The novel coronavirus, now called COVID-19, is rapidly spreading around the world. There are confirmed cases in every state in the United States. All people have a duty to act proactively to prevent the spread of the disease.
In addition to other measures, the Centers for Disease Control and Prevention recommends “social distancing,” which it defines as “remaining out of congregate settings, avoiding mass gatherings, and maintaining distance (approximately 6 feet or 2 meters) from others when possible.” It defines “congregate settings” as “crowded public places where close contact with others may occur, such as shopping centers, movie theaters, stadiums.” 1
Accordingly, the Division of Workers’ Compensation (DWC) and the Workers’ Compensation Appeals Board (WCAB) have taken emergency action to limit the number of people appear at the WCAB district offices around the state.
On March 16, 2020, the DWC and WCAB announced a modified hearing calendar and emergency rules on filing. 2 From March 17 through March 20, the DWC will only hear expedited hearings at the district offices. All other hearings will be continued with notices of new hearing dates continued.
From March 23 through April 3, the DWC will continue to hear expedited hearings at district offices. However, status conferences, mandatory settlement conferences, and priority conferences will be conducted via CourtCall only.3 Parties will not be penalized for failing to appear via CourtCall. Instead, if parties do not appear via CourtCall, the case will be continued with notice given. All other hearings will be continued, and no trial or lien conferences will be conducted during this period.
From March 17 through April 3, documents cannot be physically filed at the district offices. The DWC will not accept walk-through documents until the district offices are reopen for filing purposes. Parties may utilize EAMS to file documents online. Parties may also mail settlement documents and petitions to the district offices with venue.
On March 17, 2020, the DWC announced that it would temporarily close its San Jose, Oakland and San Francisco district offices. The DWC’s headquarters office, which includes the Medical Unit, Return-to-Work Supplement Program, Uninsured Employers Benefits Trust Fund, and Legal Unit, will also be temporarily closed. 4
Then on March 18, 2020, the WCAB issued an en banc decision temporarily suspending specified WCAB Rules of Practice and Procedure. 5 The suspension applies to all district offices and applies to the following rules:
- Cal. Code Regs. tit. 8, former §§ 10562, 10563, 10563.1, now §§ 10755, 10756, 10888 (eff. Jan. 1, 2020): Dismissal of an application or lien claim for failure to appear is suspended.
- Cal. Code Regs., tit. 8, former §§ 10860, 10865, 10866, now §§ 10961(a), 10962(c), 10990(f)(3)(E), 10995(c)(3) (eff. Jan. 1, 2020): Workers’ compensation judges (WCJs) and
arbitrators shall have an unlimited extension of time within which to issue reports in response to petitions for reconsideration or removal.
- Cal. Code Regs., tit. 8, former § 10408, now § 10500(b)(6) (eff. Jan. 1, 2020): Suspension of the requirement in the Compromise and Release (C&R) agreements for signatures from two witnesses. Signatures on the forms from all parties may be electronic.
- Cal. Code Regs., tit. 8, former § 10500, now § 10628 (eff. Jan. 1, 2020): Suspension of the requirement for service by the WCAB by mail. Service by the WCAB may be made electronically with or without parties’ consent.
The WCAB also announced that in accordance with the Newline that all DWC’s district offices are currently closed for filing from March 17 through April 3, all filing deadlines are extended to the next day when the district offices reopen for filing.
The obvious intent of these actions is to prevent people for gathering at the district offices, while making sure that those who may be affected do not lose their due process right to pursue or appeal an action. Because the WCAB no longer requires a C&R to be witnessed and allows all form to be signed electronically, the WCAB allows settlements by parties who may be required to self-isolate.
There are some issues with the WCAB’s decision that “all filing deadlines are extended to the next day when the district offices are open for filing.” This statement presumably extends the time for filing petitions for reconsideration, petitions to reopen, or documents subject to a statute of limitations. However, will the WCAB require such documents to be filed on the date the district offices are open for filing? Will the WCAB give parties additional time beyond the opening of the district offices? What if some district offices are open for filing sooner than others? These questions will need to be clarified by the WCAB.
These are unlikely to be the last actions we will see from the DWC or WCAB in response to the coronavirus. The WCAB’s emergency order also does not specify how long the specified rules will be suspended. Given that nobody really knows how long COVID-19 crisis will last, it is safe to assume the order will remain until lifted by a subsequent order.
- See the CDC’s recommendations at https://www.cdc.gov/coronavirus/2019-ncov/php/risk-assessment.html.
- The DWC Newsline containing the announcement is available at: https://www.dir.ca.gov/DIRNews/2020/2020-18.html.
- For a detailed discussion regarding the use of CourtCall, see the article publish by Sullivan on Comp on March 17, 2020, DWC Orders Modified Hearing Calendar and Change in Filing Procedures at https://app.sullivanoncomp.com/commentaries/2020-03-dwc-orders-modified-hearing-calendar-and-change-in-filing-procedures.
- The DWC Newsline containing the announcement is available at: https://www.dir.ca.gov/DIRNews/2020/2020-19.html.
- This en banc decision is available at: https://www.dir.ca.gov/wcab/EnBancdecisions2020/COVID-19.pdf.