California: A New Year With New Rules and New Responsibilities

The Workers’ Compensation Appeals Board (WCAB) has rung in the New Year with new rules, new regulations and new responsibilities for all participants in the workers’ compensation community. It is important to be cognizant of all the changes and to realize that they spring from a variety of sources and can be found in a variety of locations on the Department of Industrial Relations (DIR) website.

1. WCAB Rules of Practice and Procedure

The WCAB recently issued new “Rules of Practice and Procedure” containing sleeper issues that all litigators should note. These regulations are final and became effective on 10.23.2013.

Publisher’s Note: Citations link to lexis.com. Bracketed citations link to Lexis Advance.

> VR EXPERTS: One such regulation is 8 CCR §10606.5 [10606.5]. It contains the requirements that vocational experts must meet in order for their reports to be considered substantial evidence.

> MT DISPUTES: Another important new rule is 8 CCR §10451.2 [10451.2]. This rule explains how medical treatment disputes should be handled when the utilization review decision is allegedly invalid.

> IMR APPEALS: Parties who wish to appeal an Independent Medical Review (IMR) decision, should follow the framework set forth in 8 CCR §10957.1 [10957.1].

> MANDATORY VERIFICATIONS: In addition, it should be noted that 8 CCR §10450(e) [10450] has been added to mandate that verifications be added to all petitions filed. Failure to add a verification may result in dismissal or denial of the petition.

A copy of these “Rules of Practice and Procedure” can be found at:

http://www.dir.ca.gov/WCAB/WCABPropRegsApr2013.htm

2. WCAB Policy and Procedure Manual

The WCAB “Rules of Practice and Procedure” (8 CCR §§10250-10959 [10250-10959]), discussed in the preceding paragraph, should not be confused with the DWC/WCAB “Policy and Procedure Manual” which was also revised and reissued last year on February 14, 2013.

The “Policy and Procedure Manual” is an internal operations manual for the WCAB court system. A copy of the manual is essential reading for all practitioners and can be found at:

http://www.dir.ca.gov/wcab/WCAB_Policy_ProcedureManual/Policy_andProcedure_Manual.pdf

The “Policy and Procedure Manual” contains a plethora of information on how judges in the local district offices should conduct business on a daily basis, such as:

> Calculation of attorney’s fees (1.140)

> Transcript Requests (1.135)

> The “walk-through” process (1.25)

> Trial priorities (1.35)

> Submission of settlement documents (1.90 & 1.100)

> Formal Rating Instructions (1.50)

> Procedures to follow in death Cases (1.145)

3. Division of Workers’ Compensation (DWC) Regulations

The regulations discussed above fall within the jurisdiction of the WCAB. In addition, the DWC and its administrative director (AD) have jurisdiction to draft workers’ compensation regulations as well.

The language of SB863 mandated that regulations be drafted in order to implement the new legislation. One of the most highly profiled set of rules deal with the new Independent Medical Review (IMR) process. For 2013, parties relied on a set of emergency regulations which became effective on January 1, 2013. See §§9785-9792.12 [9785-9792.12].

These regulations have been regularly morphed over the course of the year. Keeping up to date with proposed revisions to these regulations has been a challenge. Revised proposed IMR regulations were issued on April 4, 2013. They were tweaked and reissued on October 11, 2013 and again on December 6, 2013 and then yet again on December 11, 2013 and December 26, 2013, and a certificate of compliance was filed with OAL on December 30, 2013. At the time this article was drafted, the final IMR regulations had not yet approved by OAL. However, this link will provide all prior proposed regulations, along with the final version and status:

http://www.dir.ca.gov/dwc/DWCPropRegs/IMR/IMR_Regs.htm

4. Revisions to EAMS Regulations

In addition to keeping up with all of the changes to all of the regulations listed above, parties must also remember to keep up to date on revisions to all of the other regulations which govern the practice of workers’ compensation law in this State. The DWC website found at this link is a reliable resource for this purpose:

http://www.dir.ca.gov/dwc/dwc_home_page.htm

Failure of attorneys to keep up to date may cause unfortunate results. Many people did not realize that the regulations implemented back in 2008 to facilitate the transfer to an Electronic Adjudication Management System (EAMS) were revised in 2013. The revised regulations became effective as of December 16, 2013 and can be found at:

http://www.dir.ca.gov/DWC/DWCPropRegs/LienfilingFee/LienfilingFee_Regs.htm

These revised regulations contain all sorts of helpful and practical information for filing documents and litigating a case before the WCAB. One of these regulations, Rule 10206.3(a), figured prominently in the WCAB’s analysis of a noteworthy panel decision (NPD) in Breshears v. Kroger Company, (NPD October 22, 2013 ADJ2023756; ADJ2900558) 2013 Cal. Wrk. Comp. P.D. LEXIS 533 [2013 Cal. Wrk. Comp. P.D. 533], in which a Petition for Reconsideration was dismissed as untimely by the WCAB.

Breshears v. Kroger Company

In the Breshears case, supra, the defendant filed their Petition for Reconsideration on July 8, 2013, the last day possible for it to be considered timely. Unfortunately, the defense e-filed their Petition at 5:32 pm. In dismissing the defendant’s Petition for Reconsideration, the WCAB stated

“Documents are deemed filed on the date received by the Appeals Board if they are received prior to 5:00pm of a court day. (8 CCR 10230(a), 10845(a).) If documents are received after 5:00pm, they are deemed filed as of the next court day. (Id.) Rule 10206.3(a) provides that ‘[a]n electronically transmitted document shall be deemed to have been received by EAMS when the electronic transmission of the document into EAMS is complete. A document received electronically after 5:00pm of a court day (i.e., Monday through Friday, except designated State holidays) shall be deemed filed as of the next court day…. Thus, because the petition was not timely filed, and we were without jurisdiction to accept it, the petition should have been dismissed.”

The WCAB also rejected defendant’s argument that Cal. Code of Civil Procedure §473(b) [CCP 473] should apply. CCP §473(b) provides, “The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” Citing the case of Pressler v. Donald L. Bren Co. (1982) 32 Cal.3d 831 [32 Cal.3d 831], the WCAB explained this argument was not applicable to the facts in the instant case, since an untimely petition resulted in lack of jurisdiction for the WCAB.

Conclusion

Given the quantity of new regulations that have issued in the past year, it is incumbent upon all parties to develop a mechanism for organizing the new information and procedures for reliable compliance with all regulations. In doing do, parties will avoid both traps for the unwary and costly adverse decisions.

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