At the start of the year, the California Division of Workers’ Compensation (DWC) made good on the lien reforms promised by Senate Bill 1160. Along with the Workers’ Compensation Appeals Board (WCAB), the DWC released an amended lien form, including the new declaration requirements set forth by Labor Code Section 4903.05(c). A second form – for liens filed prior to January 1, 2017 – was also released.^[1]

By way of context, last year’s reform-heavy Senate Bill 1160 devoted three entire sections to workers’ compensation lien change. The biggest changes came by way of Section 8, which amends Labor Code 4903.05 to require all medical treatment and med-legal lien claimants to file a mandated lien declaration.

The declaration must affirm that the lien is not a dispute subject to Independent Medical Review (IMR) or Independent Bill Review (IBR). It must also affirm that the claimant satisfies at least one of seven new lien claimant requirements. In an additional twist, lien claimants must also submit an original bill with their lien as of January 1.

Section (c) of the newly-enacted Labor Code 4903.05 reads as follows:

“(c) (1) For liens filed on or after January 1, 2017, any lien claim for expenses under subdivision (b) of Section 4903 that is subject to a filing fee under this section shall be accompanied at the time of filing by a declaration stating, under penalty of perjury, that the dispute is not subject to an independent bill review and independent medical review under Sections 4603.6 and 4610.5, respectively, that the lien claimant satisfies one of the following:

(A) Is the employee’s treating physician providing care through a medical provider network.

(B) Is the agreed medical evaluator or qualified medical evaluator.

(C) Has provided treatment authorized by the employer or claims administrator under Section 4610.

(D) Has made a diligent search and determined that the employer does not have a medical provider network in place.

(E) Has documentation that medical treatment has been neglected or unreasonably refused to the employee as provided by Section 4600.

(F) Can show that the expense was incurred for an emergency medical condition, as defined by subdivision (b) of Section 1317.1 of the Health and Safety Code.

(G) Is a certified interpreter rendering services during a medical-legal examination, a copy service providing medical-legal services, or has an expense allowed as a lien under rules adopted by the administrative director.

(2) Lien claimants shall have until July 1, 2017, to file a declaration pursuant to paragraph (1) for any lien claim filed before January 1, 2017, for expenses pursuant to subdivision (b) of Section 4903 that is subject to a filing fee under this section.

(3) The failure to file a signed declaration under this subdivision shall result in the dismissal of the lien with prejudice by operation of law. Filing of a false declaration shall be grounds for dismissal with prejudice after notice.”

If you don’t fulfill one of these requirements, you cannot file a lien.

If you do fulfill the requirements, you must file your lien – along with a declaration – using the DWC’s new lien form. It is our understanding that the form is now available for all e-Filers and JET filers through the filing system. It’s also accessible here.

Most existing liens are also subject to new declaration requirements. For liens filed prior to January 1st, 2017, but after January 1, 2013, existing holders must file a declaration retroactively affirming that they satisfy one or more of the seven new requirements listed above. These declarations are due on or before July 1st, 2017, and can be filed using the DWC’s new Supplemental Lien Declaration form.

Liens filed without a declaration will be dismissed. What’s more, the dismissal will be made “with prejudice by operation of law,” meaning that no other lien can be filed, nor can the applicant seek further payment in any other way. The dismissal happens automatically after the deadline to file passes with no lien declaration.

We’re entering a new era in work comp liens – one that should drastically cut down on fraud and improve the system for everyone. Make sure you’re ready for it.

If you have questions, we’re more than happy to help you. Start with our FAQ Article about the new DWC forms, or watch our lien declaration webinar below. If you’re still confused, feel free to contact us directly.