WORKERS' COMPENSATION APPEALS BOARD STATE OF CALIFORNIA 4 5 RAUL MARTINEZ,

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1 I 2 3 WORKERS' COMPENSATION APPEALS BOARD STATE OF CALIFORNIA 4 5 RAUL MARTINEZ, Case No. ADJ (Los Angeles District Office) 6 Applicant, OPINION AND ORDERS DISMISSING 7 vs. PETITION FOR RECONSIDERATION, REMOVING MATTER ON APPEALS 8 MORT'S RIORDAN; OAK RIVER BOARD MOTION, AND NOTICE OF INSURANCE COMPANY, INTENTION TO IMPOSE SANCTIONS ON 9 QUALIFIED BILLING & COLLECTIONS Defendants. AND DIEGO PLASENCIA, JOINTLY AND 10 SEVERALLY, IN AN AMOUNT UP TO $2, Lien claimant Comprehensive Interpreting, represented by Diego Piasencia of Qualified Billing & 14 Collections, LLC (QBC), seeks reconsideration of a workers' compensation administrative law judge's 15 (WCJ) Order Dismissing Lien of January 24, Lien claimant did not have a representative appear at 16 a December 20, 2012 lien conference. The WCJ issued a Notice of Intention to Dismiss Lien on 17 December 20, 2012, and designated defendant to serve the Notice of Intention. On December 31, 2012, 18 the defendant served the Notice of Intention. The proof of service filed by defendant reflects that "QBC 19 Los Angeles" was served at the address "4601 Wilshire Blvd., Fl. 3, Los Angeles, CA " 20 "Comprehensive Interpreting" was also served at the same address. This address is the address for both 21 QBC and Comprehensive Interpreting on the Official Address Record, and also appears as QBC's 22 address in the heading of its Petition for Reconsideration. 23 Pursuant to the Notice of Intention, lien claimant had ten days from service to show good cause 24 why the lien claim should not be dismissed. Because lien claimant had an extra five days to respond 25 because the Notice of Intention was served by mail (Cal. Code Regs., tit. 8, 10507), any objection was 26 due by January 15, Lien claimant never objected to the Notice of Intention, and thus the WCJ 27 signed the Order Dismissing Lien on January 23, The Order Dismissing Lien was served by the

2 1 WCAB on both QBC Los Angeles and Comprehensive Interpreting on January 24, Both QBC and 2 Comprehensive Interpreting were again served at "4601 Wilshire Blvd FL3, Los Angeles, CA " 3 Lien claimant contends that the WCJ erred in dismissing its lien because it was not served with 4 notice of the December 20, 2012 lien conference, and was not served with the Notice of Intention to 5 Dismiss Lien. Lien claimant also argues that its "lien cannot be dismissed simply for failure to attend a 6 Lien Hearing." We have received an Answer from the defendant, and the WCJ has filed a Report and 7 Recommendation on Petition for Reconsideration. 8 We will dismiss lien claimant's petition because it was not timely filed. 9 Labor Code section 5903 mandates that a petition for reconsideration be filed "within 20 days 10 after the service of any final order, decision, or award made and filed by the appeals board or a workers' II compensation judge." If the award is served by mail, the time to petition for reconsideration is extended 12 by five days. (WCAB Rule 10507(a)(1); Cal. Code Regs., tit. 8, 10507, subd. (a)(1).) Labor Code 13 section 5900 makes clear that the Appeals Board has no discretion to entertain untimely petitions, and 14 mandates that a petition shall be made "only within the time... specified in [Labor Code section 5903]." 15 (Scott v. Workers' Comp. Appeals Bd. (1981) 122 Cal.App.3d 979, 984 [46 Cal.Comp.Cases 1008]; 16 United States Pipe & Foundry Co. v. Industrial Accident Commission (Hinojoza) (1962) 201 Cal.App.2d , [27 Cal.Comp.Cases 73] ["the provisions of [Labor Code sections 5900 and 5903] are 18 mandatory and jurisdictional"].) 19 The Order Dismissing Lien was served on January 24, 2013, so the last day to timely file a 20 petition for reconsideration was February 19, The instant Petition for Reconsideration, which was 21 filed on February 20, 2013, is thus untimely. We thus have no jurisdiction to consider the lien claimant's 22 Petition and must dismiss the Petition as untimely. 23 QBC and Diego Plasencia have violated a number of important WCAB Rules in the underlying 24 proceedings and in the Petition for Reconsideration, making the imposition of Labor Code section sanctions appropriate in this case. QBC and Mr. Plasencia have failed to appear at the lien conference in 26 1 The 25th day after service of the Order Dismissing Lien was Monday, February 18, 2013, which was a holiday. Thus, 27 pursuant to WCAB Rule, the last day to file a petition for reconsideration was Tuesday, February 19, (Cal. Code Regs., tit. 8, ) MARTINEZ, Raul 2

3 I this matter and they have filed a frivolous and untimely Petition for Reconsideration. 2 WCAB Rule enumerates a number of actions that are considered "bad faith actions" 3 subject to the imposition of Labor Code section 5813 sanctions. QBC and Mr. Plasencia have committed 4 a number of these bad faith actions, including "Fail[ing] to appear... at a conference... where a 5 reasonable excuse is not offered or the offending party has demonstrated a pattern of such conduct," (Cal. 6 Code Regs., tit. 8, 10561, subd. (b)(1)) and filing a petition for reconsideration without "reasonable 7 justification for filing the document" (Cal. Code Regs., tit. 8, 10561, subd. (b)(2).) 8 WCAB Rule also includes verifying a petition which "contains false or substantially false 9 statements of fact" as a "bad faith action" subject to Labor Code section 5813 sanctions. In light of the 10 proof of service showing that both QBC and Comprehensive Interpreting were served with the Notice of 11 Intention to Dismiss Lien, we find that the statement that the Notice of Intention was not received 12 constitutes a false statement of fact. Finally, "[a]sserting a position that misstates or substantially 13 misstates the law" constitutes a "bad faith action" subject to sanctions. (Cal. Code Regs., tit. 8, 10561, 14 subd. (b)(8).) In the Petition for Reconsideration, QBC and Mr. Plasencia falsely state that a "lien cannot 15 be dismissed simply for failure to attend a Lien Hearing." However, WCAB Rule 10562(d) makes clear 16 that, "Where a lien claimant served with notice of a conference fails to appear at the conference either in 17 person or by attorney or representative... the workers' compensation judge may... dismiss the lien claim 18 after issuing a ten (10) day notice of intention to dismiss with or without prejudice." 19 Accordingly, we will remove this matter to ourselves pursuant to Labor Code section 5310, and, 20 for the above reasons, we hereby provide Qualified Billing & Collections and Diego Plasencia notice of 21 our intention to impose sanctions against them, jointly and severally, in an amount up to $2,500.00, 22 unless within 10 days of service of the instant Notice of Intention, they file a response setting forth good 23 cause as to why we should not impose the intended sanction. 24 For the foregoing reasons, 25 IT IS ORDERED that Lien Claimant's Petition for Reconsideration of the Order Dismissing 26 Lien Claim of January 24, 2013 is hereby DISMISSED. 27 IT IS FURTHER ORDERED that these proceedings are REMOVED to the Appeals Board MARTINEZ, Raul 3

4 1 pursuant to Labor Code section NOTICE IS HEREBY GIVEN that, absent written objection showing good cause to the 3 contrary filed and served within ten (10) days of the date of service recited below, the Workers' 4 Compensation Appeals Board shall issue an order imposing Labor Code section 5813 sanctions against 5 Qualified Billing & Collections, LLC and Diego Plasencia, jointly and severally, in an amount up to 6 $2, I// 8 /// 9 /// 10 /// 11 /// 12 /// 13 /// 14 /// 15 /// 16 /// 17 // 18 // 19 // 20 // 21 /// 22 /// 23 /I/ 24 /// 25 // 26 /// 27 II/ MARTINEZ, Raul 4

5 1 IT IS FURTHER ORDERED that pending the issuance of a Decision After Removal in this 2 matter, all further correspondence, objections, motions, requests and communications, including any 3 objection showing good cause why sanctions should not be imposed, shall be filed in writing only with 4 the Office of the Commissioners of the Workers' Compensation Appeals Board at either its street address 5 (455 Golden Gate Avenue, 9d' floor, San Francisco, CA 94102) or its Post Office Box address (PO Box , San Francisco, CA ), and shall not be submitted to any district office or submitted 7 electronically in the Electronic Adjudication Management System WORKERS' COMPENSATION APP LS BOARD 12 I CONCUR, MARGUERITE SWEENEV ` 16 DEIDRA E. LOWE T. SFAI 19 FRANK M. BRA$ 20 DATED AND FILED AT SAN FRANCISCO, CALIFORNIA 21 APR ' 22 SERVICE MADE ON THE ABOVE DATE ON THE PERSONS LISTED BELOW AT THEIR ADDRESSES SHOWN ON THE CURRENT OFFICIAL ADDRESS RECORD QUALIFIED BILLING & COLLECTIONS 25 GOLDMAN, MAGDALIN & KRIKES 26 DW/ebc 27 MARTINEZ, Raul 5