Applicant, Defendants.

Transcription

1 1 WORKERS' COMPENSATION APPEALS BOARD 2 STATE OF CALIFORNIA 3 4 Case No. ADJ YORCELI MARTINEZ, 5 (Pomona District Office) Applicant, 6 vs. OPINION AND ORDER GRANTING 7 MAGNOLIA AVENUE, INC.; RECONSIDERATION INTENTION TO ISSUE AND SANCTION NOTICE OF 8 NETHERLANDS INSURANCE CO., administered by GOLDEN EAGLE 9 INSURANCE CO.; STAR INSURANCE CO., administered by ILLINOIS MIDWEST 10 INSURANCE AGENCY, LLC, 11 Defendants Lien claimant Psychological Assessment Services petitions for reconsideration of the Order 14 Dismissing Lien Claim for Failure to Pay Lien Activation Fee served on April 2, In that order, the 15 workers' compensation administrative law judge (WCJ) dismissed lien claimant's lien with prejudice. 16 Lien claimant contends that the WCJ erred by dismissing its lien, arguing that it was unaware of 17 the March 26, 2013 lien conference. 18 We have considered the Petition for Reconsideration, and we have reviewed the record in this 19 matter. We have not received an Answer. Lien claimant filed a document titled "Response to Report 20 and Recommendation on Petition for Reconsideration," which we will consider as a supplemental 21 petition. (Cal. Code Regs., tit. 8, ) 22 The WCJ prepared a Report and Recommendation on Petition for Reconsideration (Report) 23 recommending that we deny the Petition. 24 For the reasons set forth below, we will grant reconsideration for the limited purpose of giving 25 notice of our intention to issue a sanction of up to $1, against Psychological Assessment Services 26 and its representative Sanee Avila, jointly and severally. 27 ///

2 I SUMMARY OF FACTS 2 The parties settled this case by a Compromise and Release approved on June 19, Psychological Assessment Services filed its lien on September 26, It listed its address as P.O. Box in Laguna Niguel, California. According to the Electronic Adjudication Management System 5 (EAMS), a Notice of Hearing for the lien conference was served on lien claimant on November 15, The address listed in EAMs was P.O. Box 6299 in Laguna Niguel. 7 On January 31, 2013, a different lien claimant, Professional Translation Services, Inc. 8 (Professional Translation), filed a letter withdrawing its lien. Although the heading and signature on the 9 letter indicated that it was from Professional Translation, the body of the letter stated: "This 10 correspondence is to notify the WCAB that we, Psychological Assessment Services, would like to 11 withdraw our lien on case number ADJ " The WCJ thus believed that that the letter was from 12 Psychological Assessment Services. (See Report, p. 1.) In its Supplemental Petition, lien claimant stated: 13 "Through EAMS we found a request to withdraw a lien submitted from Professional Translations Services Inc...who provide translation services 14 at our office. Upon contacting Professional Translation Services Inc., they indicated that they had requested for their lien to be withdrawn because 15 their lien was resolved and payment was issued." 16 Lien claimant did not appear at the March 26, 2013 lien conference, according to the Minutes of 17 Hearing. The WCJ dismissed Psychological Assessment Services' lien for failure to pay a lien activation 18 fee prior to the conference. Lien claimant then filed the present unverified Petition. 19 NOTICE OF INTENTION TO ISSUE SANCTION 20 A petition for reconsideration "shall be verified upon oath in the manner required for verified 21 pleadings in courts of record..." (Lab. Code, 5902.) A petition may be dismissed for lack of 22 verification. (Lucena v. Diablo Auto Body (2000) 65 Cal.Comp.Cases 1425, 1426 [Appeals Board 23 significant panel decision]; Conner v. Workers' Comp. Appeals Bd. (1980) 45 Cal. Comp. Cases (writ den.).) We will nonetheless grant the Petition in order to give notice of our intention to sanction 25 lien claimant and its representative Shanee Avila, jointly and severally, in an amount up to $1, Lien claimant has explained that it did not file the January 31, 2013 letter and did not intend to 27 MARTINEZ, Yorceli 2

3 1 withdraw its lien., However, lien claimant still failed to file an activation fee. Under Labor Code section (a), any lien filed before January 1, 2013 is subject to a $ lien activation fee, unless the 3 lien claimant has paid a filing fee under a former statute not at issue here. A lien claimant which has not 4 filed a Declaration of Readiness to Proceed "shall submit proof of payment of the activation fee at the 5 lien conference. If the fee has not been paid or no proof of payment is available, the lien shall be 6 dismissed with prejudice." (Lab. Code, (a)(4); see Cal. Code Regs., tit. 8, 10208(a).) If a lien 7 claimant fails to pay the lien activation fee prior to the time the conference is scheduled to begin or fails 8 to provide proof of payment at the conference, the lien must be dismissed with prejudice. (Figueroa v. 9 B.C. Doering Co. (2013) Cal.Comp.Cases (Appeals Board en banc) [2013 Cal.Wrk.Comp. LEXIS 64]; 10 Lab. Code, ; Cal. Code Regs., tit. 8, ] 11 Every petition for reconsideration "shall fairly state all of the material evidence." (Cal. Code 12 Regs., tit. 8, 10842(a); see also Cal. Code Regs., tit. 8, 10561(b)(5).)) "A failure to fairly state all of 13 the material evidence may be a basis for denying the petition." (Cal. Code Regs., tit. 8, 10842(a).) In 14 its Petition, lien claimant contends that it reviewed its records and determined that it had not received a 15 Notice of Hearing. As described above, that appears to be incorrect. 16 Under Labor Code section 5813(a), we may order sanctions for "bad-faith actions or tactics which 17 are frivolous or solely intended to cause unnecessary delay." (Lab. Code, 5 183(a).) These include 18 "actions or tactics that result from a willful failure to comply with a statutory or regulatory obligation, 19 that result from a willful intent to disrupt or delay the proceedings of the Workers' Compensation 20 Appeals Board, or that are done for an improper motive or are indisputably without merit." (Cal. Code 21 Regs., tit. 8, 10561(b).) An example of such actions or tactics is "[flailing to comply with the Workers' 22 Compensation Appeals Board's Rules of Practice and Procedure... unless that failure results from 23 mistake, inadvertence, surprise, or excusable neglect." (Cal. Code Regs., tit. 8, 10561(b)(4).) A 24 Petition that includes misrepresentations or misleading omissions of fact may be the basis for a sanction It is odd that Professional Translation would accidently call itself Psychological Assessment Services, The 27 Supplemental Petition does not provide any explanation for this error, bit it is possible that Professional Translation mistakenly listed the entity for which it had performed translation. MARTINEZ, Yorceli 3

4 I (Cal. Code Regs., tit. 8, 10561(b)(5).) 2 Labor Code section 5813(a) also permits a sanction for "bringing a claim, conducting a defense, 3 or asserting a position" that is "indisputably without merit," when "a reasonable excuse is not offered or 4 where the offending party has demonstrated a pattern of such conduct." (Cal. Code Regs., tit. 8, (b)(6).) These are only some of the circumstances in which sanctions can be imposed. (Cal. 6 Code Regs., tit. 8, 10561(b); see, e.g. EMC Insurance Co. v. Workers' Comp. Appeals Bd. (West-Faria) 7 (1999) 65 Cal.Comp.Cases 75 (writ den.).) 8 Here, it appears that lien claimant received notice of a lien conference but failed to pay the 9 required activation fee by the date of the conference. This occurred even though lien claimant apparently 10 had a representative present at the District Office, at least according to the Petition. Rather than 11 appearing at the conference and paying the necessary fee, lien claimant wasted the time and resources of 12 the Appeals Board by filing a frivolous, unverified Petition which misrepresented material facts. 13 Before we impose a sanction, we will give lien claimant and its representative an opportunity to 14 be heard. (Cal. Code Regs., tit. 8, 10561(a).) We give lien claimant and Shanee Avila 15 days from 15 service of this decision in which to file written objections showing good cause why a sanction should not 16 be imposed. This 15-day period shall be extended by five calendar days for mailing. (Cal. Code Regs., 17 tit. 8, 10507(a)(1).) We will issue our Decision After Reconsideration concurrent with our decision on 18 the sanction issue. 19 For the foregoing reasons, 20 IT IS ORDERED that lien claimant Psychological Assessment Services' Petition for 21 Reconsideration of the Order Dismissing Lien Claim for Failure to Pay Lien Activation Fee served on 22 April 2,2013 is GRANTED. 23 NOTICE IS HEREBY GIVEN that, absent written objection showing good cause to the 24 contrary, filed and served within fifteen (15) days of the date of service recited below plus an addition 25 five (5) days for mailing, the Workers' Compensation Appeals Board, in accordance with Labor Code 26 section 5813, will impose sanctions of up to $1, against Psychological Assessment Services and 27 Shanee Avila, jointly and severally. MARTINEZ, Yoreeli 4

5 I IT IS ORDERED that any such written objection shall be filed in writing only with the Office of 2 the Commissioners of the Workers' Compensation Appeals Board at either its street address (455 Golden 3 Gate Avenue, 9th floor, San Francisco, CA 94102) or its Post Office Box address (PO Box , San 4 Francisco, CA ), and shall not be submitted to the Pomona District Office or any other 5 district office of the WCAB and shall not be e-filed in the Electronic Adjudication Management System. 6 WORKERS' COMPENSATION APPEA RD ICONCUR, ALFONSO J. MOR-SI 15 CONCURRING, BUT NOT IGNING, 16" 17 RONNIE G. CAPLAW ~GU E 20 DATED AND FILED AT SAN FRANCISCO, CALIFORNIA 21 JUN SERVICE MADE ON THE ABOVE DATE ON THE PERSONS LISTED ADDRESSES BELOW AT SHOWN THEIR ON THE CURRENT OFFICIAL ADDRESS RECORD. 24 GRANCELL, LEBOVITZ, STANDER, REUBENS AND THOMAS, PC LAW OFFICES OF DAMIEN MIRANDA 25 PSYCHOLOGICAL ASSESSMENT SERVICES PROFESSIONAL TRANSLATION SERVICES CNF/bgr MARTINEZ, Yorceli 5