The U.S. Department of Labor has issued new data showing California's State Average Weekly Wage (SAWW) edged down 0.48 percent from $1,650 to $1,642 in the 12 months ending March 31, 2023. As a result...
CALIFORNIA COMPENSATION CASES
Vol. 88, No. 11 November 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
Nearly two decades ago Senate Bill 899 was enacted and ushered in a...
LexisNexis has selected some recently issued noteworthy IMR decisions that illustrate the criteria that must be met to obtain authorization for a variety of different medical treatment modalities. LexisNexis...
By Hon. Susan V. Hamilton, Former Assistant Secretary and Deputy Commissioner, California Workers’ Compensation Appeals Board
Early in the COVID-19 pandemic we learned that nursing care facilities...
Current judicial system procedures during the COVID-19 pandemic
LexisNexis: Judge Levy, thank you for taking the time to update the workers’ compensation community on California’s workers’ compensation judicial system during the COVID-19 pandemic. Almost every aspect of workers’ compensation practice has changed because of the pandemic. I can’t underscore the magnitude of the challenges you have faced in the continued operations of the WCAB district offices.
For those readers who are not familiar with all aspects of the role of DWC’s Chief Judge can you briefly explain the full scope of your responsibilities?
Chief Judge Levy:Thank you for inviting me. The chief judge is generally responsible for the oversight of the adjudication function of the division’s district offices. This includes hiring staff, dealing with staffing issues that arise at the offices, making sure cases are heard in an expeditious manner and that calendar dates are available for parties. I work on creating consistency throughout our offices and throughout the state. I am responsible for making sure judges adhere to the California Code of Judicial Ethics, and I oversee the DWC Ethics Advisory Committee. I also am responsible for making sure that not only are cases being heard timely but that decisions are being issued timely by the workers’ compensation judges. I also report any concerns or district office needs to the Administrative Director who assists me with resources that are needed for the district offices, including facility and staffing needs. I do this in conjunction with my team of two Associate Chief Judges and 22 Presiding Judges.
LexisNexis: How many district offices are there? Approximately how many employees work in DWC’s district offices?
Chief Judge Levy: We have 22 district offices and 2 satellite offices. Those offices employ about 750 people in the state.
LexisNexis: On March 4, 2020, Governor Newsom issued an Executive Order that proclaimed a state of emergency as a result of the COVID-19 pandemic. Over the next several weeks, Governor Newsom issued other orders as the severity of the pandemic became better understood. Of course, on March 19, 2020, Governor Newsom issued the Executive Order requiring all Californians except “essential workers” to shelter in place. I note that on March 16, 2020, DWC and the WCAB announced that court hearings would be limited to protect the health and safety of staff and the public. When did you first realize that it might be necessary to make changes to the tradition of in-person conferences and trials at the district office?
Chief Judge Levy: Although it would be difficult for me to pin down an exact date, I can say that the week before the stay-at-home order was issued we started working to make the changes to limit in-person hearings. The situation at the time was very fluid so we had to create a plan that would allow us to make changes based on the guidance from both the Governor’s office and the California Department of Public Health (CDPH) quickly. We set up most of our staff to work from home during this time and that is where they have remained. We have been working with small crews staffing each district office.
LexisNexis: DWC’s March 16, 2020 Newsline advises that between March 17, 2020 and March 20, 2020, only expedited trials will be held in person and all other conferences and trials will be continued, and between March 23, 2020 and April 3, 2020, DWC will continue to conduct in person expedited trials, but that all other conferences and trials will be conducted by court call. Filing due dates were extended since the district offices could not accept filings, and walk-through documents were restricted to either electronic submission or mailing. These measures continued until April 13, 2020. The August 17, 2020 Newsline announcement states that documents subject to a statutory time limit may be filed by email directly to a district office where the filing party cannot otherwise e-file, JET file, or file the document by mail. You were really quick on the spot to ensure that the most critical cases would continue to be held at the district offices during the early days of California’s shelter in place, and the measures employed to facilitate document filing reflect great flexibility. I give you great credit. Can you briefly discuss the early (March-April) time-frame of the pandemic and the procedures first implemented?
Chief Judge Levy: Thank you. The judges and staff did a fantastic job adjusting so quickly to this setting. As I mentioned, everything had to be adjusted rather quickly and my approach was to try something, see if it worked, and then make changes where necessary. We knew that our most pressing hearings are usually our expedited hearings. We had to make sure those continued without interference, and so those continued, at first, at the offices in person. We then were able to continue to hear all of our conferences via our CourtCall system. However, we had to do what we could to limit in-person hearings and in-person office requests to ensure the safety of community and staff. So we limited walk-ins and walk-throughs to only mail-in or electronically filed documents. We then realized that the community needed another option for situations where they could not otherwise file electronically or by mail and they had documents that were subject to statutory deadlines. The WCAB issued an en banc decision allowing for this option from a regulatory standpoint. Also, a judge can order this per case if needed. That gives additional options for filing to the community.
LexisNexis: As of April 13, 2020, DWC established a telephonic hearing process to enable judges to hear all status conferences, priority conferences, mandatory settlement conferences and expedited trials telephonically. Trials and lien conferences were continued until further notice. What was involved in setting up the telephonic system and how does it work?
Chief Judge Levy: We started out using the CourtCall system exclusively to do our hearings. It became obvious that under these circumstances that wasn’t going to work for our community so we had to find an alternative. We decided to issue a conference call line to each judge in the state. I couldn’t believe how quickly our telecom department turned that request around, in a matter of days. The way it works is if you have a hearing in front of a judge, the parties call the judge’s conference line at the scheduled time. All of the judge’s conference line numbers are listed on the DWC website. The judge or the judge’s assistant then instruct the parties as to how the calendar will be handled. With larger calendars, the parties may be instructed to provide an e-mail address. They are then contacted by e-mail when the judge gets to their case. They must then call in to be heard. This way parties don’t need to spend long periods of time waiting on the line.
LexisNexis: I understand that as of late April DWC began conducting trials (excepting lien trials) telephonically, too. Recently, however, DWC implemented a video conferencing system via the Lifesize platform. Is that system used solely for trials and expedited hearings? If so, are there any plans to transition status conferences, MSCs and priority conferences to Lifesize cloud?
Chief Judge Levy: Currently Lifesize is used solely for expedited hearings and trials. In fact, as of 9/14 we added lien trials to our calendar so lien trials may also be heard via the Lifesize platform if the judge wants to move the trial to the video platform. As of right now, we don’t have plans to transition the conferences, MSCs and priority conferences to Lifesize, however, I will continue to evaluate matters as we progress to determine if that might be a good option in the future.
LexisNexis: Can you explain the Lifesize process? First, how is it accessed by attorneys and hearing representatives?
Chief Judge Levy: Currently all hearings are initially heard on our conference lines. The notices that are issued by DWC contain the judges’ conference line number with a note to call that number at the time of the hearing. The judge will then discuss by telephone the status of the case with the parties. If this is a trial day the judge may then decide to move the case to the video platform. The judge or the judge’s assistant will send out the link to the parties to join in the virtual courtroom.
LexisNexis: What are the challenges? How are exhibits handled? Are court reporters still used? How about interpreters?
Chief Judge Levy: I think our biggest challenge has been everyone getting used to the new way of “doing business.” We have had challenges with people who might not have computers with cameras, and just understanding how to navigate the video platform. We are working with Lifesize to provide a training for the community. I am hoping that will be available soon. We will issue a Newsline to advise the community when that training will be held.
Yes, interpreters and court reporters are used, just like we would in our in-person hearings. However, in a video platform, parties have to be careful not to speak over each other. Although this is an issue at in-person trials it becomes even more important at a video trial.
Exhibits are handled by either e-filing, JET filing or mail in. This is the way they always have been handled. I continue to encourage parties to become e-filers to make sure that the exhibits are filed timely and the matter can proceed to trial. If exhibits are filed by mail our clerks still need to upload those documents, which takes longer than the e-filing or JET filing option. During the hearing the judge can use the share function on the video platform to share the exhibits for the parties or witnesses.
LexisNexis: Are trials involving pro per applicants conducted via Lifesize?
Chief Judge Levy: Absolutely. One of the things that I liked about this program is that it works with a cellular phone. I know that a percentage of our injured workers might not have access to a computer with a camera but most have cell phone access. Although there is a smaller part of the population that might also not have that access. If so, the trial may still be heard via our conference line option.
LexisNexis: Is there any specific guidance or direction that you want to share with practitioners about this new world of telephonic conferences and video trials?
Chief Judge Levy: I would ask that all parties please be patient and listen to directions. I also ask that if you are able to resolve your issues ahead of time, please work to do so. We have had a habit in our community for many years of parties not discussing or working to resolve their differences prior to hearings at the offices. Many of the issues that are brought to us could easily be resolved if parties just talked to each other. I would request that the parties always discuss with each other the case prior to making the appearance. I also recommend that since we update the community through our Newsline process when we make changes that everyone sign up for Newsline delivery. For example, when we rolled out our video option that information went out through our Newsline, so getting that information is essential for our practitioners.
Also, if you are an e-filer, please file your exhibits ahead of time and serve all parties ahead of time. If that is done things get much easier for the parties and the judges. For those that are not e-filers I would strongly recommend that you become one to more easily file documents in our system and therefore expedite your case.
LexisNexis: How long do you anticipate that trials and expedited hearings will be conducted via Lifesize?
Chief Judge Levy: I wish I could answer that question. I think that as long as we are faced with this crisis we will continue on this platform. This allows the division to provide its services to the community and keep everyone safe at the same time.
LexisNexis: It is my understanding that no lien trials are currently being conducted. Do you have any plans to reinstate lien trials? If so, when?
Chief Judge Levy: Yes, lien trials began on 9/14/20. These were the last of our hearings to be added back.
LexisNexis: How have WCJ’s adjusted to working remotely and the telephonic and video systems for conferences and trials?
Chief Judge Levy: I can’t believe how much everyone who works for the division has stepped up and adjusted during this incredibly challenging time. I am very proud of the entire staff for doing everything they can to serve the entire workers’ compensation community. I am hearing that most people really like working at home. This also allows for flexibility for those who are dealing with children currently doing remote learning, and allows those in our more vulnerable population to remain safe and continue to work. The response has been generally positive. The telephonic and video platform has taken some getting used to but the judges have been very receptive and flexible. I think everyone understands how important it is that we provide our services to some of California’s most vulnerable citizens while keeping everyone safe. This approach allows us to do just that.
LexisNexis: DWC rules (10789) allow certain documents, such as Compromise and Release Agreements and Petitions for Deposition Attorney’s fees, to be filed on a walk-through basis without the necessity of a declaration of readiness to proceed. Are walk-through procedures under Rule 10789 still in place or have they been suspended?
Chief Judge Levy: We are not doing any walk through or walk in requests at this time. Judges are handling all of those requests by mail, e-filing or JET filing.
LexisNexis: If walk-through procedures have been suspended, have you considered the possibility of reinstating those procedures by allowing documents to be submitted via EAMS and assigning WCJs to handle walk-throughs via telephonic means or Lifesize?
Chief Judge Levy: That is an interesting idea. Probably not at this point but it is worth looking at in the future. There are some challenges in doing something like that but I do like the idea.
LexisNexis: I understand that district offices are “open” to some extent. Can you discuss what types of functions are being performed and the staff members who perform those functions.
Chief Judge Levy: Many of our staff members continue to come into the district offices on a rotational basis. All of the mail is being processed by our district offices as it always has been. Also, documents that need to be physically served are being handled by the in-office staff. Staff still need to handle the scanning function in office, so it is important that we have enough staff members to fulfill that function for our community.
LexisNexis: The Covid-19 pandemic was the impetus for DWC to transition to the telephonic and video hearing system. Let’s talk a bit about Covid-19 and claims. As of July 8, 2020, there have been a little over 16,000 first reports of work injury filed in which the injury is reported to be Covid-19. Of that 16,000 plus, nearly 4,000 of the injury claims are denied.
I understand that approximately 115 case opening applications for adjudication of claim, compromise and release agreements and stipulations with request for award have been filed.
What can you share about the litigation of Covid-19 claims?
Chief Judge Levy: Generally there is a lag between an injury occurring and a matter being heard at the district office. To date I am not yet aware of any COVID litigation at the district offices.
LexisNexis: On May 6, 2020, Governor Newsom signed an Executive Order putting in place a rebuttable presumption that essential workers who contract Covid-19 while working outside their homes during the Shelter in Place Order are entitled to workers’ compensation benefits. Are you seeing Covid-19 claims amicably resolve based on the presumption?
Chief Judge Levy: I think overall we are seeing an increase in parties coming to agreement and working together more amicably--more so than I have seen in the past. I think there is a realization that there are limited resources available from the division. I think a presumption is meant to reduce litigation and so I would expect more resolution and in a more expeditious manner as a result.
LexisNexis: Is there any final message, words of wisdom, and/or guidance that you would like to share with our workers’ compensation community.
Chief Judge Levy: This crisis has required the division to look at new ways to provide our services. I have been extremely proud of the men and women who work at the division and serve the workers’ compensation community. In fact, we heard over 24,000 cases in the month of July, on our conference lines. This is happening with most of our judges and staff working at home. They have exceeded my expectations and performed their jobs in an exemplary manner. These are challenging times and I believe that as a result of this crisis we are going to have new and better options for our community when it comes to workers’ compensation litigation. Although it is challenging I ask that the parties remain patient and understanding during this time.
LexisNexis: Thank you so much for taking the time to help our workers’ compensation community better understand the procedures DWC has implemented in response to the pandemic.
Chief Judge Levy: Thank you.
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