Filing and Service of Liens:

Amended Rule 10770 now makes clear that mere service of any claim for payment (including a “lien”) upon the workers’ compensation carrier, administrator or defense counsel for payment will not constitute the filing of a lien. (This can be a significant distinction, since lien claims must be filed timely under the prevailing statute of limitations in order for the WCAB to have jurisdiction over a lien claimant’s grievance.)

Moreover, when a defendant issues a good faith partial payment to the provider together with a clear written explanation that both justifies the amount paid and specifies all additional information, the provider must then submit that information as a prerequisite to additional payment. If a provider makes no additional written demand for payment within 90 days after the partial payment, then defendant will not be deemed to have “notice” of a pending lien claim.

Defendant is under no obligation to file such a lien with the WCAB at the time when a Compromise and Release or Stipulation & Award is submitted to the WCAB for approval.

As a consequence, timely appeal of underpayments will be an important factor in achieving lien reimbursement. This is part of the WCAB’s effort to eliminate “zombie liens.” The WCAB also modified lien filing procedures (only original liens should be filed without documentation); all documentation and amended liens should continued to be served on all parties.