February 6, 1995
New WCAB Policy on Resolution of Liens
The Division of Workers' Compensation/Workers' Compensation Appeals Board has added a new section to its Policy and Procedure Manual requiring Workers' Compensation Judges to make every effort to resolve medical-legal and medical treatment liens without resort to separate proceedings.
Except for good cause demonstrated by extra-ordinary circumstances, the new policy requires that lien issues be resolved at the same time as the other issues raised in the case-in-chief. While the Workers' Compensation Judge may provide that the amount of the lien is subject to adjustment, a decision must be made on the substantive contentions concerning allowance or disallowance, including whether medical treatment is reasonably required to cure and relieve the effects of an industrial injury and the reasonableness and necessity for medical-legal costs.
Mandatory Settlement Conferences
Before the Mandatory Settlement Conference or pre-trial conference, the assigned Workers' Compensation Judge is required to review the file and the EDEX system and determine what liens have been filed. At the
Mandatory Settlement Conference, the Workers' Compensation Judge must determine the existence of medical-legal and medical treatment lien claimants and encourage the resolution of all lien issues involving all know lien claimants. If the lien issues cannot be resolved, the issues or contentions must be documented on the pre-trial conference statement. In addition, the Workers' Compensation Judge must ascertain whether appropriate documents have been served on lien claimants and, if not, instruct the parties to do so in a timely manner so that further delay will not occur at the hearing.
If the lien claimant or lien claimants are not present at the conference, the Workers' Compensation Judge is to direct the parties to make contact with the lien claimant(s) by telephone to resolve the disputed liens. Lien claimants are encouraged to have a person available by telephone with authority to discuss and resolve liens. When the case-in-chief is set over for hearing and the lien issues remain unresolved, the Workers' Compensation Judge provides for service of notice of the hearing on all lien claimants.
Settlement of the case-in-chief by compromise and release or stipulation with request for award at a Mandatory Settlement Conference without resolution of the lien issues is permitted only when the Workers' Compensation Judge determines that the parties have demonstrated a good faith attempt to contact the lien claimants to resolve the lien issues.
If, at a regular hearing, either a compromise and release or stipulations with request for award are submitted and the Workers' Compensation Judge determines that the parties are unable to reach resolution of lien issues after a good faith attempt, the compromise and release or the stipulations with request for award may be approved. If the lien claimant is present at the hearing, the lien issues must be heard at that time, unless good cause is shown for a continuance. If good cause is shown, the lien issues must be set for regular hearing for a date certain with notice waived.
If a lien claimant, having been duly noticed, fails to appear at a regular hearing, the Workers' Compensation Judge may issue a notice of intention to submit the lien issues or may issue a notice of intention to disallow the lien.
The policy of the Division of Workers' Compensation/Workers' Compensation Appeals Board is that lien claim issues are not to be deferred or taken off calendar absent good cause. Before setting the lien issues for a separate hearing, the Workers' Compensation Judge must be satisfied that appropriate documents, including medical reports and pre-trial conference statements, have or will be served on the lien claimants so that continuances and delays in litigation will not occur.
Where Stipulations with Request for Award and Compromise and Releases which provide for deferral of lien issues are submitted for approval, the Workers' Compensation Judge assigned these documents shall not approve them unless the Workers' Compensation Judge is satisfied that the parties have made a good faith attempt to resolve the lien issues which have been deferred.
If documentation demonstrating a good faith attempt to resolve the lien issues does not accompany the Stipulation with Request for Award or Compromise and Release, the Workers' Compensation Judge must request documentation from the parties that a good faith effort has been made. The Workers' Compensation Judge may do this by requesting a letter or affidavit from the parties or by scheduling a telephone conference or any other procedure which will satisfy the Workers' Compensation Judge that a good faith attempt has been made to resolve the lien issues.
Summary Submission of Lien Claims
Where the only issue to be resolved relates to reimbursement of a lien for medical-legal costs or medical treatment, the lien claimant and defendant may agree that a decision on the record may be made without further hearing or proceedings. DWC/WCAB has provided a procedure for the filing of a Petition for Summary Submission of Lien Claims Issue(s) and early determination and decision by a WCJ.
( Note: A copy of the newly adopted policy and procedure sections is enclosed.)