RED ALERT: WCAB Adopts New Rules Effective Jan. 1, 2022

SPECIAL REPORT

Effective Jan. 1, 2022, the Workers' Compensation Appeals Board (WCAB) amended its Rule of Practice and Procedure to allow for remote hearings, electronic filings, and electronic service. The changes made permanent many of the temporary changes implemented by the WCAB.

Since the start of the COVID-19 pandemic in March 2020, the WCAB made changes to allow virtual operations. Its changes included the adoption of electronic signatures, service, and filing of documents. It also transitioned to remote hearings conducted via telephone and video.

The WCAB believed the changes have increased access to the workers' compensation system for parties, their representatives, and the public. As parties and their attorneys adjusted to remote hearings, many began to favor them since it made appearances more convenient and accessible.

Based on the success of these changes, the WCAB determined that making the changes permanent would be beneficial to the public and the administration of the workers' compensation adjudicatory system. Accordingly, while the changes were made in response to the COVID-19 pandemic and still remain necessary, the WCAB adopted permanent changes that will remain in effect even after the COVID-19 pandemic ends.

While many regulations were amended, most of the changes are minor. The following changes require immediate changes by parties and their attorneys of record:

Notices of Representation: Per CCR 10400 and CCR 10401, in addition to the prior requirements, notices of representation for attorney and non-attorney representatives must now include the email address of the law firm or agent for service of process.

Electronic Service: Per CCR 10625, in addition to the existing methods, a party may serve a document electronically. "Electronic" is defined as "any available technological means" (CCR 10305(i)). If a document is served electronically, the proof of service, in addition to other requirements, must state the names and email addresses of the person serving electronically and the person served electronically.

Remote Hearings and Testimony: Per CCR 10745, the WCAB may order any type of hearing be conducted electronically. The WCAB must serve notice of whether a hearing will be conducted electronically, but it has discretion to designate a party or its attorney to serve a notice of hearing, including whether the hearing will be conducted electronically (CCR 10750).

A party may object to an electronic hearing by filing a written objection showing good cause after receipt of notice that a hearing will be conducted electronically. The objection may be decided by the presiding WCJ or deferred to the assigned WCJ (CCR 10815).

If an in-person hearing is schedule, a party may file a petition showing good cause to appear electronically. If an electronic hearing is schedule, no petition is required (CCR 10816). Similarly, if a witness intends to testify electronically, the witness or the party offering the witness's testimony may file a petition showing good cause for it. Again, if an electronic hearing is schedule, no petition is required (CCR 10817).

Meet and Confer Prior to Mandatory Settlement Conference (MSC): CCR 10759 establishes a new requirement that parties must meet and confer prior to an MSC. The purpose of the amendment is to allow the parties to complete a joint Pre-Trial Conference Statement (PTCS) by the close of the MSC. Given the regulations were amended to allow remote hearings, this requirement would likely be met a telephone or video conference.

The regulation does not contain a time limit on how far in advance of the MSC the parties must meet and confer. It is possible that a meeting on the MSC date before the schedule MSC time could satisfy this requirement.

The regulation also only requires the PTCS be completed by the close of the MSC. It does not require the PTCS to be filed at that time. Instead, the WCAB believed it would be best left to the discretion of the WCJ to determine how it should be filed to account for remote appearances.

Sullivan on Comp has been updated to include WCAB's new Rule of Practice and Procedure. The new rules are available on the DWC website.