EK HEALTH

by Steve Kline, Esq.
EK Health Services' Legal Counsel

As the holidays approach with all the glitz, lights, newfangled electronic gadgets and iAnything, visions of a child playing with an empty gift box dance in my head, as the expensive, batteries-not-included and easy- to-assemble toy sits in a corner. Clearly we often forget that simple things can bring some of the best moments.

So it is, with a recent WCAB Panel decision, Montalvo v Adir Restaurant, ADJ3545068.

On July 5, 2011 the Workers' Compensation Judge (WCJ) had issued a Notice of Intention to Dismiss Dr. Kevin Aminian’s lien. No objection was received and consequently, the WCJ issued an Order Dismissing Lien on August 1, 2011.

Dr. Aminian in his reconsideration petition alleged that his failure to appear at a lien conference in June, 2011 “was due to defendant’s failure to provide (him) adequate notice that applicant’s claim had been resolved” and that his personal appearance was required.

While Dr. Aminian had received notice of the trial, there was no proof that he had been served with Compromise and Release as required by 8 CCR §10886.

That Administrative rule states, “[W]here a lien claim is on file with the Workers' Compensation Appeals Board or where a party has been served with a lien, and a compromise and release agreement or stipulations with request for award or order is filed, a copy of the compromise and release agreement or stipulations shall be served on the lien claimant.   No lien claim shall be disallowed or reduced unless the lien claimant has been given notice and an opportunity to be heard. “

The Panel returned the matter to a lien conference where there could be two outcomes:  

The defendant was ordered to provide a copy of the proof of service that the lien claimant had been served with the Compromise & Release.  If the defendant fails to provide that document, the Panel ordered that a notice of intention to sanction the defendant in the amount of $500 be issued.  A hearing on the lien would also be scheduled.

However, if the defendant produces the proof of service, then the lien is to be dismissed and a notice to intention to sanction Dr. Arminian in the amount of $500 is to be issued.

Clearly, we have a proof of service valued at $500.  More accurately, that is the price of not being honest with the WCAB.

The simple things … a proof of service … attached to the service of a Compromise and Release or a Stipulation with Request for Award can save a lot of headaches and even some money.  

May your holidays and New Year be filled with simple joys.

--- Stephen L. Kline, Esq.