Authorities as the decision cited them, with how this panel applied each one.
Labor Code 4903.5(a)
Labor Code 4903.5(a) - lien claim filing deadlines
Western's lien claim was untimely filed beyond the statutory deadline, barring the lien claim.
From the decision · page 5The first issue turns on Western's filing of its "copy service lien" on August 26, 2015. Labor Code
§ 4903.5(a) provides that "[a] lien claim for expenses as provided in subdivision (b) of Section 4903
Title 8, California Code of Regulations 10451.1
Title 8, California Code of Regulations 10451.1 - Petition for Determination procedure
Western could have filed a Petition for Determination timely but chose to file a lien instead; filing both is impermissible.
From the decision · page 6Western could have filed a Petition for Determination pursuant to former Title 8, California Code
of Regulations § 10451.1. That section became operative on October 23, 2013 and was in effect
when Western provided its services in 2014. Western, however, opted to subsequently file a lien on
August 26, 2015 and pursue its balance in that fashion. Having reached no agreement, the defendant
filed a DOR on October 9, 2015. Further emails were exchanged that did not result in an agreement.
The defendant maintained its position that Western's services were time-barred in its January 20,
2016 Petition for Order Taking Off-Calendar the Lien Conference, to which Western failed to
object, respond, or answer. At the time of the March 2, 2016 lien conference, Western also failed
to appear, and the defendant's motion to take the matter off calendar was granted. Of note is that
Western's Points and Authorities submitted post-trial, on page four, lines six to eight "...concedes
that this is true and that its lien was filed past the statute of limitations for lien filing which
concluded on 08/12/2015...". Furthermore, Western's Petition for Reconsideration does not argue
to the contrary.
Title 8, California Code of Regulations 10786
Title 8, California Code of Regulations 10786 - amended regulation removing dual-track option
The amended regulation removed language allowing filing both lien and Petition for Determination, effective January 1, 2020, barring Western's petition.
From the decision · page 6Western directs the court to former Reg. § 10451.1(c)(3)(D) and the renumbered and rewritten Reg.
§ 10786. The former section provides that "[a] medical-legal provider is not required to file a claim
of costs in the form of a lien in conjunction with the petition or DOR [but] if the provider elects to
file such a lien, it must pay a lien filing fee, if applicable." The latter section contains no such
verbiage. Western's position is that the former section allowed it to pursue both a lien claim and a
Petition, and the fact that their lien is time-barred is irrelevant because its instant Petition is
permissible. The rationale is flawed for two reasons. First, the fact that the Regulation was amended
reflects the administrator's desire to resolve an ambiguity, i.e. the appearance that a provider can
file both a lien and a Petition for Determination. In no way is it reasonable to believe that providers
should be able to adjudicate their medical-legal expenses twice. It would serve to double the amount
of workload on the workers' compensation system and would render the theory of res judicata
meaningless. Secondly, and equally as important, Reg. § 10786 was operative on January 1, 2020.
Western's Petition for Determination is dated November 27, 2020. It is similarly unreasonable for
Martinez v. Terrazas (2013) 78 CCC 444
Martinez v. Terrazas (2013) 78 CCC 444 - en banc decision on lien activation fee and petition for costs
The Board held that providers cannot avoid lien activation fees by withdrawing liens and filing petitions; public policy bars dual recovery and lien abuse.
From the decision · page 7By way of analogy, the en banc decision of Martinez v. Terrazas (2013) 78 CCC 444 provides
insight. In that case the WCAB was presented with an issue as to whether a photocopy provider
could avoid paying the lien activation fee by withdrawing its lien and filing a petition for costs. The
Board, in a unanimous decision, held that it was improper for the provider to do so, and it delved
into a thorough discussion supporting its decision that is relevant to the matter herein.