The Workers’ Compensation Appeals Board issued an en banc decision clarifying what policy information defendants must produce amid a confusing array of case law and regulations.
The Appeals Board issued an en banc decision in the case of DiFusco v. WCAB (Employers Compensation Insurance Group) on Monday, Oct. 13. In that decision, the commissioners affirmed the two en banc decisions in Coldiron v. Compuware Corp, 67 Cal.Comp.Case 1466 and 67 Cal.Comp.Case 289 as binding authority.
Those two cases, known as Coldiron I and II, the WCAB determined that a:
- Third-party administrator must disclose:
- The identity of their client
- If the client is an insurance carrier, the administrator must disclose whether the policy is a high self-insured retention policy, a large deductible policy, or any other provision that could impact payment of compensation.
The court noted that failure to disclose these could lead to potential sanctions.
With that in mind, the WCAB later crafted CCR 10390, which states that any party who appears at a hearing or files a pleading must:
- a) Set forth the party’s full legal name on the record of proceedings, pleading, document or lien;
- b) File a notice of representation if a party is represented and the attorney or non-attorney representative has not previously filed a notice of representation or an Application for Adjudication of Claim; and
- c) Identify the insurer and/or employer as the party or parties and not identify a third party administrator as a party. The third-party administrator shall be included on the official address record and case caption if identified as such.
(Editor’s note: Please note that the language above is the exact language from CCR 10390.)
In the latest en banc decision, the Appeals Board clarified that these rules still apply, whether or not a third-party administrator is involved or not. The board explained that providing this information results in a smoother litigation process, and protects all parties.
“These disclosure requirements serve to protect all parties,” the board wrote. “Knowing the identity of each defendant assists applicants in determining whether to resolve their cases and thus ensures a smoother adjudication process. Defendants are required by the Labor Code to pay all compensation that is due. If a dispute arises about who is responsible to pay compensation, an identified defendant may nevertheless be held liable, and sanctions may be imposed until such time as another responsible party is identified. Thus, it serves a defendant’s interest to comply with these disclosure requirements, to ensure that they are not held liable for payments that should not be their responsibility, nor sanctioned for conduct for which they were not responsible. The disclosure requirements further serve all parties’ interests by facilitating more expeditious proceedings, and by ensuring that each matter is resolved in a way that accomplishes fundamental fairness, due process and substantial justice.”
The commissioners went on to say that workers’ compensation judges can help oversee the delivery of this information, if necessary.
TAKEAWAY, WITH A SIMPLE SUGGESTION
This is another decision that focuses on basic information that must be provided to the applicant’s bar. When one keeps that in mind, this information is similar to Medical Provider Network notices, or an applicant’s right to a med-legal report from a QME. While these may have been controversial topics in the past, let’s face it – these have faded from litigation and public debate over the years because this information is commonly-provided.
As such, your humble blogger has a simple solution that could avoid protracted litigation over a relatively noncontroversial piece of standard information – create a form letter with this information, and send it out with the initial claims packet that is provided to applicants. Alternatively, take this information and add it to an existing form letter that is already sent out with the initial claims packet that is provided to applicants.
This delivers the information before a request is ever made.
Why do this?
The truth is that the vast majority of claims never reach this level of information. However, if it does pop up in a case unexpectedly, the defendant could simply point to that initial letter and say, “we provided that to you back when we sent you the initial claims packet.”
It would also ensure that defense attorneys have this information on hand, should applicant’s attorney ever ask (as that initial claims packet is often provided with a new file referral).
Lastly, as we always note in blogs about important decisions, we want to note that the defendants in this case could dispute this decision via the appellate process. So if there is more to report on this case in the future, please note that we will be sure to update it at Bradford and Barthel’s blog.
To read the decision, go here:
https://www.dir.ca.gov/wcab/EnBancdecisions2025/Jillian-DiFusco.pdf
Got a question about workers’ compensation defense issues or pending legislation? Feel free to contact John P. Kamin. Mr. Kamin is a workers’ compensation defense attorney and partner at Bradford & Barthel’s Woodland Hills location, where he monitors the recent legislative affairs as the firm’s Director of the Editorial Board. Mr. Kamin previously worked as a journalist for WorkCompCentral, where he reported on work-related injuries in all 50 states. Please feel free to contact John at jkamin@bradfordbarthel.com or at (818) 654-0411.
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