California: Rules, Customs and EAMS

California: Rules, Customs and EAMS

California’s Division of Workers’ Compensation (DWC) is modernizing its document management and calendaring systems with the implementation of the Electronic Adjudication Management System (EAMS). EAMS will have many consequences. This post concerns one of them; how automation will change the respective contribution of rules and customs to the adjudication of California workers’ compensation claims.

An idealized vision of the law consists of rules expressed as unambiguous declarative statements found in applicable statutes, regulations, and precedential decisions. In this idealized vision, custom has no role. Ideally, the rules are the law and the law is the rules. Ideally, the rules themselves provide stability, predictability, and uniformity by saying what they mean, meaning what they say, and either clearly applying to a situation, or being clearly inapplicable to it. But the idealized vision is not the practical reality.

The customary practices of lawyers, judges, and other compensation professionals are a necessary part of the law. Such customs have a very significant role to play in clarifying ambiguities, reconciling inconsistencies, and determining applicability of the rules. Such customs can emphasize, supplement, or even nullify the rules.

Examples abound. WCAB Rule 10560 states that “the parties are expected to submit for decision all matters properly in issue at a single trial and to produce at the trial all necessary evidence…” yet it is customary to bifurcate and defer lien claims to separate and supplemental proceedings. The discovery procedures mandated in Labor Code Sections 4060 et seq. include time limitations on the selection of agreed evaluators yet the tardy selection of an agreed evaluator is customarily ratified. The system of “baseball arbitration” mandated by former Labor Code Section 4065 to litigate the extent of permanent partial disability was frequently ignored before it was repealed.

This is not to say that the customary non-enforcement of a statute or regulation is necessarily unjust. There are often persuasive reasons why California compensation practitioners, including adverse litigants, are willing to follow such customs. And while the better procedure might be to seek legislative or regulatory reform, prompt reform may not be forthcoming.

Automation via EAMS is adding a new element to the relationship between rules and customs. A legally-required procedure is either programmed into EAMS or it is not. If the procedural requirement is part of the programming, EAMS will enforce it. If not, not. EAMS has no provision for “sort of” rules.

Controversy regarding the enforcement via EAMS of statutorily required but customarily unenforced procedures has already begun. Labor Code Section 5500.5{b} requires that when a claim for occupational disease or cumulative injury is brought against multiple employers, the party making the claim must specify “the approximate periods where the employee was exposed to the hazards of the occupational disease or cumulative injury.” By including this requirement in EAMS, its designers appear to have made the understandable assumption that the statute contains a rule that says what it means and means with it says.

However, it is customary in California compensation litigation to excuse full compliance with Section 5500.5{b}. Occupational disease exposures and cumulative injury claims are frequently pled with just an ending date, with non-specific references to “entire period of employment”, or even “TBD” (to be determined). In fairness, there can be understandable reasons for non-specification of the exposure period. Medical-legal discovery typically occurs after, rather than before, the pleading of the claim. The injured worker and his or her advocate might not be able to specify the exposure periods until after consultation with medical experts. Further, many disease and injury processes are subtle, and subject to legitimate disagreements even after consultation with respected experts. Nevertheless, EAMS has been programmed to require specification of the exposure or cumulative injury period.

Sadly, it appears that the DWC has been accused, in all seriousness, of trying to add pleading requirements under the guise of automating the system. Such accusations represent misanalysis. The pleading rule of Section 5500.5{b} was not created by EAMS. The statute predates the computer program by many years. Put another way, the problem here is not the imposition of a new rule, but the inability of a computer program to account for the customary disregard of an existing rule.

Fortunately, people can do what computers cannot. Requiring some sort of initial specification of the period of exposure or trauma seems inoffensive so long as it is understood that pleadings may be amended as discovery progresses and that, ultimately, the Trier of Fact will decide the matter on the submitted evidence rather than the initial pleadings.

Furthermore, it is important to understand that that the incorporation of the pleading rules of Section 5500.5{b} into EAMS will not be the only situation in which the dynamic between rules and customs is challenged by the third dimension of automation. Understanding that dynamic is the first step in working cooperatively to obtain positive results. And we can do it. After all, we wouldn’t have customary practices if we didn’t already have the ability to work cooperatively toward mutually acceptable objectives. EAMS merely challenges us to use that ability in a new way.

This blog has been approved by the California Division of Workers' Compensation.

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  • 04-18-2012