2 WORKERS’ COMPENSATION How to Effectively Work with the WCAB,Insurance Companies and AttorneysTo Collect FromWorkers’ Compensation Benefits
3 YOUR PRESENTERS Angela Bott, Humboldt County DCSS Child Support Specialist IIIAlix Haik-Bruno, Sacramento County DCSSChild Support Officer IIISteven Pesante, San Bernardino County DCSSChild Support Attorney IV
4 GOALS OF THIS PRESENTATION -- Give you a BASIC OVERVIEW of the Workers’ Compensation System -- Show where LCSAs INTERACT with the Workers’ Compensation System -- Discuss STRATEGIES on how to effectively collect child support from WCAB benefits and liens -- Tell you WHAT TO DO if something goes wrong with resolving your child support lienThis is our introductory slide. We are stating that we do not intend to do an all inclusive course on child support and the WCAB but mostly the basic characteristics of an effective unit, how to get paid and resources if you don’t get paid plus best practices that we have gathered throughout our combined years of experience of working in the W/C world.
5 Workers’ Compensation : Underused and Underestimated Least used enforcement action.Very profitable if applied effectively.Can affect both FPM3 and FPM4.Depends on the case and the life of the claim.Professional knowledge and continuous education by LCSA staff members is needed.W/C intercepts are a two-edged sword: They can keep a case or cases performing on a monthly basis and/or provide a lump sum payment towards arrears accrued from the date of injury. As stated by the WCAB, part of NCP’s w/c benefits should go towards taking care of his or her family and that is why child support liens are allowed. It can become a steady source of payments for your LCSA if set up and maintained properly. Even though getting a huge payment out of a WCAB settlement might look impressive, in reality, if managed appropriately, the amount of our liens should be small since the participant should have been paying the monthly obligation through recurring benefits.
7 WCAB GUIDEReleased on June 5, 2014, it’s a comprehensive written WCAB handbook available to print-out and take with you to hearings. Compilation of best practices by LCSAs and DCSS. The most updated version of this document can be found at California Central ________________________________ Review and understand the Glossary of terms contained within itAudience: You do not have to write down everything we say, the guide is very thorough and inclusive and will likely answer any questions you might develop after our session today. Feel free to distribute electronic copies to your staff members or print out hard copies to take with you to WCAB hearings.
8 LIFE CYCLE OF A WORKERS’ COMPENSATION CASE Return to workInjuryMedical TreatmentTotal Temporary Disability (TTD)Permanent Disability (PD)SettlementUnable to returnWe should remind the audience that although every case is different, this is a general overlook of how different stages of a claim/case. We can visually show to the audience how an injury happens, how we can have “Medical only” claims, how less than 3 days of treatment results in them going back to work with no further issue, how TD can only be issued for 104 weeks in California, how then they transition into PD which eats out into the settlement and how it can lead or not to settlement.CCPLC 4903(e)Not charged against settlementCharged against settlement
9 OVERVIEW OF THE WCAB SYSTEM The Workers’ Compensation system is an Administrative Law System which provides medical treatment and compensation for employees injured while working “on the job” Many observers say it favors workers at the expense of employers. It is an excellent source of periodic and lump-sum payments of child support to LCSAs.One of the reasons the cost of doing business in California is considered difficult – and the reason a lot of businesses in our Golden State have moved elsewhere – is things like the cost of Workers’ Compensation insurance. Insurance costs are higher when pay-outs and medical care are frequent.
10 OVERVIEW OF THE WCAB SYSTEM Understand what you are dealing with here The applicant’s attorneys only receive 15% of the settlement as their fee, so actions are quickly handled, on a “quantity” basis. When liens are settled, you must make it easy to get paid. Telephone calls are usually made by litigants just once, on the day of the hearing or trial, so someone must be available to discuss your lien!KEY POINT – “Make it Easy to Get Paid!”Story as example – two liens on a WCAB case from two counties. The WCAB Judge asked me to telephone the other county to see if resolution could be made of their lien, too. Called this second County and was told “We have your request and someone will get back to you within two days”.
11 OVERVIEW OF THE WCAB SYSTEM A worker is injured while working. It must have a “nexus” to the job to be compensable. The worker usually finds an attorney and files an “Application for Adjudication”. 15% of settlement is their fee. If such a “nexus exists”, the claim is usually “accepted” and the workers is sent for medical treatment.“NEXUS” – the nexus is usually liberally construed to be “INCLUSIVE” WCAB Attorneys do not work like you or I. They cannot dedicate a huge amount of effort to just one case, unless it is a large one. Most WCAB cases do not involve huge sums of money in settlement.
12 OVERVIEW OF THE WCAB SYSTEM If the nexus does not exist, the claim will be “denied”. Sometimes claims are settled for “nuisance” value. Once the Claim for Adjudication is opened, the State Department of Workers’ Compensation sends a list of new claims to the State DCSS. A “Match-up” occurs The LCSA with participant managing responsibility (PMR) then gets a list of tasks for obligors with open claims from the State DWC.Steven: “NUISANCE VALUE “– Generally, two or three thousand dollars. Just enough to get rid of the action and “buy your peace”. There are exceptions - Humboldt County had a recent case where the claims adjustor had settlement authority up to $25,000 to settle a questionable action.NOTE: Just because you are the “managing county” does not mean the action is conveniently filed in a forum near your LCSA. Workers have the right to live anywhere, and can get injured anywhere, including out of state.Angela/Alix: The “match up” comes in as a weekly match. It is the result of the interface between CSE and EAMS and it is reflected as an EN043 that only populates for the county with PMR for NCP. This means that only one county will get the EN043 generated under the user or team they have designated in CSE. It is that county’s responsibility to notify other LCSAs of the existence of the claim and their possible interest and/or eligibility in filing a WCAB lien. The contact information for all LCSA WCAB liaisons is housed in California Central > Contact Lists > Workers Compensation.
13 OVERVIEW OF THE WCAB SYSTEM LCSA IMPACT POINT - # 1 Once the LCSA finds out there is a claim open, it takes two significant, yet separate steps: 1. Issues an IWO to the employer’s insurer [to collect from TDD benefits being paid – NOW] 2. Files a child support lien [to collect from the settlement – LATER]SHOW THE VISUAL – A small arrow style target, marked with “IMPACT POINT” #1- IWO” – shown to the audience.I am making this a visual to remind you of the importance of this moment. It ALL starts here. You do TWO THINGS. You issue the IWO to get deductions from TD – you file a child support LIEN for later collection at settlement time.To further remind you of this IMPACT POINT – take out your NOW & LATER candy. The “NOW” is the IWO. The “LATER” is the LIEN. Enjoy!
14 OVERVIEW OF THE WCAB SYSTEM LCSA IMPACT POINT #2 Settling the child support lien when the case resolves at the end of the WCAB action But that comes a lot later, so stay tuned.SHOW THE VISUAL - a SECOND TARGET for the “IMPACT POINT #2 – LIEN” It will be labeled “LIEN”.I know you are curious about the second Impact Point –It is naturally difficult to hear about the first IMPACT POINT giving some thought to what the second one is. It is resolving the child support lien at the end of the case, at settlement time.
15 OVERVIEW OF THE WCAB SYSTEM The LCSA is authorized by California State Law to deduct 25% of Temporary Disability benefits payments to pay child support Code of Civil Procedure Section These deducted payments are NOT charged as advances against the eventual settlementYOU CAN FIND THIS LAID OUT, IN IT’S ENTIRETY on the back of your laminated sheets.
16 OVERVIEW OF THE WCAB SYSTEM The injured worker continues to receive medical treatment from his or her medical provider, and continues to receive Temporary Disability Benefits, and DCSS continues taking child support from TD benefits payments until He or she is declared by the medical provider to be: “PERMANENT AND STATIONARY” This means the worker is stabilized and is going to be returned to their prior health as much as possible.The case leads up to the mid-point of your case – look on your laminated LIFE CYCLE sheet. This is when things are going well for the LCSA – you are receiving TD benefits from which IWOs are taking deductions – maybe not the entire current monthly obligation, but some. And you can also contact the NCP during this time and suggest he or she consider a modification of their existing child support order. It’s fair to them, and better for us.
17 OVERVIEW OF THE WCAB SYSTEM EVERYTHING CHANGES NOWADD DRAMATIC MUSIC! Is this an exaggeration? Not at all. You must be especially careful monitoring your WCAB action now, or it can easily get away from your control. More than any other time, you must BE PROACTIVE!
18 DIFFERENCES BETWEEN TTD AND PD Total Temporary Disability (TTD):Intended to replace lost wagesMax of 104 weeks of TTD benefits if injury occurred after April 19, 2004 [Labor Code Section 4656 (c) (1)]Based on the employees last earningsWe can issue W/C IWO for up to 25% of the benefit (Code of Civil Procedure Section )You do not have to be WCAB lien eligible to issue a W/C IWOIt is important to keep in mind that even though TTD is intended to replace wages, it can be a partial replacement and not only a total replacement. If the employer is able to accommodate the temporary disability, the injured worker could get part of his or her regular salary and part TD. This is also referred to as “modified duty”.
19 DIFFERENCES BETWEEN TTD AND PD Permanent Disability (PD):Issued once TTD runs out or injured worker is “P&S” or has reached “MMI”P&S: Permanent and StationaryMMI: Maximum Medical ImprovementNot automatically garnishable. An order from a WCAB judge must authorize us to take a percentage of the benefit amount.
20 OVERVIEW OF THE WCAB SYSTEM #1 The injured worker no longer receives TD benefits – he or she now receives Permanent Disability benefits. Permanent Disability benefits payments, or “PDAs”, are considered “advances” against the eventual settlement of the claimSO, what is different? Three major things: Difference #1 [above] -- TD is sometime called “Free Money” since it not charged against the ultimate settlement compensation in the action. PD, on the other hand, is sometimes called “Charged Money” since it does slowly drain away the ultimate settlement compensation in the action.
21 OVERVIEW OF THE WCAB SYSTEM #2 The LCSA’s IWO no longer works Generally, insurers will not deduct child support from Permanent Disability benefit payments Why? There is no law to authorize itDIFFERENCE #2 – IWOs no longer work. No law to help us.NOTE: For several years there have been efforts made by the statewide WCAB Workgroups to try to legislation introduced to authorize deductions to be made from BOTH Temporary Total Disability and Permanent Disability benefit payments. Such efforts move at a glacial pace, and there is anticipated to be substantial “Push-Back” from the California Applicant’s Attorney Association.
22 OVERVIEW OF THE WCAB SYSTEM #3 There is law to authorize 25% deductions from Temporary Disability benefits Code of Civil Procedure Section NO law authorizes child support deductions from Permanent Disability benefitsDIFFERENCE #3 - Tell me – are you tired of filing an seemingly endless series of amended liens, attending hearings and making telephone calls only to find out there is no money left to pay your child support lien? If so, you’re in luck - A new tactic has been the recent introduction of the Petition to Withhold Child Support – see the written materials given to you this afternoon – a copy of the Petition is in there. We are hopeful that many of the WCAB Boards around the state will honor this new Petition and grant the relief sought – payments from PD benefits. A PDF fillable form is being introduced on CA CENTRAL and may soon be in the CSE system itself.
23 OVERVIEW OF THE WCAB SYSTEM #4. As Permanent Disability Benefits are paid out, the available compensation for child support is slowly paid out, until There isn’t any money, anymore But – “Truck Insurance” says they must reserve out the amount of the lienDIFFERENCE #4 – you can have your entire case PAID OUT –leaving no money available to pay the child support lien. The term for this scenario is not surprisingly – “BLEEDING OUT”. Published decision in the WCAB system are tracked in something called the “California Compensation Cases” or “CCC”. There is a CCC case which speaks to this scenario and states that insurers must reserve the amount of the child support lien once becoming aware of its existence and not pay out all the money. Sometimes they honor it, sometimes they forget.
24 OVERVIEW OF THE WCAB SYSTEM LCSA IMPACT POINT #2 SETTLEMENT OF THE LIEN Assuming there IS money left, DCSS will seek to satisfy the lien. Labor Code Section 4903(e)USE THE VISUAL – “IMPACT POINT #2”
25 WORKERS’ COMPENSATION: EARLY INTERVENTION Information from employer: Injuries, employer response form, interruptions to employer IWO. EI005 task is generated on the case. A phone call can be the difference between a case not having payments for months or having a brief interruption in payments. Reach out to NCP and employer directly to find out more information.Early Intervention is a crucial part of being proactive instead of reactive. Waiting for the information to reach your LCSA could result in months of unpaid ongoing child support or settlements taking place without a lien in place.
26 WORKERS’ COMPENSATION: EARLY INTERVENTION FPM3: Keep recurring payments coming in.TTD IWOIs EDD paying the injured worker?File a petition to withhold PD if eligible.FPM4: Lump Sum awardsFile a WCAB lien if unpaid child support accrued from the date of injury.Monitor cases for payout if ineligible for a WCAB lien for straight collections and/or other intercepts.The Petition for Order to Withhold PD has been recently approved by the State DCSS. The date for its release has been scheduled for: ___________
27 REFERRALS: DIR AND CSE EN043 tasks: Generated at the participant level.Weekly batch.SSN is used as the matching identifier.Likelihood of mismatches is high.Population of claim insurance screen, only automated CSE function in regards to workers compensation.Indicate how the mismatches are high due to inaccurate data entry at the DIR or the use of the SSN by more than one person. It is always important to make sure that NCP and the claimant match with all identifiers, not just the SSN. The amount of automated data populated in the insurance claim and WCAB screens is limited, to look at further information, you can review the combined log created by the interface and more information will appear. E.G.: Applicant’s Name, DOB and address used on the AAOC. Even though the EN043 tasks have a 15-day due date from the date of creation, they should be worked on as soon as possible to prevent settlements from taking place prior to a lien being filed.
28 ESTABLISH AN EFFECTIVE WCAB UNIT Establish a telephone number to call to settle liens or get accurate WCAB lien balances Staff the telephone number during all business hours Train your staff to settle liens Give your WCAB staff settlement authorityMAKE IT EASY TO GET PAID – Say it with me: “MAKE IT EASY TO GET PAID”. The single greatest mistake a LCSA can make in WCAB is to make it difficult to get paid. You don’t have a dedicated telephone contact line. You don’t have a designated person for callers to get information from. Your contact person is not trained in WCAB procedures. Your contact person does not have settlement authority.MAKE IT EASY TO GET PAID!
29 ESTABLISH AN EFFECTIVE WCAB UNIT Train non-attorneys to be “Hearing Representatives” to expand coverage [Use the Hearing Representative Agreement form] Ask other LCSAs to make appearances for you, when required [Family Code Section 17400(o) Use the telephone call-in system, available in some areas. Update and mail out Amended Liens Use the newly-created “Petition to withhold Child Support from Permanent Disability benefits”Steven: ANYONE can attend a WCAB hearing – it need NOT be an attorney. You just need to be trained and authorized. Use the “Hearing Representative” form found on CA CENTRAL. You do NOT need to attend your own WCAB hearings involving your child support liens – you can get another LCSA to do so for you – it’s even AUTHORIZED BY LAW! And there is COURT CALL available at some WCAB Boards.Angela/Alix: As part of being proactive, you need to become familiar with the Petition to withhold PD benefits and the Application for Adjudication of Claim (AAOC). Even though they are time consuming and labor intensive, they could be the difference between getting paid or not. Become familiar with the filing process and you will save time and headaches later by having to file petitions for reconsideration and/or other relief methods. Even though you can find these forms on CA Central, the most updated versions are housed with DIR. Becoming familiar with their website, updates, etc. will save you time in the future as well. There is an RFC with State DCSS to have some of these forms added to CSE.
31 DATA SOURCES: CSLN, OCSE and EAMS Matches are handled within CSLN first, not CSE.Only active claims are then transitioned manually by the LCSA to CSE.Not only workers’ compensation claims feed through.For optimal claim management, large counties should review daily, smaller counties once a week.Can be used for other purposes like COAP asset researchCSLN stands for the Child Support Lien Network. It is a private company out of Rhode Island. They contract with other States to provide matches by obtaining claim information from insurance companies. It is costly at $33.50 a match. Ever growing project, it gets better with time as the amount of partners grows. Not all claims are workers comp or personal injury. CLSN matches are reported to the LCSA with PMR. Refunds of the CSLN fees are available under some circumstances: claim was first aid, LCSA case is closed, a wrongfully identified applicant or the LCSA became aware of the match by other means.
32 DATA SOURCES: CSLN, OCSE and EAMS State DCSS staff handles incoming matches.Claim is manually loaded into CSE.Workers’ Compensation IWOs are generated directly out of CSE.OCSE stands for “Office of Child Support Enforcement”. OCSE matches are manually uploaded to CSE by State DCSS members. Advantage over CSLN: claim and enforcement tools are generated directly from CSE. CSLN actions are not translated into CSE by State DCSS staff members. LCSA W/C caseworkers find that they need to generate false liens and IWOs to match what has occurred in CSLN. This keeps funds from suspending or misallocating. A LCSA is only notified of the OCSE reported claims if and when the insurance company returns the ICR saying the money will be sent.
33 DATA SOURCES: CSLN, OCSE and EAMS EAMS Public Search Tool:Not to be confused with the internal EAMS platformMain search done by first and last name. DOB can be added for accuracy.Events’ information is becoming more accurate each day.EAMS is a good tool, especially if you do not want to spend money in a third party vendor like Compdata or Edex. Possibility of doing several searches. You obtain all the involved parties’ information. Can provide you with a case status.
34 FILING LIENS Paper liens are unreliable, slow and cumbersome… Switching to e-filing is easy and free.One central location processes documents, no need to deal with WCAB branch specifics or response timeframes.Less use of paper, no need for cover sheets.Savings in postageNote the pros of e-filing like almost real time filing stamp with WCAB. No need to use specific paper or document separators. It’s green because you use less paper. No need to deal with specific branches of the WCAB, it’s one central location. Also, even though e-filing is not a 100% real time filing, it goes through batches throughout the day so the filing of your document will take at the most an hour or two to populate in the ADJ case. There is also an RFC to obtain statewide JET filing directly out of CSE. LCSA can also utilize “third party” software vendors such as EDEX and/or COMPDATA. As to JET filing being offered we presently do not have an estimated time of completion. Stay tuned for updates.
35 FILING LIENS How can I transition into e-filing? Contact DIR. They host a cost free monthly webinar to train staff into the specifics of e-filing.Adapt your department’s procedures.Explain how the webinar is free, comprehensive and should be used by staff members if they are new to your WCAB Unit. Also explain how only EAMS administrators or co-administrators can communicate with DIR. Staff members who are not part of the e-filing agreement, will not get responses from DIR. Make sure you have a succession plan if your LCSA is used to moving staff members to different teams in a regular basis.
37 SETTLING LIENSThe law covering liens and their resolution is outlined by Labor Code Section 4903(e) LCSAs are called “Child Support Lien Claimants”YOUR SKILLS AS A WCAB PROFESSIONAL ARE TESTED HERE – Resolving the Lien. There are plenty of areas “in play” at this point, so let’s get to it.FIRST, who are you? You are officially the Child Support Lien Claimant”. Are you a major party in the action – yes and no. You’re not a party, but the parties cannot settle the case without you, in most instances. YOU HAVE POWERS!
38 OPENING LIENS AMENDED LIENS SETTLING LIENSOPENING LIENSCreated when the claim is first received, along with the IWO for TD payment deductionsFiled with the Board – mailed to partiesAMENDED LIENSCreated when a matter is set for MSC, Trial or Lien Conference – Lien TrialNOT filed with the Board – mailed to the partiesSteven: YOUR LIEN EVOLVES OVER TIME, generally getting BIGGER AND BIGGER. You amend the lien when you learn of a new hearing date, and make sure everyone knows the new amount – insurer and applicant’s attorney. You file the OPENING LIEN with the Court. You do NOT file the AMENDED LIENS with the court, unless asked to do so.Angela/ Alix: Back when we were paper filing we would send our amended liens with copies of our court orders and audits to the WCAB. That has changed since e-filing was put into place. Do not send/upload your supporting documentation to the WCAB unless you are requested to do so by the WCJ.
39 LCSA REQUIRED APPEARANCES SETTLING LIENSLCSA REQUIRED APPEARANCESMSC when lien over $25kAny TrialLien ConferencesLien TrialsAt any proceeding the court requests your LCSA to be presentSteven: WHEN YOU ABSOLUTELY, POSITIVELY HAVE TO BE THERE – these are instances in which you better be there, or they will conduct their business without you, and you may get RELIEF or GRIEFAngela/Alix: If you need to request a courtesy appearance from another LCSA, make sure you request it with plenty of time. Make sure they have copies of your lien, recent audit and good contact information for you if needed. Keep this is mind also when deciding if you will file a lien for your county or you are thinking about sending your balances to an LCSA with a cross file. It is easier for one LCSA to represent all the counties involved, especially if the lead LCSA is located at the same county/city as the WCAB branch where the case is venued.
40 SETTLING LIENSWCAB LITIGANTS MUST ATTEMPT TO CONTACT YOU TO RESOLVE THE LIEN *** They must telephone you at least once *** Insertion of the phrase into the settlement documents stating litigants will “pay, adjust or litigate the child support lien” is NO longer permissibleSteven: The California Code of Regulations grants protection to the child support lien claimant. Litigants must attempt to contact us at least once prior to settlement of the action, and must document their efforts on a Lien Affidavit sheet attached to the settlement. Still, there cannot be inclusion of a gray area provision like the one above – which is legalese for “TRUST US – WE’LL TAKE CARE OF IT LATER”. It is critical that you maintain accurate, up-to-date WCAB contacts on the Master WCAB Contact List on CA CENTRAL to make it easy to be contacted.Angela/Alix: In the past, WCAB judges have been provided with the LCSA WCAB liaison list in order to make contact. If your local WCAB judge does not have this list and is requesting one, you can provide them with a copy.
41 Most settlements take the form of a lump-sum payment called a SETTLING LIENSMost settlements take the form of a lump-sum payment called aCompromise & ReleaseLess frequently, the applicant reserves their right to future medical treatment, and gets paid in periodic payments in aFindings & AwardCOMPROMISE & RELEASE – DCSS’ preferred way to get paid. It is lump-sum and get the lien paid all at once.FINDINGS & AWARD – DCSS’s least favorite way to get paid. It is a series of periodic payments.NOTE: Be careful how to pronounce the slang for Findings & Award – “F & A”.
42 The following protocols are to be used SETTLING LIENSThe following protocols are to be usedwhen there is aCOMPROMISE & RELEASESETTLEMENTMOST FREQUENT YOU WILL ENCOUNTER “C & R”s
43 What amount do you ask for in resolving the lien? SETTLING LIENSWhat amount do you ask for in resolving the lien?It entirely depends on what amount of money ison the tableDo your research, first!Steven: DON’T EVER AGREE TO A SPECIFIC AMOUNT UNTIL YOU KNOW WHAT THE CURRENT SITUATION IS. Story example – an especially unethical applicant’s attorney and I had come to a tentative agreement at a prior hearing over the amount of the lien we would accept to resolve the action. It was based on one-half of net settlement money available to the applicant/NCP. More money was authorized before the next hearing. Applicant’s attorney still tried to get me to agree to the settlement amount previously discussed.Angela/Alix: If they request a lien acceptance letter and ongoing is still an issue, it is always a good idea to include language like “This agreement is valid until a specific date”. It has happened in the past that the C&R is not filed until 3 months down the road and you have already agreed to a specific amount as mentioned by Steven. Always aim to get paid as much as you can include in your audit.
44 SETTLING LIENSFIRST, determine the GROSS settlement amount THEN, deduct out the following: Attorney fees at 15% of settlement gross & Permanent Disability AdvancesHERE’s the STEPS . . .
45 SETTLING LIENSWhat remains is the NET settlement amount Example: GROSS settlement amount - $20,000 Less Attorney fees (15%) - $3,000 Less PDAs - $6,000 _________________ $11,000 is the NET settlementNET SETTLEMENT IS WHAT YOU REALLY NEED TO KNOW . . .
46 SETTLING LIENSNow, evaluate the NET settlement amount If you can pay the lien in full, and leave the same or greater amount for the applicant, REQUEST THE LIEN BE PAID IN FULL If you cannot pay the lien in full, and leave the same or greater amount for the applicant, SPLIT THE NET SETTLEMENT 50-50%COMPARISON OF THE NET TO THE LIEN AMOUNT LET’S YOU KNOW WHAT TO DO. Always.
47 SETTLING LIENSExamples Net Settlement is $11,000 LCSA lien is $3,000 Ask for entire lien to be paid This leaves the applicant $8,000ANOTHER EXAMPLE . . .
48 SETTLING LIENSExamples Net Settlement is $11,000 LCSA lien is $6,000 Ask for $5,500 Split the net with the applicantTHIS IS THE MOST LIKELY RESULTS – More liens are paid off by splitting the net than by getting the full lien paid.
49 History of LCSA payments is poor. Future payments are unlikely. SETTLING LIENSWhen to ask for“a little bit more, Sir”History of LCSA payments is poor. Future payments are unlikely.You sense the Board Judge is favorable to suggesting a higher lien pay-outYou can talk the Applicant/Applicant’s attorney into more since it will benefit their LCSA situationUSE THE BRITISH ACCENT. Judges sometimes are good at giving clues about their feelings on child support. Story example – I had a Judge who was so emotional on the issue of child support – having been raised by his single mother and receiving little or no support – he actually recused himself after delivering an emotional recitation of his story to me while waiting for the parties to settle their case.
50 Lack of Attorney Understanding of WCAB process SETTLING LIENSLack of Attorney Understanding of WCAB processOn occasion, some applicant attorneys will attempt to claim that no more than 25% of the settlement can be used to resolve the child support lien . . .WRONG!THIS HAPPENS MORE OFTEN THAN I WOULD LIKE TO REMEMBER Doesn’t make it any less wrong, though.Remember – you have the LAW ON YOUR SIDE!
51 SETTLING LIENSThis misunderstanding comes from confusing the statute which allows 25% of TD payments: i.e., Code of Civil Procedure Section with the correct code which allows Board Judges complete discretion to resolve the lien in any amount they feel is appropriate: i.e., Labor Code Section 4903(e)THESE STATUTES ARE IMPORTANT – so important, we put them on the back of the laminated LIFE CYCLE sheet. Have them handy at all times to help make your case if you get an applicant’s attorney who is not knowledgeable about the law on settlements.
52 SETTLING LIENSIn the event you are bullied, thwarted, browbeaten, ridiculed, belittled or otherwise mistreated by an applicant’s attorney who does not wish to resolve the lien pursuant to this widely-used, reasonable protocol,CALL THEIR BLUFF!Ask that the Court reserve the full amount of the lien, and order a Lien Conference be set to litigate the lienNEVER PUT UP WITH RUDENESS – Yell, “Lien Conference” and close negotiations.
53 SETTLING LIENSWhen settlement talks are taking place, outline your settlement strategy to the parties Attend ALL chamber conferences with the Judge Remember – the litigants cannot settle the case without settling the child support lien, especially when child support lien is substantial in sizeSTAY ALERT to MAXIMIZE LIEN SETTLMENT. INFORM THE PARTIES OF LCSA POSITION ON LIEN – No Surprises!
54 SETTLING LIENSOh, heck – they selected a “Findings & Award” settlement NOW WHAT? Applicant will now receive a modest, bi-weekly periodic payment until their entire compensation is paid out – this could take years How does a LCSA get more than just a few $$$ a week?FINDINGS & AWARD – How to handle to still get a lump-sum pay-out
55 SETTLING LIENSINVOKE THE PHRASE ALL APPLICANT’S ATTORNEY FEAR “Your Honor, I would like to satisfy our child support lien by commuting off the far end of the award” And what does THAT mean?DRAMATIC MUSIC, AGAIN! SUPER-HERO VOICE . . .
56 SETTLING LIENSThe court will likely be sympathetic to the LCSA’s situation. The court will then allow a lump-sum “commutation” of periodic payments at the end of the payment cycle to be converted to a one-time, lump-sum payment made payable to the LCSA.Steven: COMMUTATION “THEORY” – See? You do get to use math in LCSA collections!Angela/Alix: If necessary, mention that this is child support that the child has been missing since the date of injury.
57 SETTLING LIENSCOMMUTATION EXAMPLE Applicant is owed 240 payments of $ bi-weekly to pay off his compensation award of $44, You ask for 35 payments to be “commuted” to pay off the child support lien of $6,400.00EXAMPLE – there i NO TEST on this, but you should be able to find it in the manual and figure it out at the hearing, when required.
58 SETTLING LIENSFor All Lien Settlements PLACE THE SETTLEMENT PROVISIONS REGARD IN THE LIEN INTO THE SETTLEMENT DOCUMENTS [Get a copy of the settlement documents] ALWAYS REQUEST THAT THE INSURER PAY THE CHILD SUPPORT LIEN DIRECTLY TO THE SDU NEVER ALLOW THE APPLICANT OR APPLICANT’S ATTORNEY TO PAY THE LIEN FROM THEIR PROCEEDSSteven: GOOD PROTOCOLS FOR ALL LIENS . . .Angela/Alix: Make sure you take the SDU’s info with you to the WCAB hearings, including the Tax ID information. Many insurance companies input this information in their system to send out payments, many of the carriers already have the SDU’s information set up as a vendor. Remember…make it easy for them to pay us!
59 SETTLING LIENSLien Conferences and Lien Trials LCSA representatives must attend or your lien might be resolved without your input, or disallowed Trials can involve testimony, and even witnesses Informal rules of Evidence are usedYOU ARE GOING TO ANY Lien Conferences and Lien Trials set by the court on your child support lien.
60 WHEN UNFORTUNATE THINGS HAPPEN Why do unfortunate things happen? Again, it is the nature of this system. Things happened quickly, there is not sufficient time to check things (like your child support lien balance) correctly, and the parties are more interested in getting the case resolved than getting your lien exactly right OR You didn’t file your lien electronicallyBUMMER – It didn’t go well for my lien. WHY? Here’s the most likely things that can go wrong. And if you didn’t electronically file your lien, you are only minimally allowed to cry. ALL LCSAs should be filing child support liens electronically.
61 WHEN UNFORTUNATE THINGS HAPPEN How to guard against this?Electronically file your liens – most important!Call litigants before and after each hearingStay in the minds of the litigants by making telephone calls and amending liensDevelop a relationship with your WCAB JudgesFrequently attend hearings, to show LCSA interestCALL BEFORE AND AFTER HEARINGS – ALL of them! “Show the Flag” – appear regularly. Make it a point to develop the relationship with your Board Judges – the bigger the county, the greater the need to try to do this.
62 WHEN UNFORTUNATE THINGS HAPPEN SO, what can go wrong? Your child support lien is omitted completely from the settlement Your child support lien is underpaid NO money is left to pay the child support lienSPECIFIC BAD OUTCOMES . . .
63 WHEN UNFORTUNATE THINGS HAPPEN NOTIFY THE LITIGANTS OF THE PROBLEM [by telephone, and confirm by FAX/Letter] Ask the Defense counsel NOT to pay out the settlement money until the lien is resolved, or in the alternative, pay out all but the full amount of the lien. File a Petition for Reconsideration Or Declaration of ReadinessSteven: BE PROACTIVE! Take immediate action. Time IS of the Essence!Angela/Alix: True story here…you should always try to resolve informally the problem but also due to the fact that you have limited time to file any of the relief methods stated above, you need to start making phone calls as soon as the problem is identified. Ask them to make a commitment and pay the overlooked lien, if it doesn’t happen then go ahead an file the RECON or the DOR but…most parties do not want to go back to the WCAB and acknowledge they made a mistake so take that to your advantage and ask them to make things right. This can save you both time and resources associated to drafting a petition, filing the documents and attending a hearing.
64 WHEN UNFORTUNATE THINGS HAPPEN Insurers are required to pay out the settlement proceeds within thirty (30) calendar days of settlement documents being approved by the court. You must file for your relief promptly! Petitions for Reconsideration must be filed within twenty (20) calendar days of the award [Labor Code Section 5903]REMEMBER – The situation keeps moving forward after settlement – the insurer is required to timely pay out the money.
65 WHEN UNFORTUNATE THINGS HAPPEN RECONSIDERATION FORM Found on the Department of Workers’ Compensation website Use the DECLARATION OF READINESS FORM if the defense counsel agrees to wait to pay out the settlement until the child support lien issue is resolvedSteven: FORMS YOU VERY LIKELY WILL USE BY THE END OF THIS YEAR ON ONE OF YOUR WCAB ACTIONS . . .Angela/Alix: The Reconsideration Form can be found on the DIR W/C’s website, it is an OCR form located under the EAMS hyperlink. If your Legal Team is accustomed to drafting their own Petition for Reconsideration and Order and they have been successful in the past at your local WCAB branch, you can always save a copy as a template for future use.
66 CLOSING CONSIDERATIONS TO MAXIMIZE YOUR WCAB COLLECTIONS 1. ESTABLISH AN EFFECTIVE WCAB UNIT Be available during business hours Workers should have settlement authority Train your personnel on WCAB issues Use Hearing representatives Electronically file liensIn sum, in the final analysis, it comes down to this, here’s what you need to remember . . .1. ESTABLISH AN EFFECTIVE WCAB UNIT
67 CLOSING CONSIDERATIONS 2. PAY ATTENTIONTelephone litigants before and after hearingsAmend and mail out liens frequentlyDevelop a relationship with your WCAB JudgesWatch for omitted or underpaid liensAttend hearings frequentlyKeep WCAB contact listupdated and accurate2 – PAY ATTENTION [Stay Proactive]
68 CLOSING CONSIDERATIONS 3. USE YOUR RESOURCESRead and use the WCAB GuideUnderstand the Glossary of TermsContact other LCSAs for assistance in attending remote WCAB hearings3. USE YOUR RESOURCES – Your own, and from sister agencies, when needed. Glossary. California Central
69 RESOURCESCalifornia Central: Workers’ Compensation Procedures Manual Workers’ Compensation Master Contact List Hearing Representative AgreementWHILE WE HAVE GIVEN YOU THE MANUAL WITH THESE MATERIALS, here is where you can find it if updates are eventually made.
72 CONTACT INFORMATIONAngela Bott, Humboldt County DCSS Child Support Specialist III ( 707) Alix Haik-Bruno, Sacramento County DCSS Child Support Officer III (916) Steven Pesante, San Bernardino County DCSS Child Support Attorney IV (909)
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