The WCAB has issued a unanimous en banc decision relaxing the rules on timely filing of trial exhibits during the current pandemic.
In an en banc decision titled In Re: Covid-19 State of Emergency En Banc – No.3 Case No. Misc. No.262, the WCAB has ruled that during the state of emergency,
“…there is good cause to permit receipt into evidence of documents not filed 20 days prior to trial. Therefore, we will also order suspension of the 20 day requirement in WCAB Rule 10670(b)(3). A workers’ compensation administrative law judge retains the authority to decline to receive documents in evidence as otherwise permitted by WCAB Rule 10670(b) and the law.”
This order will remain in effect until further notice.”
The WCAB’s decision specifically addresses 8 CCR § 10620, which states that “(a)ny document that a party proposes to offer into evidence at a trial shall be filed with the Workers’ Compensation Appeals Board at least 20 days prior to the trial unless otherwise ordered by the Workers’ Compensation Appeals Board.”
Justification for the court’s decision relies on the language in 8 CCR §10670(b), which gives the WCAB discretion in enforcement of the time limit. Specifically, §10670(b)(3) provides for exclusion of, “(a)ny document not filed 20 days prior to trial, unless otherwise ordered by a workers’ compensation judge or good cause is shown.”
The decision to temporarily change the filing timeline was made by the WCAB in response to the current state of emergency, originally declared by California Governor Gavin Newsom on March 19, 2020 (Executive Order N-33-20). The executive order by Governor Newsom put in place the current stay at home order for all non-essential workers.
Notably, the en banc decision provides discretion to workers’ compensation judges regarding enforcement of the rule, with the judges still retaining the right to exclude exhibits. While one can now submit exhibits up to the day of trial if necessary, judges can still exclude exhibits for other reasons such as relevance. Best practices would dictate that filing of exhibits should be completed at the earliest possible date to avoid potential complications.
Have questions about workers’ compensation defense, policy, or procedure at the California WCAB? Feel free to reach out to Joseph D. Votroubek, an associate attorney at Bradford and Barthel’s San Diego office at email@example.com.
*For clarification, 8 CCR §10620 was formerly found under 8 CCR §10393(h). Further 8 CCR §10670(b)(3) was previously found in 8 CCR §10393(h) Those changes were part of the comprehensive rule changes made on January 1, 2020.
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