The Appeals Board issued several En Banc decisions in response to the state of emergency brought on by COVID-19. These decisions temporarily suspended specific WCAB Rules of Practice and Procedure. As we began to come out of the pandemic, the Board began rescinding those rules suspensions. On February 28, 2023, Governor Newsom terminated the COVID-19 state of emergency. In response, the Board issued a new En Banc decision on March 22, 2023, Misc. No. 268. This decision rescinded all remaining provisions of prior Misc. Orders in numbers 260, 261, and 266. As the Board noted in footnote 3, “By this order, the Appeals Board rescinds all remaining rule suspensions.”
So, what does this mean for workers’ compensation practitioners? This means that we are back to pre-pandemic rules and procedure, though there are hopefully a few changes that will remain with us. The Misc. No. 268 dealt with three specific areas where rules and procedure were temporarily suspended; witness signatures on C & R’s, electronic filing of documents, and walk through assignment hours. Let’s look at the impact of Misc. No. 268 in each of these areas.
Misc. No. 260, witness signatures
This is the area that may have the most day-to-day impact on practitioners. Misc. No. 260 temporarily suspended WCAB Rule 10500(b)(6) regarding witness signatures and specifically noted the suspension of the requirement in the Compromise and Release agreements for signatures from two witnesses. Further, signatures on the forms from all parties may be electronic. This Misc. Order issued March 18, 2020, in the very early days of the state of emergency.
Parties will once again have to obtain actual non-electronic signatures from the applicant accompanied by either two witness signatures of completion of the notary form.
Electronic unwitnessed signatures on the Compromise and Release was an incredible time saver for both applicants and defendants and was very convenient. The parties could simply email documents and obtain quick electronic documents. There was no need for anyone to actually meet in person for signatures, scan signed documents, or mail them. There is now.
Misc. No. 261, electronic filing
This area will also remove a major convenience for the workers’ compensation practitioner. Misc. No. 261 temporarily suspended WCAB Rule 10940(b) regarding sending documents directly to the Appeals Board by fax or email for filing. This Misc. Order issued March 19, 2020, the day after Misc. No. 260.
Misc. No. 261 noted that Rule 10940(b) “prohibits sending documents directly to the Appeals Board by email, we order that documents may be emailed directly to the Appeals Board.” This was an incredible convenience that many took full advantage of. Email with the Board was quick and easy and a major time saver. That is no longer allowable and we are back to Rule 10205.7(c), which provides:
“No document shall be sent by electronic mail or by fax directly to the district office or the appeals board. If a document is sent by electronic mail or fax directly to the district office, it shall not be accepted for filing or deemed filed, shall not be acknowledged, and may be discarded unless otherwise ordered by the workers' compensation administrative law judge or the appeals board.”
Misc. No. 266, walk through assignment hours
Walk-through hearings area quick and easy way to move along a dispute or to obtain approval of a settlement. Misc. No. 266 temporarily suspended WCAB Rule 20789(c) requiring that each district office have a designee of the presiding judge available to assign walk-through cases from 8:00 am to 11:00 am and 1:00 pm – 4:00 pm on court days. This Misc. Order issued April 6, 2020, a few weeks after the other two Orders.
Rescinding this rule suspension should not have much practical effect as this has already been the case since the all DWC district offices except Eureka started again accepting in-person walk-through documents beginning September 6, 2022. Concurrently, effective September 6, 2022, the DWC stopped accepting virtual walk-throughs in the Lifesize platform.
Other Pandemic Changes
The Appeals Board instituted other changes during the pandemic that will hopefully remain with us. Possibly the most convenient and time saving of these changes is remote conferences, either by phone or Lifesize.
There is most definitely something to be said for in person appearances. This allows the parties to meet face to face and iron out conflicts not only in the case on calendar but in other matters as well. It also allows for the practitioners to build a sense of community.
However, the convenience of remote hearings and depositions is unmatched. There is also a major cost savings for travel and wait times. This also benefits witnesses who will not be as inconvenienced in appearing. It is still unclear whether wet signatures will once again be required.