“Fast forward two and a half years, and after several terrorist shooting victims’ workers’ compensation claims were resolved without any indication of liens being pursued against the compensation, CalVCB began filing liens in cases that had not previously been resolved,” Gurvey wrote in his letter to the governor. “That, in and of itself, creates an issue of equal protection under the law.”
The California Victim Compensation Board on Tuesday said it would withdraw liens filed against the workers’ compensation claims of some victims of the Dec. 2, 2015, terrorist shooting at the San Bernardino County Inland Regional Center.
The announcement comes one day after applicants’ attorney Alan Gurvey, managing partner of the Law Firm of Rowen, Gurvey & Win, sent a letter asking Gov. Gavin Newsom to investigate the liens filed against some of his clients and other San Bernardino County workers.
In an email to WorkCompCentral, the Victim Compensation Board said it “is withdrawing all lien claims previously filed in these cases.”
CalVCB, in a November email to WorkCompCentral, said it filed 15 liens against workers’ compensation claims by victims of the terrorist shooting, asking for a total of $884,328.50.
“Generally, the CalVCB files liens on income loss benefits for open workers’ compensation cases which are filed with the Workers’ Compensation Appeals Board,” the board said in the email.
Gurvey on Monday sent the governor a letter expressing concerns about possible due process and equal protection issues because though some of his clients were facing liens against their awards, others were able to settle their cases without any issues regarding liens.
“As a practical matter, as I face settlement of some of the remaining cases which have not yet been resolved, the victims who have been seriously injured as a result of the shootings are now faced with an inability to settle their cases as, in many cases, there would be limited funds in a settlement available for reasonable compensation for permanent disability and, importantly, future medical treatment, the primary entitlements under workers’ compensation law in California,” Gurvey wrote.
Gurvey also wrote in his letter that the decision of CalVCB to start filing liens against claims filed by some victims of the 2015 terrorist shooting that killed 14 and injured 22 appeared to contradict statements the board made to him in 2017.
Shortly after U.S. Rep. Pete Aguilar, a Democrat representing San Bernardino, in December 2016 secured $4 million from the Department of Justice to provide mental health treatment, crisis counseling and other services for the victims, CalVCB notified the county workers that taking the money could result in liens against their comp claims to prevent any double recovery of benefits.
In April 2017, an attorney for the board sent an email to Gurvey clarifying that the agency doesn’t pursue reimbursement unless work comp makes a payment on the same loss that CalVCB has already covered. The email also acknowledged that CalVCB has statutory authority to reduce or waive liens.
While the board said it can’t provide details about benefits paid to crime victims, a report that San Bernardino County published in June 2018 describing its response to the shooting raised questions about whether the income loss payments mirrored any benefits available through the workers’ compensation system.
Temporary disability benefits cover up to two-thirds of a worker’s earnings for up to 104 weeks. The county reported that Victim Compensation Board payments were used to cover the remaining third of earnings not covered by TD or to continue covering lost earnings for workers who hit the two-year cap.
Gurvey wrote in his letter that benefits provided to the victims shouldn’t be the subject of liens for reasons including the fact that many of the payments “are not benefits allowable under workers’ compensation law.” He also said the victims didn’t know that benefits not available through the work comp system would nonetheless be deducted from their comp awards.
Gurvey concluded his letter by positing that the county workers who were victims of a terrorist attack are being victimized once again by a state agency.
Although the governor’s office didn’t provide any statement to WorkCompCentral on Tuesday, it forwarded questions to CalVCB, which replied to say it was dropping the liens.