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Workers' Compensation

California: Summaries of WCAB En Banc COVID-19 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:

See https://www.dir.ca.gov/DIRNews/2020/2020-18.html

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)]:

  • California Code of Regulations, title 8, sections 10755, 10756, and 10888: Dismissal of an application or lien claim for failure to appear is suspended.
  • California Code of Regulations, title 8, sections 10961(a), 10962(c), 10990(f)(3)(e), and 10995(c)(3): Workers’ compensation judges and arbitrators have an unlimited extension of time within which to issue Reports and Recommendations in response to Petitions for Reconsideration or Petitions for Removal.
  • California Code of Regulations, title 8, section 10500(b)(6): Suspended the requirement of signatures from two witnesses.
  • California Code of Regulations, title 8, section 10500(b)(6): Suspended the requirement of wet signatures, the Appeals Board specifically stating: “Signatures on the forms from all parties may be electronic.” Rule 10500 covers all WCAB forms and not just settlement documents. So, any orders, pleadings or petitions can be electronically signed, including as follows: “/S/FIRSTNAME LASTNAME”.
  • California Code of Regulations, title 8, section 10628: Suspended the requirement of service by the WCAB of documents by mail. Service by the WCAB District Offices and the Commissioner’s office may be made electronically, with or without the parties’ consent. As a result, service of all orders, Minutes of Hearing, decisions, awards are being served via email by the staff from the district offices and WCAB.
  • All DWC district offices were closed for filing from March 17 through April 3. (It turned out that offices reopened for document filing on April 13, 2020.)

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)]:  

  • Documents may be sent by email directly to the Appeals Board pursuant to WCAB Rule 10940(b) [see Cal. Code Regs., tit. 8, § 10940]. Rule 10940(b) states: “No duplicate copies [of petitions for reconsideration, removal or disqualification of a judge] shall be filed with any district office or with the Appeals Board. No documents sent directly to the Appeals Board by fax or email will be accepted for filing, unless otherwise ordered by the Appeals Board.” [see Cal. Code Regs., tit. 8, § 10940(b)]. This part of the en banc decision allows parties to email documents such as Petitions for Reconsideration, Petitions for Removal, Petitions for Disqualification, and other documents the Appeals Board requests via a designated email address for the Appeals Board commissioners and staff.
  • Documents subject to a statutory time limit may be sent by email directly to the district offices pursuant to AD Rule 10205.7(c) where the filing party could not otherwise e-file, JET file or file the document by mail. This Order reminds counsel that each WCAB district office has its own email address. The purpose of the address traditionally was so that a party to a hearing could email the district office to inform the judge that counsel or a hearing representative was running late. Processing of mail from the Postal Service has been problematic since some district offices have closed temporarily due to the pandemic and have been reduced to skeletal staffing. The email address for this purpose is the three-letter abbreviation for the district office @dir.ca.gov. For example, the Los Angeles District Office email address for the purpose of this part of the Appeals Board decision is: LAO@dir.ca.gov.
  • Documents that have to be filed with the Appeals Board (after reconsideration has been granted for further study and the Commissioners want additional documents) may be sent by email to WCABEmergencyBox@dir.ca.gov. Documents sent via email should include information required of pleadings by WCAB Rule 10520 [see Cal. Code Regs., tit. 8, § 10520]. Rule 10520 relates to requiring a person filing a pleading to include specific information about who is filing and what entity the person doing the filing represents. 
  • Footnote 3 of the Appeals Board en banc decision also states: “Nothing in this decision precludes a workers’ compensation administrative law judge from ordering that other documents may also be sent by email as provided in AD Rule 10205.7.” Section 10205.7 states: “No document shall be sent by electronic email or by fax directly to the district office or the appeals board. If a document is sent by electronic mail or fax directly to the district office, it shall not be accepted for filing or deemed filed, shall not be acknowledged, and may be discarded unless otherwise ordered by the workers’ compensation administrative law judge or the appeals board.” [see Cal. Code Regs., tit. 8, § 10205.7]. Originally, counsel thought, erroneously, that they could file settlement documents via email to a district office, or worse, directly to a specific judge’s state email address. The DWC/WCAB administration put a stop to that practice right away since allowing documents to be filed willy-nilly by email may never make it into FileNet and may compromise the integrity of EAMS. Documents that are uploaded into EAMS have to be sanitized before they can be accepted into the system, and there is a real risk that emailed documents to a district office could have their own viruses.  
  • The Appeals Board also reminded everyone that if a party emails a document to the Appeals Board or to a judge, they have to send copies of their email message and any attachment to opposing parties pursuant to Rule 10410 so as to prevent an ex-parte communication [see Cal. Code Regs., tit. 8, § 10410].  
  • 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 are encouraged to check the WCAB and DWC websites on a regular basis for updates about office closures and filing deadlines.

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)]:

  • Rule 10620 requires parties to file their proposed exhibits at least 20 days before trial unless otherwise ordered by the Workers’ Compensation Appeals Board [see Cal. Code Regs., tit. 8, § 10620].
  • Rule 10670(b)(3) states: “The Workers’ Compensation Appeals Board may decline to receive in evidence: (3) Any document not filed 20 days prior to trial, unless otherwise ordered by a workers’ compensation judge or good cause is shown.” [see Cal. Code Regs., tit. 8, § 10670(b)(3)].
  • The Appeals Board also indicated in its order that there is good cause to permit receipt into evidence of documents not filed 20 days prior to trial and therefore issued an order suspending the 20-day requirement in Rule 10670(b)(3) [see Cal. Code Regs., tit. 8, § 10670(b)(3)].
  • The Appeals Board also indicated that a judge still has the authority to decline to receive documents in evidence as otherwise permitted under Rule 10760 and the law (e.g., item is not listed in Pre-Trial Conference Statement, item not previously served at or prior to MSC, non-compliant medical report) [see Cal. Code Regs., tit. 8, § 10670].
  • This suspension of the 20-day rule was problematic since the rule was new and effective on January 1, 2020. Counsel have not had a chance to even see how this rule would be enforced by each trial judge. The context of the suspension of this rule is that by April 28, 2020, court appearances for all hearings including trials and expedited hearings were via teleconference. Each judge had to determine what and when proposed exhibits should be filed when a case is likely to go forward. That flexibility was essential in the administration of cases since just about everyone was working remotely in April 2020.

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)]:

  • Effective for a Petition for Reconsideration, Removal or Disqualification filed on or after September 1, 2020, these rules went back into effect. This means all trial judges and arbitrators have to comply with these rules for petitions filed on or after September 1, 2020.
  • Therefore, effective for petitions filed on or after September 1, 2020, a judge or arbitrator has 15 days within which to rescind an Order and set the matter for a conference within 30 days; issue an amended order; or file a Report and Recommendation with the Appeals Board within the 15 days of the filing of a petition [see Cal. Code Regs., tit. 8, § 10961].
  • If a judge or arbitrator does not take action within 15 days of the filing of a Petition for Reconsideration, Removal, or Disqualification, the judge or arbitrator cannot take any further action on the matter until the Appeals Board issues its decision.
  • The Appeals Board also reiterated that the suspension of the other WCAB Rules as outlined in their March 18, 2020 en banc decision are still in full force and effect.
  • The Appeals Board’s office in San Francisco is operating with limited in-office staff as of July 16, 2020. The Appeals Board’s commissioners and staff continue working remotely. All practitioners are encouraged to check the WCAB and DWC websites for updates about the district offices’ and the Appeals Board’s operations during this period.

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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