The recent departure of Employment Development Department (EDD) employees from their formerly-leased office spaces at the Workers’ Compensation Appeals Board is already impacting and delaying settlements at some, but not all boards.
As we previously reported, EDD lien negotiators left their physical offices at the WCAB in June after EDD leadership decided they did not want to pay to lease office space anymore. This had attorneys worried that they would be unable to reach EDD to negotiate and resolve liens, which is a prerequisite for getting settlements between defendants and applicants approved.
Those worries are now taking shape, as your humble blogger can personally attest to struggling to reach EDD representatives at some Southern California WCABs before asking the court to approve settlements.
Of course, it isn’t just defense attorneys who are worried.
Tiffany Speers, president of the California Applicant’s Attorneys Association (CAAA), said that applicant’s attorneys are worried about the impact EDD will have on delaying settlements for their injured worker clients.
“CAAA shares the same concerns about the unavailability of EDD representatives and the impact it has on our ability to resolve cases,” she wrote to Bradford and Barthel via email. “However, for our clients, the delay in resolution can go beyond just frustration when you are talking about real people who in many circumstances have limited means and are relying on settlements to maintain basic needs.”
Speers said that the appearance of an in-person EDD representative varies greatly throughout the state.
“Our members in communities like Marina del Rey find that continued in-person EDD appearances have been extremely effective,” she said. “The loss of those in-person opportunities is huge. However, here in the Bay Area, we have not seen in person appearances from the EDD for years. We have already had to develop ways to deal with this issue.”
Speers said that CAAA has been able to pool its resources and distribute information to its membership, such as changes to EDD community phone numbers.
“We also continue to shape our educational offerings to meet the challenges of our members, which include practical steps that our Bay Area members are already implementing when handling issues like requesting EDD lien dismissals in cases where they are failing to participate,” she said.
DISMISSALS
Speers is certainly right about requesting dismissals. More than one friendly judge has suggested the following approach when EDD is failing to respond:
- File a Declaration of Readiness to Proceed (DOR) for a status conference stating that the parties have been trying to resolve EDD, and that EDD needs to attend;
- If EDD fails to attend the status conference, request their dismissal.
If you’re going to attempt this approach, we would recommend that you document how many times you’ve tried to reach EDD, and to make sure that EDD is listed on the proof of service for your DOR.
HOLD EDD HARMLESS
Defendants can also opt to “hold applicant harmless from EDD,” but historically speaking, this is not a good option for defendants who disagree with being liable for the entire EDD lien, plus interest. This is because the WCAB has ruled against defendants who do this over the years.
The “hold harmless” strategy is effective when a defendant agrees they owe EDD the benefits, but not so well when there is a dispute over the EDD lien.
STATEWIDE LINES
In our last article, Greg Lawson, the chief of EDD’s Public Affairs Branch, that EDD intends to create a statewide phone line that will be able to dispense information about EDD liens and be staffed with employees who can negotiate those liens as well.
After that article was published, Lawson clarified that the statewide line will not be a unique department, but rather a consolidation of the existing lines they already have.
“There will be no disruption to the service we provide, as the phone lines currently available to the boards and attorneys will remain active until we consolidate them,” he wrote to Bradford and Barthel via email.
CONCLUSION
While some WCAB offices have EDD representatives available, others do not. And it’s very difficult to get EDD to answer phone calls and emails at some boards.
Of course, this is not the case for all EDD or WCAB offices – some are very attentive and get back to you immediately. But those are growing few and far between, as attorneys who are desperate to talk to EDD are flooding the most responsive offices with a higher volume of phone calls.
Until that changes, expect a sudden uptick in delayed settlements and attorneys demanding dismissals of EDD.
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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