On March 22, 2018, the Workers’ Compensation Appeals Board issued an en banc decision in the case of Pedro Hernandez vs. Henkel Loctite Corporation (ADJ6726149), upholding the Finding of Fact issued on December 29, 2017. The Finding of Fact determined that lien claimant Monrovia Memorial Hospital had until the close of business on Monday, July 3, 2017 to file its lien declaration pursuant to Labor Code section 4903.05.

The Board noted that Labor Code 4903.05 (c) states that lien claimants “shall have until July 1, 2017 to file a declaration.” The Labor Code does not provide any alternative way to determine time, so the longstanding rule for calculating action required by statute would be used.

The Board observed:

Contrary to defendant’s argument, the traditional rule for the computation of time includes the last day. “The time which any act provided by law is to be done is computed by excluding the first day, and including the last, unless the last day is a holiday, and then it is also excluded.” (Code Civ. Proc., section 12, italics added.) If the last day falls on a holiday, the period of time is extended to include “the next day that is not a holiday.” (Code Civ. Proc., section 12a(a)8.) “Holiday” is defined as “all day on Saturdays, all holidays specified in Section 135 and, to the extent provided in Section 12b, all days that by terms of Section 12b are required to be considered as holidays.” (Id., italics added)

The above decision brings precise clarification to the actual deadline by which lien claimants were required to file 4903.05 declarations; all declarations filed before July 3, 2017 at 5 p.m. are timely. The prior Rodriguez vs. Garden Planting Company (ADJ8588344) en banc decision allowed lien claimants the due process right for a judicial determination of whether their lien declaration had been timely filed, but the decision made no determination as to whether liens filed after June 30 but before 5p.m. July 3, 2017 would be deemed timely. The issue would be tried on a case-by-case basis.

The en banc Hernandez case puts to rest the question of whether a lien claimant’s LC 4903.05 declaration is valid. As a result, lien claimants can now proceed to litigate their liens based on the merits of their claims.

The Appeals Board did not address defendant’s issue of electronic signature versus a wet signature because this was not listed as an issue at trial. However, since this form is electronically filed in EAMS, an S signature should be deemed appropriate.

Boehm will keep you posted on future legal developments.