Rodriguez v. Garden Plating Co., 082617 CAWC, ADJ8588344 (MF)

• Case Date: August 26, 2017
• Court: California

JOSE GUILLERMINA RODRIGUEZ, Applicant, v. GARDEN PLATING CO., INTERCARE HOLDINGS INSURANCE SERVICES, Defendants. AGO ADJ8588344 (MF) No. ADJ8588344 (MF) California Workers Compensation Decisions Workers’ Compensation Appeals Board State of California August 26, 2017           OPINION AND ORDER CONSOLIDATING CASES ON MOTION OF THE APPEALS BOARD AND DISMISSING PETITIONS FOR RECONSIDERATION (EN BANC)           KATHERINE A. ZALEWSKI, Chair          On or about September 14, 2017, numerous lien claimants by and through their sole representative Maximum Medical filed over 1,200 Petitions for Reconsideration1, challenging an administrative action which prevented them from filing in their cases because they had allegedly failed to timely file required declarations. Thereafter, to secure uniformity of decision in the future, the Chair of the Appeals Board, upon unanimous vote of its members, assigned these cases to the Appeals Board as a whole for an en banc decision. (Lab. Code, § 115.)2          Based upon our review of the relevant statutes and case law, we hold that:

(1) The issue of the administrative action by DWC has now been rendered moot and the Petitions for Reconsideration must be dismissed.

(2) The cases at issue are defined herein as: "The Cases Involving a Labor Code section 4903.05(c) Declaration filed after 5:00 p.m. on Friday, June 30, 2017 through 5:00 p.m. on Monday, July 3, 2017 where a Petition for Reconsideration was filed on the issue of timeliness of the filing" and are designated as The Lien Cases.

(3) Pursuant to WCAB Rule 10589 (Cal. Code Regs., tit. 8, § 10589), The Lien Cases are consolidated on motion of the Appeals Board for the limited purpose of making the orders herein, including designating Rodriguez v. Garden Plating Co. (ADJ8588344) as the master case and designating service of this decision to lien claimants' representative, Maximum Medical.

(4) We suspend the application of WCAB Rule 10859 (Cal. Code Regs., tit. 8, § 10859) to The Lien Cases from the date of first filing of a Petition for Reconsideration on September 14, 2017 through the date of this decision.

(5) This en banc decision shall apply to any case in which a Labor Code section 4903.05(c) Declaration was filed by a lien claimant after the close of business at 5:00 p.m. on Friday, June 30, 2017 through the close of business at 5:00 p.m. on Monday, July 3, 2017, whether or not the case number is identified in this decision.

         In light of these holdings, the Petitions for Reconsideration will be dismissed and Maximum Medical will be designated to serve this decision upon all defendants' attorneys or legal representatives and the lien claimants who sought relief by way of these Petitions for Reconsideration.          BACKGROUND          As of January 1, 2017, Labor Code section 4903.05(c) ^[3] states that:

(1) For liens filed on or after January 1, 2017, any lien claim for expenses under subdivision (b) of Section 4903 that is subject to a filing fee under this section shall be accompanied at the time of filing by a declaration stating, under penalty of perjury, that the dispute is not subject to an independent bill review and independent medical review under Sections 4603.6 and 4610.5, respectively, that the lien claimant satisfies one of the following:

(A) Is the employee's treating physician providing care through a medical provider network.

(B) Is the agreed medical evaluator or qualified medical evaluator.

(C) Has provided treatment authorized by the employer or claims administrator under Section 4610.

(D) Has made a diligent search and determined that the employer does not have a medical provider network in place.

(E) Has documentation that medical treatment has been neglected or unreasonably refused to the employee as provided by Section 4600.

(F) Can show that the expense was incurred for an emergency medical condition, as defined by subdivision (b) of Section 1317.1 of the Health and Safety Code.

(G) Is a certified interpreter rendering services during a medical-legal examination, a copy service providing medical-legal services, or has an expense allowed as a lien under rules adopted by the administrative director.

(2) Lien claimants shall have until July 1, 2017, to file a declaration pursuant to paragraph (1) for any lien claim filed before January 1, 2017, for expenses pursuant to subdivision (b) of Section 4903 that is subject to a filing fee under this section.

(3) The failure to file a signed declaration under this subdivision shall result in the dismissal of the lien with prejudice by operation of law. Filing of a false declaration shall be grounds for dismissal with prejudice after notice.

         On August 14, 2017, DWC issued a Newsline stating in pertinent part that:

The Division of Workers' Compensation (DWC) tomorrow will dismiss more than 292,000 unresolved liens by operation of law. The liens belong to claimants who did not properly file the required Supplemental Lien form and 4903.05(c) Declaration form.

         On October 3, 2017, DWC issued a Newsline stating in pertinent part that:

[DWC] will this week lift the notation in its Electronic Adjudication Management System (EAMS) that indicates all liens with Labor Code section 4903.05(c) declarations filed on July 2 and July 3 were dismissed.

A total of 2,794 liens with declarations filed on July 2 and 3 were administratively designated as dismissed for failure to comply with the July 1 filing deadline. Because July 1 fell on a weekend, workers' compensation administrative law judges will adjudicate the timeliness of lien declarations filed on July 2 and July 3 on a case-by-case basis. DWC's reversal of the dismissal notation is not a decision or order on the timeliness of the declarations, and shall not be construed as such.

         DISCUSSION          Here, lien claimants filed more than 1,200 nearly identical Petitions for Reconsideration, all seeking relief from DWC's action on the basis that their declarations had been timely filed during the period from the close of business on Friday, June 30, 2017 through the close of business on Monday, July 3, 2017. Specifically, they contend that since July 1, 2017 fell on a Saturday, the required declarations were timely filed because the declarations were filed no later than the close of business on Monday, July 3, 2017 so that the notation placed in EAMS by DWC was improper.          As explained above, DWC has now removed the notation as to dismissal. Accordingly, lien claimants are not aggrieved (Lab. Code, §§ 5900, 5903) and their Petitions for Reconsideration are moot. Thus, the Petitions must be dismissed. As set forth above in the Newsline and as discussed below, the issue of timeliness must be adjudicated in each case in the first instance at the trial level. Accordingly, we make no opinion on the merits of the issue of whether the declarations were timely filed.          Here, the Petitions for Reconsideration sought relief after an administrative action by DWC and not relief from a decision by a WCJ.4 As relevant herein, WCAB Rule 108595 requires that beginning 15 days after a petition for reconsideration is filed and continuing until a decision is rendered by the Appeals Board, a WCJ may not issue any order, decision or award. However, procedural rules serve the convenience of the Appeals Board and the parties, and they do not deprive the Appeals Board of the power to disregard them where the purpose of justice requires it, particularly where there is no substantial prejudice to the other parties. (Martino v. Workers' Comp. Appeals Bd. (2002) 103 Cal.App.4th 485, 490 [67 Cal.Comp.Cases 1273]; Rubio v. Workers' Comp. Appeals Bd. (1985) 165 Cal.App.3d 196, 200-201 [50 Cal.Comp.Cases 160]; Blanchard v. Workers' Comp. Appeals Bd. (1975) 53 Cal.App.3d 590, 595 [40 Cal.Comp.Cases784]; Beaida v. Workmen's Comp. Appeals Bd. (1968) 263 Cal.App.2d 204 [33 Cal.Comp.Cases 345].) Consequently, because the only issue raised in the Petitions for Reconsideration in The Lien Cases involves an administrative act by DWC, and not an action by the Workers' Compensation Appeals Board, the application of WCAB Rule 10859 is suspended as of September 14, 2017, and continuing through the date of this decision. Thus, the District Offices have been free to proceed on the underlying cases throughout this period, and no order, decision or award by a WCJ has been rendered void.          Under WCAB Rule 10589, the Appeals Board has the discretion to consolidate two or more cases on its own motion after taking into consideration the enumerated factors and to designate one case as the master...