New WCAB Rules of Practice and Procedure, eff. 1/1/2020

10305(b),           (v)

The WCAB has finally made a formal distinction between the “Appeals Board” (now defined as the commissioners and deputy commissioners of the Workers’ Compensation Appeals Board acting en banc, in panels, or individually) and the greater “Workers’ Compensation Appeals Board” (now defined as the Appeals Board plus the presiding workers’ compensation judges and workers’ compensation judges). 

10305(o)

Perhaps the biggest news of these Rules is the redefinition of “party” to include lien claimants.  According to the WCAB, this change recognizes the practical reality that lien claimants are parties to the litigation.  In its statement of reasons, the WCAB opines that lien claimants may file a DOR only after the case in chief is resolved, that lien claims will not be heard until after the conclusion of the case in chief, and further that this change will not require service on lien claimants of all documents related to the case in chief because Rule 10625 requires service only on “affected” parties and Rule 10629 requires the WCJ to specifically identify parties to be served when ordering designated service.  Notably, the WCAB also opined that designating lien claimants as parties does not require the settlement of lien claims in order to settle the case in chief.

10305(r)

The newly anointed beast called “Significant Panel Decisions” has survived despite heated opposition.  The final definition requires all members of the Appeals Board (not simply a majority of commissioners) to agree that the case is one of “significant interest and importance to the workers’ compensation community.”  Both here and in new §10325(b), Significant Panel Decisions are confirmed as “not binding precedent.”

10346(b)

Where a trial judge is unavailable due to extended absence, retirement, disqualification, or otherwise, this rule clarifies that the PWCJ may reassign the case to another trial judge.  Where testimony has been taken, the new judge must recommence proceedings unless the parties agreed to waive the requirements of §5700.

10360

While a judicial or quasi-judicial officer of the WCAB may be subpoenaed to testify as a percipient witness, the officer may not be compelled to testify as to the reasons or basis of a decision or ruling, nor their opinions regarding events occurring in the proceedings, unless certain conditions are met.  A change to this section permits a petition to compel such testimony to be determined on the pleadings or set for hearing at the discretion of a PWCJ, a deputy commissioner, or the Appeals Board.

10370

Where a public emergency exists (earthquake, fire, destruction or danger to a District Office), a new rule outlines the authority of the chief judge, a designee, or the Appeals Board to permit extensions of time up to 14 days to perform any act required or permitted; the local PWCJ is permitted to extend time for an 30 additional days.  Notably, these authorizations do not include extensions of statute of limitations or jurisdictional time limits (such as filing petitions to Reopen, for Reconsideration/Removal, Applications, or lien claims).

10382

In order to provide adequate due process, a party to be joined who has not otherwise been provided notice of a proposed joinder must be given notice (10 days) and an opportunity to respond prior to joinder.

10390

In keeping with the Coldiron case, this new rule requires proper identification of the insurer and/or employer, and not the third-party administrator, as the party; however, the TPA must now be listed on the official address record and case caption in order to ensure proper identification of all case participants.

10396

It is a long-standing practice that all evidence received in one consolidated case is admissible in the others.  The amended rule confirms this practice even if no master file has been designated.

10400

A new rule lists requirements for information to be included by attorneys filing a Notice of Representation, including the name of the party represented and the attorney’s State Bar number.

10401

For non-attorney representatives, this new rule outlines the requirements for the notice of representation, including the name of any attorney responsible for supervision.  Where an entity sends different non-attorney representatives to various hearings in a case, the entity is not required to file a new notice of representation each time.  Instead, each new non-attorney representative can file a more streamlined notice of appearance as provided in new rule §10751.

10403/

10404

These new rules set out the process for removing, denying, or suspending a non-attorney representative’s privilege to appear before the WCAB, noting that information obtained during any investigation is confidential.

10430

The vexatious litigant statute now lives here.  We thought you should know.

10450

Confirming prior case law, this new rule bars the conduct of any formal, compelled discovery (e.g., deposition testimony, subpoenas) prior to the filing of a case-opening document.

10455

Eliminates the requirement for a minor’s nomination for the administration of death benefits. 

10465

After consideration of objections from CWCI and others, the WCAB agreed to rewrite this rule to clarify that the filing of an Answer is not required.  The balance of the rule addresses timing: Because the statutory 10-day period is seldom long enough for the defendant to meaningfully assess the applicant’s claim and file a useful response, the WCAB wants to vest discretion in the WCJ to determine on what conditions an Answer may be accepted beyond the 10-day period provided for by statute.  As such, this new rule alters the response timeline to require the filing of any Answer within either 10 days of the service of a Declaration of Readiness, or within 90 days of the service of the Application for Adjudication itself, whichever occurs first.

10482

New rules apply to venue selection where the applicant is an employee of the DWC.

10488

Concerning the selection of venue based on AA’s place of business, this amended rule now clarifies that a timely objection automatically results in mandatory venue reassignment, pursuant to Labor Code §5501.5.

10540

At CWCI’s urging, the WCAB corrected initial language in the rule that conflicted with the related statutory provision.  While this new rule governs the process related to the filing of a Petition to Terminate Liability, LC §4651.1 continues to govern the associated deadlines for filing.

10545

[See also 10789] In one of the more controversial additions, the WCAB is now allowing Petitions for Costs to be handled on a walk-through basis rather than requiring a DOR.  In response to fairly significant opposition, the WCAB has taken the position that the rule does not mandate processing petitions for costs as walk-throughs, noting that WCJs always retain discretion to refuse to handle a given petition on a walk-through basis.  “The rule does not mandate any particular approach.”  As it relates to the process applicable to interpreter fees, attention is directed to the published appellate decision in Meadowbrook Ins. v. WCAB (2019) 42 Cal. App. 5^th 432, 2019 Cal. App. LEXIS 1287.

10547

Petitions for §5710 fees are required to be verified under oath, and may not be filed before 30 days after written demand has been served on defendants.  The petition must include a copy of the written demand, any response, as well as a proof of service to defendants and the injured worker.

10555

Originally, this rule had flatly precluded the assertion of any credit until and unless a formal Petition for Credit had been filed and approved by a WCJ.  In response to serious concerns raised by CWCI and many others, the WCAB significantly redrafted the proposed rule.  According to the final version, a formal petition is only required when a dispute arises about an asserted credit.  The rule outlines the necessary components of any such petition.  Best of all, new subdivision (c) now makes clear that a WCJ may order production of a third-party settlement document.

10590

A Petition appealing an audit penalty under LC §129.5 must be filed with the Commissioners’ Office of the WCAB, and not at the trial level.

10620

By this rule, exhibits must now be filed 20 days prior to trial.  The WCAB explained that local customs and practices need to be harmonized, because local rules are not allowed.  “This is an issue of fundamental due process.”  Nevertheless, the rule goes on to permit the WCJ discretion to order otherwise.  The WCAB contends that this “discretion” does not violate the prohibition against local rules because “all judges” have the same discretion.  Parties can expect local customs and practices to continue unaltered.

10629

Possibly the most impactful new rule requires that a party designated to serve an order (almost always defendants) must file a proof of service with the WCAB within 10 days.  This rule will impact Minutes of Hearing, Orders Approving, interim rulings, OTOCs, etc., not to mention the negative impact upon the district offices burdened with hundreds of thousands of new filings annually.  Despite widespread opposition, the WCAB decided that the rule should be implemented in order that disputes might be resolved on the merits and not based upon an inability to determine whether service was made.  “Designated service is a valuable cost-saving measure, but it cannot come at the expense of being able to determine reliably whether, when, and upon whom a court-issued document was served.”  A silver lining in this rule (related to the designation of lien claimants as parties) is that the WCJ must now indicate which parties must be served with a court document.

10637

Titled “Service of Medical Reports, Medical-Legal Reports, and other Medical Information on a Non-Physician Lien Claimant,” this new rule makes clear that service of medical reports on non-medical lien claimants is not permitted absent a specific order from the WCAB. 

10670

This consolidated rule outlines documents that the WCAB may decline to receive into evidence, including any document not filed 20 days prior to trial.  The rule also confirms that the WCJ may decline to admit into evidence documents not served either prior to or at the mandatory settlement conference, in compliance with LC §5502(d)(3).

10683

Based on the solo request from DWC Counsel Winslow West, Rule 10631 was not repealed as originally planned.  The rule relates to the “minimum standards” required of QME reports, and has been renumbered to 10683.

10700

Consolidation of several rules related to approval of settlements resulted in new rule 10700.  The rule purposefully omits references to vocational rehabilitation because vocational rehabilitation is no longer a benefit provided to injured workers.  CWCI had requested that the WCAB take the opportunity to endorse the result in Beltran, wherein it was held that the prohibition on settlement of Supplemental Job Displacement Benefit voucher is analogous to settlement of vocational rehabilitation benefits as in Thomas v. Sports Chalet.  The WCAB declined, stating “We do not believe such codification is wise or necessary at this time.”

10742

In rules relating to DORs, new subdivision (b) makes plain that adjudication of the case in chief takes priority over adjudication of lien claims; as a result, lien claimants will remain unable to file a Declaration of Readiness to Proceed until the case in chief has either been resolved or abandoned.  Also, parties filing a DOR must now go beyond merely stating that good faith efforts were made to resolve the disputed issue and are now required to state with specificity the efforts actually made.

10752

Each required party must have a person with settlement authority immediately available (phone, text, email) at all hearings.  The IW “shall” be present at any MSC, but there is no evident penalty for a failure to appear.  A lien claimant does not have to appear at the MSC / Trial in the case in chief, but is required to be available by telephone with full settlement authority; failure to comply may result in sanctions, fees, and costs.

10786

This rule becomes the primary governing language for non-IBR dispute resolution practices, replacing §10451.1.  The rule will continue to be one of the more contentious aspects of ancillary litigation in the system, as the WCAB has largely retained all of the bad aspects of former §10451.1.  Efforts to persuade the WCAB to delete provisions related to fees, costs, and sanctions were met with a haughty response from the WCAB: “The best way to avoid the imposition of sanctions for bad-faith actions and tactics is not to engage in bad-faith actions and tactics in the first place.”  The bottom line here is that the changes made in §10786 are largely non-substantive, and we should not anticipate that they will meaningfully alter the adjudication of these disputes; once a provider’s objection is received, the claims administrator must file a Petition and a DOR regardless of the validity of the objection itself.  Attention is also directed to the recent en banc decision in Colamonico v. Secure Transportation (2019) 84 CCC 1059, 2019 Cal. Wrk. Comp. LEXIS 111. 

10788

Lien claimants have an independent right to automatic reassignment of a lien trial judge, regardless of whether the applicant has previously obtained reassignment.

10789

[See also 10545] Petitions for Costs may be submitted on a walk-through basis, but petitions for a determination of medical-legal expenses under rule 10789 are not Petitions for Costs.

10790

Language allowing only interpreter fees that are reasonably, actually, and necessarily incurred has inexplicably been deleted, with the only justification from the WCAB being that the language was unnecessary.

10832

Certain orders of the WCAB may be subject to a Notice of Intention; where an objection is timely received, the WCAB may sustain the objection, overrule it, or set the matter for hearing.  The danger here is that the rule now permits the overruling of an objection without a requirement of a hearing.  Additionally, this rule has been updated to disallow designated service of “self-destruct” orders, which must be served directly by the WCAB.

10875/

10880

These new rules govern the conduct of Lien Conferences and Trials.  CWCI objected to language that “any violation of the provisions of this rule may give rise to monetary sanctions, attorneys’ fees, and costs.”  The WCAB rejected this objection, noting that the language is permissive and not mandatory, and is not intended to suggest that any violation of the rule constitutes per se bad faith actions or tactics.  But of course, it does.

10888

Over objections from CWCI, the WCAB has retained language providing that lien claims may only be dismissed for failure to comply with a statute or rule that specifically provides for such dismissal.  The WCAB reasoned that it wanted to avoid providing blanket approval to dismiss a lien for failure to comply with a provision of law, “no matter how trivial.”

10940/

10955/

10995

Without any viable explanation, the WCAB has removed the ability to file petitions for reconsideration, removal, or disqualification at any District office; instead, such petitions or answers thereto must be filed directly at the district office where the case is venued (or via e-filing).