Author: Jay Shergill

Workers' Compensation Defense Attorney Certified Specialist Workers Compensation Law California State Bar Board of Legal Specialization Managing Partner of Purinton, Jimenez, Labo & Wu, LLP

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Just one question. But, it’s a biggie…

This is going to sound crazy, but I’m actually really looking forward to tomorrow’s online public hearing regarding the proposed additions and amendments to its Rules of Practice and Procedure. (If you want the “TLDR” version of these proposed regs, I recently posted a summary of these changes).

  1. Board Rule § 10816 allows a party to provide notice they intend to appear electronically for any hearing upon a petition setting forth “good cause.”
    1. What constitutes good cause to appear electronically?
  2. Board Rule § 10815 sets forth the means for a party to object to a hearing or trial taking place by electronic means. There does not appear to be similar guidance under Board Rule § 10816 on requesting a live hearing or trial take place electronically.
    1. Once a timely petition has been filed, is there any additional step that party needs to take to appear electronically or is such a petition presumed granted?
    2. What if there is no response from the Board to such a notice of intention to appear electronically?
  3. Board Rule § 10816 appears to relate to only the noticing party appearing electronically – and does not appear to require the hearing be conducted electronically for all parties. Prior to the pandemic the Board utilized the CourtCall system to permit one party to appear telephonically, irrespective of the preferences of other parties, and subject to judicial discretion.
    1. Will the Board conduct hearings where some, but not all parties, are appearing electronically?
  4. The WCAB decision “In Re: COVID-19 State of Emergency En Banc (Misc. No. 260),” 3/18/2020, suspended the requirement for witnesses and live signatures to settlement agreements as set forth in Cal. Code Regs., tit. 8, § 10500(b)(6) and DWC-CA forms 10214(c)-(e). Although parts of this decision relating to different regulations have been rescinded over the last 18 months, this particular change as it relates to allowing electronic signatures and witnesses has not been altered.
    1. Will the WCAB En Banc Misc. No. 260 removing the requirement for live signatures and witnesses be made permanent or formalized in a regulation?

What questions do you have?

Photo courtesy of Benjamin Reay

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NO NONSENSE

Per today’s DWC Newsline, the maximum and minimum rates for total temporary disability in 2022 will remain unchanged from 2021 rates. This also means the rates for death benefits, life pension, and permanent total disability won’t be changing either.

Since these benefit rate changes are derived from the year over year increases in California’s state average weekly wage, it’s little wonder the state average weekly wage went down, instead of up for the first time in many years. Astute readers might wonder why the temporary disability and associated benefit rates aren’t going down next year – since the state average weekly wage did. The way these statutes were drafted, only the yearly increases in state average weekly wage are used for adjusting the benefit rates.

Don’t tell Lexis, but this is going to make my work updating the charts for the Labor Code book slightly easier.

Photo courtesy of Paul Sableman

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Welcome to the Constant State of…

This morning the DWC announced emergency regulations 36.7 and 46.2 are being re-adopted for another 90 days.

What does this mean for your practice? It just means everything keeps going, just as “normal” as it has been for the last 18 months or so.

Photo courtesy of marcus eubanks

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I see hold music in your future

I recently posted my summary of the most interesting changes to the workers’ compensation board rules of practice and procedure.

Shortly after the DWC published these proposed changes, they issued Newsline 2021-87 declaring the Board would be returning to in person hearings as of 10/1/2021. The conflict between the proposed rule changes and this newline is interesting and left many scratching their heads.

What struck me is these are not emergency changes, temporary changes, and have no apparent sunset or expiration dates. This appears to signal the Board is finally ready to make telephonic appearances and video trials a permanent fixture of the worker’s compensation system. Not only do these proposed regulations require the parties to actually discuss issues before the hearing (§ 10759), but any party may request the hearing be conducted electronically (§ 10816), and now there is a formal procedure for filing the pre-trial conference statement (§ 10759) in the event of an electronic hearing.

One need only to review the Board’s “Initial Statement of Reasons” to see what these proposed changes portend:

“In March 2020, the WCAB transitioned to virtual operations at the beginning of the novel coronavirus pandemic, which included the adoption of electronic signatures, service, and filing of documents by the Appeals Board as well as the Division of Workers’ Compensation’s transition to remote hearings conducted via telephone and video. To facilitate these changes, the Appeals Board suspended certain Rules. Remote proceedings and the availability of electronic communication, filing, and service have increased access to the workers’ compensation system for parties, their representatives, and the public. Based on the success of some of these innovations, the Appeals Board has determined that making these changes permanent would be beneficial to the public and to the administration of the workers’ compensation adjudicatory system.” (emphasis added)

Prior to the pandemic I had been using the CourtCall system for far flung hearings. Although that system worked reasonably well, it was slightly more complicated than strictly necessary. The telephonic conference call system which has evolved over the last 18 months, while occasionally inadvertently entertaining, has been far more efficient all around.

Since the pandemic started, I have found it far easier to reach opposing counsel, discuss issues, reach resolutions, and narrow the issues when resolution isn’t possible. All this plus no traffic, inclement weather, or searching for a parking spot. I certainly welcome these changes to help provide speedier and more efficient results.

Tune in next time to see what questions still remain after reviewing the proposed regulations.

Photo courtesy of “Marco Verch“

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Big Change.

The DWC issued a seemingly bland Newsline on 8/20/2021 placing the public on notice of a 9/24/2021 public hearing on proposed amendments to Board Regulations 10300 through 10995. Some of these changes are useful, but not that interesting (such as adding or updating some definitions).

You could download and scan through all 32 pages of these regulations… or just check out this list of the interesting parts:

  • § 10745. Setting the Case. The Board may now set order any kind of hearing be conducted electronically on it’s own motion, with or without notice.
  • § 10750. Notice of Hearing. Now notices for hearings will indicate whether they will be held electronically.
  • § 10752. Appearances Required. Represented injured workers are no longer required to appear for mandatory settlement conferences.
  • § 10759. Mandatory Settlement Conferences. Now the parties “shall meet and confer prior to the mandatory settlement conference” and absent resolution file the pre-trial conference statement by the close of the conference.
  • § 10815. Electronic Hearings Before the Workers’ Compensation Appeals Board. If the Board notices an electronic hearing a party may object showing good cause – and it goes to the Presiding Judge to decide.
  • § 10816. Electronic Appearances Before the Workers’ Compensation Appeals Board. A party intending to appear electronically for any hearing not specifically designated as an electronic hearing may file a petition showing good cause pursuant to Board Rule § 10510.
  • § 10817. Electronic Testimony Before the Workers’ Compensation Appeals Board. A witness intending to testify electronically may file a petition showing good cause pursuant to Board Rule § 10510.
  • § 10832. Notices of Intention and Orders after Notices of Intention. Slightly expands a judge’s powers to issue a notice of intent.

What do you suppose these changes signal? Tune in next time for some ideas.

Photo courtesy of “MeMyself&*I“