Regulatory Did You Know?
Recently I was asked about what recent WCAB “non-COVID” regulations stood out to me. I was a little surprised at myself for not quickly responding “the Medical-Legal Fee Schedule” since that appears to be the “regulation of the day, every day” since becoming effective April 1, 2021.
It dawned on me most practitioners need to revisit our Regulations as they are vast as well as important. I have read all of them, and they are known to me, though too often only referenced on an “as-needed basis” as opposed to regularly referenced (such as the Labor Code, case law and of course some of our more frequently referenced tertiary sources).
So this ongoing column will address five (5) of a few interesting Regulations upon second and maybe third re-through.
If nothing else this exercise will ensure the possibility of interesting California Workers’ Compensation party conversations.
Did you know:
1. Exhumations and autopsies may be ordered, but only by a WCAB Commissioner?
- 10338. Authority of Commissioners of the Appeals Board.
The following orders may be issued only by a commissioner:
(a) Approving undertakings on stays of proceedings on reconsideration and petitions for writ of review; and
(b) Directing exhumation or autopsy.
- A Presiding Workers’ Compensation Judge may appoint Pro Temp Judges who have the same powers as a Workers’ Compensation Judge?
- 10355. Appointment and Authority of Pro Tempore Workers’ Compensation Judges.
A presiding workers’ compensation judge may appoint a pro tempore workers’ compensation judge to any conference hearing calendar including mandatory settlement conferences or status conferences.
(a) A pro tempore workers’ compensation judge shall have the same power as a workers’ compensation judge and shall be bound by the Rules of Practice and Procedure of the Workers’ Compensation Appeals Board.
(b) Any order, decision or award filed by a pro tempore workers’ compensation judge shall be subject to reconsideration or removal in the same manner as any order, decision, or award filed by a workers’ compensation judge.
- They can only be called to testify under very limited circumstances as well as after specific, enumerated process?
- 10360. Testimony of Judicial or Quasi-Judicial Officers.
(a) No judicial or quasi-judicial officer of the Workers’ Compensation Appeals Board or of the Division of Workers’ Compensation may be subpoenaed or ordered to testify regarding either:
(1) The reasons for or basis of any decision or ruling they have made; or
(2) Their opinion regarding any statements, conduct or events occurring in proceedings before them, except:
(A) The judicial or quasi-judicial officer may be ordered to testify where their testimony is necessary on an issue of disqualification under Labor Code section 5311 and Code of Civil Procedure section 641.
(B) The judicial or quasi-judicial officer may be ordered to testify where their testimony is necessary on an issue of an alleged ex parte communication.
(C) The judicial or quasi-judicial officer may be subpoenaed or ordered to testify as a percipient witness to statements, conduct or events that occurred in the proceedings before them, to the same extent as any other percipient witness.
(b) The testimony of a judicial or quasi-judicial officer shall be given only on the terms and conditions ordered by the presiding workers’ compensation judge of the district office having venue, or by the Appeals Board, after the filing of a “Petition to Compel the Testimony of a Judicial or Quasi-Judicial Officer.”
(1) The petition to compel shall set forth with specificity the facts (or alleged facts) and law that support the petition.
(2) The petition to compel shall be verified under penalty of perjury.
(3) The petition to compel shall be served on all other parties, on all lien claimants whose liens are presently pending in issue in the underlying claim to which the petition relates and on the Legal Unit of the Division of Workers’ Compensation (DWC-Legal Unit), together with a proof of service.
(4) A petition to compel that does not meet all of the foregoing requirements may be summarily dismissed or denied.
(c) The other parties, lien claimants, and the DWC-Legal Unit shall have 15 days within which to file any objection to the petition to compel.
(d) The petition to compel shall be determined:
(1) By the presiding workers’ compensation judge of the district office having venue; or
(2) By a deputy commissioner of the Appeals Board, if the petition to compel relates to the presiding workers’ compensation judge of the district office having venue; or
(3) By the Appeals Board, if the petition to compel relates to a petition for reconsideration, removal or disqualification.
(e) The petition may be determined on the pleadings submitted or, in the discretion of the presiding workers’ compensation judge, the deputy commissioner or the Appeals Board, the petition may be set for a hearing. In determining whether to grant the petition to compel, the presiding workers’ compensation judge, the deputy commissioner or the Appeals Board may consider, among other things:
(1) Whether the testimony of the judicial or quasi-judicial officer is reasonably necessary, taking into consideration:
(A) Whether statements in the judicial or quasi-judicial officer’s opinion on decision, report on reconsideration, removal or disqualification, or other similar statements are sufficient to resolve any allegation by a party; and
(B) If not, whether the judicial or quasi-judicial officer’s factual statements may be fairly provided by an affidavit or declaration under penalty of perjury.
(2) Whether the testimony of the judicial or quasi-judicial officer under the “percipient witness” exception would be cumulative to the testimony of other percipient witnesses.
(f) For purposes of this rule, the term “judicial or quasi-judicial officer of the Workers’ Compensation Appeals Board or of the Division of Workers’ Compensation” shall include, but shall not be limited to:
(1) Any commissioner;
(2) Any deputy commissioner;
(3) Any presiding workers’ compensation judge or workers’ compensation judge;
(4) Any pro tempore workers’ compensation judge;
(5) Any special master appointed by the Workers’ Compensation Appeals Board;
(6) The Administrative Director and the Administrative Director’s designee;
(7) Any workers’ compensation consultant of the Retraining and Return to Work Unit; and
(8) Any arbitrator or mediator; and
(9) The Director of Industrial Relations and the Director of Industrial Relations’ designee.
(g) For the purposes of this rule, the term “testify” shall include testimony in either oral or written form (e.g., affidavits, declarations or interrogatories) and shall include all testimony, whether given at a deposition or a hearing.
(h) This rule shall apply solely to testimony sought in connection with a matter within the jurisdiction of the Workers’ Compensation Appeals Board, and it shall not apply to testimony sought pursuant to the authority of any other forum.
- Consolidation of cases is discretionary, not mandatory?
- 10396. Consolidation of Cases.
(a) Consolidation of two or more related cases, involving either the same injured employee or multiple injured employees, rests in the sound discretion of the Workers’ Compensation Appeals Board. In exercising that discretion, the Workers’ Compensation Appeals Board shall take into consideration any relevant factors, including but not limited to the following:
(1) Whether there are common issues of fact or law;
(2) The complexity of the issues involved;
(3) The potential prejudice to any party, including but not limited to whether granting consolidation would significantly delay the trial of any of the cases involved;
(4) The avoidance of duplicate or inconsistent orders; and
(5) The efficient utilization of judicial resources.
Consolidation may be ordered for limited purposes or for all purposes.
(b) Consolidation may be ordered by the Workers’ Compensation Appeals Board on its own motion, or may be ordered based upon a petition filed by one of the parties. A petition to consolidate shall:
(1) List all named parties in each case;
(2) Contain the adjudication case numbers of all the cases sought to be consolidated, with the lowest numbered case shown first;
(3) Be filed in each case sought to be consolidated; and
(4) Be served on all attorneys or non-attorney representatives of record and on all non-represented parties in each case sought to be consolidated.
(c) Any order regarding consolidation shall be filed in each case to which the order relates.
(d) If consolidation is ordered, the Workers’ Compensation Appeals Board, in its discretion, may designate one case as the master file for exhibits and pleadings. If a master file is designated, any subsequent exhibits and pleadings filed by the parties during the period of consolidation shall be filed only in the master case. However, all pleadings and exhibit cover sheets filed shall include the caption and case number of the master file case, followed by the case numbers of all of the other consolidated cases.
(e) All relevant documentary evidence previously received in an individual case shall be deemed admitted in evidence in the consolidated proceedings and shall be deemed part of the record of each of the several consolidated cases.
(f) When cases are consolidated, joint minutes of hearing, summaries of evidence, opinions, decisions, orders, findings or awards may be used; however, copies shall be filed in the record of proceedings of each case.
- Non-attorneys may appear in WCAB matters but are held to the same professional standards of conduct as an attorney when doing so?
- 10401. Non-Attorney Representatives.
(a) Except as prohibited by rule 10445, a non-attorney representative may act on behalf of a party in proceedings before the Workers’ Compensation Appeals Board if the party has been informed that the non-attorney representative is not licensed to practice law by the State of California.
(b) A non-attorney representative shall be held to the same professional standards of conduct as an attorney.
(c) A non-attorney representative 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 notice of representation is set forth on an opening document.
(1) If the non-attorney representative is appearing pursuant to an agreement between a law firm or other entity that provides non-attorney representatives and a party, the notice of representation shall include:
(A) The name of the represented party;
(B) The legal name, address, telephone number and form of the law firm or other entity;
(C) The name and address of the law firm or other entity’s agent for service of process;
(D) The name of the person who entered into an agreement on behalf of the law firm or other entity with the party to provide non-attorney representatives; and
(E) The name of the non-attorney representative responsible for assuring that appearances are made on behalf of the party.
(2) If a non-attorney representative is appearing as an individual pursuant to an agreement between the non-attorney representative and a party, the notice of representation shall include the name of the represented party and the non-attorney representative’s name, address and telephone number.
(d) The name of the non-attorney representative and any entity responsible for providing a party with the non-attorney representative shall be set forth on the record of proceedings at all appearances and on any pleading, document or lien prepared or filed by a non-attorney representative.
(e) If an attorney is responsible for supervising a non-attorney representative, the attorney shall be identified in all documents. The supervising attorney’s specific written authorization must be included with all Compromise and Release agreements and Stipulations with Request for Award.
(f) A non-attorney representative whose name is not on the notice of representation must file a notice of appearance as provided in rule 10751 before appearing before the Workers’ Compensation Appeals Board.
(g) Non-attorney representatives of lien claimants shall also comply with the requirements set forth in rule 10868.
If you have found additional, obscure, interesting or other WCAB regulations deserving attention feel free to email so we can cover them in future appearances of this column.