The transition of the modern-day lien conference into electronic hearings has transformed the lien conference from an all-day event with lots of wasted time into a more streamlined hearing that can be incredibly efficient for all parties involved.

John P. Kamin

Prior to the pandemic, lien conferences used to be lengthy affairs that involved going to the Workers' Compensation Appeals Board, tracking down lien claimants across various courtrooms, and arguments before the judge with numerous parties wanting wildly different dispositions.

While that still can happen, it doesn’t have to. Here’s a basic primer that can help get defendants on the right track to a more efficient lien conference.

Before the conference

Before the lien conference, I recommend identifying your key documents and double-checking whether they’ve been served on other parties. Conversely, have the other parties served you with their documentation? If not, get it.

If they are treating for a completely different body part that wasn’t a part of the workers’ compensation claim, then get that information out early. A good lien hearing representative will appreciate knowing that in advance so he can set expectations accordingly.

Second, prepare a pretrial conference statement just in case the lien conference gets set for trial.

Third, defendants will want to obtain clear settlement authority prior to the hearing so they know how much to settle for. Some parties like playing it by ear, which is OK in principle, but keep in mind that “life happens” and should a “drop-everything emergency” occur at the claims administrator’s desk that day, that can result in the defense attorney being without authority at the lien conference.

Talking points

A sharp defendant will already have his talking points in hand prior to the hearing. Some of the basic things you’ll want on your checklist for each lien are:

• Name of lien claimant/balance/demand.
• Which ADJ number their lien is filed on, and when.
• Basic range of dates for the dates of service.
• Fee schedule valuation, if available.
• How did the case settle, and how much did it settle for? Why?
• Defenses against each lien. Most lien hearing reps won’t want a long diatribe, but if you can summarize these into a quick 15-30 second elevator pitch, they will appreciate it. These can be divided into several categories:
  • Defenses against the case-in-chief.
  • Lien-specific defenses (can range from statute of limitations to medical treatment guidelines).
  • Procedural bars (stays, dismissals).
  • Witnesses: They can often play a role in substantiating these defenses. Who would testify for what party, and why? Does the witness for each party pass the smell test? Does that particular witness have a penchant for not showing up?
• Authority amount, how much you intend to offer, and why.

At the hearing

Be prepared to call into the hearing on time, write down the parties’ names and ask for second call. It’s usually easiest if the defense attorney gives out his email and phone and urges the lien claimants to email first. If a particular lien hearing representative tends to “go missing” for long periods of time, get his phone number so you can call and bug him in case he forgets to email you.

Some hearing representatives may be trying to wrangle multiple hearings that day, and if so, text messaging can be a great way to cut to the chase and exchange vital information. After all, it’s hard to ignore an incoming text message when you’re on the phone.

In these text and email chains, be sure to mention who you are and what case you’re on. That will also avoid confusion. I realize that seems incredibly basic, but mistaken offers/demands happen in the wrong cases all the time. Including the basics reduces that significantly. And if someone does make a mistake, it’s usually an honest one.

Second call

When calling back into the court, be ready to tell the judge:

• What disposition you want, with a good explanation why.
• What liens are settled and unsettled.
• Which liens you want notices of intention to dismiss for.
  • Have proof of service for the notice of hearing handy if you want NOIs and know that it was served on the correct locations.
• An understanding of what settlement documents are circulating, and a verbal confirmation that they will be signed during the hearing.

After the second call is done, tie up any loose ends and don’t forget to quickly sign and return those pending settlement documents and other loose ends.

Settlement document basics

Often, the lien claimant will volunteer to prepare the lien settlement agreement. As a defense attorney, I often have to add information, such as:

• Correct the name of the caption. For example, is the correct defendant listed?
• Double-check the ADJ numbers.
• Is the balance and lien settlement correct?
• Is the payment time frame correct? Most parties agree to “no penalties and interest if paid within 30 days,” but some prefer 45 days on occasion.
• Is the lien claimant’s payment information legible? Does the name of the lien claimant on the settlement document match the one that you should be settling? If the payment information is not legible, addressing that question ASAP is preferred.
• Make sure you are resolving all of the dates of service.
• If there are multiple co-defendants paying various shares, specify which party is paying what specific amount. Make sure that their shares add up to the lien settlement amount, as it’s very easy to simply calculate off of percentages and accidentally be off by a dollar or two.
  • When sending in your payment information, clarify to the client that the amount you are sending is the amount that he is specified to pay. In other words, you already did the math and are not asking him to pay for co-defendant’s share.

Conclusion

The pandemic-fueled transition into electronic hearings forced parties to get their act together and stop wasting all day at the board. This has arguably benefited all by allowing each party's representative to sit in one place and process a ton of information. As it turns out, the act of being in person and running from courtroom to courtroom to talk to people was often a distracting waste of time.

Since the move to e-hearings, a good number of lien claimant representatives have now begun to negotiate in good faith before the hearings. Many are still sticking to unreasonable demands of 70% to 90% of lien balance before the hearing, but even the basic exchange of information before the hearing is leading to faster resolutions when the lien conference arrives.

Following the aforementioned tips will help get your lien conference right on track and get your liens resolved more efficiently.

John P. Kamin is a workers’ compensation defense attorney and partner at Bradford & Barthel’s Woodland Hills location. He is WorkCompCentral's former legal editor. This entry from Bradford & Barthel's blog appears with permission.