Wcab Rules of Practice and Procedure

• Publication year: 2020
• Author: Erin L. Walker, Esq. Oakland, California

WCAB Rules of Practice and Procedure

Erin L. Walker, Esq. Oakland, California

In 2020 the Workers' Compensation Appeals Board enacted sweeping changes to the regulations found in Title 8, Chapter 4.5, Subchapter 2, section 10300 et seq., with the goal of organizing and grouping rules in a more logical and comprehensive way, clarifying ambiguous provisions, and enumerating important deadlines and filing requirements.

As we begin 2021 we have an opportunity to reflect on these procedural and regulatory changes and the practical effect they have had so far on the practice of workers' compensation. The WCAB's adoption of these rules made it essential for workers' compensation practitioners and professionals to understand and adapt to the changes. To help practitioners navigate the changes and implement best practices, this article provides synopses of several significant changes.

Filing and Service

Trial Exhibits: 8 CCR Section 10620

Rule 10620 essentially replaces Rule 10393. This new Rule mandates that the parties file trial exhibits 20 days before the trial date unless the judge specifies otherwise.

In reality, a number of workers' compensation attorneys, applicants, defendants, and other parties have seen this requirement vary depending on the facts and circumstances of the case. Many local WCAB offices enacted temporary rules pertaining to filing procedures and time frames. Several judges also relaxed the 20-day filing requirement as the WCAB shifted to telephonic and videoconference trials. As parties continue to navigate ongoing WCAB office closures and new technology, best practice is for the opposing party and the Mandatory Settlement Conference judge to engage in a detailed discussion about the trial exhibit filing time frame and procedure for the trial in question. This will ensure that the pretrial conference statement clearly delineates the judge's instructions.

Designated Service

8 CCR Section 10629

Rule 10629 replaces Rule 10500. The new Rule seeks to eliminate the pitfalls of relying on the party designated to serve a document to keep accurate, consistent records of who was served and when service took place. Rule 10629(d) adds a requirement that the party designated for service file a copy of the proof of service with the WCAB within ten days of the date on which designated service is ordered.

The WCAB diligently enforced this requirement in 2020. Further, it required the parties to submit forms that contain reference to new Rule 10629. Therefore, parties need to be mindful of the new requirements and, going forward, diligent about complying with them. While the requirement creates more work for the party designated for service, the hope is that the parties may save time and hassle in the future if a non-designated party claims they did not receive something that was properly served.

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Pre-Application Discovery

8 CCR Section 10450

The WCAB provided Rule 10450 in place of rules 10400 and 10403. Rule 10450(a) provides that the WCAB's jurisdiction is invoked and adjudication begins when a party files an Application for Adjudication of Claim, a case-opening Compromise and Release Agreement or Stipulations with Request for Award, or a Request for Findings of Fact pursuant to 8 CCR section 10460(a). Per Rule 10450(b), the WCAB "may not conduct hearings, issue orders or authorize the commencement of formal, compelled discovery, including the use of subpoenas to obtain records or sworn testimony" until one of the case-opening documents has been filed.

Rule 10450(c) provides that the pre-application issuance of a non-adjudication EAMS number by an ancillary unit of the DWC, such as the Disability Evaluation Unit, does not establish the WCAB's jurisdiction, toll any statute of limitations (except those pertaining to time frames for information and assistance pursuant to Labor Code section 5454), or authorize formal, compelled discovery.

Rule 10450(c) further notes that it does not preclude non-compelled pre-application medical evaluations or investigations.

The WCAB noted in its Statement of Specific Purpose and Reasons for Proposed Repeals and New Rule 10450 that the change was meant to provide clarity to the bar on formal, compelled discovery during the pre-application process, consistent with its decision in Yee-Sanchez v. Permanente Medical Group (2002) 68 Cal...