California: DWC/WCAB Policy and Procedure Manual Revised

California: DWC/WCAB Policy and Procedure Manual Revised

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The Division of Workers’ Compensation and the Workers’ Compensation Appeals Board have released the 2013 Revision of the DWC/WCAB Policy and Procedure Manual. The revisions became effective on March 8, 2013. “This manual consists of policies and procedures that DWC/WCAB employees are required to follow and to assist the DWC and the WCAB in providing uniformity and direction to its employees in the day-to-day operation of the Board and its district offices.” Because the manual is an internal employee guide, prepared under the authority of the DWC Administrative Director and the WCAB Chairwoman, it is not subject to regulations, which require formal rulemaking procedures and public hearings.

Many of the manual’s sections have been amended, and new sections have been added.

Amended sections are clearly identified as such by stating that they have been issued by Ronnie G. Caplane, Chairwoman of the WCAB, and Destie Overpeck, Acting Administrative Director of the DWC, and by indicating the date on which they were amended.

Some amendments are merely technical, such as removals of references to the Court Administrator, an office that has been abolished.

Others are substantive and often more elaborate, including the following:

Section1.25, Walk-Throughs, formerly one brief paragraph, but now several paragraphs covering topics such as: specification of the district office in which walk-through documents may be filed; what documents may be filed as walk-throughs; walk-through settlements; settlements signed by a non-attorney employee of a law firm; limit on the number of walk-through documents that may be presented per court day; and prohibition against interpreters or other “independent contractors” obtaining hearing dates.

The first sentence of Section 1.30, Calendar Clerk Cancellation of Hearing, has been amended to read: “When a workers’ compensation judge (WCJ) orders the cancellation of a hearing prior to the date of hearing, the WCJ or the WCJ’s secretary shall ensure the hearing is cancelled in EAMS.” [emphasis in the section]

Section 1.35, Trial Priorities, has been amended by adding cases set for expedited hearing to the list of cases subject to priority hearing and placing such cases first in that list.

Section 1.40, Filing and Organization of Trial Exhibits—Evidence, Hospital and Medical Records, has been substantially expanded to contain specific instructions regarding the filing and retention of medical records, with references to WCAB Rule 10629. The requirement of a detailed exhibit list that identifies each specific exhibit by name, author and date is intended to facilitate review of the evidentiary record by the WCJ and the Appeals Board Commissioners, and is necessitated by the limitations of the EAMS Filenet system.

Section 1.50, Procedures Following Submission of Formal Rating Instructions, has been amended, consistent with the Appeals Board’s en banc opinion in Blackledge v. Bank of America (2010) 75 CCC 613 [75 CCC 613], to ensure the integrity of the WCJ’s decision making process.

Section 1.55, Taking Cases Off Calendar and Submissions, has been amended in various respects, including the addition of specific instructions as to the forms of orders of submission.

Among the amendments to Section 1.60, Procedures for Petitions for Reconsideration, are new provisions concerning petitions for reconsideration of Appeals Board decisions.

Section 1.85, Report of Workers’ Compensation Judge on Disqualification, has been amended to provide, inter alia, that the filing of a petition to disqualify a WCJ does not terminate a WCJ’s authority to proceed in a case.

Section 1.120, Appearance by Non-Attorney Representatives, has been amended to provide that no fee for legal services is to be awarded to any representative who is not an attorney, and that an attorney who has been disbarred, suspended, declared involuntarily inactive, or who have resigned with charged pending by the State Bar is not allowed to appear before the Appeals Board.

New sections include:

  • 1.26, Emergency Petitions to Stay, sets forth the requirements for seeking to stay an action by another party and the options open to the PWCJ to whom the petition is presented.
  • 1.91, Submission of Settlement, Determination of Adequacy, and Approval, specifies the rules governing submission of pro per settlements, consideration of the adequacy of all settlement, and the prerequisites for setting a case for adequacy.
  • 1.93, Uninsured Employers, Joinder and Settlement, sets forth the procedure required of the WCJ when an application is filed in pro per and no insurance can be identified by the I&A officer.
  • 1.95, Procedure if Proposed Settlement Not Acted on Within 45 Days, specifies the options available to the PWCJ when a settlement has not been acted on within 45 days and the file is transferred to the PWCJ for review.
  • 1.97, Venue for Claims of DWC Employees, sets forth the venue options when a current or former DWC employee files a workers’ compensation application in the same district office where he or she works or worked.
  • 1.150, Subsequent Injuries Benefits Trust Fund, specifies the language to be used in a specific finding with respect to potential credit under Labor Code section 4753 [4753] in each award against the Subsequent Injuries Benefits Trust Fund.
  • 1.155, Court Decorum, lists the actions every court has the power to take to preserve court decorum.
  • 1.160, Accommodations, specifies that all requests for public disability accommodations are to be referred to the on-site district office disability accommodation coordinator.
  • 1.165, Monetary Sanctions, sets forth the procedures to be followed when a WCJ imposes sanctions against a party, attorney, lien claimant, or hearing representative.
  • 1.175, Carve Out Procedures, specifies how an injured worker is to proceed with a workers’ compensation claim when a collective bargaining agreement, to which he or she is subject, contains an alternative dispute resolution system. It also specifies the procedures to be followed when a petition for reconsideration is filed from a final alternative dispute resolution decision. The petition for reconsideration may be filed only with the Appeals Board Office of the Commissioners.

An alphabetical listing of Subjects covered, indexed to the relevant section numbers, has been added for users’ convenience.

DWC and WCAB state that this manual is not a final document, and that the AD and the WCAB will entertain suggestions for additional sections or revisions of existing sections.

The revised manual may be accessed here.

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