by Sarah Putica

On January 1, 2022, the final rules of practice and procedure for the Workers’ Compensation Appeals Board went into effect. The newly adopted rules largely focus on terms and rules of practice and procedure related to the Coronavirus pandemic. Below is a summary of a few key rules and definitions that were finalized and adopted by the WCAB.

Electronic Service:

The WCAB adopted amended Rule §10628, which now allows electronic service as a valid method of service by the WCAB. On March 18, 2020, the start of the Coronavirus pandemic, the WCAB issued Misc. Order No. 260, which suspended Rule §10628 requiring service by mail by the WCAB. Cal. Code Regs., tit. 8, § 10628. Rule §10628(d) now permits electronic service as a method of service by the WCAB. “Electronic” is defined by the WCAB as, “any available technological means.” The amended Rule §10628 now allows and considers electronic service, by any electronic method, a valid form of service by the WCAB. Service by mail and personal service remain valid methods of service.

Rule §10625 relates to service by parties, and now permits electronic service as a valid form of service by a party. §10625(c) defines proof of service and states, “if a document is served electronically, the proof of service must also state the names and email addresses of the person serving electronically and the person served electronically.”

Hearings and Remote Appearances:

The WCAB has now adopted Rule §10815, regarding electronic hearings before the WCAB. Rule §10815 reads:

• 10815. Electronic Hearings Before the Workers’ Compensation Appeals Board.

(a) Any matter may be set for an electronic hearing as set forth in rule 10745.

(b) Any party may object to an electronic hearing by filing a written objection showing good cause after service of a notice that a hearing will be conducted electronically.

(c) After an objection to a notice that a hearing will be conducted electronically is filed, the presiding workers’ compensation judge of the district office having venue may set the issue of whether the hearing will be conducted electronically for a hearing.

(d) If the presiding workers’ compensation judge of the district office having venue takes no action on the objection before the hearing, it will be deemed deferred as an issue for the hearing before the assigned workers’ compensation judge.

(e) The Division of Workers’ Compensation will make information available to members of the public regarding access to hearings.

• 10815(a) states any matter may be set for an electronic hearing, as set forth in Rule §10745, which provides that the WCAB, “on its own motion with or without notice, set any case for any type of hearing and may order that hearings be conducted electronically.”

The WCAB elaborated on its decision regarding electronic versus in-person hearings, noting that the Board does not exercise managerial control over each district office, and that the rules are, “intended to provide a framework for how a party may object to the format of any given hearing, or how a party may seek to appear remotely.” The decision to reopen district offices lies with each office.

Rule §10815(b) allows for parties to object to remote hearings, stating, “any party may object to an electronic hearing by filing a written objection and showing good cause after service of a notice that a hearing will be conducted electronically.” If a party issues a written objection objecting to a remote appearance, the presiding judge of that district office may issue a decision choosing whether the hearing will remain remote or be conducted in-person. Absent a response from the presiding judge, the issue is deferred to the time of the hearing and the assigned judge.

 Although Rule §10815 does not define which hearings may or may not be conducted remotely, the newly adopted rules provide formalities and guidelines the parties should adhere to for proceedings.

The WCAB ultimately leaves the discretion of holding in-person and remote appearances with each District Office. In its statement of reasoning, the WCAB commented, “The rules are designed to allow the Worker’s Compensation Judge (WCJ) presiding over a given matter (and the Presiding Workers’ Compensation Judge for the district office) the discretion to determine the best way to handle each case or hearing.” Rule §10745 provides that the WCAB may, at its own discretion, order hearings to be conducted electronically.

Mandatory Settlement Conference:

Rule §10759 provides new regulations pertaining to Mandatory Settlement Conference proceedings. §10759(b) provides that parties shall meet and confer prior to the MSC, and absent resolution, “the parties shall complete a joint Pre-Trial Conference Statement setting forth the issues and stipulations for the trial, witnesses, and a list of exhibits by the close of the mandatory settlement conference.”

• 10759(e) states, “the joint Pre-Trial Conference Statement, the disposition, and any orders shall be completed by the close of the mandatory settlement conference and shall be filed by the workers’ compensation judge in the record of the proceedings on a form prescribed and approved by the Appeals Board and shall be served on the parties.”

This rule provides new guidelines that parties are ordered to meet and confer prior to the mandatory settlement conference, and that the PTCS should be finalized for submission by the close of the hearing. As MSC’s are currently being held remotely, parties will now need to have the Pre-Trial Conference Statements prepared and finalized by the time of the hearing. This differs from current remote proceedings, where each district office has been applying varying policies for setting trials from MSC’s and submitting Pre-Trial Conference Statements.

It is important to note that Rule §10759 does not require the joint Pre-Trial Conference Statement to be filed at the close of the MSC, only that it be completed. It also leaves the filing of the PTCS up to the workers’ compensation judge, and not the parties. The Appeals Board explained, “the intent of the rule is that the content of the PTCS be finalized by the end of the MSC.”

The complete list of the newly enforced Rules of Practice and Procedure can be located here: Workers’ Compensation Appeals Board (WCAB) – Rules of Practice and Procedure