Applicant Eliezer Figueroa , a machine operator, injured his back, neck and psyche. His claim was resolved in 2011 by a Findings, Award and Order. On July 30, 2012, a lien claimant, (not Orthomed), filed a Declaration of Readiness to Proceed requesting a lien conference.
The lien conference was set for January 9, 2013, at 8:30 a.m. 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.
On reconsideration, Orthomed argued that the activation fee is not payable where the defendant has not served supporting documents, thus depriving them of the opportunity to resolve the lien. Orthomed also contends that “the new lien regulations lacks [sic] latitude in allowing certain circumstances that are not just black and white.” The WCAB in the significant panel decision of Eliezer Figueroa v B.C. Doering Co., Employers Compensation Insurance Co. sustained the dismissal of Orthomed’s lien.
Section 4903.06, effective January 1, 2013, provides that with certain exceptions “[a]ny lien filed pursuant to subdivision (b) of Section 4903 prior to January 1, 2013, and any cost that was filed as a lien prior to January 1, 2013, shall be subject to a lien activation fee.” (Lab. Code, § 4903.06(a).) The lien activation fee is $100. (Lab. Code, § 4903.06(a)(1).) A lien claimant that files a DOR must include proof of payment of the fee with the DOR. (Lab. Code, § 4903.06(a)(2).): In relevant part, section 4903.06 further provides: “All lien claimants that did not file the declaration of readiness to proceed and that remain a lien claimant at the time of a lien conference shall submit proof of payment of the activation fee at the lien conference. If the fee has not been paid or no proof of payment is available, the lien shall be dismissed with prejudice.” (Lab. Code, 4903.06(a)(4).)
Administrative Director Rule 10208(a) (Cal. Code Regs., tit. 8, § 10208(a)), which is an emergency regulation that became operative January 1, 2013, provides in relevant part: “Any lien filed pursuant to Labor Code section 4903(b) filed prior to January 1, 2013, and any cost filed as a lien prior to January 1, 2013, shall be subject to a lien activation fee in the sum of one hundred dollars ($100.00), payable to the Division of Workers’ Compensation prior to filing a Declaration of Readiness to Proceed for a lien conference by that party, prior to appearing at a lien conference for a case, or on or before January 1, 2014, whichever occurs first.”
The WCAB interpreted the payment “at the lien conference” language of section 4903.06(a)(4) and the payment “prior to appearing at a lien conference” language of emergency Rule 10208(a) to mean that a 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. Any payment made after the noticed hearing time is not timely. Therefore, the lien of Orthomed was correctly dismissed with prejudice.
The Appeals Board panel 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.