In addition to renumbering and reorganizing the rules of practice and procedure for ease of use for attorneys, insurers, injured workers, and the like, the Workers’ Compensation Appeals Board’s (“WCAB”) proposed rules, effective January 1, 2020, also contain substantive changes for lien claimants.
On point with practice, particularly considering a lien claimant’s right to due process during the case-in-chief, a “party” now includes lien claimants in proposed rule 10305. Lien claimants were previously defined as parties only after the resolution of an injured worker’s case-in-chief, but in certain circumstances they could be required to appear and/or participate in proceedings despite lacking party status. As put by the WCAB, this created both conceptual and practical confusion.
Additionally, proposed rule 10752, which would repeal current rules 10563 and 10563.1, states that lien claimants are not required to appear at any Mandatory Settlement Conferences (“MSC”) or trials in the case-in-chief but must be immediately available by telephone with full settlement authority. This would replace the prior rule – if a claim is accepted and the lien amount is in excess of $25,000.00, a lien claimant is required to appear at such hearings with settlement authority or be excused by the Workers’ Compensation Judge (“WCJ”) from appearing. If the lien is less than $25,000.00, or the claim is denied, however, a lien claimant is not required to appear. The proposed rule is simpler, especially in matters in which there is a partial acceptance of a claim alleging a plethora of body parts, or when there is no definitive answer as to whether a claim has been accepted.
Further, under proposed rule 10878, the WCJ may order unresolved liens claim(s) or lien issue(s) to be submitted for decision at lien conferences solely on the exhibits listed in the pre-trial conference statement if no witnesses are identified. Pursuant to the proposal, once submitted for decision at the lien conference, the WCJ would prepare minutes of hearing and a summary of evidence. As is the goal in workers’ compensation, this would expedite the disposition of unresolved lien claims and lien issues.
The WCAB will hold a public hearing on Tuesday, September 24, 2019, from 9:00 am to 4:00 pm in Room 7 of the Elihu Harris State Office Building in Oakland to permit all interested persons the opportunity to present statements or arguments, oral or in writing. The written comment period closes at 4:00 pm on Tuesday, September 24, 2019. Comments may be submitted by e-mail, facsimile, U.S. mail, or by delivery service or personal delivery.
Additional details including the text of the proposed regulations, and the time and place of the public hearing can be found on the Department of Industrial Relations website.