Fundamentals of Work Comp Law and SB 899 - Part 4

Saturday, March 26, 2005 | 0

The following article is the fourth in a series for attorneys and other professionals just getting started in workers' compensation. This installment reviews the Appeals Board and procedures. Authors Richard Owen and Harold Greene have graciously permitted the republication of their outline from their annual class on workers' compensation they give to the CA State Bar Section Education Institute, updated to reflect the changes in the law from the recent reforms. Though not in narrative format, workcompcentral editors felt the material to be of excellent educational quality in present form and are proud to publish it here.

The Appeals Board - Procedure

I. Workers' Compensation Appeals Board and Local Offices of Workers' Compensation Judges/Referees:

A. Jurisdiction of Workers' Compensation Appeals Board [WCAB] (California Const. Art. XIV, section 4; Labor Code sections 111-115, 5300-5317; WCAB Rules of Practice & Procedure, Rules 10300-10999):

B. Workers' Compensation Judge/Referee [WCALJ] (Labor Code sections 27, 123.5-123.6; Rules 10348-10353:

C. Compare Division of Workers' Compensation [DWC] (Labor Code sections 110, 111, 124-129.5

II. Employee's Claim Form for Workers' Compensation Benefits [DWC-1] (Labor Code section 5401; Rules 10116-10118):

A. When Given: Within 1 working day of knowledge (Labor Code section 5401(a)); See also Rule 10119 for additional duties of a claims administrator to provide a DWC 1.

B. Contents: ". . . name and address, social security number, the time and address where the injury occurred, and the nature of and part of the body affected by the injury." See Rule 10118 for the DWC-1 form.

C. Effect:

1. Did not exist before 1/1/90.

2. 1/1/90-12/31/93: Establish WCAB jurisdiction over claim.

3. 1/1/94: Formal notice to employer but not jurisdictional act for WCAB.

4. Delivery of completed Claim Form to employer starts time periods running for payment of benefits, penalties, etc.

III. Applicant's Attorney Disclosure Form (Labor Code section 4906(e); Rules 10134-10135.1): "At the initial consultation, an attorney shall furnish the employee a written disclosure form promulgated by the administrative director which shall clearly and prominently describe the procedures available to the injured employee or his or her dependents. . . ." The executed form shall be sent to the employer, the insurer, or third party administrator within 15 days of its execution. See Rule 10134 for the form required (DWC-3)

IV. Delay in Decision:

A. 14-Day Rule (Labor Code section 4650(a)): Employer/insurer must start paying benefits within 14 days of knowledge of injury and disability; automatic penalty unless employer/insurer sends delay in decision letter or the injured worker has not filed a DWC-1 with the employer.

B. 90-Day Rule (Labor Code section 5402): Injury is presumed compensable if the claim is not denied within 90 days of receipt of the DWC-1; such presumption is only rebuttable by "newly discovered" evidence (See State Compensation Insurance Fund v. WCAB (Welcher) 37 Cal.App.4th 675, 60 CCC 717 (1995) and cases cited therein; State of California v. WCAB, 62 CCC 304 (1997)). Also see a good discussion of the 5402 presumption when applied to a death claims following the employee's admitted inter vivos claim in the unpublished case Farmer's Rice Cooperative v. WCAB (Dias) 65 CCC 11 (2000 unpublished). However, the 90-day presumption does not apply to the threshold issue of employment (Bryant v. Dee's Liquor Store, LAO 694479, 60 CCC 601 (WCAB en banc, 1995)), nor does it apply to a psychiatric claim when the injured worker does not satisfy the minimum 6 month employment requirement of Labor Code section 3208.3. See James v. WCAB, 55 Cal App 4th 1053, 62 CCC 757 (1997). The presumption is waived if not raised as an issue at the MSC and at trial. See Jobity v. WCAB, 62 CCC 978 (1997 W/D); Calif. Comp. Ins. Co. v. WCAB, 62 CCC 961 (1997 W/D). SB 899 added requirement that employer or insurance carrier must commence provision of medical treatment up to $10,000 pending determination of liability. See Labor Code section 5402(c).

V. Dismissals:

A. Dismissal of inactive cases:

1. Dismissal of Claims Forms (DWC-1) filed for dates of injury 1/1/90 and 12/31/93 (Labor Code section 5404.5, Rule 10120): Inactive (defined in Rule 10120(e)) for 180 days; then personal service (CCP sections 415.10 et seq.) of the defined Notice on the injured worker with a copy being mailed to the attorney of record, if any. If the injured worker does not file an application with the WCAB within 180 days of such personal service, the claim form is dismissed by operation of law.

2. Dismissal of Applications for dates of injury before 1/1/90 and after 1/1/94 (Rule 10582): Inactivity for 1 year, then a 30 day "pre-dismissal" letter to the injured worker with a copy to his/her attorney followed by a Petition to Dismiss filed at the WCAB after the expiration of the 30 days. Any reply to the "pre-dismissal" letter must be attached to the Petition to Dismiss.

B. Dismissal for Failure to Appear (Rule 10562): If a party with notice of hearing fails to appear at such hearing, the WCAB may dismiss the application after issuing a ten (10) day notice of intention to dismiss.

C. Dismissal by Applicant's Request and Other (Rule 10780): Except as provided in Rules 10562 and 10582, dismissal at the request of the employee shall issue forthwith; all other requests for dismissal shall only be considered after a fifteen (15) day notice of intention served on adverse parties to show good cause to the contrary. Self-executing orders, i.e. orders with language rendering the order null and void if objection made within a specific time limit, are abolished effective 1/1/2003. See new Rule 10349.

VI. Moving a Case forward to a Hearing:

A. The different procedures for cases with dates of injury between 1/1/90 and 12/31/93 - "window period cases" - and all other cases, i.e., with dates of injury before 1/1/90 and after 12/31/93 has been abolished under new Rule 10400, effective 1/1/2003. All cases, regardless of date of injury are commenced by the filing of an application, a duly executed compromise & release, or a stipulation with request for award. Rule 10400.

VII. Venue (Labor Code section 5501.5):

A. Basic venue:

1. County of residence of injured worker at time of filing application;

2. County of place of accident;

3. County where applicant's attorney maintains principle place of business if applicant consents and no timely objection by defendants.

B. Change of Venue (Labor Code section 5501.6): Requires a showing of good cause.

C. Objection to Venue under Labor Code section 5501.5(a)(3): Defendants may object to venue based on applicant's attorney principle place of business by written objection filed within 30 days of service of the notice of case number. See new Rule 10410.

VIII. Application for Adjudication of Claim (Labor Code section 5500; Rules 10400, 10408):

A. Forms are different for regular benefit regular cases and death cases. Old "Window period" case procedures and forms have been abolished.

B. Labor Code section 4906(g) statement/affidavit must be attached to the Application

IX. Answer (Labor Code section 5505; Rules 10480, 10484):

A. Forms are different for regular benefit cases and death cases. Again, use of the regular, non-window period Answer form is permitted by the WCAB.

B. Labor Code section 4906(g) statement/affidavit must be attached to the Answer.

C. Demurrer, Motion for Summary Judgment nor Judgment on the Pleadings not permitted (new Rule 10490).

X. Discovery: The primary method of discovery in workers compensation matters is by way of deposition and subpoena duces tecum. Interrogatories are not permitted. Depositions in workers' compensation proceedings are specifically authorized by Labor Code section 5710(a), and said section specifically incorporates the deposition rules of Code of Civil Procedure for like depositions in civil actions. See Code of Civil Procedure sections 2016-2036. For scope of discovery of the injured's medical history to only the conditions placed in issue by the compensation claim, see Allison v. WCAB (1999) 72 Cal.App.4th 654, 64 CCC 624, 27 CWCR 129.

XI. Request for Expedited Hearing (Labor Code section 5502(b); Rules 10136-10137):

A. Such hearings are limited to:

1. Entitlement to medical treatment under Labor Code section 4600;

2. Entitlement to temporary disability payments or amount;

3. Appeal from decision and order of the rehabilitation unit, enforcement thereof, or termination; or

4. Liability for benefits among employers.

5. Any other issue requiring an expedited hearing and determination as prescribed in rules and regulations of the administrative director. Added by AB 749.

B. Such hearings are not available if injury AOE/COE is in issue.

C. Form for the Request for Expedited Hearing: DWC-4.

D. Hearing must be held within 30 days of the filing of the Request and the Declaration of Readiness to Proceed.

E. Expedited hearing commenced by the filing of a Declaration of Readiness to Proceed. See new Rule 10415.

XII. Request for "Priority" conference Hearing (Labor Code section 5502(c) (added by AB 749/AB 486); See new Rule 10555.

A. Employee must be represented

B. Issues in dispute are employment or injury AOE/COE only

C. Conference within 30 days of DOR

D. Fast track for discovery "sufficient time in which to complete reasonable discovery. The WCALJ can continue to status conference upon showing of good cause for completion of discovery; at all subsequent status or priority conferences, parties must be ready to set for trial of have a plan for completion of discovery. When discovery completed, case is to be set for trial.

E. A determination of the right of the parties shall be made and filed within 30 days after the trial.

XIII. Declaration of Readiness to Proceed (Labor Code section 5502(a); Rules 10414 - 10417): Puts case on active calendar at WCAB. Objection to DOR now can be filed within 10 days of service of DOR. Failure to object is a waiver of any and all objections to proceeding on the issues specified in the DOR. See new Rule 10416. Block settings now permitted. See new Rule 10417.

XIV. Mandatory Settlement Conference (Labor Code section 5502(d); Rule 10353):

A. The MSC must be conducted in not less than 10 days nor more than 30 days from the filing of the declaration of readiness to proceed; if dispute not resolved at MSC, trial must be held within 75 days of the filing of the declaration of readiness to proceed (Labor Code section 5502(d)).

B. If dispute not resolved at MSC, the parties shall file a joint pre-trial statement setting forth the issues and stipulations for trial, witnesses, and exhibits (Labor Code section 5502(d)(3), Rule 10353).

C. Discovery closes on date of MSC and evidence not disclosed or obtained thereafter shall not be admissible unless the proponent of the evidence can demonstrate that it was not available or could not have been discovered by the exercise of due diligence prior to the MSC (Labor Code section 5502(d)(3)).

XV. Arbitration (Labor Code sections 5270-5278; Rules 10995-10999):

A. Mandatory (Labor Code section 5275(a), Rule 10995):

1. Insurance Coverage.

2. Contribution between defendants under Labor Code section 5500.5.

3. The provisions of the law for mandatory arbitration in low PD cases or for congested calendars on rehab issues was repealed by AB 749

B. Discretionary or voluntary: The parties may agree to arbitrate any and all issues (Labor Code section 5275(b), (amended by AB749) Rule 10996).

XVI. Rating pretrial conference, pretrial conference/standby trial, etc.: See local rules and practices. All local rules to be abolished by the new Court Administrator, who is charged with enforcing uniform rules statewide. AB 749/486

XVII Computer printouts of benefits paid now required to be produced by Defendant within 20 days; request can be made every 120 days. Defendant who paid benefits must have copy available for inspection at every MSC conference. See new Rule 10607

XVIII Walk-through Procedures: See new Rule 10890 for details.

IXX. Trial:

A. Time limits for setting hearings (Labor Code section 5502).

B. Continuances are disfavored (Labor Code section 5502.5, Rule 10548). The DWC and WCAB has adopted new rules for the granting of continuances and for Orders Taking Off Calendar; such requests "shall be granted only on a clear showing of good cause." Any order granting such request must comply with certain procedural/formal requirements and is to be served on all parties of record under Rule 10500. "Parties are expected to be fully prepared for regular hearing regardless of the proceeding requested by the declaration of readiness to proceed or Application for Adjudication of Claim (for injuries on or after January 1, 1990 and before January 1, 1994). At the Mandatory Settlement Conference and regular hearing, or subsequent hearings, the parties must be present to submit for decision on all issues and produce all necessary evidence including medical reports, wage statements or any other documentary evidence necessary to prove the party's claim or defense. Any and all witnesses necessary to prove the party's claim or defense shall be produced at a regular or subsequent hearing. Failure of a party to be prepared DOES NOT constitute good cause for granting a continuance." (DWC/WCAB Policy & Procedure Manual section 6.7.4, adopted 10/1/95).

C. Trial procedures: Labor Code sections 5700-5710; Rules 10451-10762. Please remember that the WCAB and the trial Judge have a duty to develop the record under Labor Code sections 5701 and 5906, so the Judge is permitted to make direct inquiry in the hearing and to order additional evidence be obtained/submitted. See Tyler v. WCAB, 56 CA4th 924, 62 CCC 924 (1997). But "The Board's power to develop the record cannot be used to circumvent the clear intent and language of [Labor Code] section 5502(d)(3) [that evidence not disclosed at MSC is not admissible.] San Bernardino Community Hospital v. WCAB (1999) 74 CA4th 928, 935, 64 CCC 986. See also Telles Transport, Inc. v. WCAB (Zuniga) (2001) 92 C.A.4th 1159, 66 CCC 1290.

The next article in this series will begin a review of medical issues from a legal context.

Richard D. Owen is a Sr. Staff Counsel, Supervisor, with State Compensation Insurance Fund; he is the Attorney-in-Charge for Glendale Legal's Unit A, comprised of 16 litigation attorneys and 14 clerical support, and participates in training/educating attorneys and claims adjusters for SCIF in throughout California. He has been a certified workers' compensation law specialist since 1992 He can be reached at rdowen@scif.com. Harold L. Greene is an Attorney at Law with the offices of Greene and Weinberger in Simi Valley, CA, and has been a certified specialist in workers' compensation law since 1974. He can be reached at haroldlgreene@hotmail.com.

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