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Title 8. Industrial Relations
Division 1. Department of Industrial Relations
Chapter 4.5. Division of Workers' Compensation
Subchapter 2. Workers' Compensation Appeals Board -Rules and Practice Procedure
Article 8. Hearings
§10582.5. Dismissal of Inactive Lien Claims for Lack of Prosecution.
(a) A lien claim may be dismissed for lack of prosecution on a petition filed by a party or on the Workers' Compensation Appeals Board's own motion if the lien claimant fails to file a declaration of readiness to proceed by the earlier of:
(1) 180 days after the lien claimant becomes a “party” within the meaning of section 10301(x)(3); or
(2) 180 days after a lien conference or lien trial at which the lien claim was at issue is ordered off calendar.
The 180-day period of subdivision (a)(1) is computed from the date that the original owner of the lien claim became a party or would have become a party if it still owned the lien claim.
(b) At least 30 days prior to filing a petition to dismiss a lien claim for lack of prosecution, the petitioner shall send a letter to the lien claimant and, if represented, to the lien claimant's attorney or representative of record, stating petitioner's intention to file such a petition.
(c) A petition to dismiss a lien claim for lack of prosecution shall be accompanied by all of the following:
(1) A copy of the 30-day letter referenced in subdivision (b).
(2) A declaration under penalty of perjury stating whether:
(A) the lien claimant has served the petitioner with a declaration of readiness and, if so, the date of such service.
(B) the petitioner has received any billing(s) from the lien claimant and, if so, stating either:
(i) the petitioner made a reasonable and good faith payment on each billing consistent with all existing law(s), where applicable, including but not limited to the following: (I) Lab. Code, § 4603.2(b)(1) and Cal. Code Regs., tit. 8, § 9792.5(c) for medical treatment liens; (II) Lab. Code, § 4622(c) and Cal. Code Regs., tit. 8, § 9794(b) & (c) for medical-legal liens; and (III) Cal. Code Regs., tit. 8, § 9795.4(a) for interpreter liens; or
(ii) the reason(s) why no such payment or tender of payment was made.
(C) the petitioner has timely served all medical reports and medical-legal reports on the lien claimant, to the extent required by section 10608(f).
(d) In addition to the requirements of subdivision (c), a petition to dismiss a lien claim for lack of prosecution shall be accompanied by the following, as applicable:
(1) If the petition seeks dismissal under section 10582.5(a)(1) based on the lien claimant's failure to file a declaration of readiness to proceed within 180 days after the underlying case has resolved within the meaning of section 10301(x)(3)(A), the petition shall be accompanied by:
(A) a copy of an order approving a compromise and release agreement, a stipulated Findings and Award, an adjudicated Findings and Award, or any other decision or order resolving the underlying case; and
(B) if this decision or order was served by designated service under section 10500(a), proof that it was served on the lien claimant.
(2) If the petition seeks dismissal under section 10582.5(a)(1) based on the lien claimant's failure to file a declaration of readiness to proceed within 180 days after the injured employee or the dependent(s) of a deceased employee “choose(s) not to proceed with his, her, or their case” within the meaning of section 10301(x)(3)(B), the petition shall be accompanied by a declaration concisely stating facts to support the “choose(s) not to proceed” allegation. This declaration, at a minimum, shall specify based on the petitioner's knowledge and belief:
(A) the nature and date of the last activity by the injured employee or the dependent(s) of a deceased employee relating to the case; and
(B) the nature and date of the last payment of disability indemnity.
(3) If the petition seeks dismissal under section 10582.5(a)(2), the petition shall be accompanied by a copy of the order taking the lien conference or lien trial at which the lien claim was at issue off calendar.
(e) A copy of the petition to dismiss a lien claim for lack of prosecution shall be served on each of the following, together with a proof of service:
(1) the lien claimant and, if represented, the lien claimant's attorney or representative of record;
(2) any defendant(s) in any case(s) listed on the lien claim or, if represented, the attorney or representative of record of any such defendant(s); and
(3) the injured employee and, if represented, the injured employee's attorney or representative of record.
(f) A lien claim shall not be dismissed for lack of prosecution unless:
(1) the Workers' Compensation Appeals Board has issued a notice of intention to dismiss with or without prejudice, giving the lien claimant at least 30 days to file written objection showing good cause to the contrary; and
(2) the lien claimant fails to timely object or the written objection, on its face, fails to show good cause.
Any objection to the notice of intention shall be filed with the Workers' Compensation Appeals Board and served on the defendant(s).
(g) If a defendant is designated to serve the notice of intention to dismiss under section 10500(a), the defendant shall serve the notice of intention within 10 business days. If the defendant does not receive a timely objection (taking into consideration the time extension provisions of sections 10507 and 10508), the defendant shall file and serve a proposed order dismissing the lien and copies of the notice of intention and the notice's proof of service.
(h) An order dismissing a lien claim for lack of prosecution shall be served only by the Workers' Compensation Appeals Board and not by designated service.
(i) All pleadings and declarations filed under this section shall be verified under penalty of perjury in the manner required for verified pleadings in courts of record.
(j) This section shall become operative on August 1, 2012 and, except as provided in subdivision (k), shall apply to all lien claims, regardless of the date of filing of the lien claim, the injured employee's date(s) of injury, or the date(s) on which the lien claimant provided the service(s) that are the subject of the lien claim.
(k) This section shall not apply to the lien claim(s) of any of the following: (1) the Employment Development Department; (2) the California Victims of Crime Program; (3) any lien claimant listed as being excepted under parts (A) through (C) of section 10228(c)(5); and (4) any governmental entity pursuing a lien claim for child support or spousal support.
Note: Authority cited: Sections 133, 5307, 5309 and 5708, Labor Code. Reference: Sections 4903, 4903.5, 4903.6 and 5404.5, Labor Code.
1. New section filed 5-21-2012; operative 5-21-2012 pursuant to Government Code section 11343.4. Submitted to OAL for printing only pursuant to Government Code 11351 (Register 2012, No. 21).
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