Case BriefNEW YEAR’S RESOLUTION, RULES AND REGS

January 18, 20200

Each New Year brings a round of optimistic resolutions – “I’m going to start working out!” “I’m going to quit smoking!” Well, the state of California’s resolution appears to be to “get more organized.” There are several new laws that went into effect on 1/1/2020 as well as an update to the WCAB Rules of Practice and Procedure, all aimed at oiling the wheels of justice. Here is a roundup of the most relevant highlights.

Key New Laws effective 1/1/2020

AB5 – Worker Status: Employees and Independent Contractors – codifies the Dynamex decision, requires reclassification of independent contractors to employees in certain industries, and expands application of the ABC test to all provisions and claims based on the CA Labor Code and Unemployment Insurance Code and, as of 7/1/2020, will also apply to the Workers’ Compensation Code.

AB9 – Employment Discrimination: expands the Statute of Limitations from 1 year to 3 years to file a FEHA claim alleging employment discrimination or harassment.

AB51 – Arbitration Agreements: essentially bans mandatory arbitration agreements and prohibits employers from requiring any applicant or employee to waive any right, forum, or procedure as a condition of employment, continued employment, or receipt of any employment benefit.

AB 203 – Valley Fever Training: requires training on Valley Fever to certain construction employees in areas where Valley Fever is highly endemic.

AB 749 – Re-hire Provisions: prohibits “no rehire” clauses in settlement agreements.

AB 1804 – Requires the immediate report of serious occupational injury, illness, or death to Division of Occupational Safety and Health (Cal/OSHA) by phone or online. Until an “online” mechanism has been established, it may be reported by email.

AB1805 – Addressing injuries to be reported to Cal/OSHA:

1) redefines “serious injury or illness” as any injury/illness causing an in-patient hospital stay, exclusive of for observation or diagnostic purposes (but no longer requiring a 24 hour stay).
2) Specifically includes as qualifying injuries the loss of an eye or an amputation (replacing the “loss of a body member”).
3) Narrows the exclusion of injuries caused by accidents occurring on a public street or highway to include those injuries or illnesses occurring in a construction zone.
4) Redefines “serious exposure” to include exposure to a hazardous substance “in a degree or amount sufficient to create a realistic possibility that death or serious physical harm in the future could result from the actual hazard created by the exposure.”

Key Revisions to Policy and Procedure Regulations

10301 (Definitions) – A “party” now includes an injured employee or dependent who is not the “Applicant” (e.g., where another party has filed an application) and provides that a lien claimant may now become a party when the underlying claim is “resolved” (rather than by “settled by way of a compromise and release”.)

10347 – “Assignment of judges” is repealed. This rule had provided that where practical, the trial judge should not be the MSC judge. It was deemed not workable under EAMS. We can no longer rely on the fact that the MSC judge will not be the trial judge.

10403 – The jurisdiction of the WCAB is invoked only by the filing of an Application or other case opening document (e.g. settlement documents.) The assignment of a pre-application non-adjudication number does not invoke jurisdiction for purposes of compelled discovery.

10500 – The WCAB itself shall serve any final order on a disputed issue after submission, and designated service shall not be used to serve a final order relating to a submitted disputed issue.

10507 – The time to respond to a served document is extended by 5 calendar days if the physical address of the recipient is in California, even if the document is served on a non-physical address (e.g. email or fax). If the address is outside of CA, the extension is 10 days, 20 days if outside the US.

10508 – All documents issued by the WCAB (whether served by WCAB or by designated party) must now be served on injured worker as well as their attorney. Documents issued by parties or lien claimants may be limited to the attorney/agent; applicants, defendants, and lien claimants must only be served if they are unrepresented.

10550 (New Regulation) –The proper identification of parties must include:
1) Full legal name of party or lien claimant
2) Attorney must identify which party it is representing
3) When a claim administrator appears, it must identify which party it is representing and, if representing an insurance carrier, the administrator must state whether the policy includes a high self-insured retention, a large deductible, or any other provision that affects the identity of the entity liable for payment of compensation
4) When insurance carrier appears, it must identify whether it is solely representing itself or also representing an employer, and whether its policy includes a high self-insured retention, a large deductible, or any other provision that affects the identity of the entity liable for payment of compensation
5) A Lien Claimant must state whether it is the original owner of the alleged debt or whether it purchased the alleged debt from the original owner or some subsequent purchaser

10770 – All liens, together with supporting documentation, must be filed and served concurrently on all parties at the time of filing with certain specific exceptions. Lien claimants must now notify the WCAB and parties within 5 business days after a lien has been resolved or withdrawn. Lien claimants shall be notified of all hearings, whether the hearing directly involves the lien.

10770.5 – Any application filed by a lien claimant must now include a verification under penalty of perjury and a detailed statement of facts establishing proper venue, that a detailed search has been conducted and no ADJ number for the injured worker and date of injury exists, and a detailed statement of facts as to their diligent search efforts. Failure to attach verification or an incorrect verification may be basis for sanctions.

10770.6 – Every Declaration of Readiness to Proceed filed by a lien claimant must be accompanied by a verification under penalty of perjury that either the underlying case has been resolved, or that six months have elapsed from date of injury and injured worker has chosen not to proceed with his/her case. The lien claimant must perform a diligent search to determine whether the injured worker has not chosen to proceed with case; the lien claimant must specify efforts made in the search. Failure to verify/incorrect verification may be basis for sanctions.

10846 – Skeletal Petitions for Removal, Disqualification or Reconsideration may be denied or dismissed if unsupported by specific references to the record and to the principles of law involved.

By Sara W. Angelini, Associate Attorney, Stockton Office January 2020.

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