The Labor Code Isn’t the Only Relevant Change in 2020
With every new year usually comes changes to the California Labor Code which involve the workers’ compensation system, and these changes usually get quite a bit of publicity from the various entities regularly involved in the workers’ compensation field. However, just as important and sometimes even more so, are the Regulations which can describe procedure, set forth specific requirements, and add additional details to the laws in the Labor Code. A 268-page document containing all amendments, additions and deletions to Title 8 of the California Code of Regulations can be found by going to the website below, but here are a few that deserve some special mention.
§10401 Non-Attorney Representatives.
- Non-attorney representatives (hereafter “NAR”) or hearing representatives may act on behalf of a party in proceedings before the WCAB, as long as the party has been informed that the representative is not licensed to practice law in the State of California.
- NARs are held to the same professional standards of conduct as an attorney.
NAR shall file and serve a Notice of Representation before filing a document or appearing on behalf of a party unless the information required to be included in the NOR is set forth on an opening document.
If the NAR is appearing pursuant to an agreement between a law firm or another entity that provides NAR, the Notice of Representation shall include:
- Name of represented party;
- Legal name, address, phone number and firm or other entity;
- Name and address of the law firm or other entity’s agent for service of process;
- Name of person who entered an agreement on behalf of the law firm or entity with the party to provide non-attorney representatives; and
- Name of the NAR responsible for assuring that appearances are made on behalf of the party.
- If a NAR is appearing as an individual with an agreement between the NAR and a party, the NOR shall include the name of the represented party and name of non-attorney representative, their address and telephone number.
- If the NAR is appearing pursuant to an agreement between a law firm or another entity that provides NAR, the Notice of Representation shall include:
- Name of NAR and any entity responsible for providing the NAR shall be set forth on the record of proceedings at all appearances and on any pleading, document or lien prepared by or filed by a non-attorney representative.
- If an attorney is responsible for supervising the NAR, the attorney shall be identified in all documents The supervising attorney’s specific written authorization must be included with all Compromise and Release agreements or Stipulations with Request for award.
- A NAR whose name is not on the NOR must file a notice of appearance as provided in rule 10751 before appearing before the WCAB.
- NARs of lien claimants shall also comply with rule 10868.
This will most likely be seen in practice with lien representatives or applicant’s attorney’s offices employing several non-attorney hearing representatives. It will assist defendants in identifying lien claimants’ representatives, as many times one rep appears on behalf of several lien claimants with no notices of representation to ensuring that they are authorized to negotiate and enter into a settlement.
§10868 Notices of Representation for Lien Claimants.
- Whenever a lien claimant obtains or changes representation after a lien has been filed, they shall file and serve a notice of representation in accordance with rules 10390, 10400, 10401, 10402 within 5 days. If a copy of the NOR is not in the record at the time of a hearing, the representative shall lodge a copy at the hearing and personally serve all parties appearing. Unless a representative signs an initial lien document, a NOR is required.
In addition to the requirements of rules 10390, 10400 and 10401, the NOR shall:
- Caption, case title (name of injured employee and of the primary defendant(s) and the ADJ number.
- Set forth the full legal name, mailing address and telephone number of the lien claimant.
The notice shall be verified by a declaration signed by the lien claimant and the lien claimant’s representative under penalty of perjury stating:
- “I declare that the named initial or new representative has consented to represent the interests of the named lien claimant and that the named lien claimant has consented to this representation.”
“This representation began on ______, ___, 20___.”
- “I am not aware of any other attorney or non-attorney who was previously representing the lien claimant,” or,
- “I am aware that ______ [specify person or entity] was previously representating the lien claimant and this NOR supersedes any previous NOR. I hearby certify that I have notified the previous attorney or non-attorney representative in writing.”
- “By signing below, the representative affirms that they are not disqualified from appearing under Labor Code section 4907, WCAB rule 10445 or by an other rule, order or decision of the Workers’ Compensation Appeals Board, the State Bar of California, or any court.”
- Any violation of this rule may give rise to monetary sanctions, attorney’s fees and costs under Labor Code section 5813 and rule 10421.
§10874 Verification to Filing of Declaration of Readiness to Proceed by or on Behalf of Lien Claimant.
No DOR shall be filed for a §4903(b) lien, or for a lien claim for medical-legal costs, without an attached verification executed under penalty of perjury:
Stating either that:
- The DOR is not being filed because of a dispute solely subject to the IMR and/or IBR process; or
- A timely petition appealing the Administrative Director’s determination regarding IMR and/or IMR has been filed; and
Stating either that:
- The underlying case has been resolved;
- At least 6 months have elapsed from the DOI and the injured worker has chosen not to proceed with their case.
The declarant shall make a diligent search to determine that the injured worker has chosen not to proceed with their case and the verification shall specify the efforts made in conducting the diligent search. A diligent search shall include contacting the injured worker, the employer or carrier, or inquiring at the district office with appropriate venue pursuant to Labor Code section 5501.5(a)(1) or 5501.5(a)(2).
The verification shall be in the following form:
I declare under penalty of perjury under the laws of the State of California that:
- [ ] The DOR is not being filed because of a dispute subject to the IMR and/or IBR process; or
- [ ] A timely petition appealing the Administrative Directors determination regarding IMR or IBR has been filed; and
[ ] At least 6 months have elapsed from the DOI and the injured worker has chosen not to proceed with their case. In determining that the injured worker has chosen not to proceed with their case, I have made a diligent search consisting of the following efforts (specify):
_____________________________________________________________________________ _________________________________ s/s _________________________________________ on _______________________________, in ________________________________________
Failure to attach the verification or an incorrect verification may be a basis for sanctions.
- If the Appeals board approves an e-form or optical character recognition (OCR) form for this declaration, lien claimants shall file the declaration using the adopted form.
This appears to be another loophole that may assist in defending against a lien claim and reduce the premature filing of DORs.
Any Answer to an Application shall be filed no later than the shorter of either: 10 days after service of a Declaration of Readiness to Proceed, or 90 days after service of the Application.
- The Answer used by the parties shall confirm to a form prescribed and approved by the Appeals Board. Additional matters may be pleaded as deemed necessary by the answering party. A general denial is not an answer within this rule.
- The Answer shall be accompanied by a proof of service upon opposing parties.
- Evidence upon matters and affirmative defenses not pleaded by Answer will be allowed only upon such terms and conditions as the Appeals Board or WCJ may impose in the exercise of sound discretion.
Prior Regulation §10484 required the Answer be filed within 10 days after service of a DOR with no mention of a time frame surrounding service of the Application. Labor Code §5505 states that defendant should use an Answer to bring a fact\, issue, or defense to the attention of the appeals board, and requires it be filed within 10 days after service of the application upon him, setting forth the particulars in which the application is inaccurate or incomplete and the facts on which he intends to rely.
§10500 Form Pleadings
- No WCJ and no district office of the WCAB shall require the parties to use a form other than that prescribed and approved by the Appeals Board….
This regulation contains additional detail, listing the pleadings that must be filed on specific WCAB forms, but I find subsection (a) to be interesting. There are a few WCJs across the state that require specific procedures and forms be used in their court. I appeared for a trial out of town, with timely filed and served exhibits, but the trial had to be continued because after using up a good portion of the hearing to negotiate, the WCJ required specific forms identifying exhibits be handwritten and affixed to each exhibit which could not be completed in the limited time remaining.
§10525 Petition for Increased or Decreased Compensation – S&W Misconduct
- Any claim that an injury was caused by the S&W misconduct of the employer or employee must be separately pleaded and set out in sufficient detail the specific basis upon which a claim is founded. If the claim is based on more than one theory, the petition shall set forth each theory separately.
- When the S&W claim is predicated upon the violation of a particular safety order, the petition shall set forth the correct citation or reference and all of the particulars required by Labor Code §4553.1.
This regulation was previously §10440 and did not contain any of the language in subsection (b) above or the requirement that each theory of the claim be set forth.
§10629 Designated Service
- The WCAB may designate a party or their attorney or agent to serve any order that the WCAB is not specifically required to serve in accordance with §10628.
- When a party or their attorney or agent is designated to serve an order, the WCJ shall indicate which parties to serve.
- In addition to the service required by §10625, service shall also be made on the injured employee or any dependent of a deceased employee, whether or not they are represented.
- Within 10 days of the date on which designated service is ordered, the person designated to make service shall serve the document and shall file the proof of service.
Designated service may be required for orders such as Orders Quashing Subpoenas, Orders to Compel, etc. but the requirement that the proof of service be filed with the WCAB is new.
§10555 Petition for Credit
When a dispute arises as to a credit for any payments or overpayments of benefits pursuant to LC§4909, any petition for credit shall include:
- A description of the payments made by the employer;
- A description of the benefits against which the employer seeks a credit; and
- The amount of the claimed credit.
When a dispute arises as to a credit for an employee’s third party recovery pursuant to LC§3861, any petition for credit shall include:
- A copy of the settlement or judgment, if available; and
- An itemization of any credit applied to expenses and attorney’s fees per LC§3856, 3858, and 3860.
- Where a copy of the settlement or judgment required under subdivision (b)(1) of this rule is not available, a WCJ may order its production for purposes of adjudicating a petition for credit under Labor Code §3861.
These requirements had not previously been codified, however, it would seem that any petition for credit not containing this information would be insufficient to result in an Order without the need for a hearing.