Trial setting and trial

• Author: David L. Pollak/Roger A. Tolman, Jr./Monika R. Reyes
• Pages: 1135-1250

TRIAL SETTING,

TRIAL

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CHAPTER 21

TRIAL SETTING AND TRIAL

I. EAMS AND THE REVISED RULES OF PRACTICE AND PROCEDURE

§21:01 The EAMS Case Management System — The Paperless File; E-Filing; Jet Filing

§21:02 WCAB Rules; Former Court Administrator’s Rules; Policy and Procedural Manual

§21:03 Current WCAB Forms; Public Case Search Tool and Other Internet Resources; EDEX

§21:04 Format Requirements for All Filed Documents; Uniform Assigned Names for Case Participants

II. GETTING THE CASE ON CALENDAR

§21:05 Declaration of Readiness

§21:06 DOR Service Requirements; Special Requirements for Lien Claimants

§21:07 EAMS Electronic Calendaring System; EAMS-Generated Hearing Notices

§21:08 Objection to Declaration of Readiness to Proceed

§21:09 Judicial Discretion to Set

III. HEARING PROCEDURES: EXPEDITED HEARINGS AND PRIORITY CONFERENCES

§21:10 Priority Trial Calendar; Scope of Expedited Hearings

§21:11 Expedited Hearing DOR; Setting of Expedited Hearings; Grounds for OTOC

§21:12 Decision Within Thirty Days of Filing

§21:13 Expedited Hearing Only in Admitted Cases; Short Trials Only; Body Part Disputes; Admissibility Issues

§21:14 Priority Conferences in Denied Injury Cases

IV. HEARING PROCEDURES: MANDATORY SETTLEMENT CONFERENCE

§21:19 Def‌inition

§21:19.1 Meet and Confer Requirement Effective 1/1/22

§21:20 LC §5502(a) and (d) Deadlines; Not Applicable to Lien Hearings

§21:21 Function of Conference WCJ

§21:22 MSC Statements

§21:23 Serving, Listing and Filing Exhibits at the MSC

§21:24 Discovery Closure on Date of MSC; Exceptions; OTOC Requests; Sub Rosa

§21:25 Continuances; Service of Minutes

§21:26 Naming the Witnesses

§21:27 Required Attendance and Printout; Effect of Failure to Attend Conference

§21:28 Attendance at Conference of Person with Settlement Authority

§21:29 Summary of MSC Proceedings; Issues on Pre-Trial Conference Statement

§21:30 Disposition at the MSC; Judge’s Authority to Set Case for Trial

§21:31 Submission of Issues at Conference in Lieu of Trial

V. HEARING PROCEDURES  TRIAL

§21:40 Uniform Time of Calendar

§21:41 Notice of Hearing; Address Record

§21:42 Contents of Notice of Hearing

§21:43 Effect of Failure to Appear at Trial After Service of Notice

§21:44 Disposition Required at Conclusion of Trial

TRIAL SETTING,

TRIAL

California Workers’ Compensation 21-2

VI. THE HEARING PROCESS: OTHER SETTINGS; INTERLOCUTORY PETITIONS

§21:50 Other Types of Hearings: Status and Lien Conferences

§21:51 Status Conferences re Discovery, Adequacy, and Other Issues

§21:52 Hardship Hearings

§21:53 Judge Pro-Tem (JPT) Calendars

§21:54 Format Requirements for Petitions and Answers; Identif‌ication of Filing Party;

Time Requirements; Rotational Assignment of Petitions

§21:55 Emergency Stay Petitions; Other Walk-Through Procedures

§21:56 Remote Trials

§21:57 Electronic Hearings

VII. HEARING OFFICERS; DISQUALIFICATION

A. General Points

§21:60 Hearing Off‌icers Are Referees or Judges

§21:61 WCJ Who Hears Must Decide

B. Workers’ Compensation Judges

§21:70 Civil Servants; Limited Immunity From Lawsuits

§21:71 Inappropriate Judicial Conduct

§21:72 Ethical Standards for WCJs

§21:73 WCJs Formerly “Referees”

§21:74 Compare “Conference Referees”

§21:75 Ex Parte Communications

§21:76 Independent Investigation by WCJ; WCJ Contact With Medical Experts

§21:77 Fraud Reporting by WCJs

§21:78 Courtroom Decorum

§21:79 Threats Against WCJs; Security Concerns

C. Assignment of Cases

§21:80 By Notice or Conference Disposition

§21:81 Reassignment of Judges; Trial Priority

D. Disqualif‌ication of WCJs

§21:90 Introduction

§21:91 Written Peremptory Challenges Upon Issuance of Notice of Regular Hearing Before a Particular Judge

§21:92 Oral Peremptory Challenges Upon Trial Settings

§21:93 Disqualif‌ication for Cause; Procedures; Grounds for Disqualif‌ication

§21:94 Disclosure, Disqualif‌ication and Recusal Distinguished

§21:95 Restrictions on WCJ’s Investments

VIII. THE HEARING PROCESS

A. Trial Settings and Continuances

§21:100 Trial Settings

§21:101 Trial Continuances Not Favored

§21:102 Examples of Good Cause for Continuance or OTOC

§21:103 Requests for OTOC of Trial or Expedited Hearing Prior to Trial Date

§21:104 OTOC Request at or Near Trial Date

B. The Trial

1. General Points

§21:110 “Informal” Proceedings; “Case-in-Chief” Trials; Lien Trials and WCAB-Referred Hearings

§21:111 Framing the Stipulations and Issues at Trial

§21:112 Right to Testify, Cross-Examine and Produce Rebuttal Evidence; Order of Witnesses

§21:113 Trial Dispositions; Submission of the Case; DEU Referral and Other Delayed Submissions

§21:114 Consolidated Cases

§21:115 Bifurcated Issues; “AOE/COE Trials

§21:116 Effect of Failure to Produce Evidence in One’s Own Possession

or Under One’s Own Control; Adverse Inference

§21:117 WCJ’s Obligation to Develop Record

§21:118 Filming or Recording the Trial

§21:119 Vexatious Litigants

TRIAL SETTING,

TRIAL

21-3 Trial Setting and Trial

§21:120 Litigant Accommodations Mandated Under Americans With Disabilities Act (ADA);

ADA Accommodation Regulations

2. Oral Evidence: Witnesses

§21:130 Testimony: Subpoena Power; Board Order to Attend

§21:131 Party Testimony: Notice in Lieu of Subpoenas; Testimony Under Evid. Code §776

§21:132 Discoverability of Witness Statements

§21:133 Effect of Failure to Name Witnesses

§21:134 Credibility of Witnesses

§21:135 Summary of Evidence

§21:136 Objections in Open Court; Assertions of Self-Incrimination and Other Privileges

§21:137 WCJ as Trial Witness

§21:138 Exclusion of Witnesses From the Courtroom; Right to Presence of Employer Representative

§21:139 Testimony of Counsel

3. Interpreters

§21:150 Party Must Arrange

§21:151 Interpreters’ Qualif‌ications and Fee Schedule

§21:152 Interpreter’s Fees for Attorney’s Explanation of C&R to Client

§21:153 Ethical Duties of Interpreters; Duties Under SB 863

4. Expert Witnesses

§21:160 Reports, Depositions Favored

§21:161 Testimony of Medical or Vocational Witnesses at Deposition or Trial

§21:162 Cross-Examination of DEU Raters: Rebuttal to DEU Rating

§21:163 Vocational Expert Witnesses; Vocational Witness Fees

§21:164 Bill Review and Other Expert Testimony

§21:165 Qualif‌ications of Expert

5. Documentary Evidence

§21:170 Medical Reports & Records; Vocational and Other Expert Reports

§21:171 Issues Regarding Disputed Documents

§21:172 Admissible LC §5703 Documents

§21:173 Protocols for Identifying Exhibits at Trial Under EAMS

§21:174 Employer Report of Occupational Injury or Occupational Illness

§21:175 Prior Trial Transcript After Remand

6. Hearsay Objections

§21:180 Hearsay Documents May Be Admissible

§21:181 Hearsay Objections to Trial Testimony

§21:182 Testimony Before Another Tribunal

§21:183 Investigative Reports

§21:184 Judicial Notice

§21:185 Surveillance and Surveillance Films

§21:186 Dashcam Video

IX. CASE RECORD: THE BOARD FILE

§21:190 Record of Proceedings

§21:191 Minutes of Hearing

§21:192 Summary of Evidence

§21:193 Transcripts

§21:194 Stipulations; Rejection of Parties’ Stipulations

§21:195 Retention and Destruction of Board Files

X. BOARD FILES: THE PRIVACY ACT

§21:210 Open to Public

§21:211 Photocopying Board Files

§21:212 Transfer for Inspection

§21:213 Fees for Copying and/or by Certifying Board Papers

§21:214 State Storage Facility

§21:215 Documents Available to Public

§21:216 Sealed Portions of Record

§21:217 Sealed Records in Cases Involving AIDS/HIV Condition