ADJ1797208 · September 3, 2021

The lien claimants failed to meet their burden of proof to establish the validity of their liens.

From the decision · page 8It is well-established that lien claimants must prove by a preponderance of the evidence all elements necessary to establish the validity of their lien, before

The lien claimants were given multiple continuances and ample opportunity to properly file their exhibits but failed to do so, resulting in no due process violation and proper exclusion of exhibits.

From the decision · page 1Lien claimants David Silver, M.D., and David Bresler, Ph.D., jointly filed a Petition for Removal and Request for Immediate Stay (Petition for Removal) on June 7, 2021 regarding the workers' compensation administrative law judge (WCJ)'s May 27, 2021 order submitting these matters for decision. Dr. Bresler subsequently filed a Petition for Reconsideration on July 7, 2021 and Dr. Silver filed a Petition for Reconsideration and a Petition for Disqualification on July 8, 2021. We have considered the allegations of the Petition for Removal, the Petitions for Reconsideration, the Petition for Disqualification, and the contents of the WCJ's reports with respect thereto. Based on our review of the record, and because the WCJ issued a decision on June 17, 2021, rendering lien claimants' Petition for Removal moot, we will dismiss the Petition for Removal. For the reasons stated in the WCJ's July 20, 2021 report, which we adopt and incorporate, and for the reasons discussed below, we will deny both Petitions for Reconsideration and the Petition for Disqualification.

The liens filed by Dr. Bresler and Dr. Silver were dismissed by operation of law due to failure to pay the lien activation fee and being filed beyond the statute of limitations, except for Dr. Silver's lien filed on February 1, 2013, which was timely.

From the decision · page 7As per Labor Code § 4903.5, a lien claim shall not be filed after three years from the date the services were provided, nor more than 18 months after the date services were provided, if the services were provided on or after July 1, 2013. The undersigned disagrees with the Petitioner's assertion that the statute only applies for dates of services after July 1, 2013. As per the clear language of the statute, a lien claim shall not be filed after 3 years from the date services were provided, for services provided prior to July 1, 2013. The Petitioners failed to cite authority to the contrary.

Lien claimants failed to properly file their exhibits despite multiple continuances over more than a year.

Favours Defendant prevailed

This failure justified exclusion of exhibits and denial of petitions based on due process grounds.

From the decision · page 2process requires that a party be provided with reasonable notice of the proceedings and an opportunity to be heard. (Katzin v. Workers' Comp. Appeal, Bd. (1992) 5 Cal.App.4th 703, 711§ 712 [57 Cal.Comp.Cases 230].) As stated by the WCJ in the report, lien claimants were given three continuances over the span of one year and four months for the sole purpose of properly filing their exhibits and failed to do so. Based on these circumstances, we are persuaded that more than reasonable notice and an opportunity to be heard was afforded to them and we agree with the WCJ that there is no violation of due process.

Liens filed by Dr. Bresler and Dr. Silver were dismissed by operation of law due to failure to pay activation fees and filing beyond statute of limitations, except Dr. Silver's 2013 lien which was timely.

Favours Defendant prevailed

This legal status barred the liens and supported denial of petitions.

From the decision · page 7In the matter at hand, the last date the service were provided by lien claimant David Bresler Ph.D, L.Ac was May 28, 2002. David Bresler Ph.D, L.Ac offered into evidence their lien dated April 20, 2004, although the undersigned saw no evidence in EAMS that this lien was filed. (Lien Claimant David Bresler Ph.D L.Ac Exhibit 1).

Petitioners failed to meet their burden of proof to establish validity of liens.

Favours Defendant prevailed

Failure to meet burden of proof justified take nothing order on liens.

From the decision · page 9the burden of proof shifts to the defendants. (See Torres v. AJC Sandblasting (2012) 77 CCC 1113, en banc). The Petitioners failed their respective burdens of proof.

Rucker v. Workers' Comp. Appeals Bd. (2000) 82 Cal.App.4th 151

Due process requires reasonable notice and opportunity to be heard.

Lien claimants were given multiple continuances and opportunity to file exhibits, satisfying due process.

From the decision · page 1All parties to a workers' compensation proceeding retain the fundamental right to due process and a fair hearing under both the California and United States Constitutions. (Rucker v. Workers' Comp. Appeals Bd. (2000) 82 Cal.App.4th 151, 157-158 [65 Cal.Comp.Cases 805].) Due

Lab. Code, 5311; Code Civ. Proc., 641; Mackie v. Dyer (1957) 154 Cal.App.2d 395

Grounds for disqualification of WCJ include bias or fixed opinion prior to hearing.

Petition for Disqualification denied as allegations lacked specific facts and no fixed opinion shown.

From the decision · page 2Turning to the Petition for Disqualification, we note that Labor Code section 5311 provides that a party may seek to disqualify a WCJ upon any one or more of the grounds specified in Code of Civil Procedure section 641. (Lab. Code, § 5311; see also Code Civ. Proc., § 641.) Among the grounds for disqualification under section 641 are that the WCJ has "formed or expressed an unqualified opinion or belief as to the merits of the action" (Code Civ. Proc., § 641(f)) or that the WCJ has demonstrated "[t]he existence of a state of mind... evincing enmity against or bias toward either party" (Code Civ. Proc., § 641(g)).

Labor Code 4903.5; Labor Code 4903.06 (a) (1)

Lien claim must be filed within 3 years of service date and activation fee must be paid.

Liens filed beyond 3 years or without activation fee are dismissed by operation of law.

From the decision · page 7As per Labor Code § 4903.5, a lien claim shall not be filed after three years from the date the services were provided, nor more than 18 months after the date services were provided, if the services were provided on or after July 1, 2013. The undersigned disagrees with the Petitioner's assertion that the statute only applies for dates of services after July 1, 2013. As per the clear language of the statute, a lien claim shall not be filed after 3 years from the date services were provided, for services provided prior to July 1, 2013. The Petitioners failed to cite authority to the contrary.

Torres v. AJC Sandblasting (2012) 77 CCC 1113, en banc

Lien claimants bear burden of proof to establish validity of liens.

Petitioners failed to meet burden of proof for liens.

From the decision · page 8It is well-established that lien claimants must prove by a preponderance of the evidence all elements necessary to establish the validity of their lien, before

Lien claimants were given three continuances over one year and four months to properly file their exhibits but failed to do so.

From the decision · page 2process requires that a party be provided with reasonable notice of the proceedings and an opportunity to be heard. (Katzin v. Workers' Comp. Appeal, Bd. (1992) 5 Cal.App.4th 703, 711§ 712 [57 Cal.Comp.Cases 230].) As stated by the WCJ in the report, lien claimants were given three continuances over the span of one year and four months for the sole purpose of properly filing their exhibits and failed to do so. Based on these circumstances, we are persuaded that more than reasonable notice and an opportunity to be heard was afforded to them and we agree with the WCJ that there is no violation of due process.