What is the Answer?
Once an Application for Adjudication of Claim is filed, the opposing party can file an Answer to applicant’s claims. But many of you may be asking, “Is the filing of an Answer to the Application of Claim Mandatory, Recommended, or just a Standard?”
Is it Mandatory?
According to Labor Code §5505, if a defendant desires to disclaim any interest in the subject matter of the claim, an Answer may be filed to 1) deny liability, 2) point out inaccurate or incomplete allegations in the application or 3) bring any paper, or document to the attention of the appeals board by attaching the document to Answer itself.
However, Labor Code §5500 states that, “[n]o pleadings other than the application and answer shall be required.”
Confusing right? Case law gives us a little more clarity.
The case of O’Hare v. IAC (1941) 6 CCC 134, 137-38 clarified that the filing of an Answer is not mandatory and that “the failure to file a written answer does not constitute an admission of the essential facts recited in the verified claim of the workman or his dependents.”
According to Byrant v. WCAB (2011) 76 CCC 151 (writ denied), “[t]he filing of an Answer is not mandatory under Labor Code §5505,” and “Labor Code §5500 makes it clear that an answer is a form of pleading…” which can be amended.
Therefore, the filing of an Answer is not Mandatory despite the inconsistent language of the labor code and regulations.
BUT, is it still Recommended?
Labor code §5506 states that failure to answer does not automatically cause a default against defendants, but “the appeals board shall proceed to the hearing of the matter upon the terms and conditions which it deems proper.” Additionally, CCR §10465(c) states that the appeals board and the WCJ are allowed to exercise sound discretion when matters and affirmative defenses are not pleaded by answer.
For once, the Labor Code and Code of Regulation seem to agree on this subject, that the appeals board has the discretion to impose consequences for failure to file an answer. To date, the courts have steadily refused to do so. There are very few cases where the WCJ has exercised its discretion on this issue.
In the case of Early California Foods v. WCAB (Ellis) (1991) 56 CCC 137 (writ denied), the employer filed an Answer to the Application but did not raise the issue of earnings. Applicant alleged and the employer paid, TD benefits at the maximum rate. The WCJ then refused to allow the defendants to submit evidence on the applicant’s earnings in order to assert an overpayment of TD benefits. The appeals board affirmed and explained that the employer was “in a peculiar position to be able to determine [applicant’s] earnings at the outset of the claim but did not do so and that the overpayment could have been avoided or significantly reduced by the exercise of diligence.”
In the case of Bryant v WCAB, defendants filed an Answer listing applicant’s earnings as $241.70 per week and paid benefits accordingly. Later at Trial, defendants tried to include evidence of a different rate. The WCJ found that Defendants were estopped from raising the issue of applicant’s earnings by virtue of its admission to the weekly earnings in its Answer. On appeal, the WCAB found that the WCJ erred in determining applicant’s earnings based solely on defendant’s admission in its answer and that defendant was not bound and not precluded from amending pleadings pursuant to 8 Cal. Code Reg. [§10517] (Renumbered). Under 8 Cal Code Regs §10517, pleadings are deemed amended to conform to the stipulations and statement of issues agreed to by the parties on the record, and the WCAB may amend pleadings to conform to proof. Therefore, there is no reason to amend an Answer.
Although the WCAB rarely to penalizes defendants for not filing an Answer or for the defenses and claims in the answer, the WCAB still has discretion to refuse to allow evidence on issues not pled by answer, particularly if it finds that the defendant did not exercise due diligence or to impose “terms and conditions” on issues not pleaded in the answer.
Overall, the filing of an Answer is still recommended as it can be helpful for posterior protection, if you get my gist. If filed timely, within 90 days of the Application, an Answer can help solidify a denial of the claim especially if a Notice of Denial has yet to issue. It can also help by putting the parties on Notice of any affirmative defenses and, if strategically practical, can help file documentation supporting the defenses to the claim with the WCAB at the outset of the claim.
Okay it’s recommended, so should it be standard practice?
The answer should be included when there is a denial of liability, an inaccurate or incomplete allegation in the application or to bring to light any document to the attention of the appeals board. It should be one of the steps taken after receipt of the Application for Adjudication of Claim.
However, a general denial, is not considered an answer for the purposes of the Labor Code (CCR 10465(a)). Therefore, the answer should not be standard generic denials but wherever possible, should list the exact Labor Code section as a defense in order to avoid waiver.
When to File?
Once again, there are inconsistencies with the timeline to file an Answer to the Application for Adjudication of Claim.
Labor Code §5505 states that the Answer may be filed within 10 days after the date the application is served. However, 8 Cal Code Regs §10465 states that the Answer should be filed 10 days after service of a Declaration of Readiness to Proceed, or 90 days after service of the Application for Adjudication of Claim, whichever comes first.
Despite the above conflict, best practice is to file an Answer promptly upon receipt of the Application, preferably within 90 days if no Declaration of Readiness to Proceed is filed. Additionally, there should be one Answer for each Application per 8 Cal Code Regs §10465(a).
DWC/WCAB Form 10 found here: https://www.dir.ca.gov/dwc/forms.html
A Verification is not necessary when filing an Answer to the Application for Adjudication of Claim (Bryant) However, the answer must be accompanied by a proof of service CCR 10465(b)).
Make sure to file the Labor Code section 4906(h) Declaration as Title 8 CCR: §10470 states that failure to file the declaration shall result in refusal to file that party’s Application for Adjudication of Claim or Answer.