OVERDUE

After reading the new WCAB en banc decision in Torres v. AJC Sandblasting, I was tempted to ask, “What took ya so long?”

This is a decision that is long overdue.

With it, the WCAB attempts to send a strong message to lien claimants who pursue frivolous lien claims that lack evidentiary support. This would include so-called phantom liens that are pursued years after the case-in-chief is resolved.

In Torres a lien for MRI services was filed some eight years after the claimed injury and five years after the denied injury claim was settled with the insurer. At a trial the lien claimant put into evidence no medical report demonstrating the basis of its bill, nor any evidence to establish that the claim was industrial in the first place.

Torres clarifies that the burden is on the lien claimant to prove by a preponderance of evidence all elements necessary to establish the validity of the lien before the burden of proof shifts to the defendant. Moreover, the board indicated a willingness to award sanctions, attorney fees and costs against lien claimants who proceed to trial without any evidence or evidence which is incapable of meeting the burden of proof.

The decision notes that:
“Unitech bore the burden of proving that applicant sustained an industrial injury, that it rendered medical treatment in connection with that injury and that the treatment was reasonable and necessary to cure or relieve the effects of the industrial injury. Prior to trial, Unitech was warned that the evidence it proposed to introduce was utterly incapable of proving its claim. By electing to proceed anyway with only an unauthenticated billing statement, Unitech acted in bad faith, and wasted valuable court time on a claim that was “indisputably without merit” and frivolous.”

From the facts in Torres it is not totally clear whether the lien claim was from a legitimate provider who was somehow out of the loop at the time the case settled and who failed to pursue the matter for years, or whether the lien was a “phantom lien” that had little if any factual and procedural justification.

In any event, Torres adds to the changes that are coming under Labor Code 863, making it more difficult for lien claimants who either sleep on their rights or who abuse the system. Lien claimants will no longer be able to show up to “try” liens where there is a lack of underlying documentation.

Here is a link to the Torres decision:
http://www.dir.ca.gov/wcab/EnBancdecisi … S_Tito.pdf

Stay tuned.

Julius Young
www.boxerlaw.com
www.workerscompzone.com

Category: Understanding the CA WC system