Court Appearances

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COURT APPEARANCES

To slow the spread of COVID-19, the Centers for Disease Control and Prevention recommends "social distancing," which it defines as "maintaining a distance at least 6 feet (2 meters) from others" and "stay[ing] out of crowded places." On March 19, 2020, Gov. Gavin Newsom issued an executive order in response to COVID-19. It required all individuals living in California to stay home or at their place of residence, except for conducting what are deemed to be essential activities.

In response, the Division of Workers' Compensation and the Workers' Compensation Appeals Board have taken emergency action to limit the number of people who appear at the district offices around the state. This section outlines the procedures that have been implemented to date. Practitioners should review the DWC website to confirm that they are comply with the most up-to-date rules: https://www.dir.ca.gov/dwc/dwc_newsline.html.

SUSPENSION OF RULES

The appeals board has issued two en banc decisions in response to the state of emergency and to facilitate compliance with public health measures.

On March 18, 2020, the appeals board issued a decision temporarily suspending specified Rules of Practice and Procedure. The suspension applies to all district offices and to these rules:

1. California Code of Regulations, Title 8, § 10755, § 10756, § 10888: Dismissal of an application or lien claim for failure to appear is suspended (see "Sullivan on Comp" Section 15.50 Requirement to Appear at Hearing and Section 15.30 Lien Conference).
2. California Code of Regulations, Title 8, § 10961(a), § 10962(c), § 10990(f)(3)(E), § 10995(c)(3): Workers’ compensation judges and arbitrators shall have an unlimited extension of time within which to issue reports in response to petitions for reconsideration or removal (see "Sullivan on Comp" Section 16.64 Petition for Reconsideration — Workers' Compensation Judge's Actions and Section 16.67 Reconsideration of Arbitration and Carve-Out Decisions).
3. California Code of Regulations, Title 8, § 10500(b)(6): The requirement in the compromise and release agreements for signatures from two witnesses is suspended. Signatures on the forms from all parties may be electronic (see "Sullivan on Comp" 14.76 Compromise and Release — Content and Execution).
4. California Code of Regulations, Title 8, § 10628: The requirement for service by mail by the appeals board is suspended. Service by the board may be done electronically with or without parties’ consent (see "Sullivan on Comp" Section 15.15 Service of Document).

The appeals board also announced closure for filing of all DWC district offices from March 17 through April 3; all filing deadlines were extended to the next day when the district offices reopened for filing (April 13, 2020). The offices reopened for filing but remained physically closed –– filing must be done by mail or through the board's electronic systems. The appeals board's authority to invalidate or suspend regulations is further discussed in "Sullivan on Comp" Section 1.11 Code of Regulations.

EMAILS TO THE WORKERS' COMPENSATION APPEALS BOARD ALLOWED

On April 6, 2020, the appeals board issued another en banc decision notifying practitioners that certain documents may be emailed directly to district offices or the appeals board. California Code of Regulations, Title 8, § 10940(b) states, "No documents sent directly to the Appeals Board by fax or e-mail will be accepted for filing, unless otherwise ordered by the Appeals Board," so the board ordered that documents temporarily may be emailed directly to it. The appeals board is comprised of seven commissioners, and is housed in San Francisco. This filing order does not apply to the board's district offices nor to everyday workers' compensation judges.

Not many documents get filed with the appeals board itself –– mostly, they're documents relevant to an appeal from an order by a judge. Documents that may be emailed include, but are not limited to, correspondence relating to a petition for reconsideration that has been granted for further study. Documents sent by email should include the information required for pleadings by CCR 10520 and an email address for the sending party. Documents may be sent by email to WCABEmergencyBox@dir.ca.gov.

Petitions for reconsideration, removal or disqualification and answers should not be filed by email –– they should still be filed in EAMS or with the district office having venue. So, the vast majority of document filings still will occur locally.

The appeals board found that although § 10205.7(c) prohibits filing documents by email directing to the district office or appeals board, it ordered that specific documents may be emailed directly to the district offices. Specifically, district offices may accept by email solely documents subject to a statutory time limit if the filing party could not otherwise e-file, JET file or file the document by mail. For these rare cases, the appropriate email can be found on the DWC’s website.

Filing by email is limited only to the documents specified. Petitions for reconsideration, removal, disqualification, applications for adjudication of claim, and petitions to reopen, or other documents subject to statutory time limits, may be filed via email directly to the district office having venue. Documents that are not subject to statutory time limits may not be filed via email. If such documents cannot be e-filed or JET filed, they must be filed via U.S. mail. Documents that are improperly filed via email will be rejected.

The rules for filing documents with the appeals board are further discussed in "Sullivan on Comp" Section 15.16 Filing of Document.

EXTENSIONS OF TIME

On May 7, 2020, Gov. Gavin Newsom issued an executive order extending time limits established in the Labor Code and administrative regulations. In relation to workers' compensation, the executive order extends these deadlines 60 days:

1. Labor Code § 4616(b)(1) and California Code of Regulations, Title 8, § 9767.2(a)(b) and § 9767.8(d), related to the period in which the administrative director must act on medical provider network applications or requests for modifications or reapprovals (see "Sullivan on Comp" Section 7.53 Medical Provider Network — Establishment and Maintenance);
2. California Code of Regulations, Title 8, § 17304, related to the period in which the Return-To-Work Supplement Program must receive an application for a Return-to-Work Supplement (see "Sullivan on Comp" Section 10.71 Return-to-Work Program);
3. California Code of Regulations, Title 8, § 17309, related to filing a Return-to Work Supplement appeal and any reply or responsive papers (see "Sullivan on Comp" Section 10.71 Return-to-Work Program);
4. Labor Code § 123.5 and California Code of Regulations, Title 8, § 9713, § 9714 and § 9714.5, related to the period in which WCJs must file decisions (see "Sullivan on Comp" Section 16.41 Award — Timing, Content and Legal Effect); and
5. Labor Code § 5313, related to the period of time a WCJ must make and serve the findings, decision, order or reward in a controversy (see "Sullivan on Comp" Section 16.41 Award — Timing, Content and Legal Effect).

On June 5, 2020, Gov. Newsom issued another executive order extending these deadlines 60 days:

1. Labor Code § 5909, related to the period of time a petition for reconsideration is deemed to have been denied by the WCAB (see "Sullivan on Comp" 16.65 Petition for Reconsideration — Workers' Compensation Appeals Board's Actions); and
2. Labor Code § 5315, related to the period of time in which the WCAB must act on any decision submitted by a WCJ (see "Sullivan on Comp" Section 16.41 Award — Timing, Content and Legal Effect).

Neither executive order contains an end date. However, Government Code § 8627.5(b) states, "The temporary suspension of any statute, ordinance, regulation, or rule shall remain in effect until the order or regulation is rescinded by the Governor, the Governor proclaims the termination of the state of emergency, or for a period of 60 days, whichever occurs first."

HEARING PROCEDURES

The Division of Workers' Compensation and Workers' Compensation Appeals Board announced a modified hearing calendar. These procedures were in place for the following dates. The rules regarding hearing appearances are discussed in "Sullivan on Comp" 15.50 Requirement to Appear at Hearing.

March 17 through March 20

From March 17 through March 20, the DWC held only expedited hearings at the district offices. All other hearings were continued.

March 23 through April 10

From March 23 through April 10, the DWC continued to hold expedited hearings at district offices. But status conferences, mandatory settlement conferences and priority conferences were conducted only via CourtCall. Parties were not penalized for failing to appear via CourtCall. If parties did not appear via CourtCall, the case was continued with notice given. All other hearings were continued, and no trial or lien conferences were conducted during this period. Parties were required to adhere to social distancing guidelines when visiting DWC district offices.

Effective April 13

Effective April 13, district offices would not hold in-person hearings. All trials and lien conferences were continued until further notice. Mandatory settlement conferences, priority conferences, status conferences and all expedited hearings are heard telephonically. Rather than using CourtCall, all workers' compensation judges hear cases by an individually assigned toll-free conference line. A list of all conference line numbers is posted on the DWC’s website.

Parties should call the conference line for the assigned judge at the designated hearing time listed on the hearing notice. When prompted, parties enter the access code assigned to that line. DWC staff will instruct participants as to the procedure to follow during the call.

Effective May 4

The DWC will continue to hear all mandatory settlement conferences, priority conferences, status conferences and expedited hearings telephonically via the individually assigned judges’ conference lines. Beginning May 4, judges also will hear trials on the cases-in-chief via individually assigned judges’ conference lines.

All lien trials and lien conferences are being continued at this time. District offices will not hold in-person hearings, nor will they accept walk-through documents, walk-in filings or in-person requests.

Effective June 8

The DWC will continue to hear all mandatory settlement conferences, priority conferences, status conferences, case-in-chief trials and expedited hearings telephonically via the individually assigned judges’ conference lines.

Beginning June 8, the DWC will hear as many as three lien conferences per judge per calendar session via the judges’ conference lines. Lien conferences in excess of that number will be continued. All lien trials will be continued during this time. District offices will not hold in-person hearings.

FILING PROCEDURES

The DWC and the appeals board also announced a modified filing calendar. These procedures were in place for the following dates. For further discussion regarding the general rules of filing, see "Sullivan on Comp" Section 15.16 Filing of Document.

March 17 through April 10

From March 17 through April 10, all district offices were closed for filing purposes. All filing deadlines were extended to April 13.

The DWC did not accept walk-through documents for filing purposes. Parties could use EAMS to file documents online. Parties could mail settlement documents and petitions to the district offices with venue.

Effective April 13

The DWC reopened for filing purposes on April 13, 2020. But it accepted filings only via EAMS, JET file or by mail. DWC will not accept walk-in filings, walk-through documents or in-person requests until further notice. Injured workers who are unable to file via these options, and those needing assistance should contact the DWC’s call center at 909-383-4522.

Continuing Filing Procedures

The DWC will accept limited email filings pursuant to the WCAB’s April 6 en banc decision, discussed above. Specifically, the WCAB commissioners' office will accept filing by email of documents relating to a petition for reconsideration that has been granted for further study.

District offices may accept by email only documents subject to a statutory time limit if the filing party could not otherwise e-file, JET file or file the document by mail. Petitions for reconsideration, removal, disqualification, applications for adjudication of claim, petitions to reopen and other documents subject to statutory time limits may be filed via email directly to the district office having venue. Documents not subject to statutory time limits may not be filed via email.

The DWC has posted additional information to assist parties with filing settlement documents in EAMS. It will continue to accept an electronic signature on any settlement documents, applications, pleadings, petitions or motions that are sent to the district offices or filed in EAMS. For all e-forms, parties should utilize the “S signature” as shown in the E-forms Filing Reference Guide and the JET File Business Rules.

Filing of Trial Exhibits

As discussed above, district offices will be available for trials on the cases-in-chief effective May 4, 2020. Unless so ordered prior to the day of trial, the assigned judge will instruct the parties on the method and timing of filing of exhibits pursuant to California Code of Regulations, Title 8, § 10787(b). Parties must not email trial exhibits unless so ordered by the judge.

In regard to the opening of the district offices for trials on May 4, 2020, the WCAB issued an en banc decision suspending specified rules related to the filing of exhibits. WCAB Rule 10620 states, "Any document that a party proposes to offer into evidence at a trial shall be filed with the Workers' Compensation Appeals Board at least 20 days prior to the trial unless otherwise ordered by the Workers' Compensation Appeals Board” (emphasis added). WCAB Rule 10670(b)(3) states that it may decline to receive any exhibit not filed 20 days prior to trial, unless order by a judge or good cause is shown.

The state of emergency gave the WCAB good cause to permit receipt into evidence documents not filed 20 days prior to trial. So, it ordered suspension of the 20-day requirement in WCAB Rule 10670(b)(3). A judge retains the authority to decline to receive documents in evidence as otherwise permitted by WCAB Rule 10670(b) and the law.

COURTCALL FEES AS COSTS

Although not specifically authorized by the Workers' Compensation Appeals Board Rules and Regulations, parties may make appearances using CourtCall, a private company that works in partnership with the Division of Workers' compensation. CourtCall enables lawyers and representatives to make routine appearances by phone for a fee.

Generally, CourtCall is available at all district offices and in most judges’ courtrooms for mandatory settlement conferences, status conferences and priority conferences. CourtCall is not available when there is an unrepresented injured worker or for trials or expedited hearings. Information related to CourtCall is available on the DWC website: https://www.dir.ca.gov/dwc/DWC_address/CourtCall.htm.

From March 23 through April 10, status conferences, mandatory settlement conferences and priority conferences were conducted via CourtCall. Many applicant attorneys asserted that CourtCall fees should be paid by employers as costs pursuant to Labor Code § 5811.

Whether the appeals board may order employers to reimburse applicants and/or their attorneys for such costs is an open issue. In one case, the appeals board held that an employer was not required to reimburse an injured worker for travel costs, lost income, lodging or transportation for appearances at the district office of the appeals board because there was no authority for awarding such costs to an applicant. Moreover, because there were no penalties for nonappearance via CourtCall, employers could argue that any appearance was voluntary, not mandatory. So employers could argue that they're not responsible for an applicant's CourtCall costs.

The defense almost always set up the calls with CourtCall, and as such, it paid the bill. Seeking reimbursement is not common, as the fee is minimal.

For a full discussion of litigation costs in workers' compensation see "Sullivan on Comp" section 15.110 Litigation Cost.

SEE ALSO

• Provision of Benefits and Investigation without a Claim Form
• Remote Depositions

REFERENCES

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