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By Hon. Robert G. Rassp
Also by: Rose Stephanian, I&A Officer, WCAB Los Angeles, Olivia Iniguez, I&A Officer, WCAB Los Angeles
DISCLAIMER: The opinions expressed in this chapter are those of the authors and are not those of the California Department of Industrial Relations, the Division of Workers’ Compensation, or the Workers’ Compensation Appeals Board
INTRODUCTION:
Do you know what “Hopper-izing” the Information and Assistance Office was? Who initiated it and why? What functions do I&A Officers perform? Where do I&A Officers come from—how are they recruited? How do they work within the Division of Workers’ Compensation and the WCAB? Why is it important for counsel to know more about the I&A Officer program? What does a judge do when the Applicant’s attorney requests to withdraw from representing the Applicant in the middle of trial during a break in the proceedings? What can an alleged uninsured employer do when served with a Notice of Special Lawsuit? What can an employer do when surcharged with a high X-mod premium? Who besides a judge reviews a proposed settlement of a case where a party is not represented by legal counsel?
All of these questions and more are answered in this article. Over the years, Applicant’s attorneys have had very few interactions with I&A Officers because of the very fact that the injured workers are represented by counsel. On occasion, a frustrated Applicant will contact an I&A Officer if the Applicant’s attorney is not communicating with the Applicant and a friendly call or email from the I&A Officer to the attorney’s office will help set the ship back on course. That being said, I&A Officers are not enforcers of the law but are what their title says—they provide information and assistance to the public who request their help.
Before a discussion occurs about the role of I&A Officers, you have to understand their statutory and regulatory origin.
ENABLING LEGISLATION
Information and Assistance Officers have been available for the public to consult with for decades. The establishment of the Information & Assistance Officer program was a creation of the legislature. In 1993, the enabling legislation that created the I&A program was updated by the legislature. Labor Code Section 139.6 mandates the Administrative Director to establish the I&A Officer program. Here is a synopsis of Section 139.6:
Labor Code Sections 5450 through 5455 also pertain to Information and Assistance Officers:
REGULATORY IMPLEMENTATION
The provisions of Labor Code Sections 139.6 and 5450 through 5455 are implemented by specific regulatory mandates in Cal. Code of Regulations, title 8, sections 9921 through 9929 that appear in the “Blue Book” every year [Workers’ Compensation Laws of California, 2022 Edition (LexisNexis)]. The 2022 edition of the Blue Book has the regulations beginning on page 1050. A summary of those provisions in Title 8 Cal. Code of Regulations are provided here:
COMMENTARY AND DISCUSSION
The I&A Officers are an essential part of each WCAB district office team and work closely with the judges, secretaries, clerks, DEU raters, and other support for each WCAB district office to be staffed by at least one I&A Officer. During the 2020 COVID-19 pandemic, I&A Officers have been available by telephone with their public access numbers being posted on the DWC website and in the WCAB directory. On July 26, 2021, the I&A Offices reopened for in-person consultations.
How are I&A Officers selected? What is their background? I&A Officers are not required to be attorneys. In fact, most I&A Officers are former claims professionals—either claims adjusters, EDD representatives, or non-attorney hearing representatives. Extensive knowledge of the workers’ compensation claims process is essential along with the ability to recognize disputes, misunderstandings, and controversies. I&A Officers have to be neutral in their approach with anyone who seeks their advice. The number one attribute to be a successful I&A Officer is patience. The second is resourcefulness.
Information and Assistance Officers are technically called “Workers’ Compensation Consultants” under the State of California and Department of Industrial Relations Human Resources rubric. There used to be a statewide manager of the I&A Officers, a Northern California regional manager, and a Southern California regional manager. For the last few years, there is no statewide I&A Officer manager. Instead, the DWC has three regional supervisors of the I&A Officers. The northern California I&A Officer regional supervisor is Marife Solano, the central California I&A Officer regional supervisor is Tristan Juan, and the southern California I&A Officer regional supervisor is Linda Guillen. Each I&A Officer is also supervised by the Presiding Judge of the assigned WCAB District Office and by the respective regional supervisors. I&A Officers provide all parties, whether or not represented by counsel, with information on all matters concerning the workers’ compensation system.
About 50% of the duties for I&A Officers include reviewing workers’ compensation claims for injured workers who have a dispute, misunderstanding, or disagreement with their self-insured employer or insurance company. This would include a review of the amount and type of benefits payable; and reviewing proposed settlement offers made by a claims administrator to an unrepresented injured employee. They determine whether insurance companies and self-insured employers are fulfilling their obligations and responsibilities under the workers’ compensation law and regulations. They make recommendations to workers’ compensation judges regarding the adequacy of settlements.
In addition, I&A Officers provide community outreach through public Injured Worker Workshops, assist in the management and execution of the annual DWC Educational Conference, and act as a liaison between the WCAB office and the local surrounding community for training purposes. Most importantly, I&A Officers have daily face-to-face interactions with the public at the WCAB offices in person, by telephone, email, and US mail responding to inquiries from the public regarding the proper application of workers’ compensation law, rules, policies, and procedures.
About 30% of the duties for I&A Officers include assisting injured workers in the prompt resolution of misunderstandings, disputes, and controversies arising out of claims for compensation, without formal proceedings, so that full and timely compensation benefits are furnished. Finally, I&A Officers participate in special projects that may include assisting in data compilation, research, analysis, and distribution of workers’ compensation written fact sheets, guides, pamphlets, and flyers. Finally, I&A Officers may be asked to assist the DWC Call Center to take calls from the public and route them to the appropriate WCAB District office for action by a secretary, I&A Officer, DEU rater, clerk, or judge.
The DWC Call Center is not part of the Information and Assistance Office but is an independent component to the Division of Workers’ Compensation, under the auspices of the Administrative Director. The Call Center may route calls to a WCAB office’s I&A Officer for action, but their role is more broad than simply providing information to the public. The Call Center is located in San Bernardino on a different floor than the WCAB District Office and there is a manager of the Call Center with about 23 people working in the unit for statewide service. Calls to the Call Center are routed by Call Center staff to a specific person—either a judge’s secretary, clerk, I&A Officer, DEU rater, EAMS help desk, or a supervisor at a specific WCAB office where a case has venue. Also the Call Center staff handles many of the calls and inquiries directly, without having to refer the caller to a specific WCAB office or DWC unit.
I&A Officers are not allowed to give legal advice since they do not represent any party to a workers’ compensation claim. This means I&A Officers cannot assist an injured worker in completing a claim form (DWC-1), an Application for Adjudication of Claim, a Declaration of Readiness To Proceed, a pre-trial conference statement, a Petition for Reconsideration, or a Petition for Removal. The I&A Officer must remain neutral and cannot advocate for a party.
All an I&A Officer can do is provide a person with the DWC/WCAB form and accept a completed one for filing with the WCAB. The forms for filing with the WCAB are in the DWC website and are publicly accessible as Optical Character Recognition (OCR) forms. See www.dir.dwc.gov/forms.html. In addition, the DWC website has fact sheets and 21 guides for injured workers in Chinese, English, Spanish, Korean, Tagalog, and Vietnamese that describe how to file specific documents, including EAMS required cover sheets and separator sheets. See www.dir.ca.gov/dwc/iwguides.html. These pages and links are part of the Information and Assistance Officer’s duties and services to the public.
However, as stated above, I&A Officers are not allowed to give legal advice or practice law. Completion of a form such as an Application for Adjudication of Claim, a DWC-1 Claim Form, a Declaration of Readiness To Proceed, a Pre-Trial Conference Statement, a Petition for Reconsideration or Removal are considered the practice of law. So all an I&A Officer can do is provide a person with the appropriate form and let them fill it out. The I&A Officer can accept the document for filing with the WCAB. The document is forwarded by the I&A Officer to the clerical staff, who will finish, serve, upload into FileNet, and complete the document in the appropriate ADJ file. Due to shortage of clerical staff at some WCAB offices, the I&A Officer may guide an in pro per party on how to serve documents on all interested parties listed on the applicable case’s Official Address Record.
The DWC website also includes referrals to other sub-agencies including Cal OSHA, Self-insurance, labor law—Labor Commissioner’s office, EDD, DIR Director, and other agencies related to the California workforce. The DWC website complies with the statutory and regulatory mandates for the DWC, through the I&A Officers, to provide information and access to other related state agencies.
So how does someone become an I&A Officer? The position is competitive and when there are openings, announcements are made at the Cal HR and DIR HR websites. Most I&A Officers have experience as claims professionals, EDD representatives, or non-attorney hearing representatives. It can be a promotional position for a lower level DIR or WCAB employee.
What does “Hopper-izing” mean? I&A Officers cannot make direct referrals of a party to an attorney. Prior to his retirement from state service, Bob Wong managed all of the I&A Officers statewide from what, at the time, was the DWC Headquarters in San Francisco. Before Mr. Wong, John Hopper managed the entire I&A Officer team from the then existing DWC headquarters in San Francisco.
Mr. Hopper was passionate about making sure that injured workers who were facing a trial in a complex case had access to hire legal assistance. Sometimes injured workers or uninsured employers would ask for a referral to an attorney who specializes in workers’ compensation law. Mr. Hopper felt it was not a fair fight if an injured worker was facing an aggressive defense attorney in the hostile atmosphere of a court setting. Against the agency’s then existing management and practices, Mr. Hopper quietly made sure each WCAB district office had a list of the names, addresses, and phone numbers of reputable Applicant and Defense attorneys who regularly appear at a given WCAB district office. He instructed the I&A Officers at each WCAB office to maintain a list of qualified attorneys and law firms to give to injured workers or employers who expressed a desire to seek legal counsel in their workers’ compensation case. That quiet tradition has become part of the public services that I&A Officers provide to the public who may ask about obtaining legal representation. However, I&A Officers cannot make a direct referral of a person or company to a specific attorney or law firm. The I&A Officers can only hand someone a list of attorneys who regularly appear at a particular WCAB district office.
I&A Officers may explain how unrepresented injured workers obtain medical treatment through an employer or claims administrator’s Medical Provider Network and may assist the injured worker in navigating the process through a Medical Access Assistant under Labor Code Sections 4600, 4616, and Title 8 Cal. Code of Regulations section 9767.5. The I&A Officer cannot make recommendations as to what specific physician to choose from other than helping an injured worker get a list of providers within a reasonable geographic area of where the injured worker lives or works. An I&A Officer may contact a claims administrator to obtain the Medical Access Assistant (MAA) access information and give that to the injured worker. I&A Officers routinely offer an explanation of how unrepresented injured workers can appeal via Independent Medical Review a denial of a treating physician’s request for authorization which was denied by a claims administrator’s utilization review process. The process of filing an appeal of an IMR decision that upholds denial of a requested treatment is also facilitated by an I&A Officer—for the injured worker to file a Petition Appealing IMR decision and a Declaration of Readiness To Proceed.
I&A Officers commonly advise unrepresented injured workers about their option to obtain a qualified medical evaluation when a medical dispute occurs and will explain how to obtain a QME panel in accordance with the unrepresented medical-legal track under Labor Code Section 4062.1. This information pertains to disputes that may arise under compensability of a claim (Labor Code Section 4060), permanent disability (Labor Code Section 4061); or parts of body injured, entitlement to temporary disability, temporary partial disability, and need for future medical treatment (Labor Code Section 4062). In addition, an I&A Officer can request the DWC Medical Unit to arrange for a QME examination of an unrepresented injured worker as long as a party agrees to pay the cost thereof and as long as the dispute is not over a Labor Code Section 4061 issue of permanent disability. See Rule 9926 above.
I&A Officers also assist parties to obtain a replacement or additional QME panel under Cal. Code of Regulations, title 8, sections 31.5 or 31.7, respectively. Specifically, section 31.7(b)(4) mandates that “In an unrepresented case, that the parties have conferred with an Information and Assistance Officer, have explained the need for an additional QME evaluator in another specialty to address disputed issues and, as noted by the Information and Assistance Officer on the panel request form, the parties have reached agreement in the presence of and with the assistance of the Officer on the specialty requested for the additional QME panel. The parties may confer with the Information and Assistance Officer in person or by conference call.”
Many times, a medical-legal report is sent to an I&A Officer where the injured worker is in pro per and the issue is whether or not apportionment of permanent disability under Labor Code Section 4663 or 4664 is consistent with the law. In those cases, the I&A Officer will route the medical report (without any settlement documents) to the Presiding Judge or their designee for review of the report to see if it is consistent with the law of apportionment. Oftentimes, the report is not, and the judge will so indicate on a form. If a judge finds the apportionment not consistent with the law, the claims administrator has the option of settling the case without consideration for apportionment of permanent disability or to request the doctor to issue a supplemental report.
One of the most important and essential functions of an I&A Officer is to review settlements where the injured worker is not represented by counsel. This is mandated by Cal. Code of Regulations, title 8, section 9927(d), discussed above. For any Compromise and Release or Stipulations with Request for Award, an I&A Officer must review the settlement and make a written recommendation in the case notes for judicial approval or disapproval of the settlement. There are case notes in each EAMS file, and settlements for unrepresented injured workers are first routed to an I&A Officer, usually by alpha, and the I&A Officer reviews the settlement.
In order to facilitate this process, claims administrators are required to file with the WCAB office having venue over the claim the proposed settlement documents, the medical evidence that supports the settlement, a wage statement, a benefits print-out and any other document that may be relevant to the adequacy or the reasons for the settlement.
The I&A Officer will confirm the dollar figures for temporary disability and permanent disability rates along with the injured worker’s earnings. This is essential since many times an injured worker has less than maximum wages for the calculation of earnings, TTD rate, and PD rates. In addition, the I&A Officer will check the permanent disability indemnity charts to confirm the permanent disability indemnity matches the percentage of permanent disability. If the injured worker had less than maximum wages, the I&A Officer will check the math of the claims administrator to make sure the TTD and PD rates were correct. The I&A Officer will review the case file in FileNet and will leave a case note for the case owner assigned judge about whether the I&A Officer recommends for or against approval of the settlement as adequate or not adequate. The I&A Officer ensures settlements are adequate by following the WCAB Policy and Procedure Manual, section 1.91 “Submissions of Settlement Determination of Adequacy and Approval.” The I&A Officer cannot advocate for a party, but the process of settlement review has to be consistent with the law requiring adequacy of settlements. I&A Officers review settlements for in pro per injured workers and make recommendations to a judge to approve them or not. I&A Officers communicate with judges via email, telephone, notes in the EAMS file, in person, or by a combination of these. In addition, an I&A Officer may explain to an in pro per Applicant the walk-through procedures under WCAB Rules of Practice and Procedure, section 10789.
The case owner judge may agree or disagree with the I&A Officer’s recommendation to approve a settlement and then either approve the settlement or the judge can issue an Order Suspending Action ordering the claims administrator to submit additional documents or the judge can set an adequacy hearing.
It is critical for an I&A Officer to review proposed settlements for injured workers who are in pro per. In many cases, judges have issued multiple Orders Suspending Action in the same case because the proposed settlement is based on medical evidence that does not constitute substantial evidence. Usually that is because the doctor utilizes the AMA Guides incorrectly or the conclusions about apportionment are not explained. Best practices dictate that the judge who rejects a settlement sets the case for an adequacy hearing before that judge and notifies the I&A Officer to inform the injured worker why the settlement was rejected and is being set for a status conference. On the day of a hearing, the I&A Officer will assist the unrepresented party to gain access to the ATT Teleconference line for the assigned judge or otherwise to appear in person as allowed by the DWC administration.
In many cases, an injured worker will consult with an I&A Officer to see if a buy-out of an award of future medical treatment can be obtained with an employer or claims administrator in a case where a prior Findings and Award or Stipulations With Request of Award included a provision for future medical treatment. The difficulties and frustrations associated with being treated by an MPN physician who is limited under utilization reviews and independent medical reviews result in many cases where the injured worker just wants to close the case completely. The I&A Officer will reach out to the claims administrator and facilitate the injured worker’s negotiation of a compromise and release of future medical treatment rights. If the injured worker was previously represented by counsel, the I&A Officer will direct the injured worker to contact the attorney for possible negotiation of a buy-out of future medical treatment.
Many times injured workers will settle their case via a compromise and release and after receiving the money will want to reopen their case, alleging that they didn’t know about the consequences of a C&R; or they claim fraud, duress, mistake, or undue influence [from their attorney if they have one, the claims adjuster, the employer, or anyone else including in some cases, God]. Needless to say, I&A Officers are on the front line to deal with people who have mental illness, drug addiction, or who have just plain buyer’s remorse. Due process requires that these people get a hearing on whether a settlement can be rescinded under any of the legal grounds stated above. See, for example, PT Gaming LLC v. Workers’ Comp. Appeals Bd. (Pecoraro) (2017) 82 Cal. Comp. Cases 405 (writ denied).
In Pecoraro, the Applicant was represented by counsel and either fired the attorney or the attorney fired the Applicant. However, defense counsel walked through a Compromise and Release anyway and obtained approval by a judge. The Appeals Board rescinded approval of the Compromise and Release and ordered the judge to set the matter for a hearing on two issues: whether there was ex-parte communication with a QME by defense counsel for sending information without consent or a court order, and by walking through a settlement when the Applicant was not represented. The Appeals Board indicated that the judge should have referred the settlement to an I&A Officer who could have clarified whether the Applicant was still represented by counsel and, if not, whether settlement approval was recommended.
I&A Officers also assist unrepresented injured workers in obtaining a Supplemental Job Displacement Benefit voucher if one is required to be issued in a case pursuant to Labor Code Sections 4658(d), 4658.5, or 4658.7. This occurs when a physician opines that the injured worker cannot return to regular, modified, or alternative work with the at-injury employer due to the worker having permanent disability at the time the physician finds the person at maximum medical improvement. An I&A Officer will get involved in this regard only if the injured worker asks for help from the WCAB district office.
In addition, I&A Officers will assist injured workers who apply for Return To Work funds pursuant to Labor Code Section 139.48 since each WCAB district office has a kiosk for injured workers to apply for those benefits. The kiosks are usually located in close proximity to the I&A Officer’s offices.
Special attention is directed to Cal. Code of Regulations, title 8, section 9928(a) through (d) that describe the option of parties agreeing for an I&A Officer to mediate disputes, disagreements, or controversies. This is an underutilized function of the I&A Offices and perhaps there should be a greater use of this service before these matters go before a judge. Mediation of disputes are well settled in our legal system in California and are more broadly governed by California Code of Civil Procedure sections 1775 through 1775.15, Title 11.6 Civil Action Mediation; and California Evidence Code sections 703.5 and 1152. These code sections set forth the mechanism of mediation “in any tribunal” of this state and provide protections for the participants in the process.
Mediation is a completely separate process from arbitration and the two should not be confused. Arbitration is a formal trial with a final determination which can be appealed to a higher court. See, for example, Labor Code Sections 5270- 5278 for contribution proceedings. Mediation is a voluntary process where each party can meet with a mediator who tries to get the parties to resolve their differences without a formal trial.
If disputes, controversies, or disagreements go through a mediation process, all information is confidential, and the mediator cannot disclose any information to the parties unless a party gives permission to do so. A mediator cannot be called as a witness in a case that goes to trial and cannot be deposed about the mediation process. A good mediator will meet with the parties together to see what they can agree on. Then the mediator meets with each party separately, sometimes with or without counsel being present, and will parse out the differences between the parties. The goal of mediation is for the parties to resolve their differences amicably without going to trial before a judge.
State law allows I&A Officers to mediate disputes, disagreements, or controversies between parties and unfortunately this service may be underutilized. Much of the mediation process occurs by telephone and email.
Some WCAB district offices designate a specific I&A Officer to be the office’s ADA Compliance Officer [Americans With Disabilities Act (1990) 42 U.S.C. § 12101 et seq.]. This role has been especially important during the pandemic. When WCAB district offices opened for in-person hearings on October 1, 2021, many immuno-compromised individuals requested leave to appear at the WCAB remotely. The DWC has a robust ADA Compliance program that includes a statewide ADA Coordinator for non-state employees, along with a local ADA compliance officer at each WCAB district office.
There are many great examples of I&A Officers providing service to the workers’ compensation community. Here are some specific recent examples of how helpful I&A Officers are to the community and to the workers’ compensation judges:
© Copyright 2022 Robert G. Rassp. All rights reserved. Reprinted with permission.