WCAB Emergency Actions in Response to COVID-19

The novel coronavirus, now called COVID-19, is spreading rapidly around the world. There are confirmed cases in every state in our union. Everyone has 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 who 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 hold only expedited hearings at the district offices. All other hearings will be continued and issue notices of new hearing dates.

From March 23 through April 3, the DWC will continue to hold expedited hearings at district offices. But status conferences, mandatory settlement conferences and priority conferences will be conducted only via CourtCall.[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 also may 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. DWC headquarters, which includes the Medical Unit, Return-to-Work Supplement Program, Uninsured Employers Benefits Trust Fund and Legal Unit, also will be closed temporarily.[4]

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 to these rules:

1. Cal. Code Regs., Title 8, former §§ 10562, 10563, 10563.1; current §§ 10755, 10756, 10888 (effective Jan. 1, 2020): Dismissal of an application or lien claim for failure to appear is suspended.

2. Cal. Code Regs., Title 8, former §§ 10860, 10865, 10866; current §§ 10961(a), 10962(c), 10990(f)(3)(E), 10995(c)(3) (effective 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.

3. Cal. Code Regs., Title 8, former § 10408; current § 10500(b)(6) (effective 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.

4. Cal. Code Regs., Title 8, former § 10500; current § 10628 (effective Jan. 1, 2020): Suspension of the requirement for service by mail by the WCAB. Service by the WCAB may be made electronically with or without parties' consent.

The WCAB also announced that, in accordance with the Newsline, all of the DWC's district offices are 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 from gathering at the district offices, while making sure that those who might 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 forms to be signed electronically, the WCAB allows settlements by parties who might 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. But 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 actions are not likely to be the last 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 rules will be suspended. Given that nobody really knows how long the COVID-19 crisis will last, it is safe to assume the order will remain until lifted by a subsequent order.

1. See the CDC's recommendations at https://www.cdc.gov/coronavirus/2019-ncov/videos/social-distance-people/social-distance-people.pdf.
2. See the DWC Newsline containing the announcement at: https://www.dir.ca.gov/DIRNews/2020/2020-18.html.
3. For a detailed discussion regarding the use of CourtCall, see the article published 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.
4. See the DWC Newsline containing the announcement at: https://www.dir.ca.gov/DIRNews/2020/2020-19.html.
5. This en banc decision is available at: https://www.dir.ca.gov/wcab/EnBancdecisions2020/COVID-19.pdf.