The automation of
California workers' compensation administrative law proceedings via the Electronic Adjudication Management System (EAMS) has already begun. These reforms include significant changes to the regulations with govern the routine handling of
California workers' compensation litigation, including the basic question of which parties or lien claimants are obligated to be physically present at the District Offices of the Division of Workers' Compensation (DWC).
The present system requires a physical appearance by the primary parties at a Mandatory Settlement Conference. The Applicant "shall be present" unless "the notice otherwise provides." The Defendant must also make a physical appearance, although the attorney or representative physically appearing need not be the person vested with settlement authority so long as the person with settlement authority is available by telephone. Where parties fail to appear for an MSC, the Workers' Compensation Judge may dismiss the application (following a 10-day notice of intention) or close discovery and forward the case to the Presiding Workers Compensation Judge to be set for Trial. WCAB Rule 10562 (b) (Title 8
California Code of Regulations §10562(b)).
Likewise, at Priority Conferences or Status Conferences in lieu of Priority Conferences, "the parties shall be expected to set the matter for trial or to provided a plan to complete discovery" subject to a determination that sufficient time of discovery has occurred, in which case the matter is to be set for Trial. WCAB Rule 10555 (8
California Code of Regulations §10555). Presumably, if the case is not ready for Trial, and there is no dispute regarding the appropriate discovery plan, it may be both practical and permissible for one or both parties to appear telephonically.
The requirements for physical and/or telephonic appearances by parties at Status Conferences other than Status Conferences in lieu of Priority Conferences are not clearly specified within the existing rules.
With respect to lien claimants, a representative with settlement authority must be present or available by telephone. WCAB Rule 10563 (Title 8,
California Code of Regulations, §§10560-10563). However, while telephonic appearances are permitted, it is important to note that Lab.C. §5502(e)(3) requires that issues be identified; exhibits listed, and witnesses disclosed at the time of the MSC. A billing negotiator on telephonic stand-by may not be able to perform these functions.
The parties are expected to physically appear for Trial. WCAB Rule 10562(a) (8
California Code of Regulations §10562(a). Lien Claimants "shall have a person available with settlement authority in the same manner" as for MSCs. WCAB Rule 10563 (8
California Code of Regulations §10563). As with MSCs, however, a lien claimant electing to appear telephonically for Trial may thereby impair their ability to litigate effectively.
Practical experience with this system has not been satisfactory. With unfortunate frequency, parties and lien claimants allegedly on telephonic standby cannot be reached. Further, even when reached, the available attorney or representative often lacks familiarity with pending case, decisive settlement authority, or both.
The proposed regulations make significant changes in the appearance requirements for both primary parties and lien claimants. It is important to note that the proposed regulations are, in fact, proposed. There have already been significant changes in the proposed regulations. Other changes may occur before the regulations are finalized.
The most notable change in the currently proposed regulations is the codification of judicial discretion. Vested with the plenary powers entrusted to the Workers Compensation Appeals Board, individual Workers Compensation Administrative Law Judges had probably always had the discretion to excuse otherwise-required appearances and require otherwise-excused appearances by both parties and lien claimants in individual cases. The proposed regulations formalize this discretion. Furthermore, the proposed regulations will eliminate the uncertainty regarding conferences other than MSCs or Status Conferences in lieu of Priority Hearings by expressly authorizing the WCALJ to determine which litigants will be required to appear, even at events other than those expressly mentioned in the regulations.
In the absence of a particular order in a particular case, the proposed regulations provide that lien claimants need not appear at an MSC or Trial where injury arising out of and in the course of employment (injury AOE-COE) is disputed. On the other hand, if injury AOE-COE is accepted, lien claimants claiming $25,000.00 or more are expected to appear for MSC or Lien Conference unless excused, and lien claimants claiming less than $25,000.00 may be available by telephone unless required to appear.
Lien Claimants will be expected to appear for Trial if the lien claim has been set as an issue for Trial, regardless of the amount claimed. This is a very significant change since some human being will have to be actually present at the DWC District Office in which the Trial is being conducted. While that person need not be personally vested with settlement authority, so long authority is readily available by telephone, an actual appearance (hopefully facilitating meaningful settlement discussions and/or issue clarification) is required.
The proposed regulations will clarify a great deal, although they cannot be expected to provide for every possible variation in every possible case. For example, the compensability of the claim as a whole might be in dispute for some reason other than a denial of injury AOE-COE (such as the post-termination exclusion of Lab.C. §3600(a)(10) or an applicable Statute of Limitations). Or the compensation litigation might involve multiple injury claims and/or multiple Defendants, with some injuries accepted by some Defendants and others disputed. Furthermore, it is possible that issues will be set for Trial that are dispositive of lien claims, but the lien claim itself was not stated as an issue (for example, the Defendant might be asserting an entitlement to medical control via a Medical Provider Network (MPN) to the exclusion of lien claims involving self-procured medical treatment). In those situations, prudent compensation litigants should avail themselves of the judicial discretion to be codified in the new regulations and obtain the WCALJ's determination regarding whether their presence will be required.
The currently proposed regulations are consistent with the overall objectives of EAMS. However, they also recognize that automation can only do so much. Ultimately, litigation is still about people, whose presence and participation is necessary for the expeditious and substantially just resolution of
California workers' compensation disputes. Hopefully, the new regulations will clarify when it is necessary for those people to show up for the showdowns.
This blog has been approved by the California Division of Workers' Compensation.
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