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WCAB Adopts New Rules for Remote Hearings, Electronic Service and Meetings Prior to MSC Effective Jan. 1, 2022

Effective Jan. 1, 2022, the Workers' Compensation Appeals Board (WCAB) amended its Rules of Practice and Procedure to allow for remote hearings 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 has made changes to allow virtual operations. They include the adoption of electronic signatures, service and filing of documents. The board also transitioned to remote hearings conducted via telephone and video.

The WCAB believes that 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 for their greater convenience and accessibility.

The WCAB determined that making the changes permanent would benefit the public and the administration of the workers' compensation adjudicatory system. Accordingly, although the changes were made in response to the COVID-19 pandemic and remain necessary in that regard, the WCAB adopted permanent changes that will remain in effect even after the pandemic ends.

Although many regulations were amended, most of the changes are minor. These revisions require immediate responses 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 nonattorney representatives must include the email address of the law firm or agent for service of process.

Electronic Service: Per CCR 10625, a party may serve a document electronically in addition to the existing methods. "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 and the person served electronically.

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Remote Hearings and Testimony: Per CCR 10745, the WCAB may order any type of hearing to 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).

After receipt of such notice, a party may object to an electronic hearing by filing a written objection showing good cause. The objection may be decided by the presiding WCJ or deferred to the assigned judge (CCR 10815).

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

Meet and Confer Prior to Mandatory Settlement Conference: 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 that the regulations were amended to allow remote hearings, this requirement probably can be met via 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's possible that a meeting on the MSC date before the scheduled MSC time could satisfy the requirement.

Also, the regulation requires only that the PTCS be completed by the close of the MSC. It does not require it to be filed at that time. 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 the WCAB's new Rules of Practice and Procedure. They are also summarized on the DWC website.

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