WORK COMP LEGAL UPDATE

WCAB'S GRANT STUDY PRACTICE INVALIDATED

Pursuant to LC 5909, the WCAB has 60 days to render a decision on a petition for reconsideration, otherwise the petition is deemed automatically denied. In recent years, an understaffed and overwhelmed WCAB has been unable to timely handle the bulk of petitions for reconsideration, and in desperation started the practice of "granting the petitions for further study", to which no time limit is attached. As a result of this practice, many WCAB decisions are not being issued until 2-3 years after the reconsideration petitions were originally filed. This practice has now been addressed by the Second District Court of Appeal.

In Earley v. WCAB (8/1/2023), the Court of Appeal held: a) The WCAB must provide details as to why a particular issue on reconsideration requires "further study" before making a final decision; and b) LC 5909 does not require a "final decision" to be issued within 60 days, but only requires the WCAB to take some action within 60 days.

[COMMENT: In the short term, the WCAB need only to provide a cursory explanation in justifying a grant study, which means nothing has changed. In the long term, several changes are obviously needed such as increasing the number of fully appointed WCAB Commissioners from the seven (7) up to ten (10), and mandate that decisions be rendered within 90 or 120 days.]

LABOR CODE ALLOWS DISMISSAL OF AN EMPLOYER AS A PARTY

A workers' compensation defense law firm claimed to have the right to conduct its own discovery in defending against a workers' compensation claim filed by one of its' own employees, even though the insurance carrier was providing a defense and agreed to accept liability for any potential benefits owed. Case went to trial on whether the carrier's involvement allowed for the employer's dismissal as a party, and the extent the employer could be involved in discovery.

In Saavedra v. Michael Sullivan Associates (2023) Cal. Wrk. Comp. P.D. LEXIS 12, the WCAB held that the law firm was effectively dismissed as the sole party defendant party when replaced by Employers Assurance Group per LC 3757 and 3759 because the carrier provided notice confirming coverage and accepting any potential liability for benefits, along with obtaining the required order dismissing the employer.

The Board also confirmed that with the order dismissing the employer as a party, the law firm employer was precluded from conducting its own separate discovery, but was not precluded from attending and participating in discovery, including any depositions conducted by the carrier's counsel.

[COMMENT: LC 3757 and 3759 are underutilized statutes that should be considered when there is an issue of an overzealous employer conducting its' own discovery, or to protect an employer from harassment by applicant's counsel and/or vendors.

ARCHAIC RULES RETURN FOR C&R AGREEMENTS

In the Post-COVID era, the WCAB has returned to requiring C&R's to be witnessed or notarized before being submittal to the Board for approval.

However, a more recent development has been the WCAB judges are no longer accepting settlement agreements with "electronic signatures" but instead must have "wet signatures" which by definition means signing a physical paper document by a pen ("wet ink").

[COMMENT: This pronouncement is a step backwards in providing timely benefits, and contrary to doing business in a "DocuSign-World" in which even the WCAB is permitted to use electronic signatures on its' documents per 8 CCR 10205. Perhaps it's time to "modernize" the C&R procedures by eliminating the witness requirement and allowing for electronic signatures.]

HEWS NEWS:

HEWS attorney Lisa Angel recently litigated a case wherein CIGA was attempting to shift liability upon our client. However, Ms. Angel successfully obtained a Findings & Order in which the trial judge determined the applicant did not incur an injury at our insured's business, despite a QME report finding injury. Congrats Lisa. Victor Rodriguez vs. Amtrust (2023).

August HEWS work anniversaries: SBR attorney Lisa Angel (11 years),

senior billing clerk Bonnie Liszka (16 years), and the HEWS Firm, founded on 8/22/1985, is celebrating its 38th anniversary.

Main Contributor: H. Neal Wells IV

Editorial Staff: Lynn P. Peterson

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The above is for informational purposes only, and not intended to constitute legal advice.