Most Liens Now Dismissed if the Activation Fee is Unpaid
Assuming the Supreme Court of the United States does not grant the petition for certiorari filed by the plaintiffs in Angelotti, another portion of SB863 is will have a final effect. Beginning November 9, 2015, lien claimants who filed liens prior to January 1, 2013, had the opportunity to pay the lien activation fees owed per Labor Code section 4903.06 before the end of the year. The DWC is no longer accepting lien activation fees for liens filed before January 1, 2013.
A few reminders:
- All of the liens are dismissed by operation of law if no lien activation fee was paid before midnight on December 31, 2015.
- Medical-legal providers and interpreters who filed liens must have paid their activation fee even though now they can file for reimbursement as a cost.
- All lien claimants must include proof of payment of a lien activation fee
- Not all liens are dismissed. Only medical treatment expenses were subject to the lien activation fee. Also, other lien claimants are exempt from the filing fee. This means liens that are not dismissed include:
- Attorney fee liens
- EDD liens
- Child support liens
- Living expenses liens
- Burial expenses liens
- Liens of a Health care service plan under Health and Safety Code section 1349
- Liens of a Group disability insurer under Insurance Code, section 10270.5
- Liens of a Self-insured employee welfare benefit plan under Insurance Code section 10121
- Liens of a Taft-Hartley health and welfare fund
- Liens of a Publicly funded program providing medical benefits on a nonindustrial basis.
If you are dealing with a lien claimant who is a health plan or health insurance provider, they may be exempt from the lien activation fee. If it is not a medical lien, they were not required to pay the activation fee, and their lien will not be dismissed.
Bottom line (assuming the Supreme Court of the United States does not act):
- All liens filed before January 1, 2013 are dismissed by operation of law if no lien activation fee was paid before midnight on December 31, 2015.
On October 28, 2015, the California Court of Appeal issued a decision in Batten v. Workers’ Compensation Appeals Board (Long Beach Memorial Hospital), again reminding the workers’ compensation community that statutes which are plainly stated must be followed.
In affirming the WCAB, the Court of Appeal held an injured worker may not obtain a report to rebut a panel QME from anyone other than a primary treating physician . In the Batten case, an injured worker obtained a medical report from her own qualified medical expert even though there was a panel QME in the case; she did this after the workers’ compensation administrative law judge authorized her to do so. The injured worker argued it was admissible under Labor Code section 4063 which notes “all comprehensive medical evaluations obtained by any party shall be admissible in any proceeding before the appeals board except as provided in Section 4060, 4061, 4062, 4062.1, or 4062.2.”
The QME found there was not sufficient causation for the claimed psyche injury while the “hired gun” medical expert determined it was industrial. The Court of Appeal emphasized that medical evaluations to determine compensability or resolve disputes must be obtained pursuant to Labor Code section 4062.2. The Court of Appeal also emphasizes reports regarding permanent impairment may be admissible from a primary treating physician, while all other privately retained expert reports are not admissible. The Court of Appeal further agreed with the WCAB that Labor Code section 4605 allowing a “consulting doctor” to provide an opinion is limited to medical treatment issues, not medical-legal issues to try to rebut a panel QME.
This is another case where the Court of Appeal highlights that the language in the statutes or in their decision really is what the legislature or the court meant. While Labor Code section 3202 provides the law should be construed liberally with the purpose of extending benefits for injured workers, it does not mean the words should be ignored. In this case, a legislative rule expressly declares such evidence to be inadmissible. Consequently, “there is no ambiguity to clarify, there is nothing to construe, there is only the obligation to follow the statutory law.”
On September 21, 2015, the Court of Appeal issued this unpublished decision regarding the 1997 rating schedule. In essence, the Court of Appeal made two important findings:
- A “sheltered workplace” or working primarily from home does not automatically result in a 100% permanent disability rating
- Once an injured worker proves that he or she can only work from home, the employer has the burden to show the injured worker’s ability to compete in the open labor market.
The first finding makes sense and is a case of the Court of Appeal accepting that we are in the “information age” (as the court puts it). Eloquently put, the court notes the ability of a person to use a computer and the internet “has rendered obsolete the DEU rater’s view that having to work from home necessarily results in 100% permanent disability.” (slip opinion at p. 7).
The second finding is more important and potentially something which can be used in other cases. The Court of Appeal comes to the conclusion that an employer must show job availability if an injured worker is limited to working at home by analogizing to the “odd lot” doctrine. The odd lot doctrine is, essentially, when an injured worker has work restrictions (temporary partial disability).
At that point, the employer must show there is work available that the injured worker can perform. If there are only “special” light jobs, and they cannot be obtained, then temporary disability benefits must be paid. The Court of Appeal calls this the “odder lot” due to the limitation to work only at home.
As for the actual case, the Appeals Board still has to address if the evidence supported a finding of 100%, given its initial erroneous opinion with the “sheltered workplace” meaning a 100% rating automatically.
Applicability to other cases
Here, the idea is the employer can rebut the 100% finding with, presumably, vocational expert reporting. If the injured worker claims they are 100% disabled (or a medical report or even possibly a vocational report) then an employer’s vocational expert can seek to find some “odd lots” the injured worker can do. Whether a trial judge will agree it is reasonable, of course, is a different matter.
A vocational report must do two things to rebut the finding: (1) establish that there are available jobs; and (2) establish the injured worker’s ability to compete for those jobs. The latter is the more difficult but essential part of the vocational expert opinion. Medical opinions may delineate restrictions in addition to permanent disability values (if they don’t, make sure to depose the physician to have some restrictions stated, even if minimal, to get you something to work with). The issue of “variable ability” may be a factor, e.g., an injured worker can work for a restricted amount of time or perform certain tasks for a limited amount of time, which a vocational expert should address as well.
For assistance or additional questions regarding this or any matter, please reach out to any of our Shareholders.
A copy of the opinion is available at http://www.courts.ca.gov/opinions/nonpub/C077512.PDF
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