New Rules That Change Practice Before the Board

Sunday, December 22, 2002 | 0

The WCAB is in the process of adopting extensive changes to the Rules of Practice and Procedure located at California Code of Regulations Sections 10300 to 10999. According to Commissioner James Cuneo in a presentation to the Northern California Workers' Compensation Defense Attorneys Association in Monterey on 12/7/02 new rules that were the topic of the WCAB Forum will be implemented effective 1/1/03. The WCAB has adopted 116 changes to their rules. Some of these changes are merely grammatical or non-substantive, however many are significant changes to procedures before the WCAB. The proposed rules and the Board's Information Digest discussing the rules can be located using the following link: http://www.dir.ca.gov/WCAB/WCABRegulations/WCABRegs.html.

It is not possible to cover all of the changes but the major ones that require immediate attention include the following:

1 - Setting cases for Hearing: (Rule 10414 through 10416)

DORs will no longer be reviewed by a WCJ. All cases where a DOR is filed will be set for hearing. Objections to DORs must be made within 15 days of service (10+ 5 days for service). (This is an increase over the prior 6 days plus 5 for mailing.) Objections must still be under penalty of perjury to be valid however filing an objection will not keep the case off calendar. The issues raised in the objection will be discussed at the MSC when it occurs and a decision will be made as to the validity of the objections to proceeding. Failure to object to any issue on the DOR shall be considered a waiver of objection to those issues (as opposed to prior rules where it could have been considered a waiver) .

2- Block Settings: (Rule 10417)

All WCAB boards shall allow block filing of DORs and obtaining hearing date. This process requires service of DOR at least 10 days in advance of filing with WCAB by a party, who is to file any objections to DORs that have been sent after service and before the DOR filing. Party requesting setting is to give notice of Hearing to all parties.

3 - Self-Executing Orders Deemed NIT issue Order:

The WCAB will now interpret all self-executing orders (Example: Applicant is ordered to attend medical exam. This order shall be null and void if objection received with 10 days of service) as NOTICE OF INTENT to issue Order. There will be no more self-executing orders and any such order will still require a follow-up up Order from the WCAB. (In the above example, the WCAB would still have to issue a further order compelling attendance after the 10 days for objection).

4 - Filing of Copies (Rule 10391 and 10605): The WCAB will accept a reproduction of a document as if were an original. Faxed or photocopied documents will be accepted as originals including stipulations, C & Rs, applications etc. This will also apply to medical reports where an imaged copy will be equally admissible as an original. The validity of a copy can be challenged and it will be up to the party submitting the document to demonstrate its authenticity.

5 - Service by Fax: Rule 10505 & 10506):

Allows service by Fax if agreed to by parties or where authorized or requested by receiving party. Fax documents are governed by same time limits as those served by mail (CCP 1013(a) applies allowing extra 5 days for performing any act required by service).

6 - Failure to Serve Evidentiary Documents Deemed Bad Faith Conduct: (rule 10561):

Primarily affects service of medical reports (required within 6 days of demand, filing DOR or request). Added to list of sanctionable actions under LC 5813.

7 - Requirement to Provide Computer Printout of Benefits (Rule 10607):

Defendant is required to produce a computer printout of benefits (showing date, amount. period covered for indemnity & payee, date and amount of each medical payment) within 20 days of demand, not more often than each 120 days and also must have a printout available for inspection at each MSC is benefits have been paid.

8. Filing and Service of Medical Reports (Rule 10608):

After filing of an Application a party shall serve reports within 6 days of demand an all subsequent reports within 6 days of receipt. A DOR shall be accompanied by all reports and within 6 days of filing of a DOR all other parties are to serve (but not file) any previously unserved reports. The previously unserved reports are to be filed with the WCAB at the Hearing. Do not file reports with the WCAB with any objections to a DOR, bring them to the hearing. Reports filed with the WCAB in violation of this rule may be discarded by the WCAB. All unfiled reports are to be filed with settlement documents.

9 - Resolution of Lien Claims (Rule 10888):

No Settlement can be approved without showing good faith effort to resolve lien claims (good faith requires at least one phone call or letter to lien claimant). After approval of settlement leaving an unresolved lien claim the WCAB shall: set case for lien conference, or issue NIT to approve lien or NIT to disapprove lien. No more OTOC pending resolution of lien claims with pay, adjust or litigate language.

10 - Walk through Procedures Clarified (Rule 10890):

Board process for walk through procedures are defined . Refer to actual rule for details.

The above are merely some of the more significant new rules. There are changes in venue challenges, preemptory challenges of judges, identification of parties (to include lien claimants), service rules, continuances, appearances at hearing of lien claimants and others. The rules should be carefully reviewed by anyone who has to deal with the WCAB on a more than casual basis.

Trial judges are already warning attorneys about the computer printout rules, DOR rules etc. There will probably have some leeway for a while after 1/1/03 but not for long.

By attorney Jake Jacobsmeyer of the law firm Adelson, Testan & Brundo in their Concord, Ca. office, with assitance from the Commissioner James Cuneo. Jake Jacobsmeyer can be reached at (925) 609-1990, or by e-mail at Jakejacobsmeyer@ktblaw.com.