CALIFORNIA COMPENSATION CASES
Vol. 88, No. 5 May 2023
A Report of En Banc and Significant Panel Decisions of the WCAB and Selected Court Opinions of Related Interest, With a Digest of WCAB Decisions...
By Hon. Susan V. Hamilton, Former Assistant Secretary and Deputy Commissioner, California Workers’ Compensation Appeals Board
In 2022 there were 7,490 wildfires in California. They burned 362,455 acres...
By Christopher Mahon
Should temporary workers be treated separately under workers’ compensation law due to additional employment and income risks they may incur after workplace injuries? A new study...
Here's a noteworthy panel decision where a family member conveyed essential information to the AME on behalf of the injured employee. The Lexis headnote is below.
CA - NOTEWORTHY PANEL DECISIONS...
Oakland, CA – Part II of a California Workers’ Compensation Institute (CWCI) research series on low- volume/high-cost drugs used to treat California injured workers identifies three Dermatological drugs...
The position of Chief Judge for the Division of Workers’ Compensation has had a storied history since its inception more than a decade ago. In April 2002, then Administrative Director Richard (Dick) Gannon appointed Steven Siemers, a trial judge at the Oakland District WCAB, as the first Chief Judge for the Division of Workers’ Compensation. Chief Judge Siemers worked closely with AD Gannon, and had shared responsibility for just about every aspect of the workers’ compensation system, including budgeting, staffing, and policy making, in addition to overseeing the judicial system and the operations of each district court office. Shortly after Arnold Schwarzenegger became Governor of California and appointed Andrea Hoch as his new DWC Administrative Director, Chief Judge Siemers left his position to pursue a new career in arbitration and developing workers’ compensation alternative dispute resolution programs. Northern Region Associate Chief Judge Kenneth Peterson, the interviewer for this article, succeeded him and served as Acting Chief Judge until the appointment of Keven Star as Court Administrator in June 2005. The Chief Judge position remained vacant throughout Star’s tenure. Shortly after Star’s term expired, and following legislative abolition of the Court Administrator position, DWC appointed San Francisco Presiding Judge Richard Newman as Acting Chief Judge. His position became permanent in October 2012.
Chief Judge Newman has had a long history in the field of California workers’ compensation law. Before entering state service, he worked as an attorney for the U.S. Department of Labor and in private practice, representing injured workers. In 1991, Judge Newman became counsel to the Administrative Director. From 1995 to 2009, he was a trial judge in the San Francisco WCAB District Office, before being appointed Presiding Judge, a position he held until 2011. After his judicial appointment, Administrative Directors asked Judge Newman to return to DWC headquarters to assist in preparation of complex regulations and schedules. He has served on the board of the Conference of California Workers’ Compensation Judges and also as an advisor to the Executive Committee of the Workers’ Compensation Section of the State Bar of California. He is a co-author, with Judge Daniel Dobrin and attorney Alex Wong, of California Workers’ Compensation Law and Practice (James Publishing, formerly St. Clair). He is a graduate of Antioch College and the University of California, Hastings College of Law. The interview follows:
Q: (Judge Peterson): What caused a seemingly happy San Francisco Presiding Judge to take on the position of Chief Judge?
(Judge Newman) A brief lapse in sanity, perhaps? Actually, I saw this appointment as a great opportunity to help improve the system, and in some sense as a logical continuation of my career path. My experience as DWC attorney, line judge and presiding judge has been extremely helpful in addressing the issues the district offices are currently facing. These include making EAMS more user friendly, reducing calendar and paper backlogs, and ensuring that judges and PJs receive adequate training.
Q. You recently completed your second year as Chief Judge, considering both the time in an acting capacity and after being formally appointed. As you look back, what are your proudest accomplishments to date? What are your immediate future goals?
One of my proudest accomplishments is getting our judge training back on track. When I came on board two years ago, there had been a “drought” in training for the previous three years, primarily due to budget restrictions. Since November 2011, we have had three statewide judge trainings, lien training in the South, and a presiding judge training. I am also proud that we have revised the Policy and Procedure Manual and revised many of the DWC forms, including a return to the one page minutes of hearing form, which I am sure has saved hundreds of trees! I am also pleased to have been part of the DWC team that worked very hard to craft regulations to implement all the facets of SB 863 in an incredibly short timeframe.
In the immediate future, I hope to have updated EAMS user manuals for DWC secretaries and hearing reporters that will vastly simplify and make more uniform the way in which case information is entered into EAMS. In turn, I hope to have better and more consistent statistical reporting generated by EAMS. There has already been a big improvement in the reporting arena, but I look forward to refining it further.
Q: Do you see any significant responsibility differences between the former position of Court Administrator and Chief Judge? If so, what are they?
By statute, the CA had his own rulemaking authority, and as such more directly regulated the daily operation of the DOs and judges. The problem was that this line of authority overlapped and potentially conflicted with the AD and the WCAB. I have been working more closely with the DIR Director, acting AD and the appeals board to create a more unified approach in dealing with personnel and legal issues affecting the judges and offices. Some positive results of this cooperation include the recent revision of the Policy and Procedural Manual and updating of several forms in common use by the judges and parties. That being said, the responsibilities of the Chief Judge and the former Court Administrator are similar: I am charged with overseeing the judges and district office operations, as did the CA: this includes training, ethical oversight, personnel matters, and calendaring issues, among many others.
Q: Among the primary reasons for creation of the Court Administrator position was a legislative desire for procedural uniformity among the district court offices throughout the state. How do you approach the issue of statewide uniformity?
This is a challenge, because there are many differences between offices, both geographical and in terms of the particular litigation culture that has dominated different regions. Some degree of non-uniformity is inevitable: e.g., Redding is not Van Nuys, and I would not expect them to operate exactly the same. On the other hand, I have been working to ensure that essentially the same procedures and calendaring protocols are in place in all offices, particularly as we gear up to address issues created by SB 863. To this end, staff from the appeals board and DWC recently reviewed several forms that are in common use, such as the pretrial conference statement, but which had different versions in different offices. We came up with uniform versions of these forms that have been posted on the DWC website. As noted earlier, the policy and procedure manual has been revised, and this is a guide for use by all the judges in their daily work, and should ensure more uniformity in the way different issues are handled.
Q: During the past few years, there has been statewide training of DWC personnel, including judges, at a single location. More recently, the former practice of having separate north and south trainings has resumed. Why?
This is primarily an issue of cost. A single statewide training, with the attendant travel and lodging, costs about three times more than having two regional trainings. But there is also an advantage to having a smaller, more local group to train. There are distinct differences in some of the issues faced by the two regions, such as the litigation of liens, which clearly predominates in the South. Some of these issues can be more easily addressed by having separate trainings. On the other hand, we maintain uniformity since each half of the state will receive virtually the same training, usually from the same instructors.
Q: Although the position of Court Administrator was abolished following Keven Star’s term, there are still a lot of Court Administrator Rules in effect. Are there any plans to rename or reorganize them?
Yes. Most of the Court Administrator Rules have become appeals board rules, while others, such as those pertaining to EAMS, now fall under the authority of the administrative director. Reorganizing these rules has been a work in progress, which will hopefully be completed within the next year. The rulemaking focus for both the administrative director and the appeals board over the past year has been, not surprisingly, the implementation of SB 863.
Q: Legislation intended to ameliorate the lien crisis has been in effect for a short time. Has it made a difference?
In terms of the number of liens being filed each month, I would say yes, as our statistics show an appreciable drop, presumably due to the filing fee. Of course, this has to be put in some perspective; there was a huge spike in lien filings last December before the filing fee became effective, so it would follow that there would be some decrease in the following months. In terms of litigation of lien issues, I think it is still too early to tell. Legal challenges to the lien activation fee and DWC’s decision to stop collecting that fee at present further complicate making reliable predictions. When these issues have been settled, and we are another year or more down the road, I suspect the extensive lien litigation we have experienced in the past several years will be significantly diminished.
Q: One area of perceived difference between north and south, or perhaps Los Angeles county offices and others, is the function of MSC and initial trial settings. Do you believe such differences exist? What, if anything, do you plan to do to address them?
There are differences, but again, much of these have to do with differences in the volume of cases and the culture that has evolved as a result. So, for example in some of the larger offices, opposing counsel typically utilize MSCs or status conferences as the first opportunity to interact with each other, try to resolve their cases, prepare stipulations, etc. In other offices with less volume or backlog, the parties may have more interaction before the case is set for hearing. So, the task becomes how do we get the parties to have meaningful interaction and create the potential for settlement before the cases are placed on calendar? One approach concerns dealing with backlogs at offices that have them, so that parties can get on calendar faster. We also have to make sure that judges are uniformly treating settings the same: for example, at an MSC, the parties should be prepared to settle their case or set it for trial, and continuances should not be granted without good cause.
Q: One of the court administrator’s primary responsibilities was to oversee the development and implementation of EAMS, DWC’s computerized case management system. How do you assess the functionality of EAMS at present? What role do you see for yourself concerning EAMS? What do you think the most pressing “fix-it” EAMS issues are currently?
The functionality is a lot better, but not yet where it needs to be. I credit the EAMS team with making good progress in updating EAMS and adding some features that we did not have previously. A tremendous amount of resources has been spent over the last year on the lien fee payment system, so many of the additional features we would like implemented have been put on hold. We would all like EAMS to provide better tools for the judges to help manage their cases and draft their decisions and orders. It should also provide a source of useful information for management, so that office workloads are better captured and the timelines of a case, from start to finish, can be more easily tracked.
One of the projects we have been working on over the past year is to establish more uniform practices in working with EAMS, particularly in the way DWC secretaries and hearing reporters input data. Once we enable simpler and more uniform processes in the way information is entered in the system, we will be able to generate better statistics and reports. In the next couple of months, we expect to have new working EAMS manuals for the secretaries and hearing reporters. We also have plans to change some of the screens in EAMS to help facilitate the uniform entry of data.
Q: Three Associate Chief Judge positions have replaced the two former Regional Manager jobs. Can you briefly describe the new geographic divisions and areas of responsibility? Do you see any significant duty differences based solely on the name change?
Ellen Flynn oversees the southern region, basically all the offices south of Bakersfield. Tom Clarke covers the northern region, with the exception of San Francisco, Oakland, and Santa Rosa. Mark Fudem oversees these three offices, which now comprise the central region. Besides the name change, there is really no appreciable difference in the duties of an associate chief judge and the former regional manager. They are the next line of supervision above the PJ, and are responsible for monitoring and handling staffing and personnel issues, security and facility issues, and addressing a variety of other issues that are reported to them by the PJs on a day-to-day basis.
Q: By now I am sure you have had a chance to visit many district court offices since your appointment. What shared issues have you found that most urgently need to be addressed? Are there any offices in special need of attention?
A common concern among all the offices is safety. We have expanded the onsite availability of CHP to more of our busiest offices this year, and have worked to ensure on-call availability to the others. There are also some structural issues in some of the older offices that have required attention. Redding has been a particularly troublesome office in this respect, because of the age of the building and the physical layout. I am happy to report that we are in the process of finding a new and better location for Redding, which should greatly improve the environment there for our employees and the public.
Q: How would you describe morale among the workers’ compensation judges in the offices you have visited?
Generally, I have found their morale to be very good. I have been very impressed by how hard our judges work, and how well they survived working under past difficult circumstances, such as the hiring freeze in effect a couple of years ago. I am also impressed by how well they are adapting to the changes brought about by SB 863. They are on the front line of interpreting the legislation and rules, and doing a remarkable job in this endeavor.
Q: Labor Code section 5311.5 specifies that judges shall be required to participate in continuing education, a requirement that DWC has in the past satisfied by in house training. You stated earlier that in recent years, budget constraints have often resulted in reduced or canceled training. What future training plans do you have?
As noted earlier, we have held three statewide judge trainings in the last two years. We are planning another training this November, and I intend to continue to have them at least once a year. Last year’s training covered SB 863 issues while we were still immersed in drafting emergency rules. This year we will revisit SB 863, which will include a review of our current rules, the appeals board rules and legal issues the board has addressed to date.
Q: What role do you see for yourself in supervising the Information and Assistance, Disability Evaluation, Return to Work, and Medical Units?
The acting administrative director, Destie Overpeck, ultimately oversees all of these units, although in my capacity as Chief Judge, I am more directly involved in supervising the Information and Assistance and Disability Evaluation Units. That said, we are fortunate to have good managers and supervisors of these units, and my role has been more to work with them rather than oversee them.
Q: If you could pick one thing to change about the workers’ compensation system, what would it be?
I would like to see improvements in the represented QME panel process. The delay in issuing represented QME panels has been a major concern to the community and to our administration, and much work has been done in the last several weeks to get caught up. A lot of progress has been made in this regard, but there is more to be done. The Medical Unit and the administration are focused on making the process simpler and more expeditious. A webinar was recently conducted to better educate the community about the panel request process. On a more systemic basis, plans are currently in the works to enable online filing of panel requests. This should significantly reduce the time currently required to handle them. So, I am hopeful that we are moving in the right direction to make this process timely.
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