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CALIFORNIA COMPENSATION CASES
Vol. 88, No. 9 September 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. Robert G. Rassp, Presiding Judge, Los Angeles District Office
On January 21, 2020, the first American was diagnosed with COVID-19 infection in Washington State. By March 4, 2020, the pandemic had arrived in California and began to disrupt everyone’s daily routine. On March 18, 2020, Governor Newsom issued the first of many Executive Orders (the first one being EO-N-33-20 stay-at-home order), eventually including specific orders that affected the practice of workers’ compensation law. In response to the Governor’s EO, the WCAB issued the first of four en banc decisions affecting doing business before the WCAB and the WCAB District Offices. Two more en bancs were issued on October 27, 2020.
The first Appeals Board’s en banc order is named “Misc. No. 260 In Re: Covid-19 State of Emergency” and was filed, served, and effective on March 18, 2020. The WCAB invoked for the first time Rule 10370 [see Cal. Code Regs., tit. 8, § 10370]. Rule 10370, which became effective January 1, 2020, is titled “Extension of Time During Public Emergencies.” The commissioners in proposing this rule stated as follows: “In the past two years, natural disasters and other public emergencies have necessitated the closure of several district offices throughout the State. We propose adding a new rule to allow otherwise jurisdictional timelines to be extended in public emergencies, modeled on California Rule of Court 8.66.”
Rule 10370 provides, in the context of our WCAB district offices, that the chief judge, the chief judge’s designee, or the Appeals Board may allow a 14- or 30-day extension of time “to perform any act required or permitted under these rules,” except for those acts subject to a statute of limitations or a jurisdictional time limit, due to a public emergency, such as an earthquake or fire that closes a WCAB district office. This rule is limited in scope and does not bail out anyone for filing a late Petition for Reconsideration or Removal, Petitions to Reopen, Application for Adjudication of Claim, or lien claim forms. The practical effect of this rule is, in the event of a natural disaster, social turmoil, or closure of the nearest WCAB district office, parties should file early documents that are time sensitive, and, if necessary, ask the Chief Judge for an extension of time. As it turned out, Rule 10370 was timely in the context of the COVID-19 pandemic. The pandemic has significantly affected WCAB operations at the Appeals Board and at the WCAB District Offices. The WCAB en banc decisions demonstrate the problem-solving ability of the WCAB and DWC leadership to keep the ship afloat. Due to their leadership, cases continued, progressing from the filing of Applications for Adjudication of Claim through settlement approvals and trials with the WCAB conducting business electronically and remotely by WCAB staff from the Commissioners to the judges to the support staff at each WCAB District Office.
Counsel is advised to visit the DWC web site and check regularly for the DWC Newsline posts, which provide up to date information about the entire DWC operations, including WCAB District Office closures, new operations programs, AT&T Teleconference numbers for the judges, and other valuable information that affect everyone’s law practice:
Counsel is reminded that the “WCAB” includes the Commissioners of the Appeals Board, Deputy Commissioners, the Secretary of the WCAB, trial judges, and presiding judges [see Cal. Code Regs., tit. 8, § 10305(v)]. The Appeals Board means the Commissioners and deputy commissioners [see Cal. Code Regs., tit. 8, § 10305(b)]. The Appeals Board’s en banc emergency decisions are as follows:
APPEALS BOARD en banc decision In re: COVID-19 State of Emergency – No. 1: MISC. NO. 260 March 18, 2020, reported at 85 Cal. Comp. Cases 296:
Pursuant to Governor Gavin Newsom's March 4, 2020 state of emergency in response to the novel coronavirus (COVID-19) and WCAB Rule 10370, the Appeals Board temporarily suspended specific WCAB Rules of Practice and Procedure contained in Title 8 of the California Code of Regulations. This includes rules regarding dismissals for failure to appear, the timeframe for reports from WCJs and arbitrators, required signatures and witnesses for Compromise and Release agreements, and service by the WCAB by mail and consent for electronic service. All filing deadlines were temporarily extended per the DWC's March 16, 2020 Newsline that all district offices are closed for filing from March 17 through April 3. As of March 19, 2020, the WCAB’s office in San Francisco was closed. WCAB members and staff worked remotely during the closure. All practitioners were (and still are) encouraged to regularly check the WCAB and DWC websites for updates about office closures and filing deadlines. Here are the specific orders from the WCAB in the first COVID-19 en banc decision [see In re: COVID-19 State of Emergency En Banc (2020) 85 Cal. Comp. Cases 296 (Appeals Board en banc opinion)]:
APPEALS BOARD en banc decision In re: COVID-19 State of Emergency – No. 2: MISC. NO. 261 April 6, 2020, reported at 85 Cal. Comp. Cases 299:
In light of the continued state of emergency in response to the novel coronavirus (COVID-19) and to facilitate other methods of filing in line with DWC’s 2020-29 Newsline issued on April 3, 2020, the Appeals Board ordered that certain documents may be emailed directly to the district offices or the Appeals Board. Specifically, the Appeals Board ordered as outlined in the en banc decision [see In re: COVID-19 State of Emergency En Banc – No. 2 (2020) 85 Cal. Comp. Cases 299 (Appeals Board en banc opinion)]:
APPEALS BOARD en banc decision In re: COVID-19 State of Emergency – No. 3: MISC. NO. 262, April 28, 2020, reported at 85 Cal. Comp. Cases 409:
The Secretary of the Appeals Board announced in releasing this en banc decision: “In light of the continued state of emergency in response to the novel coronavirus (COVID-19) and to facilitate adjudication of claims in line with DWC’s 2020-37 Newsline issued on April 28, 2020, the Appeals Board orders suspension of the 20 day requirements for filing documentary trial exhibits in WCAB Rules 10620 and 10670(b)(3).” Specifically, the Appeals Board order provides [see In re: COVID-19 State of Emergency En Banc – No. 3 (2020) 85 Cal. Comp. Cases 409 (Appeals Board en banc opinion)]:
The Appeals Board’s office in San Francisco remained closed. The Appeals Board’s commissioners and staff continue working remotely during the closure. All practitioners were reminded to check the WCAB and DWC websites on a regular basis for updates about office closures and filing deadlines and procedures.
APPEALS BOARD en banc decision In re: COVID-19 State of Emergency –No. 4: MISC. NO. 263, July 16, 2020, reported at 85 Cal. Comp. Cases 573:
Due to the state of emergency in response to the novel coronavirus (COVID-19), the Appeals Board temporarily suspended WCAB Rules 10961(a), 10962(c), 10990(f)(3)(E), and 10995(c)(3) in its March 18, 2020 en banc decision In Re: COVID-19 State of Emergency En Banc (Misc. No. 260). The Appeals Board rescinded its suspension of WCAB Rules 10961(a), 10962(c), 10990(f)(3)(E), and 10995(c)(3) as of September 1, 2020. These rules will become effective again with respect to petitions filed on or after September 1, 2020.
Remember, from the first WCAB en banc Emergency Decision of March 18, 2020, the Appeals Board suspended the requirement that a judge or arbitrator has to file a Report and Recommendation within 15 days of the filing of a Petition for Reconsideration, Removal, or Disqualification. This fourth en banc decision reinstates those rules [see In re: COVID-19 State of Emergency En Banc – No. 4 (2020) 85 Cal. Comp. Cases 573 (Appeals Board en banc opinion)]:
APPEALS BOARD en banc decision In re: COVID-19 State of Emergency – No. 5: MISC. NO. 264 October 27, 2020, reported at 2020 Cal. Wrk. Comp. LEXIS 96.
The March 18, 2020 WCAB en banc decision that suspended WCAB Rules 10755, 10756 and 10888 [Cal. Code of Regulations, title 8, Sections 10755, 10756, and 10888] has been rescinded for trials scheduled on or after October 27, 2020, the effective date of the Appeals Board decision. These sections involve the Rules permitting dismissal of an application or lien claim for a party’s failure to appear at an MSC (Sec.10755), trial (Sec. 10756), or for a lien claimant’s failure to appear at a lien trial (Sec. 10888).
APPEALS BOARD en banc decision In re: COVID-19 State of Emergency – No. 6: MISC. NO. 265 October 27, 2020, reported at 2020 Cal. Wrk. Comp. LEXIS 95.
The April 28, 2020 WCAB en banc decision #3 that suspended WCAB Rules 10620 and 10670(b)(3) has been rescinded and applies to all trials on or after December 1, 2020. Rule 10620 requires the parties file and serve proposed trial exhibits at least twenty (20) days before trial unless a judge orders otherwise. Rule 10670(b)(3) refers to the rule that the Workers’ Compensation Appeals Board may decline to receive in evidence any document not filed 20 days prior to trial, unless otherwise ordered by a workers’ compensation judge or good cause is shown. For trials scheduled from on or after December 1, 2020, parties are required to submit all proposed exhibits to the WCAB via e-filing, Jet Filing, or through the US mail twenty days before the trial date.
Governor Newsom Executive Order N-63-20 May 7, 2020 highlights. The following provisions of law are suspended:
8. The deadlines specified in the following statutes and regulations shall be extended for a period of 60 days:
g) Labor Code Section 5313, related to the period in which the Appeals Board must act on any decision by a workers’ compensation administrative law judge.
11. Any statute or regulation that permits a party or witness to participate in a hearing in person, a member of the public to be physically present at the place where a presiding officer conducts a hearing, or a party to object to a presiding officer conducting all or part of a hearing by telephone, television, or other electronic means, is suspended, provided that all of the following requirements are satisfied:
a) Each participant in the hearing has an opportunity to participate in and to hear the entire proceeding while it is taking place and to observe exhibits;
b) A member of the public who is otherwise entitled to observe the hearing may observe the hearing using electronic means; and
c) The presiding officer satisfies all requirements of the Americans With Disabilities Act and Unruh Civil Rights Act.
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