Are You Prepared for a Lien Conference?
| Publication year | 2014 |
| Author | JON C. BRISSMAN, ESQ. |
JON C. BRISSMAN, ESQ.
MONA M. NEMAT, ESQ.
Riverside, California
By now we have all heard there is a "lien problem" in California. In fact, the Legislature has gone to great lengths to combat this problem, including the enactment of Senate Bill 863, a sweeping bill designed in part to reduce the backlog of liens before the Board and minimize the filing of new frivolous liens. The authors cannot help but think all these valiant efforts missed the mark. The problem is not necessarily that there are too many liens; the problem from a practical standpoint is the inefficiencies in the resolution process.
The common theme we see at lien conferences is that with few exceptions, lien claimants, defense attorneys, and sometimes even judges, are not prepared. Although 8 C.C.R. section 10770.1(e)(1) requires that parties "shall have sufficient knowledge of the lien dispute(s) to inform the Workers' Compensation Appeals Board as to all relevant factual and/or legal issues in dispute," compliance is (1) unusual and (2) rarely sanctioned.
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All too often a familiar scene plays out. At a lien conference, the lien claimant representative is reviewing the "file" for the first time. Inevitably, the representative is missing documents and the background necessary to engage in effective negotiations. This lack of preparedness often, and perhaps rightfully, gives rise to animosity on the part of defense counsel. They, in turn, clam up and refuse to engage in anything productive.
The authors have also experienced the opposite situation. Because we prepare for each appearance, all too often we end up educating our counterparts on the underlying issues of a case: why our client's lien is valid and why compensation must be paid. The problem is that at the Board, these discussions are often happening for the first time.
Lien claimant representatives who appear with only a bill from the provider prevent other parties from conducting a productive hearing. Similarly, defense attorneys or representatives who appear stating they just were assigned the file and know little thereof are impediments to parties who arrive prepared.
Preparation can facilitate a fair and quick resolution. Following are a few practice tips we suggest.
Knowing the basic yet imperative background facts will facilitate settlement by allowing for educated discussions. At a minimum, we submit that lien and defense representatives should know the answers to the...
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