Parker, Kern, Nard & Wenzel
Legal Updates


Enforcement of Lien Filing Fees

With the new lien rules coming into effect, the most dramatic to me seems to be the forced dismissal of a lien where the lien filing fee is not paid prior to a Lien Conference.  One case on point is Soto v. Marathon Industries, Inc., in which the Workers’ Compensation Appeals Board found that a lien claimant’s failure to pay the lien filing fee prior to the start of the lien conference mandated the dismissal of their lien.

 In Soto, the case was resolved by Compromise and Release and defendant then filed for a lien conference. At the lien conference which had been scheduled for 8:30 a.m., the WCJ issued the Orders Dismissing the liens of the lien claimants. The lien claimants filed a Petition for Reconsideration and contended that they had paid the lien activation fee timely. The lien claimants attached notices from EAMS demonstrating acceptance of the lien activation fees between 10:56 a.m. and 11:06 a.m.  In response, the WCJ rescinded the orders dismissing the liens pursuant to WCAB Rule 10859. The defendant then filed a Petition For Removal and the WCAB reinstated the lien dismissals essentially pointing out the lien claimants had not paid their fees timely as a result.

 Section 4903.06(a)(4),  provides: "All lien claimants . . . that remain a lien claimant at the time of a lien conference shall submit proof of payment of the activation fee at the lien conference. If the fee has not been paid or no proof of payment is available, the lien shall be dismissed with prejudice." [Emphasis added.]  

 Administrative Director Rule 10208(a), provides in relevant part:

No lien claimant that is required to pay an activation fee shall file a declaration or readiness or participate in any lien conference including obtaining an order allowing its lien in whole or in part, without submitting written proof of prior timely payment of the fee, or without electronic proof of timely payment of the fee that is available to the judge and parties at the conference.  'Prior timely payment' means payment of the activation fee (1) prior to the filing of a declaration filing a declaration of readiness, or (2) prior to an appearance at a lien conference by a lien claimant of record that did not file the declaration of readiness.

Since the lien conference was scheduled for 8:30 a.m. and the Lien Claimants demonstrated that the activation fees were paid between 10:56 and 11:06 a.m., the fees were not "prior timely payments." In order to have been "prior timely payments," the payments would have had to be made prior to 8:30 a.m. on the date of the lien conference.  Therefore, the court determined, the liens were properly dismissed at the lien conference.  

In another case, Sharon Meyer v. Target Corporation, the WCAB upheld the dismissal of the liens with prejudice, but in that case the lien claimants did not pay the fees until 6 days after the conference. The court noted out that the WCJ was required to dismiss the lien with prejudice.