It has been two years since the governor put in place stay-at-home orders, and it is surreal to reflect on the transformation our society has endured to prevail against the coronavirus since that time. We started off strong, as people learned to bake, knit, and master online workout routines. As the pandemic raged on, we dealt with drastic upheaval in our personal and professional lives. We learned to work remotely, and many parents become teachers overnight. We adapted and we carried on. Now there is room for optimism as new cases, as well as the severity of the illness, appear to be declining. Though current times bring new challenges, both domestically and abroad, we remain very hopeful for our future.
DWC ANNOUNCES RETURN TO IN-PERSON HEARINGS
On March 9, 2021, the Division of Workers’ Compensation (DWC) announced the return to in-person hearings at all district offices except Eureka, beginning on March 21, 2022. All trials, expedited hearings, priority conferences, lien trials, and Special Adjudication Unit (SAU) trials will be held in person. All mandatory settlement conferences, priority conferences, status conferences, lien conferences and SAU conferences will be held remotely, via the individually assigned workers’ compensation judge’s conference lines.
The DWC notes that the Eureka office is now a virtual office, as are the satellite offices of Bishop, Marysville, Chico and Ukiah.
The DWC notes further that all visitors to DWC offices are required to wear face masks regardless of county mandates or vaccination status.
DWC ANNOUNCES EXPIRATION OF REGULATION SECTION 36.7
On February 18, 2022, the DWC announced that Regulation 36.7 will expire on February 18, 2022. Regulation 36.7 allows for electronic service of medical-legal reports and supporting documents by medical-legal evaluators.
Regulation 36.7 was adopted by the DWC in May 2020 as an emergency regulation in response to COVID-19. The DWC hosted a public hearing for comment through December 17, 2021, to make the regulation permanent. “DWC is working with the Office of Administrative Law (OAL) to make changes and updates to regulation 36.7,” the Division said in a statement. “These changes will require a 15-day public notice and comment period. DWC intends to pursue these updates.”
While Regulation 36.7 is not in effect, service of medical-legal reports and supporting documents shall be completed in accordance with regulation 36.
WCAB’S “GRANT AND STUDY” ORDERS CHALLENGED AT 2ND DCA
According to a petition filed with California’s 2nd District Court of Appeal, the Workers’ Compensation Appeals Board’s established practice of issuing “grant and study” orders in response to petitions for reconsideration is unconstitutional, as it deprives injured workers of their right to expeditious resolution of their claims and is not permitted by any statute or regulation.
The petition was filed early this month by five injured workers whose petitions for reconsideration were granted “to further study the factual and legal issues presented in this case.”
In the filing, the petitioners asserted “that the WCAB’s practice of issuing “grant and study” orders is unconstitutional on its face since this practice is antithetical to and utterly irreconcilable with the constitutional mandate that disputes in workers’ compensation cases be decided “expeditiously, inexpensively, and without incumbrance of any character.” ” The petitioners asserted further that “this practice violates the “compensation bargain” upon which the California workers’ compensation system is predicated by denying them speedy delivery of benefits.”
Petitioners argued further that “grant and study” orders are invalid, as there is no statutory basis for the WCAB to issue them, and they invariably extend the 60-day window for the WCAB to issue a decision on the merits following the filing of petitions for reconsideration.
The filing states that “grant and study” orders represent “the most unjustifiable and most pernicious solution available to the WCAB since its practical effect is to deny, often for years at a time, a final determination of disputes between the parties to workers’ compensation cases.”
The petitioners are requesting the court to declare that the WCAB’s “grant and study” procedure is unlawful and to order the WCAB to provide a timetable for the issuance of final decisions.
Earley et al v. The Workers’ Compensation Appeals Board of the State of California
2nd DCA Petition Challenges Constitutionality of WCAB’s ‘Grant and Study’ Orders
This Bulletin was written by Steve Rosendin, Associate Partner in our San Francisco office. A copy of this Bulletin and the most current twelve months is available on our website at www.mulfil.com/bulletins.
