February 10, 20200

Much like the sometimes-beloved groundhog, we’ve all finally emerged from the hectic holiday season and are hitting the now thawing ground running. At Mullen & Filippi we will be working on bringing your claims to resolutions so that you can focus on your own resolutions for the year.

Senior Partner Jay Cohen of our Van Nuys office formally announced his retirement recently, which while bittersweet for his clients, is well deserved after a fantastic and accomplished 39-year career. We wish him joy and success in his next act. With Jay’s retirement, Mullen & Filippi can also proudly announce a bit of overdue groundbreaking, as women now form the majority of our senior equity partnership ranks for the first time in our 70-year-history.

In a change that will affect this author’s view from his desk, but little else, our Oakland office has now moved to Walnut Creek. We’re only 25 minutes by BART or car to the Oakland WCAB and will now have the benefit of being much closer to our many Contra Costa County clients. The new address is 1340 Treat Blvd., Suite 210, Walnut Creek, CA 94597.

The Department of Industrial Relations recently announced that the Workers’ Compensation Appeals Board has adopted its final rules of practice and procedure. The rules are effective as of January 1, 2020. The rulemaking was undertaken to eliminate duplicative rules, organize articles to reflect the common chronology of events in a case, simplify the language of the rules for clarity, and leave room for future amendments.
In addition to removing many “theretos” and “heretofores,” and other legal throat clearings, there are some interesting changes and all attorneys should familiarize themselves with the new rules. The following rules are of note:

Rule 10752, repeals and replaces current rules 10563 and 10563.1, and under the new rule, lien claimants are not required to appear at any Mandatory Settlement Conference or Trials in the case-in-chief but must be available by telephone with full settlement authority. Also, possibly affecting how liens are handled is rule 10305, which includes lien claimants in the definition of a party to a case-in-chief, which some analysts are claiming will provide additional discovery rights to lien-claimants prior to the resolution of the case-in-chief.

Rule 10789, addressing walk-through procedures was amended to include Petitions for Costs pursuant to rule 10545 to the list of documents that can be submitted by walk-through. Additionally, a designee of the presiding workers’ compensation judge will be available to assign walk-through cases from 8:00 a.m. to 11:00 a.m. and 1:00 p.m. to 4:00 p.m. on court days. If a workers’ compensation judge to whom the walk-through is assigned is unavailable, the party seeking walk-through shall appear before the presiding workers’ compensation judge for possible reassignment to another workers’ compensation judge. However, a workers’ compensation judge presented with a walk-through settlement document shall now approve it, suspend action on it, or accept it for later review and action, and may no longer refer the walk-through to the presiding judge for reassignment because the volume of walk-through settlements presented on any day interferes with the cases on calendar.
Rule 10850, addressing Orders Dismissing Applications for Adjudication of Claim, was amended to allow judges discretion to not issue an Order Dismissing Application for Adjudication, even when requested by the employee, if there is good cause to not issue an order.
Rule 10945, addressing required contents of Petitions for Reconsideration, Removal, and Answers, simplifies the citation format for the various pleadings and briefings, and should be reviewed closely when filing such documents to ensure compliance with the new rules.
Rule 10786 sets forth the procedures for a non-IBR dispute and now requires the employer to file a Declaration of Readiness to Proceed to a Status Conference within 60 days of receiving a provider’s objection to a payment denial.

With a majority of states now legalizing or decriminalizing the use of some form of medical or recreational marijuana, a handful of companies are now planning to offer THC breathalyzer kits that are supposed to be able to indicate whether an individual has consumed the drug within the past few hours. Hound Labs, a company based in Oakland, California, has completed a series of clinical studies and plans to move its breathalyzers to market. The tests could help employers to determine if the use of THC contributed to a workplace accident or injury. While it may prove useful to employers in making employment decisions, it is unlikely the tests will prove to be a silver bullet in defending claims where intoxication is suspected, as alcohol testing results from alcohol breathalyzers long in use are often challenged due to errors involved with the calibration of such machines, the administration of such tests, and the chain of custody as to the evidence obtained. Furthermore, in California, intoxication must be shown to have been a proximate cause or substantial factor in bringing about an accident per the case of Smith v. WCAB (1981). In many cases, the type of expert testimony that would be necessary to prevail on such a defense may not prove cost-effective. However, the technology is always improving, and it will be interesting to see what, if any, impact the availability of these tests has on the workers’ compensation system in California.

For those of you who wish to delve deeper into not just the new WCAB rules of practice and procedure, but also the recently enacted Assembly Bills affecting employment laws generally, Sara Angelini, Associate Attorney in our Stockton office, has written a very helpful article describing the major changes in law, with succinct summaries of the content of those laws and the practical effects the changes might have.

This brief, along with many others, can be found at the following link: www.mulfil.com/case-briefs/

This Bulletin was written by Jim Cotter, Associate Partner in our Oakland office. A copy of this Bulletin and the most current twelve months is available on our website at www.mulfil.com/bulletins.

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