Califonia’s Workers’ Compensation Appeals Board (WCAB) has formalized its Rules of Practice and Procedure regarding remote hearings, electronic filing and service which were developed during the COVID pandemic, resulting in some new and updated rules. The new rules are effective January 1, 2022 and signal a shift to a more paperless (electronic) process for documents being served by both the court and by the parties. The rules also include several re-definitions and fixes to typographical errors.
Read a summary of each relevant rule change below:
- The definition of “Appear” has been replaced with a new definition for “Appearance” under 8 C.C.R. § 10305(c). Under the new regulation, an “’Appearance’ means a party or their representative’s presence, pursuant to Labor Code section 5700, at any hearing.”
- A definition for “Filing” has been added under 8 C.C.R. § 10305(m). Under the new regulation, “’Filing’ a document means receipt and acceptance by the Workers’ Compensation Appeals Board of the document for the purpose of having it included in the adjudication file.”
- The definition of “Hearing” has been renumbered under 8 C.C.R. § 10305(n). The definition for “Hearing” has also been changed. Under the new regulation, a “’Hearing” means any trial, mandatory settlement conference, status conference, lien conference, lien trial or priority conference conducted by the Workers’ Compensation Appeals Board.” A hearing being conducted at a district office or a remote location was deleted.
- A definition for “Service” has been added under 8 C.C.R. § 10305(t). Under the new regulation, “’Service’ of a document means to deliver a copy of the document in a manner permitted by these rules to a party or other person.”
- A definition for “Testimony” has been added under 8 C.C.R. § 10305(x). The new regulation, “’Testimony’ means oral evidence given under oath that is transcribed pursuant to Labor Code sections 5704 and 5708.”
- 8 C.C.R. § 10625(a), which address service by the parties, provides that “Service shall be made on the attorney or agent of record of each affected party unless that party is unrepresented, in which event service shall be made directly on the party, except as otherwise provided by these rules or ordered or allowed by the Workers’ Compensation Appeals Board. 8 C.C.R. § 10625(b) was amended to include “electronic service.” The regulation now provides that at a document may be served using the following methods: (1) Personal service; (2) Electronic service; (3) First class mail; or (4) An alternative method that will effect service that is equivalent to or more expeditious than first class mail; or (5) Another method if the serving and receiving parties have agreed.
- The proof of service requirement under 8 C.C.R. § 10625(c) was amended to include that “If a document is served electronically, the proof of service must also state the names and email addresses of the person serving electronically and the person served electronically.”
- 8 C.C.R. § 10625(d) was also amended, it now states that “Where a party receives notification that the service to one or more parties failed, the server shall re-serve the document on all intended recipients and execute a new proof of service, or provide a courtesy copy to the recipient on whom service failed, within a reasonable amount of time.”
- When the WCAB serves a document by mail under 8 C.C.R. § 10628(c), the proof of mail service must set forth “the fact of mail service on the persons or entities listed in the official address record as required by rules 10400 and 10401 and shall state the date of mail service.” 8 C.C.R. § 10628(c) no longer requires that the proof of mail service state who have not designated e-mail or fax as their preferred method of services. The legibly printed name and the signature of the person making the service is no longer required.
- If the WCAB electronically services a document under 8 C.C.R. § 10628(d), the proof of electronic service “shall be made by endorsement on the document, setting forth the fact of electronic service on the persons or entities listed on the official address record as required by rules 10400 and 10401 and the date of electronic service.” The proof of electronic service is no longer required to indicate that service was made through EAMS. The proof of electronic service is no longer required to indicate who have designated e-mail or fax as their preferred method of service.
- 8 C.C.R. § 10815 was added to address Electronic Hearings Before the Workers’ Compensation Appeals Board. Per 8 C.C.R. § 10815(a), “Any matter may be set for an electronic hearing as set forth in rule 10745. Per 8 C.C.R. § 10815(b), “Any party may object to an electronic hearing by filing a written objection showing good cause after service of a notice that a hearing will be conducted electronically.” Per 8 C.C.R. § 10815(c), “After an objection to a notice that a hearing will be conducted electronically is filed, the presiding workers’ compensation judge of the district office having venue may set the issue of whether the hearing will be conducted electronically for a hearing.” Per 8 C.C.R. § 10815(d), “If the presiding workers’ compensation judge of the district office having venue takes no action on the objection before the hearing, it will be deemed deferred as an issue for the hearing before the assigned workers’ compensation judge.”
- 8 C.C.R. § 10816 was added to address Electronic Appearances Before the Workers’ Compensation Appeals Board. Per 8 C.C.R. § 10816(a), “If a party intends to appear electronically at any hearing, they shall file a petition showing good cause pursuant to rule 10510.” Per 8 C.C.R. § 10816(b), “For any hearing that is conducted electronically pursuant to rule 10815, all appearances will be presumed to be electronic appearances with no petition required, unless otherwise requested, ordered or allowed.”
- 8 C.C.R. § 10817 was added to address Electronic Testimony Before the Workers’ Compensation Appeals Board. Per 8 C.C.R. § 10817(a), “If a witness intends to testify electronically, a petition showing good cause shall be filed pursuant to rule 10510 by the witness or by the party offering the witness’s testimony before the hearing, and shall identify the witness and contain the witness’s full legal name, mailing address, email address and telephone number. Per 8 C.C.R. § 10817(b), “For any hearing that is conducted electronically pursuant to rule 10815, all testimony will be presumed to be electronic testimony with no petition required, unless otherwise requested, ordered or allowed.”
The recently-adopted rules and the WCAB’s Final Statement of Reasons can be found on the WCAB website. As always, we invite you to contact our offices with any questions about what this may mean for your case.