I recently had two interesting situations come up: the first I found one to be a little disturbing…the other provided a way to circumvent a WCJ who refuses to issue a “Notice of Intent to Dismiss” without first contacting the lien claimant to confirm whether they are still pursuing their balance.
WATCH OUT FOR LIENS PREVIOUSLY SETTLED OR DISMISSED FOR FAILURE TO PAY THE ACTIVATION FEE.
I recently appeared at a lien conference. As I am collecting bills and demands from the various representatives, one representative handed me a bill for a provider who seemingly was not of record. She asked if I could resolve them “informally”. Interesting…
Since the inception of the $150 lien filing fee, many providers who are not of record will try to resolve their liens “informally” to avoid paying the filing fee. The disturbing case here is that two lien conferences prior, this seemingly not of record provider was a lien of record and was issued an “Order Dismissing Lien Claimant for Failure to Pay Lien Activation Fee”. Buried in the file was the dismissal (along with several others dismissed that day).
The upshot? Be careful of previously settled and/or dismissed liens returning for another bite of the apple. Check for previous settlements and dismissals, especially if there have been multiple lien conferences or a significant amount of time has lapsed since the previous hearing.
IF A WCJ WON’T ISSUE A “NOTICE OF INTENT TO DISMISS” A LIEN FOR FAILURE TO APPEAR AT THE LIEN CONFERENCE UNLESS YOU CONTACT AND CONFIRM WITH CLAIMANT WHETHER THEY ARE PURSUING THEIR BALANCE, INCLUDE “LIEN CLAIMANTS ON THE ADDRESS RECORD” AT ISSUE ON THE PTC STATEMENT AND SET FOR TRIAL.
I had a case recently where I needed to set the matter for lien trial. There were twenty-four lien claimants of record; only four of them appeared. Before issuing “Notices of Intent to Dismiss” the WCJ insisted I contact each and confirm whether they still had a balance that they were pursuing.
To follow the WCJ would not only be burdensome (and most likely require that I return for the afternoon session), but also would “wake” the sleeping giant, forcing one to negotiate the balance for each.
Instead, make sure to list all non-appearing lien claimants on the Pre-Trial Conference Statement and close discovery. By doing so, even if they attend the trial, they will not have any admissible evidence. On the other hand, if they do not appear at trial, request the matter go forward on the record so that their liens will then be disallowed by way of Findings and Order.
David F. Mahjoubi is an Associate Attorney with Bradford & Barthel, LLP (Anaheim). He can be reached at firstname.lastname@example.org.
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