Fundamentals of Work Comp Law - Part 5

Sunday, March 30, 2003 | 0

The following article is the fifth in a series for attorneys and other professionals just getting started in workers' compensation.

The first article reviewed the history of workers compensation in CA, and provided an overview of the system framework. The second article reviewed benefits for temporary and permanent disability. Article three reviewed death benefits, penalties and provided an overview of benefit rates. The fourth part of the series started a review of WCAB procedures and this article finishes that review.

Authors Richard Owen and Harold Greene have graciously permitted the republication of their outline from the annual class on workers' compensation they give to the CA State Bar Section Education Institute. 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.

VIII. 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.

IX. 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

X. 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).

XI. 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 a recent case limiting the scope of discovery of the injured's medical history to 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.

XII. 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.

XIII. Request for "Priority" conference Hearing (Labor Code section 5502(c) (added by AB 749/AB 846); 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.

XIV. 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.

XV. 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)).

XVI. 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).

XVII. 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 749/846

XVIII 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

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

XX. 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 CA4th 1159, 66 CCC 1290.

The next article in this series will review how medical issues are resolved.

Richard D. Owen is Sr. Staff Counsel with State Compensation Insurance Fund supervising a legal unit comprised of 16 litigation attorneys and 14 clerical support persons, and is responsible for training/educating attorneys for SCIF in Northern and Southern California. 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.