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BLANCA RUIZ,

WORKERS' COMPENSATION APPEALS BOARD

ST A TE OF CALIFORNIA

Case No. ADJ8969505 (Van Nuys District Office)

Applicant,

vs.

BEST AMERICAN HOSPITALITY, INC., dba 8 CHURCH'S CHICKEN; PMA INSURANCE,

OPINION AND DECISION AFTER

RECONSIDERATION

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Defendants,

TRI-COUNTY MEDICAL GROUP,

Lien claimant.

13 We previously granted the petition of lien claimant Tri-County Medical Group for

14 reconsideration of the August 25, 2015 Findings And Order of the workers' compensation administrative

15 law judge (WCJ) in order to further study the record and issues. In his decision, the WCJ found in

16 pertinent part that lien claimant's lien ''is barred by [the 18 months limitation period in] Labor Code

17 section 4903.5."I

18 Lien claimant contends that the WCJ misapplied section 4903 .5(a) in dismissing its lien because

19 it first provided services to applicant before the July 1, 2013 date specified in the statute, and for that

20 reason the three year limitation period in section 4903.5(a) applies from the last date it provided service

21 on August 12, 2013, consistent with the holding of the Appeals Board panel in Kindel berger v. City of

22 Los Angeles (ADJ586942, May 24, 2013) [2013 Cal. Wrk. Comp. P.O. Lexis 209] (Kinde/berger), and

23 not the 18 month limitations period for services provided on or after July 1, 2013 as was applied by the

24 WCJ.

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1 Further statutory references are to the Labor Code unless otherwise stated. Section 4903.5(a) provides as follows: "A lien claim for expenses as provided in subdivision (b) of Section 4903 shall not be filed after three years from the date the services were provided, nor more than 18 months after the date the services were provided, if the services were provided on or after July I, 2013."

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An answer was received from defendant.

The WCJ provided a Report And Recommendation Of Workers' Compensation Administrative

Law Judge On Petition for Reconsideration (Report) recommending that reconsideration be denied.

Having carefully reviewed the record and considered the allegations of the petition for

reconsideration, the answer and the WCJ' s Report, the WCJ' s August 25, 20 l 5 decision is affirmed as

the Decision After Reconsideration for the reasons stated in the Report, which is incorporated by this

reference, and for the reasons below.

DISCUSSION

The background facts are included in the WCJ's Report and are not restated herein. In essence,

lien claimant continuously provided applicant with services from April I 5, 20 I 3 to August I 2, 20 I 3.

Lien claimant filed its lien claim on June 16, 2015, which is more than 18 months after the last date of

service on August 12, 2013, but Jess than three years after that date. Under the WCJ's construction of

section 4903.5(a), lien claimant was obligated to file its lien claim within 18 months of the last date

services were provided, and because the lien claim was filed more than 18 months after that date, the lien

is barred by the section 4903.5(a) statute oflimitations.

Applying the 18 month limitations period in this case is not unreasonable because the

amendments to section 4903.5(a) became effective on January 1, 2013, and lien claimant had a

reasonable time within which to timely file its lien after that effective date.

In Coachella Valley Mosquito & Vector Control Dist. v. California Public Employment Relations

Bd. (2005) 35 Cal.4th 1072, 1091-1092, the Supreme Court explained that it is not improper to apply a

shortened time period to a cause of action if a party has a "reasonable time" within which to timely file

its claim, writing as follows:

Legislation that shortens a limitations period is considered procedural and is applied retroactively to preexisting causes of action, so long as parties are given a reasonable time in which to sue. (Brown v. Bleiberg (1982) 32 Cal.3d 426, 43 7 ( 186 Cal.Rptr. 228, 651 P .2d 8 I 5]; Rosefield Packing Co. v. Superior Court (1935) 4 Cal.2d 120, 122-123 [47 P.2d 716); Carlson v. Blatt (2001) 87 Cal.App.4th 646, 650-651 [105 Cal.Rptr. 2d 42].) When necessary to provide a reasonable time to sue, a shortened limitations period may be applied prospectively so that it commences on the effective date of the statute, rather than on the date the cause of action accrued.

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(Rubinstein v. Barnes (1987) 195 Cal.App.3d 276, 281-282 [240 Cal.Rptr. 535]; Niagara Fire Ins. Co. v. Cole (1965) 235 Cal. App. 2d 40, 42-43 [44 Cal.Rptr. 889].)

The Appeals Board applied this principle when it addressed the expiration of the right to

vocational rehabilitation in Weiner v. Ralphs Company (2009) 74 Cal.Comp.Cases 736 (en bane). Citing

Rosefield Packing Co. v. Superior Court (1935) 4 Cal.2d 120, 122-123, the Appeals Board wrote as

follows:

By providing in April 2004 that section 139.5 would not be repealed until January 1, 2009, the Legislature, in effect, 'saved' both pending and impending vocational rehabilitation claims for a period of nearly five years. This gave affected employees a reasonable time within which to avail themselves of vocational rehabilitation before the repeal would take effect. (74 Cal.Comp.Cases at 749; cf. Villatoro v. Kern Labor Contracting (ADJ3637976, July 17, 2012) [lien claimant had reasonable time to file claim before it was barred by new limitations period].)

The view that a lien claim is timely if filed within the longer statutory period was earlier rejected

by panels of the Appeals Board in Archibald et. al. v. RCD Painting et. al. (Access Mediquip)

(ADJ6827249, November 7, 2014) [2014 Cal. Wrk. Comp. P.D. LEXIS 587] (Archibald) and in

Guerrero v. Easy Staffing (ADJ8741561, March 18, 2016) [2016 Cal. Wrk. Comp. P.D. LEXIS 123]

(Guerrero). In upholding the WCJ's decision that the lien claims in Archibald were time-barred under

section 4903.5(a) because the services were provided before July l, 2013, but the liens were not filed

within three years of the dates of service, the panel noted that the 18 month limitations period in section

4903 .5(a) applied to services "provided on or after July 1, 2013," writing further as follows:

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Any alternative interpretation would be absurd ... [and] ... would lead to the nonsensical result that, if services were provided on or after July 1, 2013, a lien could be filed either three years after the date the services were provided or 18 months after the date the services were provided. We cannot attribute to the Legislature an intention to create two alternative statutes of limitations for the exact same services. (3:21-4:3, italics in original.)

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Similarly, in Guerrero the panel majority upheld the decision of the WCJ that the lien claim in

2 that case was barred by the I 8 month section 4903.5(a) statute of limitations notwithstanding the fact that

3 services were provided by the lien claimant both before and after July 1, 2013. Sufficient time has

4 passed since the enactment of the new limitations period to address the concern expressed by the dissent

5 in Guerrero that lien claimants receive reasonable notice of the need to timely file their lien claims

6 within 18 months of the last date services were provided.

7 In this case, services were provided by lien claimant after the July l, 2013 date of implementation

8 of the 18 month statute of limitations. For that reason, lien claimant was obligated by section 4903.5(a)

9 to file its lien claim within 18 months after the last date of service in August 2013. Lien claimant did not

IO timely file its lien within the allowed statutory period under section 4903.5(a), and the lien claim was

11 properly found to be barred by the WCJ for that reason.

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For the foregoing reasons,

2 IT IS ORDERED as the Decision After Reconsideration of the Workers' Compensation Appeals

3 Board that the August 25, 2015 Findings And Order of the workers' compensation administrative Jaw

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judge is AFFIRMED.

I CONCUR,

,,··"

,,.~ .. ·'~"···----~­.,,...,.,..,..,. .......

MARGUERITE SWEENEY .... ,

WORKERS' COMPENSATION APPEALS BOARD

DEIDRA E. LOWE

19 DATED AND FILED AT SAN FRANCISCO, CALIFORNIA

20 SEP O 8 2011' 21 SERVICE MADE ON THE ABOVE DATE ON THE PERSONS LISTED BELOW AT THEIR

ADDRESSES SHOWN ON THE CURRENT OFFICIAL ADDRESS RECORD. 22

23 TRI-COUNTY MEDICAL GROUP INNOVATIVE MEDICAL MANAGEMENT

24 HEALTHCARE RESOURCE GROUP

25 LOUIS BERMEO

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27 JFS/abs

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