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 requiring all individuals living in California to stay home or at their place of residence, except for what are deemed to be essential activities.

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 Chapter outlines the procedures that have been implemented to date. Practitioners should review the DWC website to confirm 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 an en banc decision temporarily suspending specified Rules of Practice and Procedure. The suspension applies to all district offices and to these rules:

1. Cal. Code Regs., tit. 8, §§ 10755, 10756, 10888: Dismissal of an application or lien claim for failure to appear is suspended.
2. Cal. Code Regs., tit. 8, §§ 10961(a), 10962(c), 10990(f)(3)(E), 10995(c)(3): Workers’ compensation judges (WCJs) and arbitrators shall have an unlimited extension of time within which to issue reports in response to petitions for reconsideration or removal.
3. Cal. Code Regs., tit. 8, § 10500(b)(6): Suspension of the requirement in the Compromise and Release (C&R) agreements for signatures from two witnesses. Signatures on the forms from all parties may be electronic.
4. Cal. Code Regs., tit. 8, § 10628: Suspension of the requirement for service by mail by the WCAB. Service by the WCAB may be made electronically with or without parties’ consent.

The appeals board also announced that all of the DWC’s district offices were closed for filing from March 17 through April 3; all filing deadlines were extended to the next day when the district offices reopened for filing. This was 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.

EMAILS TO THE WCAB ITSELF 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. Although Cal. Code Regs., tit. 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,” the appeals board ordered that documents may temporarily be emailed directly to it. The appeals board comprises seven commissioners, and is housed in San Francisco. This filing order does not apply to the Board's district offices and the everyday workers compensation judges (WCJs).

Not many documents get filed with the WCAB itself; mostly it is only those having to do with an appeal from an order by a WCJ. As such, 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 Reg. § 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. Instead, they should still be filed in EAMS or with the district office having venue. Therefore, the vast majority of document filings still will occur locally.

The appeals board found that although Reg. § 10205.7(c) prohibits filing documents by email directing to the district office or appeals board, it ordered specific documents may be emailed directly to the district offices. Specifically, if district offices may accept by email solely documents subject to a statutory time limit where 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.

HEARING PROCEDURES

The DWC and WCAB announced a modified hearing calendar. These procedures were in place for the following dates.

March 17 through March 20

From March 17 through March 20, the DWC only held 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. Instead, 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 will not hold in-person hearings. All trials and lien conferences are continued until further notice. Mandatory settlement conferences, priority conferences, status conferences and all expedited hearings will be heard telephonically. Rather than using CourtCall, all workers' compensation judges will hear cases by an individually assigned toll-free conference line. A list of all conference line numbers will be posted on the DWC’s website prior to the effective date.

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.

FILING PROCEDURES

The DWC and WCAB also announced a modified filing calendar. These procedures were in place for the following dates.

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 utilize 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 only 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 utilizing these options or need assistance should contact the DWC’s call center at 909-383-4522.

COURTCALL FEES AS COSTS

Although not specifically authorized by the WCAB Rules and Regulations, parties may make appearances using CourtCall, a private company that works in partnership with the DWC. 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 at: https://www.dir.ca.gov/dwc/DWC_address/CourtCall.htm.

For the period from March 23 through April 10, status conferences, mandatory settlement conferences and priority conferences were conducted on 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 remains 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 WCAB, 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. Therefore, employers could viably argue it is not responsible for an applicant's CourtCall costs.

As a practical matter it was almost universally the defense that set up the calls with Courtcall, and as such they 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.