I have been receiving at least three to four requests a week in the last two months from different medical providers (Lien Claimants) who have received a “Notice of Intention to Dismiss Lien Claim” for failure to appear at various hearings, other then Lien Conferences and or Lien Trials, and who have requested a drafted response.

8 CCR 10240 (reprinted in full at the end of this blog) sets forth the requirements for necessary and unnecessary appearances by Lien Claimants. The regulation was adopted to allow the necessary parties to appear at the proceedings, and to prevent unnecessary appearances on the part of the Lien Claimants.

The question most asked by Lien Claimants is how to know, other than a Lien Conference and/or Lien Trial, when their lien will be at issue if the amount of their lien is under $25,000.00. One method would be to look at the hearing notices more closely. At the bottom of the notice it should say the nature and type of hearing and parties required to attend.  Most Lien Claimants calendar their appearance via EDEX, notification which may or may not have adapted  to the new rules showing the nature of hearing and those required to attend, other then stating “Lien Conference’ and or “Lien Trials”.

Lien claimants have in the past limited their appearance to Lien Conferences and/or Lien Trials to reduce the expense of going to hearings that may not produce settlements. With the adoption of the new regulation, however, Lien Claimants must pay more attention as to whether their appearance is necessary or whether a non-appearance letter with a representative available by phone would be sufficient.

Rules of thumb

1. If the lien is over $25,000.00, appear at hearings unless the notice expressly states lien claimants need not appear.
2. When in doubt, appear at a hearing.
3. If Lien Claimant cannot appear and appearance is not expressly required, send a letter of non-appearance with a phone number of someone with settlement authority.
4. If Lien Claimant cannot appear and appearance is required, call the opposing parties and notify the Judge.
5. Learn which Courts require Lien Claimants at all Trials and/or MSCs.
6. Immediately respond to “Notice to Dismiss Lien Claims” for non-appearances.

8 CCR 10240 (2009)

§ 10240.  Appearances Required

(a) All parties and lien claimants shall appear at all hearings, except as provided below:

(1) Where injury arising out of and in the course of employment is at issue, lien claimants not defined as a party under subdivision 10210(y)(3) shall not be required to appear at the mandatory settlement conference or trial, unless otherwise ordered by the workers' compensation administrative law judge.

(2) Where liability for the claim has been accepted, lien claimants not defined as a party under subdivision 10210(y)(3), with a lien claim of $ 25,000 or more, shall appear or have a representative appear at the mandatory settlement conference or lien conference, unless the appearance is excused by the workers' compensation administrative law judge.

(3) Lien claimants not defined as a party under subdivision 10210(y)(3) with liens of less than $ 25,000 shall be available by telephone with settlement authority and shall notify defendant(s) of the telephone number at which the defendant may reach the lien claimants during the mandatory settlement conference or lien conference. The workers' compensation administrative law judge may order the appearance of lien claimants not defined as a party under subdivision 10210(y)(3), with liens of less than $ 25,000 at a mandatory settlement conference or lien conference.

(4) All lien claimants shall appear at trial at which their lien(s) is an issue to be decided.

(b) All parties shall have a person available with settlement authority at the mandatory settlement conference or lien conference. The person with settlement authority need not be present if an attorney or representative who is present at these proceedings can obtain immediate authority by telephone.

(c) Unless the notice otherwise provides, the applicant shall be present at a mandatory settlement conference as provided in Labor Code section 5502, subd. (e).

(d) Appearance at a hearing not covered under this section shall be at the discretion of the workers' compensation administrative law judge.  

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For more information, see workcompliens.com.