Ten years ago, the Workers’ Compensation Appeals Board issued an en banc decision that served as a shot across the bow of lien claimants who refused to settle and took every case to trial.
The court’s 2012 en banc decision in the case of Tito Torres v. AJC Sandblasting (77 Cal. Comp. Cases 1113) shook up the Southern California workers’ compensation system with a strong warning for lien claimants not to proceed to trial when utterly incapable of proving entitlement to collect on their balances. (The tremors did not shake up Northern California as much, due to far less lien litigation in the northern part of the state.)
The case featured a lien trial where a lien claimant took a lien to trial with only one exhibit, which was a health insurance claim form with an itemized balance.
The trial judge deemed that single exhibit to be wholly insufficient in prevailing on the issues at trial, which were:
- Reasonableness and necessity for the medical services in question
- Whether the amounts billed were in excess of the Official Medical Fee Schedule
The judge issued a notice of intent to sanction the lien claimant $2,500, and received no response. With no response, the judge sanctioned them $750, ordered the lien claimant to take nothing on their lien, and also awarded costs to the defendant.
The lien claimant filed a petition for reconsideration, but the WCAB did not see things their way. Instead, the WCAB doubled down on the trial judge’s order, and remanded the case back to the trial judge so he could determine the amount of the sanctions, and if they needed to be imposed against anyone else.
The decision is an en banc decision, which means that it carries much greater authority than a mere panel decision.
The takeaway from this decision is clear – lien claimants should not proceed to trial with little to no evidence in their favor, and if they do, they run the risk of being liable for sanctions and costs pursuant to Labor Code 5813.
Defendants should list “Tito Torres” as an issue if they sense that the lien claimant is wholly unprepared for trial. Smart lien representatives will heed that warning, reconsider their position, and urge their clients to settle or withdraw their liens.
It is understandable that sometimes things get set for trial that should not be on the trial calendar. While setting a case for trial with little to no evidence is arguably already a waste of the court’s time, it’s a much bigger waste of the court’s time to actually proceed to trial.
Usually, proceeding to trial on a frivolous matter means that the parties have wasted a morning or afternoon session of the judge’s time, a court reporter’s time, and the attorneys’ time. Then consider the work that the judge and the court reporter have to do afterward to type up the summary of the evidence, and the Findings and Award, and Opinion on Decision, which the judge’s secretary then has to serve on all parties. Some WCAB offices have court reporter shortages, so if that lien trial took a court reporter that could have worked on another trial that day, then the other trial gets continued and the inefficiency gets compounded.
All in all, an unnecessary trial could easily waste as much as 7-10 hours of the WCAB’s employees’ time. That is easily an entire day’s worth of work, and that doesn’t include the potential petition(s) for reconsideration that could follow such a trial.
Considering that the average WCAB office has about 200 calendar days a year of hearings, a rate of 20 frivolous trials a year would mean that the WCAB office is now 10% less efficient. This quite literally goes to the heart of the principle of judicial economy, and a waste of precious resources that could have been dedicated to other trials with legitimate disputes.
With that in mind, it’s understandable why the en banc WCAB decided to take the opportunity to issue a stern warning.
If you’re a defendant and sense that the lien claimant is totally incapable of prevailing on their lien claim, consider listing Tito Torres and LC 5813 as issues when setting the case for trial. This en banc panel of commissioners clearly wanted to deter unnecessary trials, which is why they issued this decision.
If you have any questions about the statutes of limitations or other lien issues, please feel free to contact your favorite attorney at the Law Offices of Bradford and Barthel. The Law Offices of Bradford and Barthel will have more blogs about lien tips and tricks in the coming months, so please stay tuned to our blog for more content like this.
Got a question about workers’ compensation defense issues? Feel free to contact John P. Kamin. Mr. Kamin is a workers’ compensation defense attorney and partner at Bradford & Barthel’s Woodland Hills location, where he monitors the recent legislative affairs as the firm’s Director of the Editorial Board. Mr. Kamin previously worked as a journalist for WorkCompCentral, where he reported on work-related injuries in all 50 states. Please feel free to contact John at firstname.lastname@example.org or at (818) 654-0411.
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