Maybe not THAT way

I had been looking forward to the DWC public hearing on the proposed regulations for weeks. While I didn’t get a chance to tune into the Zoom video meeting, I was able to listen to all of the public comments.

If you’ve watched the news, late night television, or tuned into any local government meetings over the last 18 months, you’re already aware there are a lot of opinions about the pandemic, the government, and the government’s response to the pandemic. Perhaps this was why I was not prepared to hear glowing unanimous support for these regulations. Every public commenter was incredibly supportive and enthusiastic about the proposed regulations relating to remote hearings.

With in-person hearings set to be implemented as soon as October 1, 2021 these changes can’t be made fast enough.

Photo courtesy of ADT


Sooo… remember when I posted about the DWC announcing the TTD rates for 2022? Yeah, well, they just issued a notice withdrawing that Newsline stating the Department of Labor information was preliminary and incomplete.

What does this mean for 2022 rates? I don’t know for sure, but I have some thoughts on the matter. Over the last few years the Department of Labor has been sluggish to update their statistics. At some point each fall the DWC is naturally faced with the unenviable dilemma of providing certainty to all stakeholders in the workers’ compensation system regarding benefit rates while still being bound by the requirements of L.C. Section 4453 to await updates from the Department of Labor. No matter your political bent or theories on the underlying causes, there is no denying the last 18 months have definitely seen a decline in the economy. The increase in the state average weekly wage of 2020 over 2019 was to be expected. Similarly, a decrease from the halcyon days of January through March of 2020 to a similar period in 2021 compared is hardly unexpected.

My guess is even though the Department of Labor data for the first quarter of 2021 is “preliminary and incomplete,” it is exceedingly unlikely any amount of additional data or massaging of these figures is going to result in an increase in the temporary disability rates for 2022.

Photo courtesy of Chris Marquardt

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


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

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