An important note about filing fees for liens filed between January 1 and June 30, 2004:
All filing fees collected for liens filed between January 1 and June 30, 2004 are being refunded. If you paid a filing fee and your check was cashed, you will be mailed a refund check. If your check has not yet been cashed, it will be returned to you. No filing fees will be collected for liens that were filed electronically during this period.
For more information on the reasons why this refund is being made and details on how the refund process will work, please click on this link to read a DWC Newsline on this issue.
Effective January 1, 2004, Labor Code section 4903.05 requires medical treatment providers and medical-legal lien claimants to contribute to the funding of the workers' compensation program through payment of a $100 filing fee for each initial medical or medical-legal lien filed in a workers' compensation case.
The administrative director has received many questions concerning both the statute and the regulations adopted to establish procedures for the collection of the lien filing fees. In an effort to alleviate some of the confusion in the workers' compensation community, DWC developed this list of answers to the frequent questions received concerning this topic:
Our newest questions and answers:
Q: Can a lien claimant file an application for adjudication before the time for voluntary payment of a bill has elapsed?
A: Title 8, Cal. Code of Regs., section 10771 provides that “Lien claims for the expenses set forth in Labor Code section 4622 [medical-legal] shall not be filed with the Workers' Compensation Appeals Board until the 60-day period for voluntary payment has elapsed, unless the lien claimant certifies the fee request has been rejected in writing.” (Emphasis added.)
In order to reduce unnecessary clerical data entry, the Division requests, but does not at this time require, that medical treatment liens also not be filed until the time frames for payment provided for by Labor Code section 4603.2(b) (usually 45 days) have elapsed.
Q: When a lien claimant that uses EDEX to file liens and receive electronic notices must file an application for adjudication of claim, can the lien claimant file its application electronically? Can the lien claimant file a paper application and then file its lien electronically and be invoiced for the filing fee?
A: The WCAB cannot accept electronic filing of applications for adjudication. An application must be filed in paper form.
A lien claimant cannot file only a paper application, and then later file its lien electronically in order to be invoiced for the filing fee. Section 10250(c) requires that a lien claimant that must file an application, to simultaneously file its lien and pay the $100 initial lien filing fee. If a lien claimant fails to comply with 10250(c), its lien will be rejected under section 10250(e). Since the sole purpose for filing the application is to create a case in which the lien can be filed, the application will be rejected as well.
The manner of the initial lien filing, paper or electronic, determines how notices will be received However, after filing the initial paper lien, the notice method can be changed and the lien claimant can receive electronic notices.
For this to work, the lien claimant must carefully follow this very specific methodology:
- First, the lien claimant has to notify the Board in a cover letter to file the lien under the lien claimant’s EDEX client ID number, and provide that ID number.
- If the lien claimant has both an EDEX and non-EDEX lien ID number(s), it should be careful to use only the EDEX ID number. All EDEX client ID numbers end in the letter “r”.
- Once the lien claimant gets its case number, the lien claimant can file a modification through EDEX.
This procedure will convert the lien claimant’s method of notice receipt from paper to electronic. To successfully use this procedure, the lien claimant must use the EDEX client ID number originally used to file the lien when submitting the modification request.
Q: If a lien claimant, lien representative or a lien service company files the application for adjudication of claim, and it is not located where venue would normally lie, can the application be filed at the WCAB district office near where lien claimant, lien representative or lien service company does business?
A: A lien claimant, lien representative or lien service company cannot file an application based on where it does business. Labor Code section 5501.5 provides that an application can only be filed in one of three specific venues:
(1) In the county where the injured employee or dependent of a deceased employee resides on the date of filing.
(2) In the county where the injury allegedly occurred, or, in cumulative trauma and industrial disease claims, where the last alleged injurious exposure occurred.
(3) In the county where the employee's attorney maintains his or her principal place of business, if the employee is represented by an attorney.
If a lien claimant, lien representative or lien service company files an application in an inappropriate venue, the application will be rejected.
Answers to earlier questions:
Q: How do I pay the filing fee?
A: The filing fee is due and payable when the lien is filed. A lien claimant should not wait until an appearance is required to pay the filing fee.
If the lien is filed on paper, section 10250(b) provides that "When filing the initial lien in writing, the medical provider or medical-legal lien claimant shall submit a check or money order in the amount of one hundred dollars ($100), made payable to ‘DWC Revolving Fund.’ The check or money order for the filing fee shall be attached to the front of the lien form and shall contain the words "lien filing fee" and the Workers' Compensation Appeals Board case number, if available, in the memo section of the check or money order."
If the lien is filed electronically, the lien claimant will be invoiced directly. Section 10250(f) provides that "A medical provider or medical-legal lien claimant shall be billed on a monthly basis for all liens filed electronically through the EDEX system, or as otherwise designated by DWC, in the preceding month. Within 30 calendar days of receipt of the billing, the medical provider or medical-legal lien claimant shall submit a check or money order for the total filing fee billed." The check or money order should be made payable to "DWC Revolving Fund" and mailed to the address shown on the invoice.
Q: What happens if I don't pay the filing fee?
A: For a paper filed lien, if the filing fee is not paid, the lien will not be processed, the lien claimant will not be added to the address record and the lien will not be ordered paid.
Q: If for some reason I fail to pay a lien filing fee for an electronically filed lien when the invoice is due, what happens to the lien? Can this be cured? If so how?
A: Any unpaid invoices for filing fees will be referred for collection by the Department of Industrial Relations' (DIR) accounting unit and if the filing fee remains unpaid the lien may be withdrawn from the system. The division may also block any further electronic lien filings from that lien claimant until the invoice is paid.
Q: What if my check bounces?
A: Government Code section 6157(b) provides that:
If any personal check offered in payment pursuant to this section is returned without payment, for any reason, a reasonable charge for the returned check, not to exceed the actual costs incurred by the public agency, may be imposed to recover the public agency's processing and collection costs. This charge may be added to, and become part of, any underlying obligation other than an obligation which constitutes a lien on real property, and a different method of payment for that payment and future payments by this person may be prescribed.
If an initial lien filing fee check is dishonored by the bank for any reason, the division may require all further lien filing fees to be paid with a certified check, cashiers check, or money order, pursuant to section 6157(b) and section 8023 of the State Administrative Manual.
Q: I have filed electronic liens after July 1, 2004 and served the WCAB with a paper copy of the lien as required. The paper liens always say "Filed electronically by EDEX" on the paper lien. The district office returns the liens saying I didn't pay the filing fee. I thought I was to be invoiced monthly for liens filed by EDEX. I haven't been invoiced yet, nor has my client. What is going on here?
A: If an initial lien has been filed electronically, a paper copy of the initial lien should not be filed with the WCAB. Once submitted through EDEX, the initial lien is in the system and the lien claimant has been added to the official address record.
Section 10770(h) of the WCAB rules of practice and procedure provides that "If a lien has been filed electronically, upon the filing of a declaration of readiness, compromise and release, or stipulations with request for award or order, or upon receipt of a notice of hearing, the lien claimant shall file a full statement or itemized voucher supporting the lien unless the lien claimant advises in writing, or electronically, that the lien has been resolved or withdrawn." Any paper copy filed with the WCAB of an electronically filed initial lien will be discarded, unless section 10770 (h) applies.
The district offices have been notified that paper copies of an electronically filed initial lien are not required until the occurrence of one of the triggering events specified in section 10770(h) of the WCAB rules of practice and procedure. If advised to file a paper copy of an electronically filed initial lien, the lien claimant should contact either the presiding WCALJ at the district office where the paper copy was demanded, or the associate chief judge.
Invoices for electronically filed liens will be mailed monthly.
Q: If I file an electronic lien following a paper lien, how do you know if it is an initial lien vs. an updated lien?
A: The online system will make this determination by looking for an earlier lien storage date. To enable the system to determine whether a lien is an initial or updated lien, it is critical that the lien claimant use the same user ID number on the updated lien as the initial lien.
Q: If I file my lien electronically through EDEX how does the local board know that my lien is valid? What if an error occurs and my lien is not recognized?
A: Upon payment of the invoice, a receipt for the filing fee will be provided through EDEX.
Q: Who decides if cases are similar? If one applicant has multiple cases and I file a lien on each of them, am I charged for each lien?
A: The definition of “related” is provided in subdivision (a) of section 10250. Essentially, if the provider has filed a lien in any of the prior cases deemed "related," the filing fee will not be due. If the lien is filed electronically, the EDEX system will apply the criteria in the regulation and make the determination. If the lien is filed on paper, the district office staff will make the determination. If a lien claimant believes it has been made to pay the filing fee in error, the issue may be raised before the WCAB.
Q: What circumstances exist for me to get a refund or for the defense to have to reimburse me? Who do I talk to at the WCAB?
A: Labor Code section 4603.2(b)(1)(B) provides, in relevant part, that "If an employer contests all or part of a billing, any amount determined payable by the appeals board shall carry interest from the date the amount was due until it is paid. If any contested amount is determined payable by the appeals board, the defendant shall be ordered to reimburse the provider for any filing fees paid pursuant to section 4903.05."
Q: What does the filing fee requirement apply to, initial liens (never been filed before), or amended liens also?
A: The filing fee is only required for initial liens.
Q: Can I pay this fee by credit card?
A: We are unable to accept credit card payments at this time. The division plans to establish an electronic payment methodology in the future.
Q: I represent numerous medical providers as lien claimants before the WCAB. I am a subscriber to EDEX and file liens on behalf of my clients through EDEX. Will I as their representative be billed monthly for liens filed electronically on behalf of my clients? It appears in the last paragraph of the regulations that I as the representative am to pay the lien filing fee to the DWC. Is this correct? section 10250(h) provides that "When the attorney for the employee or dependent or any assignee of the lien claimant files the initial medical or medical-legal lien, that filing shall be deemed to have been made by an agent for the medical provider or medical-legal lien claimant and payment of the filing fee required by Labor Code section 4903.05 shall be required of the filing party as if the lien had been filed by the medical provider or medical-legal lien claimant.)
A: No, lien claimants who file initial liens electronically will be invoiced directly. Subdivision (h) is intended to prevent a lien claimant from evading the filing fee by filing through a third party intermediary, assigning the lien for collection or selling the rights to the lien proceeds. The division considers an electronically filed lien to have been filed directly by the lien claimant, not an EDEX intermediary.
Q: Why are EDEX users required to pay lien filing fees? I thought the whole point of EDEX was to stop paper lien filing. I think only paper liens should be charged.
A: The filing fee is required of both electronically filed and paper filed liens by statute.
Q: Once a client receives a bill it is due within 30 days. However, are there adverse consequences for waiting until the time of hearing to pay? If so, what are they? From the documentation we have received, the only consequence is that if the $100 lien filing fee is not paid by the time of the hearing, the lien will not be considered. Realistically, a lien claimant could simply bring a check to a hearing.
A: If the invoice is not timely paid, the matter will be referred for collection by the DIR accounting unit. If the invoice is still not paid, the division may block any further electronic lien filings from the lien claimant until the invoice is paid.
Q: Let's assume a client files a lien and promptly pays the bill when received from the state. The case then settles and doesn't go to hearing. Does DWC issue a refund?
A: No, the fee is a filing fee, not a litigation fee. The act of filing the initial lien triggers the obligation to pay the filing fee, and the statute does not provide for any refund by DWC if the lien is later resolved without litigation.
Q: How much latitude will be available for clients that dispute fee invoices? Such issues as differentiating between “related” liens and the recognition of amended and initial liens are a concern. Do you have a system in place for a lien claimant to dispute liability for a filing fee?
A: These issues will have to be resolved in proceedings before a WCALJ.