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A request for findings of fact under Government Code Sections 21164, 21166, 21537, 21538, 21540, or 21540.5 or under Labor Code Sections 4800.5(d), 4801, 4804.2, 4807 or 4851 is a proceeding separate from a claim for workers' compensation benefits even though it arises out of the same incident, injury or exposure. The request for findings of fact shall be filed separately and a separate file folder and record of the proceeding will be maintained, but the request for findings of fact may be consolidated for hearing with a claim for workers' compensation benefits under the provisions of Section 10590 of these Rules.
Note: Authority cited: Sections 133 and 5307, Labor Code. Reference: Sections 21164, 21166, 21537, 21538, 21540 and 21540.5, Government Code; Sections 4800.5(d), 4801, 4804.2, 4807 and 4851, Labor Code.
s 10406. Pre-Application and Miscellaneous Proceedings.
Note: Authority cited: Sections 133 and 5307, Labor Code. Reference: Sections 132a, 4553, 4751 and 5401, Labor Code.
s 10407. Dismissal of Claim Form -Labor Code Section 5404.5.
Note: Authority cited: Sections 133 and 5307, Labor Code. Reference: Section 5404.5, Labor Code.
s 10408. Forms of Application.
The Application for Adjudication for compensation benefits and death benefits shall be on forms prescribed and approved by the Appeals Board.
Venue shall be at the district office where the Application for Adjudication is filed pursuant to Labor Code Section 5501.5.
Note: Authority cited: Sections 133 and 5307, Labor Code. Reference: Sections 5500 and 5501.5, Labor Code.
s 10410. Objection to Venue.
Any employer or carrier listed on the initial Application for Adjudication may file an objection to venue selected under Labor Code section 5501.5(a)(3) within 30 days after notice of the case number is served on the party.
Note: Authority cited: Sections 133 and 5307, Labor Code. Reference: Section 5501.5, Labor Code.
s 10411. Petition for Change of Venue.
A petition for change of venue shall be filed at the district office with venue. Any objection to a petition for a change of venue shall be filed within 10 days of the filing of the petition. The presiding judge or his or her designee shall grant or deny a petition for change of venue, or serve notice of a status conference concerning the petition, within 30 days of the filing of the petition.
Note: Authority cited: Sections 133 and 5307, Labor Code. Reference: Section 5501.6, Labor Code.
s 10412. Location of File After Venue Change.
When an order changing venue is issued, the Workers' Compensation Appeals Board file shall be sent forthwith to the district office to which venue was changed and that district office shall retain the file until 1) another order changing venue is issued, or 2) the case is inactive and the file is ready to be sent to the state records center or destroyed.
Note: Authority cited: Sections 133 and 5307, Labor Code. Reference: Sections 126 and 5501.6, Labor Code.
s 10414. Declaration of Readiness to Proceed.
Applications or petitions shall not be placed on calendar for mandatory settlement conferences, status conferences, priority conferences, or any other hearing unless one of the parties has filed and served a Declaration of Readiness to Proceed in the form prescribed by the Appeals Board. The Declaration of Readiness shall be served on all other parties and lien claimants. The declarant shall state under penalty of perjury the specific efforts made to resolve the issues stated and, unless a status conference or priority conference is requested, that he or she is presently ready to proceed on those issues.
A simple statement in the declaration setting forth efforts to resolve the dispute or noting the opposing party's failure to respond within fifteen (15) days to an effort to resolve the dispute shall constitute an adequate description for the purposes of this rule.
A false declaration or certification by an attorney or representative may give rise to proceedings under Labor Code Section 134 for contempt or Labor Code Section 5813 for sanctions.
If a party is represented by an attorney or representative any Declaration of Readiness filed on behalf of the party shall be executed by the attorney or representative.
These rules shall not prohibit the Workers' Compensation Appeals Board from requiring proceedings on its own motion.
Note: Authority cited: Sections 133 and 5307, Labor Code. Reference: Sections 134, 5502 and 5813, Labor Code.
s 10415. Declaration of Readiness to Proceed to Expedited Hearing.
An expedited hearing shall not be placed on calendar unless a party has filed a Declaration of Readiness to Proceed to Expedited Hearing. However, the Workers' Compensation Appeals Board may schedule an expedited hearing on its own motion.
Note: Authority cited: Sections 133 and 5307, Labor Code. Reference: Section 5502(b), Labor Code.
s 10416. Objection to Declaration of Readiness to Proceed.
Any objection to a Declaration of Readiness to Proceed shall be filed and served within ten (10) days after service of the Declaration. The objection shall set forth, under penalty of perjury, specific reason(s) why the case should not be set or why the requested proceedings are inappropriate.
A false declaration or certification filed under this section by an attorney or representative may give rise to proceedings under Labor Code section 134 for contempt or Labor Code section 5813 for sanctions.
If a party is represented, the attorney or representative shall execute any objection to the Declaration of Readiness to Proceed on behalf of the party.
If a party has received a copy of the Declaration of Readiness to Proceed and has not filed an objection under this section, that party shall be deemed to have waived any and all objections to proceeding on the issues specified in the declaration, absent extraordinary circumstances.
Note: Authority cited: Sections 133 and 5307, Labor Code. Reference: Sections 134 and 5813, Labor Code.
s 10417. Walk-Through Calendar Setting.
Each district office shall establish a procedure allowing a party or law firm representing a party or parties to file up to five (5) Declarations of Readiness per day in person and immediately be notified of the date that the cases are scheduled for conference. Each Declaration of Readiness shall be served at least 10 days prior to filing and, when filed, shall be accompanied by any objection to the Declaration of Readiness. Within five (5) days of filing, the person filing the Declaration of Readiness shall notify in writing all other parties and lien claimants of the date, time, and location of the conference and the identity of the assigned judge. At the conference, the judge shall consider the issues in the Declaration of Readiness and the issues raised by any objection to it.
Note: Authority cited: Sections 133 and 5307, Labor Code. Reference: Section 5316 and 5502, Labor Code.
s 10418. Letters of Appointment for Medical Examinations.
Note: Authority cited: Sections 133 and 5307, Labor Code. Reference: Sections 5401 and 5703, Labor Code.
s 10420. Setting the Case.
The Workers' Compensation Appeals Board, upon the receipt of a Declaration of Readiness to Proceed, may, in its discretion, set the case for a type of proceeding other than that requested. The Workers' Compensation Appeals Board may on its own motion set any case for conference or trial.
Note: Authority cited: Sections 133 and 5307, Labor Code. Reference: Section 5310, Labor Code.
s 10430. Letters of Appointment for Medical Examinations.
After the filing of an Application for Adjudication, each party will notify all other parties, and their attorneys or representatives, of any medical appointment scheduled for the purposes of medical-legal evaluation. That notice shall be given at the same time the injured worker is advised of the appointment.
Note: Authority cited: Sections 133 and 5307, Labor Code. Reference: Sections 5401 and 5703, Labor Code.
s 10440. Pleadings -Serious and Willful Misconduct.
All allegations that an injury was caused by either the serious and willful misconduct of the employee or of the employer must be separately pleaded and must set out in sufficient detail the specific basis upon which the charge is founded so that the adverse parties and the Workers' Compensation Appeals Board may be fully advised.
Note: Authority cited: Sections 133 and 5307, Labor Code. Reference: Sections 4550, 4551, 4552, 4553, 4553.1, Labor Code.
s 10445. Allegations.
All allegations that an injury was caused by serious and willful misconduct shall:
(a) When the charge of serious and willful misconduct is based on more than one theory, set forth each theory separately.
(b) Whenever the charge of serious and willful misconduct is predicated upon the violation of a particular safety order, set forth the correct citation or reference and all of the particulars required by Labor Code Section 4553.1.
Note: Authority cited: Sections 133 and 5307, Labor Code. Reference: Sections 4550, 4551, 4552, 4553, 4553.1, Labor Code.
s 10447. Pleadings -Discrimination.
Any person seeking to initiate proceedings under Labor Code Section 132a other than prosecution for misdemeanor must file a petition therefor setting forth specifically and in detail the nature of each violation alleged and facts relied on to show the same, and the relief sought. Each alleged violation must be separately pleaded so that the adverse party or parties and the Workers' Compensation Appeals Board may be fully advised of the specific basis upon which the charge is founded.
The Workers' Compensation Appeals Board may refer, or any worker may complain of, suspected violations of the criminal misdemeanor provisions of Labor Code Section 132a to the Division of Labor Standards Enforcement or directly to the Office of the Public Prosecutor.
Note: Authority cited: Sections 133 and 5307, Labor Code. Reference: Section 132a, Labor Code.
s 10450. Petitions.
A request for action by the Workers' Compensation Appeals Board, other than an Application for Adjudication, an Answer or Declaration of Readiness, shall be made by petition filed at the district office of the Workers' Compensation Appeals Board with venue. The caption of each petition shall contain the title and number of the case and shall indicate the type of relief sought.
Any document previously filed with the Workers' Compensation Appeals Board should not be attached to a petition; any such document that is attached to a petition may be discarded.
Note: Authority cited: Sections 133 and 5307, Labor Code. Reference: Section 126, Labor Code.
s 10452. Petition for Disqualification of Judge.
Proceedings to disqualify a workers' compensation judge under Labor Code Section 5311 shall be initiated by the filing of a petition for disqualification supported by an affidavit or declaration under penalty of perjury stating in detail facts establishing grounds for disqualification of the workers' compensation judge to whom a case or proceeding has been assigned.
If the workers' compensation judge assigned to hear the matter and the grounds for disqualification are known, the petition for disqualification shall be filed not more than 10 days after service of notice of hearing. In no event shall any such petition be allowed after the swearing of the first witness.
A petition for disqualification shall be referred to and determined by a panel of three commissioners of the Appeals Board in the same manner as a petition for reconsideration.
Note: Authority cited: Section 5307, Labor Code. Reference: Sections 5310, 5311, Labor Code.
s 10453. Petition for Automatic Reassignment of Trial or Expedited Hearing to Another Workers' Compensation Judge.
A party shall be entitled to automatic reassignment of a trial or expedited hearing to another workers' compensation judge in accordance with the provisions of this section. An injured worker shall be entitled to one reassignment of a judge for trial or expedited hearing. If the injured worker has not exercised the right to automatic reassignment and one or more lien claimants have become parties and no testimony has been taken, the lien claimants shall be entitled to one reassignment of judge for a trial, which may be exercised by any of them. The defendants shall be entitled to one reassignment of judge for a trial or expedited hearing, which may be exercised by any of them.
If the parties are first notified of the identity of the workers' compensation judge assigned for trial or expedited hearing by a notice of trial served by mail, to exercise the right to automatic reassignment a party must file a petition requesting reassignment not more than five (5) days after the service of the notice of trial or expedited hearing. The presiding judge or a person designated by the presiding judge shall rule on any petition for automatic reassignment. If a petition for automatic reassignment is granted, a new notice of trial or expedited hearing shall be served.
If the parties are first notified of the identity of the workers' compensation judge assigned for trial at a mandatory settlement conference, at a status conference, at a lien conference, at a priority conference, or upon reassignment at the time of trial, to exercise the right to automatic reassignment a party must make an oral motion immediately upon learning the name of the judge to whom the case has been assigned for trial. The motion shall be acted upon immediately by the presiding workers' compensation judge or a person designated by the presiding judge.
In no event shall any motion or petition for reassignment be entertained after the swearing of the first witness at a trial or expedited hearing.
If a party files a petition or makes a motion for automatic reassignment and no other workers' compensation judge is available in the office, the assignment shall be made by a deputy commissioner of the Appeals Board.
Unless required for the convenience of the Workers' Compensation Appeals Board, no continuance shall be granted by reason of a petition or motion under this section. If a continuance is granted, another trial or expedited hearing shall be scheduled as early as possible.
Consolidated cases are to be considered as one case within the meaning of this section. This section is not applicable to conference hearings.
Note: Authority cited: Section 5307, Labor Code. Reference: Section 5310, Labor Code.
s 10454. Automatic Reassignment After Reversal.
Notwithstanding Rule 10453, where the Appeals Board reverses a decision of a workers' compensation judge on an issue of the statute of limitations, jurisdiction, employment, or injury arising out of and in the course of employment, and remands the case for further proceedings, the party who filed the petition for reconsideration that resulted in the reversal shall be entitled to automatic reassignment of the case to another workers' compensation judge upon a motion or petition requesting reassignment filed at the district office within 30 days after the decision of the Appeals Board becomes final.
Note: Authority cited: Sections 133 and 5307, Labor Code. Reference: Section 5310, Labor Code.
s 10455. Petition to Reopen.
Petitions invoking the continuing jurisdiction of the Workers' Compensation Appeals Board under Labor Code Section 5803 shall set forth specifically and in detail the facts relied upon to establish good cause for reopening.
Note: Authority cited: Sections 133 and 5307, Labor Code. Reference: Section 5803, Labor Code.
s 10458. Petition for New and Further Disability.
The jurisdiction of the Workers' Compensation Appeals Board under Labor Code Section 5410 shall be invoked by a petition setting forth specifically and in detail the facts relied upon to establish new and further disability.
If no prior Application for Adjudication has been filed, jurisdiction shall be invoked by the filing of an original Application for Adjudication.
Note: Authority cited: Sections 133 and 5307, Labor Code. Reference: Section 5803, Labor Code.
s 10462. Petition to Terminate Liability; Filing.
A petition to terminate liability for continuing temporary disability indemnity under a findings and award, decision or order of the Appeals Board or a workers' compensation judge shall be filed within 10 days of the termination of the payments or other compensation. Failure to file such a petition within 10 days may affect the right to credit for an overpayment of temporary disability indemnity.
Note: Authority cited: Sections 133 and 5307, Labor Code. Reference: Sections 4650, 4651.1, Labor Code.
s 10464. Contents of Petition to Terminate Liability.
A petition to terminate liability for temporary total disability indemnity shall conform substantially to the form provided by the Appeals Board and shall include:
(a) the correct title and date of filing of the prior order or decision, liability under which is sought to be terminated;
(b) the date upon which it is claimed that liability terminated;
(c) the grounds upon which it is claimed liability should be terminated;
(d) whether permanent disability is being advanced and, if so, the approximate date to which such indemnity will be paid;
(e) whether the employee is presently working, according to information available to the petitioner;
(f) a computer printout showing the dates and the amounts of disability indemnity that have been paid, and the periods covered shall be attached; and
(g) proof of service upon the opposing parties.
All medical reports in the possession of the petitioner that have not previously been served and filed shall accompany the petition. The petition also shall contain a statement, in underlined capital letters, that an order terminating liability for temporary total disability indemnity may issue unless objection thereto is made on behalf of the employee within 14 days after service of the petition.
Note: Authority cited: Sections 133 and 5307, Labor Code. Reference: Sections 4650, 4651.1, Labor Code.
s 10466. Objections to Petition, Hearing, Interim Order.
If written objection to the petition to terminate is not received within fourteen (14) days of its proper filing and service, the Workers' Compensation Appeals Board may order temporary disability compensation terminated, in accordance with the facts as stated in the petition or in such other manner as may appear appropriate on the record. If the petition to terminate is not properly completed or executed in accordance with Section 10464, the Workers' Compensation Appeals Board may summarily deny or dismiss the petition.
Objection to the petition by the employee shall be filed in writing within fourteen (14) days of service of the petition, and shall state the facts in support of the employee's contention that the petition should be denied, and shall be accompanied by a Declaration of Readiness to Proceed to Expedited Hearing. All supporting medical reports shall be attached to the objection. The objection shall also show that service of the objection and the reports attached thereto has been made upon petitioner or counsel.
Upon the filing of a timely objection, where it appears that the employee is not or may not be working and is not or may not be receiving disability indemnity, the petition to terminate shall be set for expedited hearing not less than ten (10) nor more than thirty (30) days from the date of the receipt of the objection.
If complete disposition of the petition to terminate cannot be made at the hearing, the workers' compensation judge assigned thereto, based on the record, including the allegations of the petition, the objection thereto, and the evidence (if any) at said hearing, shall forthwith issue an interim order directing whether temporary disability indemnity shall or shall not continue during the pendency of proceedings on the petition to terminate. Said interim order shall not be considered a final order, and will not preclude a complete adjudication of the petition to terminate or the issue of temporary disability or any other issue after full hearing of the issues.
Note: Authority cited: Sections 133 and 5307, Labor Code. Reference: Sections 4650 and 4651.1, Labor Code.
s 10470. Medical Reports.
Note: Authority cited: Sections 133 and 5307, Labor Code. Reference: Sections 5703, 5401, 5270 and 5277, Labor Code.
s 10480. Answers.
An Answer to each Application for Adjudication shall be filed and served ten (10) days after service of the Declaration of Readiness to Proceed required by rule 10414 or 10415.
Note: Authority cited: Sections 133 and 5307, Labor Code. Reference: Section 5500, Labor Code.
s 10484. Procedural Requirement.
The Answer used by the parties shall conform to a form prescribed and approved by the Appeals Board. Additional matters may be pleaded as deemed necessary by the answering party.
A general denial is not an answer within this rule. The Answer shall be accompanied by a proof of service upon the opposing parties.
Evidence upon matters and affirmative defenses not pleaded by Answer will be allowed only upon such terms and conditions as the Appeals Board or workers' compensation judge may impose in the exercise of sound discretion.
Note: Authority cited: Sections 133 and 5307, Labor Code. Reference: Sections 5500, 5505, Labor Code.
s 10488. Form of Answer.
Note: Authority cited: Sections 133, 5307, Labor Code. Reference: Sections 5500, 5505, Labor Code.
s 10490. Demurrer, Judgment on the Pleadings, and Summary Judgment Not Permitted; Unintelligible Pleadings.
Demurrers, petitions for judgment on the pleadings, and petitions for summary judgment are not permitted. A continuance may be granted upon timely request and upon such terms as may be reasonable under the circumstances or may be ordered by the Workers' Compensation Appeals Board on its own motion if:
(a) a pleading is so uncertain, unintelligible or ambiguous as to render it impossible for the Workers' Compensation Appeals Board to understand or act upon it; or
(b) any party is prejudiced by omission or ambiguity of necessary allegations sufficient to prevent that party from adequately presenting a cause of action or defense.
Note: Authority cited: Sections 133 and 5307, Labor Code. Reference: Sections 5500 and 5708, Labor Code.
s 10492. When Pleadings Deemed Amended.
The pleadings shall be deemed amended to conform to the stipulations and statement of issues agreed to by the parties on the record. Pleadings may be amended by the Workers' Compensation Appeals Board to conform to proof.
Note: Authority cited: Sections 133, 5307, Labor Code. Reference: Section 5702, Labor Code.
s 10496. Awards and Orders Without Hearing.
Awards and orders may be based upon stipulations of parties in open court or upon written stipulation signed by the parties.
Note: Authority cited: Sections 133, 5307, Labor Code. Reference: Section 5702, Labor Code.
s 10497. Rejection of Stipulations.
No finding shall be made contrary to a stipulation of the parties on an issue without giving the parties notice and an opportunity to present evidence thereon.
Note: Authority cited: Sections 133, 5307, Labor Code. Reference: Section 5702, Labor Code.
s 10500. Service.
Upon filing an Application for Adjudication, the filing party shall serve a copy of the application on all other parties. If the applicant is the injured worker or dependent and is unrepresented, the injured worker's or dependent's application and accompanying documents shall be served by the Workers' Compensation Appeals Board on the parties listed on the application or on the address record in the case file. If a case number has been previously assigned by the Workers' Compensation Appeals Board, that number must be affixed to the application, and service thereof is deemed service of a conformed copy for the purposes of Labor Code Section 5501. If a case number has not been assigned either before or at the time of filing of the application, notification of the case number assigned to the application by the Workers' Compensation Appeals Board shall constitute service of a conformed copy for the purpose of Labor Code section 5501.
Except as provided below, the Workers' Compensation Appeals Board may, in its discretion, designate a party or lien claimant, or their representative, to make service of notices of the time and place of hearing, orders approving compromise and release, awards based upon stipulations with request for award and any interim or procedural orders. The party, lien claimant, or representative designated to make service shall retain the proof of service and shall not file it unless ordered to do so by the Workers' Compensation Appeals Board.
The Workers' Compensation Appeals Board shall serve all parties and lien claimants of record notice of any final order, decision, or award issued by a workers' compensation judge on a disputed issue after submission.
Note: Authority cited: Sections 133 and 5307, Labor Code. Reference: Sections 5316 and 5504, Labor Code.
s 10501. Service in Death Cases.
When an Application for Adjudication, stipulations with request for award or compromise and release is filed in a death case in which there is a bona fide issue as to partial or total dependency, the filing party shall serve copies of the documents on the Department of Industrial Relations, Death Without Dependents Unit.
Note: Authority cited: Sections 133 and 5307, Labor Code. Reference: Section 4706.5, Labor Code.
s 10505. Service by the Parties.
Service of any document may be made by mail or personal service. Service of any document may be made by facsimile transmission by agreement of the parties of lien claimants, or where authorized or requested by the receiving party or lien claimant.
Service of all documents other than those specified in Sections 10500 and 10501 shall be made by the parties and lien claimants.
Note: Authority cited: Sections 133, 5307 and 5316, Labor Code. Reference: Section 5316, Labor Code.
s 10506. Service: Mailbox.
Where a district office of the Workers' Compensation Appeals Board maintains mailboxes for outgoing documents and allows consenting parties, lien claimants, and attorneys to obtain their documents from their mailboxes, documents so obtained shall be deemed to have been served on the party, lien claimant, or attorney by mail on the date of service specified on the document.
Note: Authority cited: Sections 133 and 5307, Labor Code. Reference: Section 5316, Labor Code.
s 10507. Mail and Fax Service.
The time requirements of Code of Civil Procedure Section 1013(a) shall govern all service by mail and fax.
Note: Authority cited: Sections 133 and 5307, Labor Code. Reference: Section 5316, Labor Code.
s 10510. Service on Attorney or Agent.
Except as otherwise provided by Rule 10500, service shall be made on all attorneys or agents of record unless the party or lien claimant is unrepresented, in which event service shall be made on the party or lien claimant.
Note: Authority cited: Sections 133 and 5307, Labor Code. Reference: Section 5316, Labor Code.
s 10514. Proof of Service by Parties and Lien Claimants.
Proof of service by parties or lien claimants may be made by:
(a) affidavit or declaration of service;
(b) written statement endorsed upon the document served and signed by the party making the statement;
(c) letter of transmittal.
The proof of service shall set forth the names and addresses of persons served, whether service was made personally or by mail, the date of service, the place of personal service or the address to which mailing was made.
The proof of service shall be filed with the documents to which the proof of service pertains. A proof of service filed at any other time may be discarded by the Workers' Compensation Appeals Board.
Note: Authority cited: Sections 133 and 5307, Labor Code. Reference: Section 5316, Labor Code.
s 10520. Proof of Service by Workers' Compensation Appeals Board.
Proof of service by the Workers' Compensation Appeals Board may be made by endorsement on the document served, setting forth the fact of service on the persons listed on the official address record on the date of service. The endorsement shall state whether service was made personally or by mail, the date of service and the signature of the person making the service.
Note: Authority cited: Sections 133 and 5307, Labor Code. Reference: Section 5316, Labor Code.
s 10530. Subpoenas.
The Workers' Compensation Appeals Board shall issue subpoenas and subpoenas duces tecum upon request in accordance with the provisions of Code of Civil Procedure sections 1985 and 1987.5 and Government Code section 68097.1. Subpoenas and subpoenas duces tecum shall be on forms prescribed and approved by the Appeals Board, and for injuries occurring on or after January 1, 1990, shall contain, in addition to the requirements of Code of Civil Procedure 1985, an affidavit that a claim form has been duly filed pursuant to Labor Code section 5401, subdivision (c).
Note: Authority cited: Sections 133 and 5307, Labor Code. Reference: Sections 130 and 5401, Labor Code; Sections 1085, 1087.5, Code of Civil Procedure; and Section 68097.1, Government Code.
s 10532. Notice to Appear or Produce.
A notice to appear or produce in accordance with Code of Civil Procedure Section 1987 is permissible in proceedings before the Workers' Compensation Appeals Board.
Note: Authority cited: Sections 133, 5307, Labor Code. Reference: Section 132, Labor Code.
s 10534. Microfilm.
Where records or other documentary evidence have been recorded or reproduced using the methods described in Section 1551 of the Evidence Code and the original records destroyed, the film, legible print thereof or electronic recording shall be produced in response to a subpoena duces tecum. A party offering a film or electronic recording in evidence may be required to provide legible prints thereof or reproductions from the electronic recording.
The expense of:
(a) inspecting reproductions shall be paid by the party making the inspection; and
(b) obtaining microfilm prints shall be borne by the party requiring the same.
Note: Authority cited: Sections 133 and 5307, Labor Code. Reference: Section 130, Labor Code.
s 10536. Witness Fees and Subpoenas.
Medical examiners appointed by the Workers' Compensation Appeals Board or agreed to by the parties when subpoenaed for cross-examination at the Workers' Compensation Appeals Board or deposition shall be paid by the party requiring the attendance of the witness in accordance with the Rules of the Administrative Director.
Failure to serve the subpoena and tender the fee in advance based on the estimated time of the trial or deposition may be treated by the Workers' Compensation Appeals Board as a waiver of the right to examine the witness. Service and payment of the fee may be made by mail if the witness so agrees.
Note: Authority cited: Sections 133 and 5307, Labor Code. Reference: Sections 130, 131, 4621 and 5710, Labor Code; and Section 2034(i)(2), Code of Civil Procedure.
s 10537. Subpoena for Medical Witness.
A subpoena requiring the appearance of a medical witness before the Workers' Compensation Appeals Board must be served not less than ten (10) days before the time the witness is required to appear and testify.
Note: Authority cited: Sections 133, 5307, Labor Code. Reference: Section 132, Labor Code.
s 10541. Submission at Conference.
A workers' compensation judge may receive evidence and submit an issue or issues for decision at a conference hearing if the parties so agree.
Note: Authority cited: Sections 133 and 5307, Labor Code. Reference: Sections 5708 and 5709, Labor Code.
s 10544. Notice of Hearing.
The Workers' Compensation Appeals Board shall serve or cause to be served notice of the time and place of hearings on all parties and lien claimants, and their attorneys or other agents of record, as provided in Rule 10500.
Notice of hearing shall be given at least ten (10) days before the date of hearing, except where:
(a) notice is waived;
(b) a different time is expressly agreed to by all parties and concurred in by the Workers' Compensation Appeals Board; or
(c) the proceedings are governed by Article 19 pertaining to claims against the Subsequent Injuries Fund.
Note: Authority cited: Sections 133 and 5307, Labor Code. Reference: Section 5504, Labor Code.
s 10548. Continuances; Appearances in Settled Cases.
(a) Continuances are not favored. Requests for continuances are inconsistent with the requirement that workers' compensation proceedings be expeditious. Continuances will be granted only upon a clear showing of good cause. Where possible, reassignment pursuant to Rule 10346 shall be used to avoid continuances.
(b) When the parties represent to the Workers' Compensation Appeals Board that a case has been settled, the case shall be taken off calendar and no appearances shall be required.
Note: Authority cited: Sections 133 and 5307, Labor Code. Reference: Article XIV, Section 4, California Constitution; and Section 5502.5, Labor Code.
s 10555. Priority Conference Calendar.
A priority conference will be set upon the filing of a Declaration of Readiness requesting a priority conference that shows that the applicant is represented by an attorney and that the issues in dispute include employment and /or injury arising out of and in the course of employment. Upon a showing of good cause, the workers' compensation judge may continue the matter to a status conference. At each priority or status conference, the parties shall be prepared to set the matter for trial or to provide a plan to complete discovery. To the extent possible, all priority and status conferences in a case shall be conducted by the same workers' compensation judge. When discovery is complete, or when the workers' compensation judge determines that the parties have had sufficient time to complete reasonable discovery, the case shall be set for trial as expeditiously as possible.
Note: Authority cited: Sections 133 and 5307, Labor Code. Reference: Section 5502(c), Labor Code.
s 10560. Submission at Single Trial.
The parties are expected to submit for decision all matters properly in issue at a single trial and to produce at the trial all necessary evidence, including witnesses, documents, medical reports, payroll statements and all other matters considered essential in the proof of a party's claim or defense. However, a workers' compensation judge may order that the issues in a case be bifurcated and tried separately upon a showing of good cause.
Note: Authority cited: Sections 133 and 5307, Labor Code. Reference: Article XIV, Section 4, California Constitution; and Section 5708, Labor Code.
s 10561. Sanctions.
On its own motion or upon the filing of a petition pursuant to Rule 10450, the Workers' Compensation Appeals Board may order payment of reasonable expenses, including attorney's fees and costs and, in addition, sanctions as provided in Labor Code section 5813. Before issuing such an order, the alleged offending party or attorney must be given notice and an opportunity to be heard. In no event shall the Workers' Compensation Appeals Board impose a monetary sanction pursuant to Labor Code section 5813 where the one subject to the sanction acted with reasonable justification or other circumstances make imposition of the sanction unjust.
A bad faith action or tactic is one that results from a willful failure to comply with a statutory or regulatory obligation or from a willful intent to disrupt or delay the proceedings of the Workers' Compensation Appeals Board.
A frivolous bad faith action or tactic is one that is done for an improper motive or is indisputably without merit.
Violations subject to the provisions of Labor Code Section 5813 shall include but are not limited to the following:
Failure to appear or appearing late at a conference or trial shall be deemed a bad faith action or tactic solely intended to cause unnecessary delay where a reasonable excuse is not offered or the offending party has demonstrated a pattern of such conduct.
Filing a pleading, petition or legal document shall be deemed a bad faith action or tactic that is frivolous or solely intended to cause unnecessary delay unless there is some reasonable justification for filing the document.
Failure to timely serve evidentiary documents, including but not limited to medical reports pursuant to rule 10608, shall be deemed a bad faith action or tactic that is frivolous or solely intended to cause unnecessary delay unless that failure resulted from mistake, inadvertence, or excusable neglect.
Failing to comply with the Workers' Compensation Appeals Board's Rules of Practice and Procedure or an order of the Workers' Compensation Appeals Board, including an order of discovery, shall be deemed a bad faith action or tactic that is frivolous or solely intended to cause unnecessary delay unless that failure results from mistake, inadvertence, surprise, or excusable neglect.
This rule shall apply only to applications filed on or after January 1, 1994.
Note: Authority cited: Sections 133 and 5307, Labor Code. Reference: Section 5813, Labor Code.
s 10562. Failure to Appear.
(a) Where a party served with notice of trial fails to appear either in person or by attorney or representative, the workers' compensation judge may
(1) dismiss the application after issuing a ten (10) day notice of intention to dismiss, or
(2) hear the evidence and, after service of the minutes of hearing and summary of evidence that shall include a ten (10) day notice of intention to submit, make such decision as is just and proper.
(b) Where a party served with notice of a mandatory settlement conference fails to appear at the conference, the workers' compensation judge may
(1) dismiss the application after issuing a ten (10) day notice of intention to dismiss, or
(2) close discovery and forward the case to the presiding workers' compensation judge to set for trial.
(c) Where a party, after notice, fails to appear at either a trial or a conference and good cause is shown for failure to appear, the workers' compensation judge may take the case off calendar or may continue the case to a date certain.
(d) Where a lien claimant served with notice of a conference fails to appear at the conference either in person or by attorney or representative, and fails to have a person with settlement authority available by telephone, the workers' compensation judge may
(1) dismiss the lien claim after issuing a ten (10) day notice of intention to dismiss with or without prejudice, or
(2) close discovery and forward the case to the presiding workers' compensation judge to set for trial.
(e) Where a lien claimant served with notice of a trial fails to appear, the workers' compensation judge may
(1) dismiss the lien claim after issuing a ten (10) day notice of intention to dismiss with or without prejudice, or
(2) hear the evidence and, after service of the minutes of hearing and summary of evidence that shall include a ten (10) day notice of intention to submit, make such decision as is just and proper, or
(3) defer the issue to the lien and submit the case on the remaining issues.
(f) If the workers' compensation judge defers a lien issue, upon the issuance of his or her decision on the remaining issues, the workers' compensation judge shall
(1) issue a ten (10) day notice of intention to order payment of the lien in full or in part, or
(2) issue a ten (10) day notice of intention to disallow the lien, or
(3) continue the lien issue to a lien conference.
Note: Authority cited: Sections 133 and 5307, Labor Code. Reference: Article XIV, Section 4, California Constitution; and Sections 5502(e) and 5708, Labor Code.
s 10563. Appearances Required.
Unless the notice otherwise provides, the applicant shall be present at a mandatory settlement conference as provided in Labor Code section 5502, subdivision (e) and the defendant and lien claimants whose liens have not been resolved or withdrawn shall have a person available with settlement authority. The person designated by the defendant to be available with settlement authority need not be present if an attorney or representative who is present can obtain immediate authority by telephone. The representative of the lien claimant with settlement authority must be present or available by telephone. Government entities shall have a person available with settlement authority to the fullest extent allowed by law.
At the time of trial, all parties shall be present and the defendants shall have a person available with settlement authority in the same manner as set forth above. If a lien claimant whose lien has not been resolved or withdrawn is not present at the time of trial, the lien claimant shall have a person available with settlement authority in the same manner as set forth above.
Note: Authority cited: Sections 133 and 5307, Labor Code. Reference: Sections 5502(e) and 5708, Labor Code.
s 10564. Interpreters.
Subject to the Rules of the Administrative Director, the Workers' Compensation Appeals Board may in any case appoint an interpreter and fix the interpreter's compensation. It shall be the responsibility of any party producing a witness requiring an interpreter to arrange for the presence of a qualified interpreter.
For injuries before January 1, 1994, interpreter's fees that are reasonably, actually and necessarily incurred and that are not allowed under Labor Code Section 4600 shall be allowed as costs under Labor Code Section 5811. Recovery shall be allowed in the amount charged by the interpreter unless:
(1) proof of unreasonableness is entered by the party contesting the reasonableness of the charge, or
(2) the charge is manifestly unreasonable.
For injuries on or after January 1, 1994, interpreter's fees that are reasonably, actually and necessarily incurred shall be allowed as provided by Labor Code Sections 4600, 5710 and 5811 as amended July 16, 1993. Interpreter's fees as defined in Labor Code section 4620, that are reasonably, actually and necessarily incurred as provided in Labor Code section 4621, shall be allowed in accordance with the fee schedule set by the Administrative Director.
Note: Authority cited: Sections 133 and 5307, Labor Code. Reference: Sections 4600, 4621, 5710 and 5811, Labor Code.
s 10566. Minutes of Hearing and Summary of Evidence.
Minutes of hearing and summary of evidence shall be prepared at the conclusion of each hearing and filed in the record of proceedings. They shall include:
(a) The names of the commissioners, deputy commissioner or workers' compensation judge, reporter, the parties present, attorneys or other agents appearing therefor and witnesses sworn;
(b) The place and date of said hearing;
(c) All interlocutory orders, admissions and stipulations, the issues and matters in controversy, a descriptive listing of all exhibits received for identification or in evidence (with the identity of the party offering the same) and the disposition, which shall include the time and action, if any, required for submission;
(d) A summary of the evidence required by Labor Code Section 5313 that shall include a fair and unbiased summary of the testimony given by each witness;
(e) If motion pictures are shown, a brief summary of their contents;
(f) A fair statement of any offers of proof.
If the disposition is an order taking off calendar or a continuance, the reason therefor shall be given.
Note: Authority cited: Sections 133 and 5307, Labor Code. Reference: Section 5313, Labor Code.
s 10570. Minute Orders.
Interlocutory or interim orders, including dismissal of improper or unnecessary parties, may be entered upon the minutes of hearing and will become the order of the Workers' Compensation Appeals Board upon the filing thereof.
Note: Authority cited: Sections 133, 5307, Labor Code. Reference: Section 5307.5, Labor Code.
s 10578. Waiver of Summary of Evidence.
The summary of evidence need not be filed upon waiver by the parties or upon issuance of a stipulated order, decision or award.
Note: Authority cited: Sections 133 and 5307, Labor Code. Reference: Section 5702, Labor Code.
s 10580. Evidence Taken Without Notice.
Transcripts or summaries of testimony taken without notice and copies of all reports and other matters added to the record, otherwise than during the course of an open hearing, shall be served upon the parties to the proceeding. Unless it is otherwise expressly provided, the parties shall be allowed 10 days after service of the testimony and reports within which to produce evidence in explanation or rebuttal or to request further proceedings before the case shall be deemed submitted for decision.
Note: Authority cited: Sections 133 and 5307, Labor Code. Reference: Section 5704, Labor Code.
s 10582. Inactive Cases, Procedure, Subsequent Action.
This rule applies to injuries occurring before January 1, 1990 and on or after January 1, 1994.
An Application for Adjudication filed without an accompanying Declaration of Readiness to Proceed will be placed in inactive status.
Cases set for hearing may be removed from the active calendar by an order taking off calendar.
Cases in off calendar status may be restored to the active calendar upon the filing and serving of a properly executed Declaration of Readiness to Proceed.
Unless a case is activated for hearing within one year after the filing of the Application for Adjudication or the entry of an order taking off calendar, the case may be dismissed after notice and opportunity to be heard. Such dismissals may be entered at the request of an interested party or upon the Workers' Compensation Appeals Board's own motion for lack of prosecution. A case may be dismissed after issuance of a ten (10) day notice of intention to dismiss and an opportunity to be heard, but not by an order with a clause rendering the order null and void if an objection showing good cause is filed.
A petition by a defendant to dismiss the case must be accompanied by a copy of a letter mailed to the applicant and, if represented, to the applicant's attorney or representative, more than thirty (30) days before the filing of the petition to dismiss. This letter must state that it is the intention of the persons signing the letter to file a petition for dismissal thirty (30) days after the date of that letter unless the applicant or his attorney or representative shows in writing some good reason for not dismissing the case. A copy of the reply, if any, must be attached to the petition to dismiss. A copy of the petition must be served on all parties and all lien claimants.
Note: Authority cited: Sections 133 and 5307, Labor Code. Reference: Section 5405 and 5406, Labor Code.
s 10583. Dismissal of Claim Form -Labor Code Section 5404.5.
Where an application for adjudication for an injury on or after January 1, 1990 and before January 1, 1994, has not been filed by any of the parties, an employer or insurer seeking dismissal of a claim form for lack of prosecution shall solely utilize the procedures set forth in Labor Code Section 5404.5 and shall not seek an order of dismissal from the Appeals Board by the filing of an application for adjudication, a request for pre-application determination or any other petition or request.
Note: Authority cited: Sections 133 and 5307, Labor Code. Reference: Section 5404.5, Labor Code.
s 10589. Consolidated Cases.
Consolidation of two or more related cases may be ordered for the purpose of receiving evidence. Whether consolidation is ordered or a master file is designated to accommodate exhibits rests in the sound discretion of the Workers' Compensation Appeals Board. In exercising that discretion, the Workers' Compensation Appeals Board shall take into consideration the complexity of the issues involved and the potential prejudice of any party. Under consolidation, all documentary evidence previously received in an individual case shall be reintroduced in the consolidated proceedings under a master file, if so designated. When so adduced, the evidence shall be deemed part of the record of each of the several consolidated cases. Evidence received subsequent to the order of consolidation shall be similarlyreceived with like force and effect. (continued)