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Workers' Compensation

California: Information and Assistance Officers – The “Five” Ws: Who What When Why Where & How?

By Hon. Robert G. Rassp

Also by: Rose Stephanian, I&A Officer, WCAB Los Angeles, Olivia Iniguez, I&A Officer, WCAB Los Angeles

DISCLAIMER: The opinions expressed in this chapter are those of the authors and are not those of the California Department of Industrial Relations, the Division of Workers’ Compensation, or the Workers’ Compensation Appeals Board

INTRODUCTION:

Do you know what “Hopper-izing” the Information and Assistance Office was? Who initiated it and why? What functions do I&A Officers perform? Where do I&A Officers come from—how are they recruited? How do they work within the Division of Workers’ Compensation and the WCAB? Why is it important for counsel to know more about the I&A Officer program? What does a judge do when the Applicant’s attorney requests to withdraw from representing the Applicant in the middle of trial during a break in the proceedings? What can an alleged uninsured employer do when served with a Notice of Special Lawsuit? What can an employer do when surcharged with a high X-mod premium? Who besides a judge reviews a proposed settlement of a case where a party is not represented by legal counsel?

All of these questions and more are answered in this article. Over the years, Applicant’s attorneys have had very few interactions with I&A Officers because of the very fact that the injured workers are represented by counsel. On occasion, a frustrated Applicant will contact an I&A Officer if the Applicant’s attorney is not communicating with the Applicant and a friendly call or email from the I&A Officer to the attorney’s office will help set the ship back on course. That being said, I&A Officers are not enforcers of the law but are what their title says—they provide information and assistance to the public who request their help.

Before a discussion occurs about the role of I&A Officers, you have to understand their statutory and regulatory origin.

ENABLING LEGISLATION

Information and Assistance Officers have been available for the public to consult with for decades. The establishment of the Information & Assistance Officer program was a creation of the legislature. In 1993, the enabling legislation that created the I&A program was updated by the legislature. Labor Code Section 139.6 mandates the Administrative Director to establish the I&A Officer program. Here is a synopsis of Section 139.6:

  • Sub-section 139.6(a) mandates the Administrative Director (AD) to establish within the DWC a continuing program to provide information and assistance to the public concerning the rights, benefits, and obligations of the workers’ compensation law to employees and employers who are subject to California workers’ compensation law. The I&A program is mandated to provide the following:
    • (1) Preparation and publishing guides to the California workers’ compensation system that is written in easily understandable language, updated regularly, and describes in layman terms the rights and obligations of employees and employers; the procedures for obtaining benefits, and the means of resolving disputes. Separate guides can be prepared for employees and employers with copies sent to any and all labor and employer organizations known to the AD.
    • (2) Preparation of a pamphlet, written in easily understandable language (English and Spanish) advising injured workers of their basic rights under workers’ compensation law, their rights under the Americans With Disabilities Act (ADA) and the Fair Employment and Housing Act (FEHA) relating to disabilities. The pamphlet must contain the following information:
      • The circumstances under which injured employees are entitled to the various types of workers’ compensation benefits;
      • The protections against discrimination because of a work injury;
      • The procedures for resolving disputes which may arise;
      • The right to seek information and advice from an Information and Assistance Office or an attorney.
  • Sub-section 139.6(b) mandates the AD to appoint an I&A Officer for every DWC/WCAB District Office, and any deputy I&A Officers depending on the operational needs of each office. The I&A Officers were to be provided office facilities and clerical support.
  • Sub-section 139.6(c) mandates that each I&A Officer be responsible for the following duties:
    • (1) Provide continuing information concerning rights, benefits, and obligations under workers’ compensation law to injured workers, employers, lien claimants, and other interested parties.
    • Upon request of an injured worker, to assist in prompt resolution of misunderstanding, disputes and controversies arising out of claims for compensation, without formal proceedings in order that full and timely compensation benefits shall be furnished.
    • I&A Officers in performing their duties shall not be responsible for reviewing Applications for Adjudication of Claims or Declarations of Readiness to Proceed. This function shall be performed by workers’ compensation judges.
    • Distributing information pamphlets in English and Spanish that are approved by the AD to anyone who requests them.
    • Establishing and maintaining liaison with the persons located in the geographic area served by the district office, with other affected state agencies and with organizations representing employees, employers, insurers, and the medical community.

Labor Code Sections 5450 through 5455 also pertain to Information and Assistance Officers:

  • LABOR CODE SECTION 5450: Amended in 1994, this Labor Code Section mandates: “The DWC shall make available to employees, employers, and other interested parties information, assistance, and advice to assure the proper and timely furnishing of benefits and to assist in the resolution of disputes on an informal basis.” 
  • LABOR CODE SECTION 5451: Also amended in 1994 this section states: “Any party may consult with, or seek the advice of, an information and assistance officer within the Division of Workers’ Compensation as designated by the administrative director. If no application is filed, if the employee is not represented, or upon agreement of the parties, the information and assistance officer shall consider the contentions of the parties and may refer the matter to the appropriate bureau or unit within the Division of Workers’ Compensation for review and recommendations. The information and assistance officer shall advise the employer and the employee of their rights, benefits, and obligations under this division. Upon making a referral, the information and assistance officer shall arrange for a copy of any pertinent material submitted to be served upon the parties or their representatives, if any. The procedures to be followed by the information and assistance officer shall be governed by the rules and regulations of the administrative director adopted after public hearings.”
  • There is no Labor Code Section 5452.
  • LABOR CODE SECTION 5453: Amended in 1994 states: “After consideration of the information submitted, including the reports of any bureau or unit within the Division of Workers’ Compensation which have been received, the information and assistance officer shall make a recommendation which shall be served on the parties or their representatives, if any.”
  • LABOR CODE SECTION 5454: Amended in 1994 states: ”Submission of any matter to an information and assistance officer of the Division of Workers’ Compensation shall toll any applicable statute of limitations for the period that the matter is under consideration by the information and assistance officer, and for 60 days following the issuance of his or her recommendation.”
  • LABOR CODE SECTION 5455: States as follows: “Nothing in this chapter shall prohibit any party from filing an application for benefits under this division. In any proceeding pursuant to such application, the admissibility of written evidence or reports submitted by any party pursuant to this chapter, or Section 5502, shall be governed by Chapter 5 (commencing with Section 5700).” This Section simply places the responsibility for the determination of admissibility of evidence in the hands of a trial judge and is not the responsibility of any other person once jurisdiction of the WCAB is invoked.

REGULATORY IMPLEMENTATION

The provisions of Labor Code Sections 139.6 and 5450 through 5455 are implemented by specific regulatory mandates in Cal. Code of Regulations, title 8, sections 9921 through 9929 that appear in the “Blue Book” every year [Workers’ Compensation Laws of California, 2022 Edition (LexisNexis)]. The 2022 edition of the Blue Book has the regulations beginning on page 1050. A summary of those provisions in Title 8 Cal. Code of Regulations are provided here:

    • 9921: Enables these regulations to go into effect once they are adopted by the Office of Administrative Law and signed by the Secretary of State (which language is not in the regulation itself, but in order for a regulation to be “adopted” it has to be approved by the agency that promulgates it after public hearings; it has to implement a statutory mandate; be approved by the Office of Administrative Law; and adopted by the Secretary of State.
    • 9922: Mandates an affirmative impartial service to employees, employers, claims administrators, labor unions, medical providers, and any others subject to or interested in California workers’ compensation laws. The implementation language of this regulation is quoted verbatim here: “This service shall be provided so that all such parties are informed of the provisions of the workers’ compensation laws, that benefits due are paid promptly, that disputes and misunderstandings are resolved informally insofar as possible, and that premature and unnecessary litigation be minimized.”
    • 9923: This section is called “Designation” which directly implements Labor Code Section 139.6(b) and (c) by mandating the AD to establish an I&A Office at each WCAB district office and to appoint I&A Officers and Deputy I&A Officers based on operational needs. This section repeats the purpose of I&A Officers—to inform the general public, labor unions, employees, employers, claims administrators, medical providers, and all other interested parties of the rights, benefits and obligations of the workers’ compensation law.
    • 9924: This section is called “Scope of Duties” and directs more specific duties I&A Officers are required to perform.
      • To provide continuing information concerning the rights and obligations under California workers’ compensation laws.
      • “Assist in the prompt resolution of misunderstandings, disputes, and controversies arising out of claims for compensation without formal proceedings, to the end that full and timely compensation benefits are furnished.”
      • Distribute pamphlets in English, Spanish, and “other languages as needed” as approved by the AD to injured workers and anyone else who requests one.
      • Establish and maintain a liaison with the community that is served by the district office with other state agencies and organizations representing employees, employers, claims administrators, and the medical community.
      • Discharge other duties consistent with the purposes of this Article as from time to time may be delegated by the AD.
    • 9925: This section is called “Use of Other Division Facilities” empowers I&A Officers to consult with other DWC services including the “Industrial Medical Council” [which is now the DWC Medical Unit], “Disability Evaluation Unit” [i.e., DEU raters], the “Rehabilitation Unit” [which disbanded in 2009], the Audit Unit, and any other DWC unit that may aid in the resolution of disputes. A significant provision in this Rule includes: “Copies of medical reports, permanent disability rating evaluations, earnings data and other pertinent information obtained by the I&A Officer shall be furnished to all parties involved in a dispute.” So the I&A Officer has a regulatory duty to serve all “parties involved in a dispute” with these documents.
    • 9926: This section is called “Referrals to a Qualified Medical Evaluator” and allows an I&A Officer, with the agreement of a party to pay the cost and with an unrepresented injured worker’s consent, to request the DWC Medical Director to appoint a physician to address any clinical question within the scope of practice of the QME as long as the issue(s) are not within Labor Code Section 4061. So issues subject to this section would involve Labor Code section 4060 compensability; or Section 4062 for temporary disability, part(s) of body injured, or need for future medical treatment.
    • 9927: This section is called “Jurisdiction” and sub-section (a) states that any party to a claim may consult with an I&A Officer at any time to seek advice and assistance in the resolution of any misunderstanding, dispute, or controversy. This Rule was first adopted in 1981 and implements Labor Code Sections 5450 and 5451:
      • The request for assistance does not have to be in writing nor in any particular form.
      • The requesting party shall provide the I &A Officer with information about what the dispute involves and provide any other pertinent information to facilitate an appropriate inquiry by the I&A Officer. The I&A Officer shall communicate with the parties and provide information and assistance in resolving disputes.
      • Sub-section 9927(b) indicates that if an Application for Adjudication of Claim has been filed, any party may consult with an I&A Officer in resolving controversial issues or misunderstandings at any time prior to the filing of a Declaration of Readiness To Proceed.
      • If the injured worker is not represented by counsel or by consent of counsel, an I&A Officer can continue to provide assistance after a DOR has been filed.
      • Sub-section 9927(c) mandates that the I&A Officers shall provide assistance to asbestos workers in obtaining benefits from the Asbestos Workers’ Account and/or the responsible employer pursuant to Labor Code Section 4410.
      • Sub-section 9927(d) has one of the most important sub-sections and mandates that when the injured worker is not represented by an attorney or any other representative, and a Compromise and Release or Stipulations With Request for Award has been filed with the WCAB (but not “presented at or subsequent to a regularly scheduled hearing”) the I&A Officer shall:
        • Review the C&R or Stipulations settlement documents.
        • Contact the parties when indicated.
        • Coordinate with other units within the DWC.
        • Seek to determine that the employee is aware of the significance of the agreement.
        • Make recommendations to the parties and the workers’ compensation judge.
        • The manager of the I&A Unit shall notify the Presiding Workers’ Compensation Judge when this service cannot be provided timely.
    • 9928: This section is called “Procedures for Mediation and Recommendation” and a verbatim recitation of the subsections is appropriate since most workers’ compensation practitioners are not aware of this Rule.
      • Subsection 9928(a): This section states: “The I&A Officer is not bound by technical or formal rules of procedure but may make inquiries into any matter referred to him or her in a manner best suited to protect the rights of all parties and to achieve substantial justice.”
      • Subsection 9928(b): This subsection states: “When there is a dispute regarding the provision of workers’ compensation benefits, the employee, claims administrator, or any party may request the I& Officer to mediate the dispute. The I&A Officer will attempt to resolve the dispute by mediation, which may include a conference. The Officer shall make appropriate inquiries to determine the contentions of the parties, identify the matters which may prevent amicable resolution, and afford all parties an opportunity to present their positions.”
      • Subsection 9928(c): This subsection states: “In the event a dispute is not resolved through mediation, the I&A Officer shall issue a recommendation as soon as possible.”
      • Subsection 9928(d): This subsection states: “Upon issuing a recommendation, the I&A Officer shall advise the parties of his or her recommendation in a written communication which describes in non-technical terms:
        • The nature of the differences;
        • The proposed resolution; and
        • The rationale used in arriving at that resolution.
        • That the tolling of any statute of limitations will cease 60 days after the issuance of the recommendation;
        • That the parties have the right to obtain a decision from the Appeals Board if the recommendation is not accepted by the parties;
        • If a party does not accept the I&A Officer’s recommendation, the party must notify all other parties in writing within 30 days of receipt of the recommendation;
        • If the I&A Officer believes that further mediation may resolve the dispute, he or she will notify the parties of such availability to provide further mediation services.
  • 9928.1: This section, which applies to asbestos workers, mandates that if an asbestos worker consults with an I&A Officer, the I&A Officer shall aid the worker in procuring records, reports, and other information that are necessary for the identification of responsible employers and insurance carriers and will obtain information required by the Asbestos Workers’ Account Act before payments may be made pursuant to Labor Code Section 4406.
  • 9929: This Rule simply states that the services provided by the I&A Officers are at no cost to any user: “Except as otherwise provided by this Section or by Section 5452 of the Labor Code, no fees or costs shall be charged to any party for services provided by the Division of Industrial Accidents (now Department of Industrial Relations, Division of Workers’ Compensation) under this Article. Subsection 90929(b) states: "If the employee is represented, such representative may request that the I&A Officer refer the matter to a Workers’ Compensation Judge for the determination of the value of services of such representative. The I&A Officer shall, thereafter, refer such request to the Presiding Judge of the office which has jurisdiction over the claim.”

COMMENTARY AND DISCUSSION

  • WHAT I&A OFFICERS DO 

The I&A Officers are an essential part of each WCAB district office team and work closely with the judges, secretaries, clerks, DEU raters, and other support for each WCAB district office to be staffed by at least one I&A Officer. During the 2020 COVID-19 pandemic, I&A Officers have been available by telephone with their public access numbers being posted on the DWC website and in the WCAB directory. On July 26, 2021, the I&A Offices reopened for in-person consultations.

How are I&A Officers selected? What is their background? I&A Officers are not required to be attorneys. In fact, most I&A Officers are former claims professionals—either claims adjusters, EDD representatives, or non-attorney hearing representatives. Extensive knowledge of the workers’ compensation claims process is essential along with the ability to recognize disputes, misunderstandings, and controversies. I&A Officers have to be neutral in their approach with anyone who seeks their advice. The number one attribute to be a successful I&A Officer is patience. The second is resourcefulness.

Information and Assistance Officers are technically called “Workers’ Compensation Consultants” under the State of California and Department of Industrial Relations Human Resources rubric. There used to be a statewide manager of the I&A Officers, a Northern California regional manager, and a Southern California regional manager. For the last few years, there is no statewide I&A Officer manager. Instead, the DWC has three regional supervisors of the I&A Officers. The northern California I&A Officer regional supervisor is Marife Solano, the central California I&A Officer regional supervisor is Tristan Juan, and the southern California I&A Officer regional supervisor is Linda Guillen. Each I&A Officer is also supervised by the Presiding Judge of the assigned WCAB District Office and by the respective regional supervisors. I&A Officers provide all parties, whether or not represented by counsel, with information on all matters concerning the workers’ compensation system.

About 50% of the duties for I&A Officers include reviewing workers’ compensation claims for injured workers who have a dispute, misunderstanding, or disagreement with their self-insured employer or insurance company. This would include a review of the amount and type of benefits payable; and reviewing proposed settlement offers made by a claims administrator to an unrepresented injured employee. They determine whether insurance companies and self-insured employers are fulfilling their obligations and responsibilities under the workers’ compensation law and regulations. They make recommendations to workers’ compensation judges regarding the adequacy of settlements.

In addition, I&A Officers provide community outreach through public Injured Worker Workshops, assist in the management and execution of the annual DWC Educational Conference, and act as a liaison between the WCAB office and the local surrounding community for training purposes. Most importantly, I&A Officers have daily face-to-face interactions with the public at the WCAB offices in person, by telephone, email, and US mail responding to inquiries from the public regarding the proper application of workers’ compensation law, rules, policies, and procedures.

About 30% of the duties for I&A Officers include assisting injured workers in the prompt resolution of misunderstandings, disputes, and controversies arising out of claims for compensation, without formal proceedings, so that full and timely compensation benefits are furnished. Finally, I&A Officers participate in special projects that may include assisting in data compilation, research, analysis, and distribution of workers’ compensation written fact sheets, guides, pamphlets, and flyers. Finally, I&A Officers may be asked to assist the DWC Call Center to take calls from the public and route them to the appropriate WCAB District office for action by a secretary, I&A Officer, DEU rater, clerk, or judge.

The DWC Call Center is not part of the Information and Assistance Office but is an independent component to the Division of Workers’ Compensation, under the auspices of the Administrative Director. The Call Center may route calls to a WCAB office’s I&A Officer for action, but their role is more broad than simply providing information to the public. The Call Center is located in San Bernardino on a different floor than the WCAB District Office and there is a manager of the Call Center with about 23 people working in the unit for statewide service. Calls to the Call Center are routed by Call Center staff to a specific person—either a judge’s secretary, clerk, I&A Officer, DEU rater, EAMS help desk, or a supervisor at a specific WCAB office where a case has venue. Also the Call Center staff handles many of the calls and inquiries directly, without having to refer the caller to a specific WCAB office or DWC unit.

  • I&A OFFICERS CANNOT PRACTICE LAW 

I&A Officers are not allowed to give legal advice since they do not represent any party to a workers’ compensation claim. This means I&A Officers cannot assist an injured worker in completing a claim form (DWC-1), an Application for Adjudication of Claim, a Declaration of Readiness To Proceed, a pre-trial conference statement, a Petition for Reconsideration, or a Petition for Removal. The I&A Officer must remain neutral and cannot advocate for a party.

All an I&A Officer can do is provide a person with the DWC/WCAB form and accept a completed one for filing with the WCAB. The forms for filing with the WCAB are in the DWC website and are publicly accessible as Optical Character Recognition (OCR) forms. See www.dir.dwc.gov/forms.html. In addition, the DWC website has fact sheets and 21 guides for injured workers in Chinese, English, Spanish, Korean, Tagalog, and Vietnamese that describe how to file specific documents, including EAMS required cover sheets and separator sheets. See www.dir.ca.gov/dwc/iwguides.html. These pages and links are part of the Information and Assistance Officer’s duties and services to the public.

However, as stated above, I&A Officers are not allowed to give legal advice or practice law. Completion of a form such as an Application for Adjudication of Claim, a DWC-1 Claim Form, a Declaration of Readiness To Proceed, a Pre-Trial Conference Statement, a Petition for Reconsideration or Removal are considered the practice of law. So all an I&A Officer can do is provide a person with the appropriate form and let them fill it out. The I&A Officer can accept the document for filing with the WCAB. The document is forwarded by the I&A Officer to the clerical staff, who will finish, serve, upload into FileNet, and complete the document in the appropriate ADJ file. Due to shortage of clerical staff at some WCAB offices, the I&A Officer may guide an in pro per party on how to serve documents on all interested parties listed on the applicable case’s Official Address Record.

  • I&A OFFICERS CAN REFER PEOPLE TO OTHER STATE AGENCIES

The DWC website also includes referrals to other sub-agencies including Cal OSHA, Self-insurance, labor law—Labor Commissioner’s office, EDD, DIR Director, and other agencies related to the California workforce. The DWC website complies with the statutory and regulatory mandates for the DWC, through the I&A Officers, to provide information and access to other related state agencies.

So how does someone become an I&A Officer? The position is competitive and when there are openings, announcements are made at the Cal HR and DIR HR websites. Most I&A Officers have experience as claims professionals, EDD representatives, or non-attorney hearing representatives. It can be a promotional position for a lower level DIR or WCAB employee.

  • WHAT DOES “HOPPER-IZING” MEAN?

What does “Hopper-izing” mean? I&A Officers cannot make direct referrals of a party to an attorney. Prior to his retirement from state service, Bob Wong managed all of the I&A Officers statewide from what, at the time, was the DWC Headquarters in San Francisco. Before Mr. Wong, John Hopper managed the entire I&A Officer team from the then existing DWC headquarters in San Francisco.

Mr. Hopper was passionate about making sure that injured workers who were facing a trial in a complex case had access to hire legal assistance. Sometimes injured workers or uninsured employers would ask for a referral to an attorney who specializes in workers’ compensation law. Mr. Hopper felt it was not a fair fight if an injured worker was facing an aggressive defense attorney in the hostile atmosphere of a court setting. Against the agency’s then existing management and practices, Mr. Hopper quietly made sure each WCAB district office had a list of the names, addresses, and phone numbers of reputable Applicant and Defense attorneys who regularly appear at a given WCAB district office. He instructed the I&A Officers at each WCAB office to maintain a list of qualified attorneys and law firms to give to injured workers or employers who expressed a desire to seek legal counsel in their workers’ compensation case. That quiet tradition has become part of the public services that I&A Officers provide to the public who may ask about obtaining legal representation. However, I&A Officers cannot make a direct referral of a person or company to a specific attorney or law firm. The I&A Officers can only hand someone a list of attorneys who regularly appear at a particular WCAB district office.

  • I&A OFFICERS WORK WITH UNREPRESENTED PARTIES

I&A Officers may explain how unrepresented injured workers obtain medical treatment through an employer or claims administrator’s Medical Provider Network and may assist the injured worker in navigating the process through a Medical Access Assistant under Labor Code Sections 4600, 4616, and Title 8 Cal. Code of Regulations section 9767.5. The I&A Officer cannot make recommendations as to what specific physician to choose from other than helping an injured worker get a list of providers within a reasonable geographic area of where the injured worker lives or works. An I&A Officer may contact a claims administrator to obtain the Medical Access Assistant (MAA) access information and give that to the injured worker. I&A Officers routinely offer an explanation of how unrepresented injured workers can appeal via Independent Medical Review a denial of a treating physician’s request for authorization which was denied by a claims administrator’s utilization review process. The process of filing an appeal of an IMR decision that upholds denial of a requested treatment is also facilitated by an I&A Officer—for the injured worker to file a Petition Appealing IMR decision and a Declaration of Readiness To Proceed.

I&A Officers commonly advise unrepresented injured workers about their option to obtain a qualified medical evaluation when a medical dispute occurs and will explain how to obtain a QME panel in accordance with the unrepresented medical-legal track under Labor Code Section 4062.1. This information pertains to disputes that may arise under compensability of a claim (Labor Code Section 4060), permanent disability (Labor Code Section 4061); or parts of body injured, entitlement to temporary disability, temporary partial disability, and need for future medical treatment (Labor Code Section 4062). In addition, an I&A Officer can request the DWC Medical Unit to arrange for a QME examination of an unrepresented injured worker as long as a party agrees to pay the cost thereof and as long as the dispute is not over a Labor Code Section 4061 issue of permanent disability. See Rule 9926 above.

I&A Officers also assist parties to obtain a replacement or additional QME panel under Cal. Code of Regulations, title 8, sections 31.5 or 31.7, respectively. Specifically, section 31.7(b)(4) mandates that “In an unrepresented case, that the parties have conferred with an Information and Assistance Officer, have explained the need for an additional QME evaluator in another specialty to address disputed issues and, as noted by the Information and Assistance Officer on the panel request form, the parties have reached agreement in the presence of and with the assistance of the Officer on the specialty requested for the additional QME panel. The parties may confer with the Information and Assistance Officer in person or by conference call.”

Many times, a medical-legal report is sent to an I&A Officer where the injured worker is in pro per and the issue is whether or not apportionment of permanent disability under Labor Code Section 4663 or 4664 is consistent with the law. In those cases, the I&A Officer will route the medical report (without any settlement documents) to the Presiding Judge or their designee for review of the report to see if it is consistent with the law of apportionment. Oftentimes, the report is not, and the judge will so indicate on a form. If a judge finds the apportionment not consistent with the law, the claims administrator has the option of settling the case without consideration for apportionment of permanent disability or to request the doctor to issue a supplemental report.

  • I&A OFFICERS REVIEW SETTLEMENTS FOR UNREPRESENTED INJURED WORKERS AND MAKE RECOMMENDATIONS TO A JUDGE REGARDING APPROVAL OR DISAPPROVAL

One of the most important and essential functions of an I&A Officer is to review settlements where the injured worker is not represented by counsel. This is mandated by Cal. Code of Regulations, title 8, section 9927(d), discussed above. For any Compromise and Release or Stipulations with Request for Award, an I&A Officer must review the settlement and make a written recommendation in the case notes for judicial approval or disapproval of the settlement. There are case notes in each EAMS file, and settlements for unrepresented injured workers are first routed to an I&A Officer, usually by alpha, and the I&A Officer reviews the settlement.

In order to facilitate this process, claims administrators are required to file with the WCAB office having venue over the claim the proposed settlement documents, the medical evidence that supports the settlement, a wage statement, a benefits print-out and any other document that may be relevant to the adequacy or the reasons for the settlement.

The I&A Officer will confirm the dollar figures for temporary disability and permanent disability rates along with the injured worker’s earnings. This is essential since many times an injured worker has less than maximum wages for the calculation of earnings, TTD rate, and PD rates. In addition, the I&A Officer will check the permanent disability indemnity charts to confirm the permanent disability indemnity matches the percentage of permanent disability. If the injured worker had less than maximum wages, the I&A Officer will check the math of the claims administrator to make sure the TTD and PD rates were correct. The I&A Officer will review the case file in FileNet and will leave a case note for the case owner assigned judge about whether the I&A Officer recommends for or against approval of the settlement as adequate or not adequate. The I&A Officer ensures settlements are adequate by following the WCAB Policy and Procedure Manual, section 1.91 “Submissions of Settlement Determination of Adequacy and Approval.” The I&A Officer cannot advocate for a party, but the process of settlement review has to be consistent with the law requiring adequacy of settlements. I&A Officers review settlements for in pro per injured workers and make recommendations to a judge to approve them or not. I&A Officers communicate with judges via email, telephone, notes in the EAMS file, in person, or by a combination of these. In addition, an I&A Officer may explain to an in pro per Applicant the walk-through procedures under WCAB Rules of Practice and Procedure, section 10789.

The case owner judge may agree or disagree with the I&A Officer’s recommendation to approve a settlement and then either approve the settlement or the judge can issue an Order Suspending Action ordering the claims administrator to submit additional documents or the judge can set an adequacy hearing.

It is critical for an I&A Officer to review proposed settlements for injured workers who are in pro per. In many cases, judges have issued multiple Orders Suspending Action in the same case because the proposed settlement is based on medical evidence that does not constitute substantial evidence. Usually that is because the doctor utilizes the AMA Guides incorrectly or the conclusions about apportionment are not explained. Best practices dictate that the judge who rejects a settlement sets the case for an adequacy hearing before that judge and notifies the I&A Officer to inform the injured worker why the settlement was rejected and is being set for a status conference. On the day of a hearing, the I&A Officer will assist the unrepresented party to gain access to the ATT Teleconference line for the assigned judge or otherwise to appear in person as allowed by the DWC administration.

  • I&A OFFICERS MAY ASSIST UNREPRESENTED INJURED WORKER TO SETTLE THEIR FUTURE MEDICAL TREATMENT AWARD

In many cases, an injured worker will consult with an I&A Officer to see if a buy-out of an award of future medical treatment can be obtained with an employer or claims administrator in a case where a prior Findings and Award or Stipulations With Request of Award included a provision for future medical treatment. The difficulties and frustrations associated with being treated by an MPN physician who is limited under utilization reviews and independent medical reviews result in many cases where the injured worker just wants to close the case completely. The I&A Officer will reach out to the claims administrator and facilitate the injured worker’s negotiation of a compromise and release of future medical treatment rights. If the injured worker was previously represented by counsel, the I&A Officer will direct the injured worker to contact the attorney for possible negotiation of a buy-out of future medical treatment.

Many times injured workers will settle their case via a compromise and release and after receiving the money will want to reopen their case, alleging that they didn’t know about the consequences of a C&R; or they claim fraud, duress, mistake, or undue influence [from their attorney if they have one, the claims adjuster, the employer, or anyone else including in some cases, God]. Needless to say, I&A Officers are on the front line to deal with people who have mental illness, drug addiction, or who have just plain buyer’s remorse. Due process requires that these people get a hearing on whether a settlement can be rescinded under any of the legal grounds stated above. See, for example, PT Gaming LLC v. Workers’ Comp. Appeals Bd. (Pecoraro) (2017) 82 Cal. Comp. Cases 405 (writ denied).

In Pecoraro, the Applicant was represented by counsel and either fired the attorney or the attorney fired the Applicant. However, defense counsel walked through a Compromise and Release anyway and obtained approval by a judge. The Appeals Board rescinded approval of the Compromise and Release and ordered the judge to set the matter for a hearing on two issues: whether there was ex-parte communication with a QME by defense counsel for sending information without consent or a court order, and by walking through a settlement when the Applicant was not represented. The Appeals Board indicated that the judge should have referred the settlement to an I&A Officer who could have clarified whether the Applicant was still represented by counsel and, if not, whether settlement approval was recommended.

  • I&A OFFICERS WILL ASSIST IN OBTAINING SUPPLEMENTAL JOB DISPLACEMENT VOUCHER AND RETURN TO WORK FUND BENEFITS

I&A Officers also assist unrepresented injured workers in obtaining a Supplemental Job Displacement Benefit voucher if one is required to be issued in a case pursuant to Labor Code Sections 4658(d), 4658.5, or 4658.7. This occurs when a physician opines that the injured worker cannot return to regular, modified, or alternative work with the at-injury employer due to the worker having permanent disability at the time the physician finds the person at maximum medical improvement. An I&A Officer will get involved in this regard only if the injured worker asks for help from the WCAB district office.

In addition, I&A Officers will assist injured workers who apply for Return To Work funds pursuant to Labor Code Section 139.48 since each WCAB district office has a kiosk for injured workers to apply for those benefits. The kiosks are usually located in close proximity to the I&A Officer’s offices.

  • I&A OFFICERS MAY CONDUCT MEDIATION OF DISPUTES, DISAGREEMETNS OR CONTROVERSIES

Special attention is directed to Cal. Code of Regulations, title 8, section 9928(a) through (d) that describe the option of parties agreeing for an I&A Officer to mediate disputes, disagreements, or controversies. This is an underutilized function of the I&A Offices and perhaps there should be a greater use of this service before these matters go before a judge. Mediation of disputes are well settled in our legal system in California and are more broadly governed by California Code of Civil Procedure sections 1775 through 1775.15, Title 11.6 Civil Action Mediation; and California Evidence Code sections 703.5 and 1152. These code sections set forth the mechanism of mediation “in any tribunal” of this state and provide protections for the participants in the process.

Mediation is a completely separate process from arbitration and the two should not be confused. Arbitration is a formal trial with a final determination which can be appealed to a higher court. See, for example, Labor Code Sections 5270- 5278 for contribution proceedings. Mediation is a voluntary process where each party can meet with a mediator who tries to get the parties to resolve their differences without a formal trial.

If disputes, controversies, or disagreements go through a mediation process, all information is confidential, and the mediator cannot disclose any information to the parties unless a party gives permission to do so. A mediator cannot be called as a witness in a case that goes to trial and cannot be deposed about the mediation process. A good mediator will meet with the parties together to see what they can agree on. Then the mediator meets with each party separately, sometimes with or without counsel being present, and will parse out the differences between the parties. The goal of mediation is for the parties to resolve their differences amicably without going to trial before a judge.

State law allows I&A Officers to mediate disputes, disagreements, or controversies between parties and unfortunately this service may be underutilized. Much of the mediation process occurs by telephone and email.

  • I&A OFFICERS ARE SOMETIMES THE ADA COMPLIANCE OFFICER AT A WCAB DISTRICT OFFICE

Some WCAB district offices designate a specific I&A Officer to be the office’s ADA Compliance Officer [Americans With Disabilities Act (1990) 42 U.S.C. § 12101 et seq.]. This role has been especially important during the pandemic. When WCAB district offices opened for in-person hearings on October 1, 2021, many immuno-compromised individuals requested leave to appear at the WCAB remotely. The DWC has a robust ADA Compliance program that includes a statewide ADA Coordinator for non-state employees, along with a local ADA compliance officer at each WCAB district office.

  • SPECIFIC EXAMPLES OF I&A OFFICER FUNCTIONS

There are many great examples of I&A Officers providing service to the workers’ compensation community. Here are some specific recent examples of how helpful I&A Officers are to the community and to the workers’ compensation judges:

  • An injured worker claims he cannot find a job due to his having had a workers’ compensation case and wants his workers’ compensation case sealed [pursuant to Title 8 Cal. Code of Regulations section 10813]. The I&A Officer explains the Rule to the injured worker and may set the matter for a status conference before the judge who approved the settlement. By Rule the judge has to set this issue for a hearing to formally see if there are grounds to seal any part of the file pursuant to the Rule.
  • An injured worker feels he was cheated by his attorney, a claims administrator, or their employer and he wants a judge to rescind approval of a settlement. The issue would be set before the judge so that a determination can be made if there was mutual mistake, fraud, duress, or undue influence.
  • It is during the middle of trial and the Applicant’s attorney tells the trial judge during a break that they no longer represent the Applicant. Not only is this a violation of State Bar rules—abandonment of a client during a trial—but also a problem for opposing counsel and the judge. The judge must refer the Applicant to an I&A Officer at that time to give some guidance to him, and there is good cause for the judge to continue the trial to give the Applicant an opportunity to seek new counsel.
  • The injured worker is accused of or already has been declared to be a vexatious litigant pursuant to Cal. Code of Regulations, title 8, section 10430. An I&A Officer can only describe the rule to the potential vexatious litigant if opposing counsel or anyone else has filed a Petition To Declare A Person A Vexatious Litigant. The responsibility to review future filings, if any, by a vexatious litigant is that of the Presiding Judge and not the I&A Officer.
  • Defense counsel presents a walk through Compromise and Release or Stipulations With Request for Award for approval by a judge where the injured worker is not represented by counsel. The walk through judge is instructed in cases like this to refer defense counsel to the I&A Office to consult with an I&A Officer who needs to review the settlement and to reach out to the injured worker to confirm the elements required under Cal. Code of Regulations, title 8, section 9927(d).
  • An uninsured employer is served with Notice of Special Lawsuit and copies of the Application for Adjudication of Claim and they show up at the WCAB office demanding to be dismissed from the case since the Applicant was an independent contractor. I&A Officers would meet with the employer and provide a copy of the I&A Handbook and probably provide the employer with a copy of the names, addresses, and phone numbers of reputable defense attorneys.
  • An employer receives a notice from their insurer that informs them that their insurance coverage is being surcharged due to a gap in coverage and a high recent claims history. Or, the employer has received a Notice of Cancellation of their workers’ compensation insurance coverage. The I&A Officer would explain the ability for the employer to challenge the insurance surcharge, cancellation notice or any other objection the employer has with premiums. These disputes are essentially beyond the scope of work I&A Officers deal with, but they could result in the I&A Officer referring the employer to its insurance broker or an attorney on the attorney referral list. Cal. Code of Regulations, title 8, section 9924(a) includes empowering the I&A Officers to be consulted concerning any rights, benefits, or obligations of employers.
  • An insurance company that writes workers’ compensation coverage received a notice of an audit from the DWC Audit Unit and after the audit they want to appeal numerous audit penalties. The I&A Officer will explain the employer’s right to appeal an audit penalty under Labor Code section 129.5(g) and pursuant to Cal. Code of Regulations, title 8, sections 10560 and 10590.
  • An Applicant, after settling his workers’ compensation case and receiving his money, failed to timely apply for a Return-To-Work Supplement. An I&A Officer will explain Cal. Code of Regulations, title 8, section 10565 that permits the filing of a Petition Appealing Denial of Return-To-Work Supplement with the WCAB district office that has venue over the settlement. The I&A Officer will also provide the Applicant with a Declaration of Readiness To Proceed to put the issue on calendar.

© Copyright 2022 Robert G. Rassp. All rights reserved. Reprinted with permission.