essentially reiterated the prior result. Now that the decision is en banc, it is binding authority in all trial level cases.