Lien Claimant Must Prove Injury After Thomas Finding

A Workers’ Compensation Appeals Board Panel made a determination that self-procured lien claimants must prove an industrial injury after a case has been settled by a compromise and release with a Thomas finding.

The applicant settled his case by way of compromise and release with a Thomas finding. There was also a hold harmless clause releasing the applicant from any potential liability to lien claimants. Lien claimants, thereafter, filed a Declaration of Readiness To Proceed. When the case was heard by the Workers’ Compensation Judge he awarded a chiropractor reimbursement on his self-procured medical treatment, even though injury was never proven.  Defendant filed a petition for reconsideration and the Board panel overturned the Judge’s finding. The Board Panel indicated that lien claimant must first prove injury arising out of and in the course of employment before self-procured medical payments may be awarded.

In practicality what this means is that if defendant settles with the applicant with a Thomas finding there may still be an AOE-COE trial with all the incumbent witnesses on the issue of injury. The lien claimant has the burden of proving mere was an industrial injury. A lien claimant may try and do this by merely submitting their own medical. A good defense attorney will not let this happen without a fight.  First, the attorney has not had a right to cross-examine the applicant. Therefore, the defense attorney could argue this is merely hearsay testimony and a denial of due process. The Board usually sends out a notice mat applicant need not appear for lien issues. Therefore, if the defendant wants the applicant to appear, the defendant should subpoena the applicant or send out a notice to produce to the applicant’s attorney.

However, in most cases the defendant will not want the applicant to appear.  This is so the defendant can have only defense witnesses testify. Then the only credible evidence the judge could rely on would be defense witnesses. This would result in a finding of no industrial injury.

Therefore, the self-procured lien claimant would receive nothing. A smart judge may make sure all lien claims are resolved at the time the Compromise and Release is approved with a Thomas finding to prevent a later AOE-COE trial on the lien issues.

There may also be a potential problem for applicant’s attorneys who never show up at lien trials. If no hold harmless clause was given in the Compromise and Release the applicant may find the lien claimant pursuing the claim in civil court if no injury was found in the workers’ compensation proceeding.

Case: Williams V. Liberty Mutual Insurance

Harvey Brown
3501 Jamboree Rd. Suite 602
Newport Beach, CA 92660

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