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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." [1] 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.[2]

In response, the Division of Workers' Compensation (DWC) and the Workers' Compensation Appeals Board (WCAB) 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 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.[3] 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 Action and Section 16.67 Reconsideration of Arbitration and Carve-Out Decision).
  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" Section 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 has held that the March 18, 2020 decision allowing it to serve documents electronically did not suspend CCR § 10625, which addresses service by parties.[4] It also does not suspend the requirement that all final decisions, orders, or awards shall be served by the board.[5]

On July 16, 2020, the appeals board issued a decision that California Code of Regulations, Title 8, § 10961(a), § 10962(c), § 10990(f)(3)(E) and § 10995(c)(3) would become effective again as of that date.[6]

On Oct. 27, 2020, the appeals board issued a decision that California Code of Regulations, Title 8, § 10755, § 10756 and § 10888 would become effective again as of that date. The other rules remain suspended until further notice.[7]

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.

On Dec. 15, 2020, the appeals board issued a decision that California Code of Regulations, Title 8, § 10789(c) would be suspended.[8] CCR § 10789(a) allows these documents to be submitted on a walk-through basis:

  • compromise and releases;
  • stipulations with request for award;
  • petitions for attorneys’ fees for representation of the applicant at a deposition;
  • petitions to compel attendance at a medical examination or deposition; and
  • petitions for costs pursuant to CCR § 10545.

CCR § 10789(c) requires each district office to have a designee of the presiding workers' compensation judge available to assign walk-through cases from 8 a.m. to 11 a.m. and 1 p.m. to 4 p.m. on court days. The appeals board suspended § 10789(c) so that the district offices could schedule time frames for walk-through of documents as appropriate for their capacity. The board instructed that presiding judges have full responsibility for assignment of cases to the workers’ compensation judges in each district office. It added that presiding judges are empowered to prioritize which documents may be assigned on a walk-through basis and to decide whether to permit a document to be assigned as a walk-through.

The appeals board's authority to invalidate or suspend regulations is discussed further 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.[9] 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.[10]

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.[11]

The rules for filing documents with the appeals board are discussed further 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.[12] 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:[13]

  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" Section 16.65 Petition for Reconsideration — Workers' Compensation Appeals Board's Action); 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).

Those statutes require the WCAB to act on a petition for reconsideration within 60 days, so the executive order gave the WCAB 120 days to act.[14] Neither executive order contains an end date. Government Code § 8627 gives the governor power to promulgate, issue and enforce orders and regulations as he deems necessary, in accordance with the provisions of § 8567. GC 8567(b) states, "Whenever the state of war emergency or state of emergency has been terminated, the orders and regulations shall be of no further force or effect."

On June 30, 2020, Gov. Newsom issued a new executive order extending the time limits for multiple executive orders.[15] In relation to the executive orders discussed above, it states that the extensions of time of 60 days for deadlines in LC 5909 and LC 5315 become inoperative on Aug. 29, 2020.


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.[16]

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.[17]

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.[18]

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.

The appeals board has held that the fact that trials were held with telephonic witness testimony during this time did not violate due process.[19] It also upheld a WCJ's credibility determinations made during a telephonic trial due to the Executive Order of Governor Newsom that disallowed in-person hearings or testimony. The board relied on the WCJ's explanation that the inflection and tone of the spoken testimony was sufficient to determine the witnesses' credibility.[20]

Nevertheless, the board has deferred to judges to decide whether telephonic testimony alone was sufficient. In another case, the board upheld the decision of a WCJ to continue a trial due to the need for live testimony. The judge explained that it would be virtually impossible to accurately or properly determine the credibility of a witness by telephonic means only.[21]

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.[22]

Effective August 17

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

Beginning Aug. 17, the DWC will have a video option available for trials and expedited hearings only. Parties will continue to use individually assigned judges’ conference lines on the day of trial. But judges have the option of conducting the trial through the judge’s virtual courtroom. If so, the judge must provide a link to the parties so they can log into the video platform.

The DWC uses the video platform called Lifesize. It advises stakeholders to download the software prior to a hearing in which a video option might become necessary. Neither the DWC nor Lifesize will charge to use the platform, but there are certain system requirements to enable full participation in the video option, including a web camera. Participants without access to a web camera may use a smartphone with the program, although it's not recommended. Additional information about Lifesize and how to use the program may be found on the DWC website.

The DWC began hearing Special Adjudication Unit (SAU) lien trials. The procedure described above will apply for SAU trials.[23]

The WCAB has issued a significant panel decision holding that workers' compensation trials should proceed remotely and that remote proceedings do not violate due process. The board held that the default position should be that trials proceed remotely, in the absence of some clear reason why the facts of a specific case require a continuance. Furthermore, it held that the burden of seeking a continuance should fall on the party seeking it.[24]

In another case, the appeals board held that COVID-19 difficulties, including the complications and frustrations related to "videoconference" trials, are not an appropriate basis for denying a party its right to call a witness in rebuttal to prior witness testimony.[25]

Effective September 14

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

Beginning Sept. 14, the DWC resumes holding lien trials. Initially, such trials will be limited to one per judge per day. Parties will continue to use individually assigned judges’ conference lines on the day of trial. Judges, however, will have the option of conducting any trial or expedited hearing through the judge’s Lifesize virtual courtroom if needed. If that is required, the judge will provide a link to the parties allowing them to log into the video platform.

At the designated time listed on the hearing notice, all parties should call the conference line for the judge in front of whom the case is set. When prompted, the parties enter the access code assigned to that line. DWC staff will instruct participants as to the procedure to follow during the call. Parties should download the software prior to a hearing in which a video option might become necessary and make sure the system requirements are met.

District offices will not hold in-person hearings.

Effective January 11, 2021

Effective Jan. 11, 2021, district offices will be available for walk-throughs Monday through Friday, from 2 p.m. to 4 p.m., but only for a compromise and release or a stipulation with request for award.[26] The DWC still requires the documents to be filed at least 24 hours ahead of the walk-through appearance, by either JET filing or e-filing.[27] Documents filed by U.S. mail must be available to the judge in EAMS prior to the walk-through.

The DWC instructs that the walk-through procedure is handled via the Lifesize virtual courtroom, which is available for each office.[28] The walk-through judge will handle as many walk-throughs as are feasible for that day. The judge has discretion to establish the order in which walk-throughs are heard. Parties are encouraged to file proposed orders to assist the judge with handling the matter expeditiously. Only settlements may be walk-through at this time. The DWC will look to expand hours and documents allowed in the future based on staffing availability.


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.[29]

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.[30] 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.

On Oct. 27, 2020, the WCAB gave notice that it was rescinding its suspension of WCAB Rules 10620 and 10670(b)(3) as of Dec. 1, 2020. The rules will apply to all trials on or after Dec. 1, 2020.[31]


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.[32] 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


References

  1. See the CDC's recommendations at https://www.cdc.gov/coronavirus/2019-ncov/php/risk-assessment.html.
  2. See https://covid19.ca.gov/img/Executive-Order-N-33-20.pdf.
  3. This decision is available at: https://www.dir.ca.gov/wcab/EnBancdecisions2020/COVID-19.pdf.
  4. Mendoza v. PepsiCo and US Bank, 2020 Cal. Wrk. Comp. P.D. LEXIS 407.
  5. Santiago v. West Star North Dairy, 2021 Cal. Wrk. Comp. P.D. LEXIS 32; Weisman v. Farmers Insurance Exchange, 2021 Cal. Wrk. Comp. P.D. LEXIS 99.
  6. This decision is available at: https://www.dir.ca.gov/wcab/EnBancdecisions2020/COVID-19-July-16-2020.pdf.
  7. This decision is available at: https://www.dir.ca.gov/wcab/EnBancdecisions2020/COVID-19-October27-2020.pdf.
  8. This decision is available at: https://www.dir.ca.gov/wcab/EnBancdecisions2020/COVID-19-December-15-2020.pdf.
  9. This decision is available at: https://www.dir.ca.gov/wcab/EnBancdecisions2020/COVID-19-April2020.pdf.
  10. See https://www.dir.ca.gov/dwc/dir2.htm.
  11. See the April 23, 2020 DWC Newsline at: https://www.dir.ca.gov/DIRNews/2020/2020-32.html.
  12. This executive order is available at: https://www.gov.ca.gov/wp-content/uploads/2020/05/5.7.20-EO-N-63-20-text.pdf.
  13. This executive order is available at: https://www.gov.ca.gov/wp-content/uploads/2020/06/6.5.20-EO-N-68-20-text.pdf.
  14. See Ramos v. JTS Jose Tree Service, Inc., 2020 Cal. Wrk. Comp. P.D. LEXIS 244.
  15. This executive order is available at: https://www.gov.ca.gov/wp-content/uploads/2020/06/6.30.20-EO-N-71-20.pdf.
  16. See the DWC Newsline containing the announcement at: https://www.dir.ca.gov/DIRNews/2020/2020-18.html and https://www.dir.ca.gov/DIRNews/2020/2020-29.html.
  17. See https://www.dir.ca.gov/dwc/dir2.htm.
  18. See the DWC Newsline of April 28, 2020 at: https://www.dir.ca.gov/DIRNews/2020/2020-37.html.
  19. See Bedi v. San Mateo County Transit District, 2020 Cal. Wrk. Comp. P.D. LEXIS 228; Martin v. Corcoran State Prison, 2020 Cal. Wrk. Comp. P.D. LEXIS 360.
  20. Wall v. State of California, In Home Support Service, 2020 Cal. Wrk. Comp. P.D. LEXIS 327. See also Johanson v. San Ramon Valley Unified School District, 2021 Cal. Wrk. Comp. P.D. LEXIS 22.
  21. Truhitte v. Santa Maria Bonita School District, 2020 Cal. Wrk. Comp. P.D. LEXIS 276.
  22. See the DWC's Newsline of May 28, 2020 at: https://www.dir.ca.gov/DIRNews/2020/2020-48.html.
  23. See the DWC's Newsline of Aug. 12, 2020 at: https://www.dir.ca.gov/DIRNews/2020/2020-69.html.
  24. Gao v. Chevron Corporation (2020) ADJ10024232 (significant panel decision). The decision is available at: https://www.dir.ca.gov/wcab/SignificantPanelDecisions2021/GAO-LIMIN.pdf. See Zaldana v. Cali Concrete, Inc., 2021 Cal. Wrk. Comp. P.D. LEXIS 29; Charletta v. Barrett Business Services, Inc., 2021 Cal. Wrk. Comp. P.D. LEXIS 86.
  25. Olivarez v. The Superior Court of California, 2021 Cal. Wrk. Comp. P.D. LEXIS 13.
  26. See the DWC's Newsline of Jan. 7, 2021 is available at: https://www.dir.ca.gov/DIRNews/2021/2021-03.html.
  27. The DWC posted instruction on how to e-file documents at: https://www.dir.ca.gov/dwc/eams/How-to-Efile-settlement-douments-through-EAMS.pdf.
  28. A list of links for each office is available at: https://www.dir.ca.gov/dwc/DWC_address/LifeSize-Walk-through-Courtrooms.html.
  29. See the DWC Newsline of April 28, 2020 at: https://www.dir.ca.gov/DIRNews/2020/2020-37.html.
  30. The WCAB's decision is available at: https://www.dir.ca.gov/wcab/EnBancdecisions2020/COVID-19-April-28-2020.pdf.
  31. The WCAB's decision is available at: https://www.dir.ca.gov/wcab/EnBancdecisions2020/COVID-19-October-27-2020.pdf .
  32. Kilbride v. Santa Catalina Island Co. (2010) 2010 Cal. Wrk. Comp. P.D. LEXIS 420.



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