RAND-CHSWC STUDY OF THE WCAB JUDICIAL FUNCTION

September 6, 2001

Growing delay in resolving disputes before the Workers’ Compensation Appeals Board has produced a feeling of crisis… What were once "premium" services rendered by the WCAB are now only "adequate," and the public is not satisfied… The shift [in levels of service reflects] the mood of taxpayers who want more for less. The effect…is that workers’ compensation, which is California’s oldest social insurance system, is no longer the cutting edge of social insurance plans. People think it will continue no matter what, not knowing the serious straits it is in…

…[The caseload has increased along with the] growing complexity of the legal issues in occupational disease and cumulative injury cases. [But even] increased productivity cannot prevent delays in the face of the huge workload. The public has been promised benefits and services that government cannot deliver…

…Space [at individual offices] has been reduced to minimal standards, which impinge on the dignity of WCAB proceedings.. The public complains of too few seats in the waiting rooms, and meetings between attorney and client often have to be held in the cafeteria. Air conditioning in the small hearing rooms is inadequate when all the seats are filled. Injured workers with respiratory problems are affected adversely, and animosity between witnesses is accentuated in confined areas…

Judges lack adequate numbers of secretaries and clerks as the state falls further behind the private sector in recruitment… Entry salary levels are too low to allow the Board to recruit the caliber of employees that it once did. Promotional opportunities have decreased, often causing the better workers to leave…

The above passages reflect what many believe are the key issues of today facing the Workers’ Compensation Appeals Board (WCAB) in its work adjudicating disputes in workers’ compensation claims: Delay is felt to be on the rise, cases are thought to be increasingly more complex, facilities are derided as inadequate, and it is feared that qualified staff are becoming more difficult to attract and retain. But none of these are solely recent concerns; the preceding quotations come from an issue of the California Workers’ Compensation Reporter that is over 20 years old. For those whose professional, personal, and business lives are directly affected by what the WCAB does, the fact that decades have passed by without core problems being successfully addressed may be more frustrating than the problems themselves.

The workers’ compensation benefit delivery system in California is an extremely complex process in which a wide variety of organizations and individuals play significant roles. Injured workers, insurance carriers, self-insured employers, third-party administrators, medical care providers, medical-legal evaluators, vocational rehabilitation providers, and a number of government agencies all figure into the overall mix. But over the years, one entity in particular has become the focal point for those who feel the entire system has strayed from its original purpose to provide benefits for workplace injuries and illness in a manner that is, as expressly mandated by the California Constitution, expeditious, inexpensive, and without encumbrance of any character. Whether deserved or not, the way the Workers’ Compensation Appeals Board handles disputed claims is seen as the barometer of whether the workers’ compensation system is "working" or on the brink of disaster.

It is against this background the Commission on Health and Safety and Workers' Compensation (CHSWC) asked the RAND Institute for Civil Justice (ICJ) to look into the adjudication practices of the WCAB. CHSWC is an independent body made up of representatives of both labor and management charged with overseeing health and safety in the California workplace as well as the state’s workers' compensation system. The Commission’s mission of conducting a continuing examination of the workers' compensation system is performed, in part, by contracting with independent research organizations such as RAND for projects and studies designed to evaluate critical areas of key programs.

The scope of RAND’s Commission-sponsored research into the judicial functions of the WCAB was broad but essentially we were asked to inquire into the sources of excess delay and unnecessary costs in resolving matters before the WCAB, of the non-uniform application of the law by individual WCAB offices and judges, of dissatisfaction with the process by litigants, attorneys, and staff, and of issues related to upper-level management and administration. Most importantly, we were also asked to develop a series of recommendations to effectively address those issues in a way that is mindful of the core mission of the California workers’ compensation system.

We are now entering the final phase of this work. Our guiding philosophy from the start has been that meaningful reform of judicial systems such as the WCAB is impossible with the continuing input of the community in which the court is designed to serve. We believe that input from those who appear before the WCAB, from those who staff its courts, and from those whose interests are affected by the decisions of its judges are vital for three interconnected reasons: understanding what the core problems are, drafting workable solutions, and engaging long-term support for any subsequent reform effort. This document is an attempt to focus that input on a number of areas that appear to us at this stage of our research as potential solutions.

It is vitally important to explain at the outset what the intent of this document is. This is not the final report of the research team. Rather, it is intended solely as a springboard for discussion by the workers’ compensation community regarding a number of possible changes in WCAB and Division of Workers’ Compensation (DWC) practices, procedures, and policies.

RAND’s work in this area is still underway as of September, 2001. A wealth of qualitative and quantitative data has been gathered by the research team since the project began in late 2000 and much of it is still being processed and analyzed. Nevertheless, we have already spent an extensive amount of time visiting various offices of the WCAB, observing in-court and in-office proceedings, walking through back-office case processing, listening to attorneys, litigants, judges, and other members of the workers’ compensation community, working with the WCAB’s transactional databases, reviewing every significant report or study made of the WCAB since 1990, and analyzing the data we collected as part of judicial time studies, case file abstractions, and other efforts.

On the basis of our work to this point, we believe that we have identified a number of possible avenues of addressing the areas of most concern to the workers’ compensation community. Again, we are mid-way through conducting some of our analysis into case characteristics, case processing, and judicial resources but there does seem to be a number of obvious first steps for the judges of the WCAB and the administrators of the Division of Workers’ Compensation to take.

Our goal here is to publicize these "candidate" recommendations at a point in our work where we can gain the maximum benefit of focused criticism and suggestions from the community. CHSWC asked us to ultimately come up with reforms that will actually "work," not just vague recitations of desired policy goals. Requesting public comment after the final report is published would be much too late to incorporate the contributions of those who possess intimate knowledge of the workings of the WCAB, both inside and out. A similar result occurs if the input comes only after we have completed our data collection and analysis. The hope is that by incorporating the advice of the workers’ compensation community into our research prior to beginning the final analysis, we can identify whether our current thinking is on the right track, whether it requires additional investigation, whether it needs to be modified in order to be successful, whether it should be rejected in its entirety, or whether it has overlooked a number of equally viable options.

Again, this document is intended only as a method of communicating our candidate recommendations and some of our more general findings to the community at large. Our final report, which will be published only after all input has been considered and our data analysis is complete, will be far more extensive and detailed. It will contain explanations of how the workers’ compensation judicial process works in theory and in practice, the roles of individual judges and DWC staff members, discussions of related reports and studies, details of our methodology and research approach, extensive tables and charts detailing system throughput and the findings of our data collection and analysis, the survey forms and abstraction instruments we used, literature reviews, comparisons of other states’ workers’ compensation systems, and perhaps most importantly, a cataloging of all written submissions from workers, attorneys, judges, and others that we have received since we began our work. Those who are hoping to find these sorts of features in the instant document may be disappointed; in the interests of getting a product that can be reviewed and commented upon in the minimum length of time, we have deferred including anything here except our candidate recommendations and a brief overview of the project’s scope.

It should also be understood that this document is not a RAND research product in the traditional sense. It has not been subject to the extensive peer review process that all final RAND publications go through in order to achieve the highest levels of quality and objectivity. Rather, it is intended as an informal means to promote discussion among the workers compensation community. As a "draft" document, it should not be cited or quoted for publication.

The balance of this Section is devoted to explaining why we undertook this study, the definitions we used, and what our research approach has been. In the following Section, organized by broad subject areas, are our candidate recommendations.

We strongly encourage you to review our candidate recommendations and respond as soon as possible. We are very interested in learning of those recommendations or assumptions you believe are faulty, are in need of modification, or that you believe will be most beneficial to achieving the Commission’s goals for this research. Additionally, the submission of suggested reforms that we have not listed are encouraged as well. Submissions will be held in the strictest confidence and your identity will not be disclosed to any person or entity outside of the RAND Institute for Civil Justice.

We hope to obtain input from current or former claimants (injured workers), attorneys for all parties, workers' compensation insurers, employers, third party administrators, lien holders, medical care providers, Division of Workers' Compensation staff members (clerks, secretaries, Information and Assistance Officers, disability raters, Rehabilitation Unit counselors, hearing reporters, and others), Workers' Compensation Judges, and DWC\DIR administrators. Our target audience is not limited to the above list, however. Any member of the general public is welcomed to submit their comments and suggestions.

Written submissions are the best way for the input to receive our fullest consideration. You need not disclose your identity or your relationship to the workers’ compensation system though such disclosure helps us to better incorporate your submission into the final report. You may respond by letter, by fax, by e-mail, or by filing out an anonymous form on the project’s external website:

Please address all correspondence to…
Project Manager,
Workers' Compensation Court Management Study
Institute for Civil Justice
RAND Corporation, Mail Stop M-29
1700 Main Street
Santa Monica, CA 90401-3297

FAX: 310-393-4818

Please address the fax to…

Attention: Project Manager,
Workers' Compensation Court Management Study
RAND Institute for Civil Justice, Mail Stop M-29

wccm@rand.org

www.rand.org/icj/projects/wccm/comments.html

Another avenue for those interested in providing comments will be made available at two public roundtables to be held in November at locations in northern and southern California. Details of time and place will be made available at the project website at www.rand.org/icj/projects/wccm.

The statutes, administrative rules, and appellate cases shaping California’s nine-decade-old system of addressing the needs of injured workers are designed to establish a process that will "provide immediate and speedy relief without the intervention of a judicial tribunal." Prior to the implementation of our workers’ compensation insurance system, a worker would have been required to prove negligence on the part of the employer for his or her injuries and moreover would have had to successfully respond to the almost inevitable claim that the inherent risks of the job were assumed by the employee upon accepting employment. Given the relatively less progressive state of tort law at the time, and given the reasonable concern of employees that seeking redress for injuries might well result in termination, it is not surprising that formal claims for compensation would have been difficult to initiate and to conclude successfully.

In that light, the system that social reformers created early last century was designed to establish a faster, less expensive, and fairer method of addressing the consequences of work injuries. Essentially, the mechanism for delivering the compensation for such losses was shifted from the judges and the courts to a "no-fault", streamlined administrative process underwritten by employers.

In theory, an employee suffering an occupationally caused injury or disease can receive all necessary medical treatment at no cost, a nearly uninterrupted income stream while he or she recovers from the condition, benefits to compensate for any residual permanent disability, and if needed, vocational rehabilitation services, all without the need to seek legal representation or bring an action in the state’s civil trial courts to establish fault of the part of the employer. In theory, the employee need only inform his or her employer that a job-related injury has taken place and eventually make a formal claim for workers’ compensation benefits in order to ensure that all relief that he or she is legally entitled to will begin to flow in an orderly, timely, and sufficient fashion.

Moreover, the size and scope of those benefits appear to have been precisely defined in the Labor Code in such a way that there could be little argument over what ought to be provided and when. In theory, workers, employers, and insurers need only refer to a sizable body of law and regulation to obtain a clear picture of their rights and responsibilities. Indeed, part of the "fundamental social compromise" that underlies the workers’ compensation system is that employees have given up their right to seek seemingly limitless damages and employers have given up their right to seek relief from all liability in exchange for outcomes that are swift, certain, and predictable for all concerned. At the core of this compromise was the promise that the scope and extent of such benefits would be designed as a function of rational and objective standards, not the whims of some disgruntled jury. Finally, in theory, none of these benefits require the intervention of government entities unless the worker disagrees with the insurer’s decisions.

In reality, disputes over every aspect of the workers’ compensation system are an ongoing fact of life, despite the high level of specificity found in the Labor Code. Participants in the process routinely differ over, for example, whether the injury did indeed arise from work activities, whether medical treatment is required at all, whether particular types of treatments are necessary and who will provide them, the extent of the employee’s injuries and the long-term impact they will have on his or her ability to make a living, whether the condition is permanent and stationary, the amount and duration of any cash benefits, whether vocational rehabilitation or ongoing medical care will be needed in the future, and many, many other core issues. Often these disputes are resolved informally, but in a significant number of instances, the parties turn to the one forum that has exclusive jurisdiction to adjudicate most worker-injury claims in the state of California: the Workers’ Compensation Appeals Board.

One of the comments we have heard again and again during our research is that the WCAB is truly "the people’s court". For a significant fraction of the hundreds of thousands of workers who invoke the jurisdiction of the WCAB each decade, it will be the only time in their lives that they will actively seek redress from a judicial body or visit a civil court of law in person. Because of the fact that the potential pool from which the plaintiffs may be drawn consists of almost every Californian who works for a living and the fact that the pool of defendants consists of nearly every employer in the state no matter how small or large, the parties in these disputes are an accurate mirror of the changing demographics and the evolving economy of the state of California.

Despite a name that solely suggests a court of appeal, the WCAB has the potential to be routinely involved in just about every aspect of the process from nearly the moment a worker is injured to the day a claim is finally resolved; indeed, workers’ compensation practice manuals sometimes suggest that the document that is most often used to begin the process to obtain formal WCAB intervention (an "Application for Adjudication of Claim") should be filed on behalf of every worker in every instance soon after the injury has occurred even if no dispute over the benefits offered by the insurer or employer has arisen. In most instances, the Application is simply a method of invoking or reserving the jurisdiction of the WCAB; it is not until a party has demanded the case be put on the trial track (by filing a "Declaration of Readiness") or submits a proposed settlement agreement for review that judicial officers of the WCAB become directly involved.

Regardless of when intervention is triggered, the WCAB’s adjudicatory responsibilities range from hearing and ruling on a wide variety of matters related to particular benefit issues, conducting a full trial on the case-in-chief, and, in a large number of instances, deciding on the adequacy of any settlement reached between a worker and an insurer. WCAB judges also have the responsibility to manage the litigation prior to trial through settlement conferences, other pre-trial conferences, ruling on discovery motions, and resolving lien issues. Rather than simply acting as an appellate body, the WCAB is without question a fully-functioning limited jurisdiction trial court.

To be precise, the "Workers’ Compensation Appeals Board" refers only to an independent, quasi-judicial body whose seven Commissioners are appointed by the Governor and confirmed by the Senate. In theory, these Commissioners embody all judicial powers related to the workers’ compensation system; in practice, however, the Commissioners have delegated a significant part of their judicial powers to about 180 or so trial-level judges who hold court at 25 offices (typically referred to as "Boards") scattered across the state. The trial level judges are actually employees of the Division of Workers’ Compensation (DWC), a part of the California Department of Industrial Relations (DIR), and the 25 Boards are actually branch offices of the DWC.

The DWC’s judges –-in their exercise of the WCAB’s judicial functions-- are the ones who decide the outcome of the lion’s share of disputes between workers and employers and\or insurers. They and they alone hold conferences with litigants, rule on motions, review settlements, and ultimately hear and decide trials. Litigants, attorneys, and the general public view a judicial officer of the DWC to be the "judge" for their case and also view the particular Board to which the case was assigned to as the "court" where the matter is to be heard; indeed, few if any litigants will ever have face to face contact with one of the seven Commissioners based in San Francisco. With this delegation of decision-making authority to the DWC’s judges, the Commissioners’ primary remaining functions include adopting rules of practice and procedure to be followed at the trial level and reviewing petitions for reconsideration (essentially appeals) of trial level rulings and decisions. In some aspects, the Commissioners do indeed act as an appellate body and given its rule making functions, a type of Supreme Court for the California workers’ compensation world.

The end result is that the adjudication of the overwhelming bulk of workers’ compensation disputes is handled by judges who are part of the overall DWC administration (e.g., DWC administrators decide where the judges will hold court, the size of hearing rooms, the judges’ work hours, the quantity and type of staff support, etc.) but whose judicial authority stems from the seven independent Commissioners. The situation becomes even more confusing to litigants who may be unfamiliar with these subtleties when trying to find where their case will be heard; prominent signs at many Boards sometimes contain references only to the Division of Workers’ Compensation, sometimes refer only to the Workers’ Compensation Appeals Board, and sometimes refer to both entities.

In this list of our candidate recommendations, references to the "WCAB" include the trial level judges of the DWC and the associated administrative support (e.g., secretaries, physical facilities, salaries, etc.) provided by the DWC. References to the "DWC" include these claims adjudication personnel, equipment, and facilities but also other units within the Division as well (the DWC has a myriad of responsibilities besides claims adjudication including vocational rehabilitation services, investigating complaints against insurance agencies, and the like). References to the "Commissioners" or the "Appeals Board" include only the members of the independent panel in the exercise of their duties for hearing reconsiderations and for promulgating rules of practice and procedure. References to "judges" or "workers’ compensation judges" (WCJs) all refer to the DWC’s trial level judicial officers. References to a particular "Board", to a "District Office" (the DWC’s official name for the hearing locations), to a "court", or to an "Office" are intended to cover one of the 25 WCAB locations where matters are routinely decided at the trial level.

Concerns over delay, costs, and non-uniformity are at the core of what CHSWC has asked RAND to explore in developing recommendations for the adjudication of claims before the WCAB. In the area of delay, we have attempted to understand the extent to which cases to take longer to resolve than they should, identify what is causing such cases to move towards disposition at the speed they do, and to suggest strategies for meeting statutory standards while mindful of the WCAB’s core mission of dispensing justice in a fair and deliberate manner.

As for claims that costs have been increasing without expected improvements in system efficiency, we have tried to identify the types of cases and activities within the Boards that consume an inordinate amount of public and private resources and to develop ideas for streamlining workflow without adversely impacting the pace of litigation.

We have also tried to identify the extent to which policies and procedures vary from office to office and from judge to judge and to address those differences that cause the greatest dissatisfaction among court users. Our primary desire is to reduce non-uniformity in a way that does not increase delay or costs.

As can be seen, these are interrelated areas of concern. We consider issues of delay, costs, and uniformity to be primary ones to our work. These are the ones we focused our research proposal upon and for which our methodology was primarily designed to address. Related to these issues are the goals of increasing "customer satisfaction" and of exploring possible revisions to current DWC lines of authority. We would like to identify what causes a less-than-optimal experience at District Offices for parties and their representatives or the people who work there. Finally, we hope to determine whether any of the forgoing mission areas could be significantly or best addressed by the creation of a system-wide "Court Administrator" of department-head status whose sole responsibility is to oversee the claims adjudication unit.

In order to achieve our mission, we have attempted to evaluate the WCAB’s performance, organization and workflow, and support staff and facilities infrastructure. Our specific recommendations will ultimately include workflow improvement, changes to current calendaring practices, continuance policies, judicial resources and support staff levels, and technological innovations.

This study is primarily a review of the practices and procedures of the trial judges of the Workers’ Compensation Appeals Board as well as the administration and activities of the Claims Adjudication Unit of the Division of Workers’ Compensation, Department of Industrial Relations. We specifically did not include in the scope of our research the following areas:

§ The policies, procedures, and administration of the Commissioners of the Workers’ Compensation Appeals Board as they relate to their appellate duties and responsibilities,

§ Workers’ compensation benefit levels, scope, or delivery,

§ Issues involving insurer, employer, or employee fraud,

§ Issues involving workplace health or safety,

§ Claims handling practices prior to reaching the stage where WCAB action is requested,

§ The weight given to evidence before the WCAB, including the "treating physician presumption,"

§ Responsibilities of the Division of Workers’ Compensation that are not directly related to the adjudication of claims,

§ The adjudication of Rehabilitation Unit disputes, and

§ The disability rating schedule.

Arguably, many of the forgoing play a significant impact on how claims evolve into disputes, how disputes evolve into formal cases before the WCAB, and how these cases are eventually resolved. Also, how efficiently and effectively other units of the DWC perform their duties can mean the difference between prompt adjudication by the WCAB or having the matter drag out for months. While we have attempted to identify some of the key influences coming from sources external to the Claims Adjudication Unit of the DWC, our main focus is on case management and Board administration within that Unit.

To assist the WCAB and DWC in developing and assessing possible solutions to perceived problems, the RAND Institute for Civil Justice undertook a systematic analysis of the court’s operations with an eye towards how cases are managed by the courts, how they are litigated by the parties, and whether the existing resources are adequate to meet demand. In the course of this analysis, we obtained the input of litigants, judges, lawyers, and court administrators; analyzed the workload at the Boards; observed the operations of judges and court personnel; and build on decades of previous ICJ work in this area. The approach to completing this analysis is briefly outlined below though a complete description will be available in the final report.

Initial Steps

We initially started by familiarizing ourselves with the California workers’ compensation adjudication system through a series of informal, unstructured visits to five Boards (Oakland, San Diego, Santa Ana, Santa Monica, and Santa Rosa) in the Fall of 2000. These visits included discussions with judges, clerks, secretaries, other DWC staff members, ancillary service providers, and local counsel as well as in-court and in-chambers observations.

At an early stage in our research, we associated with a team of nearly 20 workers’ compensation experts from across the state to act as advisory and resource group. This group reflects, we believe, a balance of applicants' attorneys and defense attorneys and also contains judges, lien claimants, and DWC staff members. We have used the experience of this group to help us understand how the system works in theory and in practice as well as to act as a source for suggested reforms.

A primary source of information is the DWC’s own networked database ("CAOLS" or Claims Adjudication On-Line System) which, despite the fact it was installed in the 1980s, is the only complete and available electronic depository of transactional information. We received the complete set of data from DWC in March of 2001 and we have been performing case-level and court-level analyses of system throughput, Board workload, and individual case characteristics. Our analysis of the data contained in CAOLS is still on-going.

Throughout the course of this project, we have continued to review the relevant research literature and the most important studies and reports available regarding the workers’ compensation adjudicatory process in California. We have also obtained a wealth of information directly from DWC regarding such areas as staffing levels and budgetary data.

Intensive Look at Six "Representative" Courts.

Selection

Our next major step was to conduct a site level data collection effort in six "representative" courts. The six District Offices were chosen by the research team after reviewing regional differences, performance measures, known characteristics such as calendaring procedures and other management differences, office size, and staffing levels. Our primary goal was to identify a set of six courts that when taken together, reflect the workload in all of the District Offices of the DWC as well as reflecting the resources available to and the diversity of approaches taken by judges and office staff to meet those demands. After careful consideration, the RAND team decided to include only those District Offices with five or more authorized judges. It was felt that while much could be learned from the smallest offices in the system, the specialized needs of these sometimes remote courts would make it difficult to include them in the general analysis of office practices. The disproportional impact of the study on these Offices was also a factor. The remaining medium and large courts that were considered for possible selection handle more than 90% of all new case openings.

RAND was also cognizant of the generally held belief of a so-called "North-South" difference in District Office size, procedures, judicial demeanor, case loads, performance, and relationships between the bench and the bar. As such, the team took steps to insure that at least some District Offices would be from both the northern and southern parts of the state though not necessarily in a way that matches the official Regions of the DWC. In the end, the sites chosen consist of three large and three medium sized District Offices: Los Angeles, Pomona, Sacramento, San Bernardino, Stockton, and Van Nuys. It should be emphasized that none of the sites were chosen because of any particular performance or personnel problems. Indeed, compared to Boards of similar size, these sites are fairly typical in the way the overall business of the DWC is conducted.

Judicial time study

In these six courts, we conducted a judicial time study for all of their judges that lasted for five consecutive days. We sought to understand what judges do and what kinds of cases they do it in by tracking all time spent in the performance of their duties, not just on case related activities. We received self-reported forms from every active judge at the six courts.

Our analysis of the data collected from the judicial time study is still on-going.

Site Visits

RAND research teams also conduced week-long site visits to the six Boards. At each location, we walked-through the back offices to review procedures, facilities, and equipment; we conducted formal interviews with judges, support staff, local attorneys, and others; and we spent hours observing conferences and trials, sometimes without the knowledge of any of the participants.

Case Processing Sample

We also conducted an intensive study of almost 1000 cases at these sites to learn of the processes that drove them through the system and what transpired during their lives. We believe that this work yielded a rich source of data and is one of the best ways to identify the extent of delay, excess cost, and inter-office variation. The cases all involved injuries taking place on or after January 1, 1994 as post-"1993 Reform" matters are the ones Boards primarily handle today. We also used only cases involving injuries or diseases that did not result in death and that were initiated (through an Application or a settlement document opening) in 1998 or 1999. We used CAOLS for summary information but we also performed an "eyes-on" abstraction of each case file to better understand what happened during the case and how it was resolved. Information was abstracted from every Application for Adjudication, Declaration of Readiness, Request for Expedited Hearing, Order for Continuance or to Take Off Calendar, Pre-Trial MSC Statement of Stipulations and Issues, settlement such as a Compromise & Release or Stipulations with Request for Award, or Findings & Award\Order we found in the file. Our analysis of the data collected from the abstraction and of the information in CAOLS for these sample cases is still on-going.

Stakeholder Input

Past experience has shown that judicial reform efforts in other systems have often been hampered by the failure of administrators and researchers to consult with judges, attorneys, staff, litigants, and stakeholders to identify problem areas and to create workable solutions. To obtain that input, we used a multi-faceted approach including direct contact of key interest groups as well as setting up anonymous channels of communication. We attempted to contact organizations such as injured worker advocacy and support groups, associations of applicants’ attorneys and defense attorneys, the state bar section on workers’ compensation, and workers’ compensation reform organizations. Requests for public contribution were placed in all district offices so that both current users of WCAB services and DWC staff members would contribute as well. We established an external website to provide an easily accessible method of learning about the project’s features but also to act as an avenue for anonymous comments. Over the past year, we have regularly received helpful letters, phone calls, e-mail messages, and anonymous web-based submissions.

Another major source of input for us were the on-site interviews we conducted with a wide variety of stakeholders such as judges, attorneys, DWC staff members, and individual parties. These ranged from brief chats in the hallways or waiting rooms to intensive discussions that took place over many hours.

Contributions were all held in the strictest confidence. In order to encourage frank and honest discussions, we took great steps to insure that the identity of the contributor will not be revealed to anyone, including DWC, the WCAB, or even our sponsors, the Commission on Health and Safety and Workers’ Compensation.

Final Phase

This document signals the beginning of our final period of work. As noted above, we are still in the process of analyzing the extensive amount of data we collected. By communicating our current thinking to the workers’ compensation community and receiving their criticism and suggestions, we hope to focus our final analysis on the areas of greatest interest and of potential benefit. We plan to distribute copies of this document through our website and through the CHSWC to key stakeholders. We also plan to present these candidate recommendations at a series of public roundtables in November.

After finalizing our analysis and incorporating the comments we hope to receive over the next few months, we will ultimately produce a report that includes our final findings and recommendations for the future.

Controlling Authority

§ LC: California Labor Code statutes.

§ CCR: California Code of Regulations formally adopted by administrative agencies. Title 8 is most relevant to workers’ compensation.

§ BR: Board Rules. These are the formalized rules of procedure adopted by the Commissioners of the Appeals Board and made a part of Title 8 of the CCRs.

§ ADR: Administrative Director Rules. Regulations adopted by the Administrative Director of the Division of Workers’ Compensation also made a part of Title 8 of the CCRs. Many, though not all, of these regulations address the claims adjudication process.

§ P&P: DWC\WCAB "Policies & Procedures Manual" directives for judges and Board staff primarily developed by DWC administrators. Not formally adopted through the rule-making process. These are the basis of the day-to-day operation of the local offices.

DWC Personnel and Units

§ CA: Claims Adjudication Unit. DWC unit devoted to providing judges and support staff for claims dispute resolution.

§ DEU: Disability Evaluation Unit. DWC unit primarily tasked with assessing the degree of permanent disability for injured workers. Also known as the Ratings Unit.

§ I&A: Information and Assistance Unit (also used as an abbreviation for an Information and Assistance Officer) . DWC unit that provides guidance to injured workers (especially those without an attorney) to initiate and process their claims and assist others such as employers and lien claimants who may have questions about the workers’ compensation system.

§ RU or Rehab: Rehabilitation Unit. DWC unit that provides guidance for developing vocational rehabilitation plans and resolves disputes between workers and rehabilitation providers.

§ OA: Office Assistant. General clerical staff at local Boards. The number of authorized OAs vary from Board to Board but generally it reflects the number of authorized judges plus one-half the number of Ancillary Services (DEU, I&A, and RU) consultants. Provides services to the Claims Adjudication Unit as well as the Disability Evaluation Unit, Information and Assistance Unit and Rehabilitation Unit.

§ OSS: Office Services Supervisor. Supervisor of a Board’s OAs. Two levels are found within the DWC: OSS-I and OSS-II. Most Boards have a single authorized OSS-I. An OSS-I is roughly equivalent in salary to an OT or a PT.

§ SLT: Senior Legal Typist. Secretarial support staff for judges. Most Boards have an SLT specifically assigned to each judge.

§ SSL: Senior Steno Legal. Same as an SLT.

§ LSS: Legal Support Supervisor. Supervisor of SLTs. Two levels are found within the DWC: LSS-I and LSS-II. Most Boards have a single authorized LSS-I.

§ HR: Hearing Reporter. A common ratio at many Boards is about six authorized HRs for every 10 authorized judges.

§ WCC: Workers’ Compensation Consultant. A generic term for one of the professional staff members of the DEU (a rater) , I&A (an I&A Officer) , or RU (a vocational rehabilitation counselor) .

§ SWCC or Sup WCC: Supervising Workers’ Compensation Consultant. A special classification for certain DWC administrative employees in the I&A and DEU units, typically found at Regional Centers for telephone information services.

§ WCM: Workers’ Compensation Manager. Upper level classification for employees in the I&A and DEU units.

§ WCRC: Workers’ Compensation Rehabilitation Consultant. A professional Rehabilitation Unit counselor.

§ AS: Area Supervisor. A special classification for certain DWC administrative employees in the RU.

§ BA: Workers’ Compensation Manager. Upper level classification for employees in the RU.

§ WCJ: Workers’ Compensation Judge. A DWC employee invested with the judicial authority of the Appeals Board.

§ PJ or PWCJ: Presiding Workers’ Compensation Judge. A WCJ given supervisory authority plus additional administrative duties at each Board. Some smaller Boards do not qualify for an authorized PJ position though one judge is usually designated as the acting PJ.

§ RM: Regional Manager. A DWC employee charged with supervising Board operations in one of three regions across the state.

§ PT: Program Technician. A special classification for certain DWC administrative employees, typically found at Regional Centers for telephone information services. Roughly equivalent in salary to an OSS-I or an OT.

§ SPT: Supervising Program Technician.

§ OT: Office Technician. An office support staff position that is the next higher classification than an OA under State personnel rules. Not available at individual Boards. Roughly equivalent in salary to an OSS-I or a PT.

§ SC: Stock Clerk. No SC position has been authorized since 1990.

§ AD: Administrative Director.

Other Abbreviations

§ CAOLS: Claims Adjudication On-Line System. Electronic transactional database maintained by the DWC for its Claims Adjudication Unit.

§ App: Application for Adjudication. Jurisdiction reserving document. The primary method of starting a new case file with the WCAB.

§ C&R: Compromise & Release. A type of settlement agreement. Can also be used to open a new case before the WCAB.

§ Stips: Stipulation with Request for Award. A type of settlement agreement. Can also be used to open a new case before the WCAB.

§ DOR: Declaration of Readiness. Notice to the court that one side is claiming the case is ready for trial. Theoretically results in the scheduling of a Mandatory Settlement Conference and then a trial.

§ MSC: Mandatory Settlement Conference. A conference designed to promote settlement prior to scheduling a case for trial; if settlement does not occur, the parties define the issues to be tried and the matter is set for a formal hearing.

§ OTOC: Order Taking Off Calendar. Judicial order usually associated with removing a case from the trial track.

§ AME: Agreed Medical Examiner.

§ QME: Qualified Medical Examiner.

A) No Single, Inexpensive "Magic Bullet" Is Available To Address the Needs of the WCAB In A Way That Will Meet The Expectation Of All Stakeholders

B) The WCAB Has Been Studied On Numerous Occasions With Similar Conclusions But Often Little Change Has Been Implemented

C) While Internal Inconsistencies Exist, the Current Set of WCAB\DWC Rules and Policies Already Address Many Key Areas of Concern for Stakeholders

D) The Reasons For A Failure To Comply With Existing Delay, Uniformity, And Cost Rules Are Complicated And Do Not Arise Out Of Any Single Source

A) Clerical Positions Are The Core of WCAB’s Ability to Do Business With The Public; The Extent to Which Clerical Resources Are Unable to Meet Demand Directly Affect The Pace of Litigation

B) Clerical Staffing Should Be Given The Highest Priority In Future Resource Allocation Decisions; Every Effort Should Be Made To Minimize The Number of Vacant Clerical Positions

C) Clerical Staff Numbers Should be Reassessed At Boards To Meet Anticipated Future Demand

D) Compensation For Clerical Positions Should Accurately Reflect The Current Responsibilities And Demands Of The Job In Order To Encourage Prospective Employees To Apply And Existing Employees To Remain

E) The Creation of a State-Wide Clerical Section Training and Operations Manual Should Be A High Priority for DWC Administration

F) Top Tier Pay Levels For The Office Support Supervisor Should Be Increased To Retain Long Time Employees

G) "Cross Training" Clerks Should be a High Priority for Office Support Supervisors

H) Use of Interns or Community Service Workers Should be in Addition to Existing Clerical Resources, Not as a Long Term Substitute

I) Establishing A Formal "Office Administrator" Position at Each Board Is Premature In Light of Other Basic WCAB Clerical and Secretarial Needs

J) If "Office Administrator" Positions Are Created, Their Immediate Supervisor Should Be The Presiding Judge, Not a Regional Manager or other DWC Administrator.

A) The Costs Charged to Litigants to Obtain Transcripts from Hearing Reporters Do Not Currently Reflect DWC Expenditures And Should Be Adjusted

B) New DWC Hearing Reporters Should Have Real-Time Capabilities When Hired

C) The Use of Audio Court Reporting Should Be Explored But At the Present Time, Implementation Is Not A Realistic Option

D) Adequate Incentives Should be Given to Attract and Retain a Statewide "Lead Reporter"

A) The Workers’ Compensation Community Is Concerned Over The Potential of Significant Variation in the Way DWC Disability Evaluators Rate Similar Injuries; DWC Should Investigate Whether Such Variation Indeed Exists and if so, Address The Problem Immediately

B) Rating Resources Should Be Sufficient to Provide Summary Ratings To Unrepresented Workers Within Two Weeks

C) The DWC Should Provide An Adequate Number of Information and Assistance Officers At Each Board So That Every Pro Per Applicant Has Had The Opportunity For Face-to-Face Counseling At Least Prior to the MSC

D) [STILL IN REVIEW} The Use Of I&A Officers And Pro Per Settlement Review

E) The DWC Should Eliminate the Gap For Ancillary Service Consultants Paid By Other Agencies

A) Management Skills and a Commitment to Cutting Delay Should Be The Primary Characteristic of New Presiding Judges

B) Presiding Judges Should Be Given Significant Input into the Selection of New Judges for their District Offices

C) Current Judicial Training for Handling the Court’s Business, Both for New Judges and in an On-Going Basis is Inadequate and Needs Improvement

D) Judges of the WCAB Should Be Encouraged to View The Business of Their Boards As A Team Effort

E) All WCAB Trial Judges Should Have Access to a Personal Computer with Internet Capability

F) All WCAB Trial Judges Should Have Access to Electronic Legal Research Resources

G) The Title of a WCAB Trial Judge Should Be "Workers Compensation Judge"

A) More Precise Distinctions Should Be Made of DWC Staff At District Offices To Better Understand Current Available Resources; Only Those Who Actively Service Local Needs Should Be Counted In Board Personnel Staffing Decisions

B) Investigate and if Necessary Address the Issue of the Rate of Workers’ Compensation Claims Made by DWC Staff Members

C) Take Steps Necessary to Change The Current Practice of Designing Personnel Budgets That Automatically Result in the DWC’s Inability to Fill All Authorized Positions

A) The Workers’ Compensation Community Needs To Be Cognizant Of The Fact That In-Courtroom Time Spent Conducting Trials Is Only A Portion Of The Total Time Needed To Issue A Decision

B) The Idealized Model of a WCJ in His or Her Hearing Room with Non-Stop Trials During All Open Business Hours Three Days a Week is Unrealistic and Unworkable

C) Trial-Related Responsibilities are a Significant Demand on Judicial Resources; Judges Have Strong Incentives to Minimize the Number of Trials They Actually Conduct

D) The Potential For Judicial Influence Upon Trial Calendars in a Way that May Acerbate Delay is Greatest Under Particular Types of Calendar Arrangements, Especially Those Where The MSC Judge is the Trial Judge, Where The MSC Judge Estimates Trial Length, Where Estimated Trial Length is a Primary Factor in the Number of Trials Set Per Judge Per Day, and Where Rotation of Trials Is Limited

Examples of Inappropriate Judicial Influence on the Trial Calendar:

1) The judge might deny a request at the MSC for an OTOC or a continuance in a cases that might otherwise reasonably be expected to settle within a short time.

2) The judge might be overly permissive in granting requests for continuances or OTOC or may make such orders on his or her own initiative in complex or "messy" cases where the potential for settlement is highly unlikely.

3) The judge might be an extremely effective settlement mediator (or overly permissive in granting requests for continuances or OTOC) to such a degree that his or her near term trial calendar is nearly empty.

4) The judge might consistently overestimate the length of time of future trials.

E) The Extent to Which Judges Influence Their Trial Calendars in an Undesirable Way is Unknown but by Many Accounts, Including Those of Fellow Judges and PJs, It Does Seem To Be a Real Possibility

F) Constant Vigilance and Adequate Corrective Measures on the Part of the Presiding Judge Necessary to Prevent Undesirable Calendar Influence May Be Unrealistic at Larger Boards

G) Modification to Current Calendaring Practices Should Not Be Made At Boards Where Conference and Trial Scheduling Meets Statutory Guidelines and Is Balanced Among The Judges

H) The Best Way to Prevent Problems At Boards With Long or Unbalanced Calendars is to Eliminate the Incentives and the Opportunities for Delay: Trial Judges Should Generally be Different than the MSC Judge; Trial Judges Should be Assigned on a "First Judge Available" Basis; Trials Should be Calendared in a Way that Avoids Problems Associated With Inaccurate Estimates of Length; and Better Procedures Should be In Place to Reassign Cases on Trial Day to Judges With Open Calendars

Suggested Changes in Calendaring Practices at Boards With Long or Unbalanced Calendars:

1) A judge other than the MSC judge should generally be assigned the trial following the MSC absent compelling reasons

(a) At larger Boards, using different judges makes the most sense

(b) At smaller Boards, the MSC judge should not necessarily be the trial judge (can be set before the next available judge, even if it is the MSC judge)

(c) The potential drawbacks of using two judges instead of one are not persuasive in light of the need to have a balanced calendar

Common Concerns over the Use of Different Judges at the MSC and Trial:

(i) "The MSC judge will have little investment into doing the best job possible into narrowing issues in advance of trial" but regardless of calendaring approach, judges do not seem to spend considerable time with cases at the MSC.

(ii) "The MSC judge will have little meaningful power to manage the pace of litigation and control discovery costs" but with adequate documentation of the reasons for the order, trial judges would be in a better position to follow the original intent; also, the same judge can be used throughout the pre-trial process

(iii) "The use of multiple judges to handle a single case reduces the flexibility smaller Boards need for scheduling trial and assigning alternate judge in the event of a challenge" but at these Boards, there is no reason why the MSC judge can’t be used when needed

(iv) "Additional file movement will be required to shuttle the Board file from the MSC judge’s area back to the file room and then to the trial judge" but the savings is minimal compared to the need to balance out judicial resources

2) Trial Judges should be assigned according to the next available trial slot, subject to the policies adopted regarding the use of the MSC judge as trial judge.

3) If the MSC judge is to continue to be the judge assigned for the trial, the current system of using estimated trial length as the primary factor in deciding how many cases to calendar for a particular judge on a particular day needs to be reevaluated.

4) Better Procedures Should be Put in Place to Encourage and Facilitate the Shifting of Overbooked Cases to Available Judges on Trial Day.

Rotational Trial Calendar Recommendations

(a) Judges should be required to assess the likely demands on their daily trial calendars no later than one hour after the first scheduled trial time and to immediately provide a status report to the PJ or his or her designee.

(b) Judges should regularly update the PJ with trial calendar information as trials are completed, cases settled, or other actions taken.

(c) The PJs decision as to which judge a case might be reassigned should depend on amount of time available that day for new trials, not on the overall workload of the WCJ.

(d) Parties should be required to accept reassignment unless they have not yet used the preemptory challenge available under BR §10453 or can show that the new judge should be disqualified for cause under LC §5311.

I) The Liberal Rules Regarding Preemptory Challenges Should be Reviewed

J) Only Boards and Judges That Have Consistent Trouble Completing Their MSC Calendars in a Morning or Afternoon Setting Should Explore Formally Calling The Calendar at the Start; When This Is Not A Problem, Calling Roll Leads To Conflict With Traditional Bar Practices

K) Trial Calendars Should Have A Formal Roll Call at the Start

L) At Boards Experiencing Problems With Trial Calendars, The Start Time for All Hearings Should Be 8:30am; Parties Should Have The Expectation That They Must Be At The Board Until 5:00pm

A) Despite Official Disfavor, Continuances and OTOCs For Purposes Other Than Settlement Are And Will Always Be A Fact of Life For Workers’ Compensation Practice

B) At the MSC, Continuances Are a Function of Timelines Preventing Adequate DOR Review Prior to Scheduling the Conference and of Inflexibility in the Purpose of the MSC Itself

1) The concept that an MSC can only result in either a settlement or a trial setting is unrealistic given the general practice of minimal DOR screening

2) The dual purpose design of the MSC is based on faulty assumptions related to DOR and Objection review

(a) It is assumed that the Board will be able to review the original DOR to insure that the Declarant has met the requirements of the law when in fact this is not always possible

(b) It is assumed that the Board will be able to review the objection to the DOR before holding the hearing when in practice this may be impossible

(c) It is assumed that the parties will file objections on a timely manner when in fact, they sometimes do not believe it is absolutely necessary

(d) It is assumed parties will always file an objection if warranted when in fact, there are few disincentives to refraining from doing so in actual practice

C) The Delays That Result From Unnecessary MSCs Justify A More Rigorous Approach to DOR Screening Including Considering Only Formal Objections; This Screening Process Should Be Given A Higher Priority Than Reducing the Average Time From DOR Filing to MSC

D) Even With Adequate DOR Screening, Legitimate Continuances and OTOCs will Still Be A Part of Many MSCs; Judges Need the Discretion To Make Such Rulings When Circumstances Require

E) Every Legitimate Continuance or OTOC at the MSC Should Be Seen As an Opportunity For Continuing Case Management By the Judge; No Continuance or OTOC Should Be Granted Without Setting A New Date For the Next Conference and Without Clearly Indicating What Tasks Are To Be Performed

F) Initial Status Conferences Seem A Logical Alternative To Avoid MSC Continuances and OTOCs But Their General Use in All Cases Is Unnecessary…

G) …However, the Techniques of "Status Conferences" Might be Useful For Certain Case Types or as Part of a MSCs that Due Not Result IN Settlement or Trial Setting

1) Create a different trial track for matters likely to require additional judicial guidance so that an initial status conference (not MSC) is scheduled upon the first filing of a DOR (but do not routinely set such status conferences in all cases) [RESEARCH IS CONTINUING]

2) Provide MSC judges with the ability to conclude the MSC in appropriate cases (without continuing and without taking off calendar) and with the power and expectation to issue appropriate orders [RESEARCH IS CONTINUING]

A) Trial Continuances And Orders Taking Off-Calendar on Trial Day Are Disruptive And When Not Associated With A Settlement, Should Rarely Be Granted Except in Emergencies; Counsel Should be Required to Serve A Copy of the Order Upon Their Client

B) Trial Continuances And Orders Taking Off-Calendar on Trial Day That Are Due To Board Reasons Should Be Immediately Reported To the Presiding Judge, Regional Managers and to the Administrative Director

A) The Settlement Review Process is Both a Trademark of the California Workers’ Compensation System and a Source of Frustration for Some Stakeholders

B) Two Key Areas in the Settlement Review Process Are Of Greatest Concern: When to Review and The Criteria For Doing So

1) Should formal settlement approval continue to be required and if so, for what sorts of matters?

(a) Some stakeholders believe settlements should no longer be subjected to judicial scrutiny as such review is unnecessary and patronizing

(b) Some stakeholders believe that only pro per settlements should continue to be subjected to judicial scrutiny as attorneys have an educated and intimate view of true case value and workers are ultimately protected by malpractice insurance coverage

(c) Some stakeholders believe that settlement review should be continued; not all workers’ compensation practioners have the same level of competence and judicial scrutiny protects both the worker and lien claimants

2) When approval is necessary, what uniform standards should be used to gauge the adequacy of settlement?

(a) Many stakeholders are concerned that judges are scrutinizing some settlements more closely only because of relationships with certain counsel

(b) Many stakeholders are concerned that some judges apply far more rigorous standards or more narrowly interpret the controlling law for settlements before them than do others at the same Board

(c) Some stakeholders are concerned that some judges appear to require the settlement value to approach or meet 100% of an interpretation most favorable to the applicant as compared to others at the same Board

(d) Some stakeholders are concerned that some judges routinely impose unnecessary procedural hurdles for settlements before them as compared to others at the same Board

C) Despite These Legitimate Stakeholder Concerns, We Believe that for the Foreseeable Future, WCAB Judges Should Continue To Assess The Adequacy of All Workers Compensation Settlements Regardless of Representation

1) Judges already apply different levels of scrutiny to proposed settlements; judicial resource expenditures for the typical settlement review are small (though associated clerical time may not be).

2) We believe that judicial review of pro per settlements are clearly indicated by the need to have an unbiased, deliberate authority figure as a bulwark against an all too hasty release of some or all of their future benefits.

3) We believe that represented applicants should also have their settlements reviewed as well, despite the associated drain upon DWC resources, primarily in order to protect the interests of lien holders.

D) In Order to Minimize Concern over Unclear Review Criteria, a Joint Panel of Judges and Commissioners Should Draft Explicit Policy Guidelines to Cover The Most Common Areas of Dispute that Do Not Involve Settlement Valuation

A) Walking Through Settlements Appear to Be An Efficient Use of Judicial Down Time During Conference Calendars

B) However, the Walk Through Process Has Potentially Negative Effects:

1) Liberal Walk-Through Rules Allow Litigants to Choose Which Judge Will Hear The Matter.

2) The Walk-Through Process Requires Immediate Clerical Attention to Pull Files or Create New Cases.

3) The Walk-Through Process Requires Immediate Judicial Attention That May Interfere With Other Work.

4) The Walk-Through Process May Encourage Judges to Give Less Than Their Full Attention to The Settlement.

5) The Walk-Through Process Can Move Beyond Settlement Approvals.

6) The Walk-Through Process Varies From Board to Board for Both Staffing Reasons and Due to Presiding Judge Preference.

C) Despite Potential Problems, at the Very Minimum a Walk-Through Settlement Process Should Be Allowed During Conference Calendars for All Judges at All Boards; Refinements to Settlement Approval Process Should Minimize Some Negative Aspects of Walkthroughs

A) The Current Set of Standards For The Awarding of Attorneys’ Fees For Total Disability Indemnity Awards Are Woefully Out of Date and Provide Little Guidance For Judges; As A Result, Conflicts With The Applicant’s Bar Are Inevitable. A Panel of Judges, Commissioners, and DWC Administrators Should Jointly Draft and Coordinate Explicit Policy Guidelines in this Area and Conform Existing BR, ADR, and P&P Directives.

B) Deposition Fees Standards Need To Be Better Defined As Well to Eliminate Discontent Among the Bar and Litigants. A Panel of Judges, Commissioners, and DWC Administrators Should Jointly Draft and Coordinate Explicit Policy Guidelines in this Area and Conform Existing BR, ADR, and P&P Directives.

A) Resolving Liens At the Time of Case Disposition Should Continue to be Given a High Priority for WCAB Judges

B) Current Lien Procedures are Adequate if Followed But Further Improvement Is Possible

C) Lien Claimants Should be Strongly Encouraged to Be Available by Phone or By Other Method of Contact During MSCs in Order to Facilitate Good Faith Attempt For Resolution At Time of Settlement; Lien Holder Community Should Be Consulted For The Best Way To Achieve This Goal

D) Restrict the Ability Of Lien Claimants to File DORs to a Limited Period 0f Time Beyond the Date That the Case-In-Chief Has Been Resolved If The Lien Claimant Has Received Notice

E) Automatically Setting All Unresolved Liens for Trial Following Settlement is Unnecessary if Alternatives to the Current Practice of Unrestricted Lien DOR Filings Are Explored

A) Conflicting or Vague Legal Boundaries Appear to Be At the Root of Discontent of both Bench and Bar; a Panel of Judges, Commissioners, and DWC Administrators Should Jointly Update, Coordinate, and Conform Existing BR, ADR, and P&P Directives as well as Official Forms

B) Because of its Impact and Influence on Day-To-Day Workers’ Compensation Practice, the Policy & Procedures Manual Should be Made Readily Available To The Public

C) Sections in the Policy & Procedures Manual That Relate How Judges Exercise Their Judicial Function Should Be Made A Part of The Administrative Director Rules or Ideally, Board Rules

D) Some Variation in District Office Procedures Enhance System Productivity and Can Be Cost Effective From The WCAB’s Standpoint; Variation in Individual Judge Procedures Within A Board Are Less Desirable

E) Uniformity In Procedures Should Be Of The Highest Priority In Areas Where Variation May Affect The Ability Of Litigants To Receive A Fair Day In Court, Where It Results In Additional And Unjustified Expense To The Local Board Or Prevents Innovations In Procedures, Where It Is Likely To Provide Unknown Pitfalls For Practitioners, Or Where it Is Clearly Not In Compliance With Explicit Statutes, Regulations, and Rules

Circumstances Where Non-Uniformity Can Have Undesirable Effects:

1) Non-Uniformity may be unfair to litigants and their representatives.

2) Non-Uniformity may be costly to the Board and the DWC.

3) Non-Uniformity may pose traps for attorneys and pro per litigants who are unfamiliar with the quirks of a particular Board or judge.

4) Non-Uniformity can undercut the authority of the Legislature, the Commissioners, or the Administrative Director.

F) The Following Areas of Non-Uniformity Are The Ones Most In Need of Addressing

1) There is widespread belief that official ratings can vary wildly depending on which Disability Evaluation Unit staff member was responsible.

2) Different Standards Are Applied By Judges Reviewing Settlements for Adequacy.

3) Different Standards Are Applied By Judges For the Resolution of Liens.

4) Different Standards Are Applied By Judges For Awarding of Attorneys.

5) Walk Through Procedures Differ from Board to Board.

6) Judges Do Not Always Require the Use of The Same AME or QME When a Case Is Reopened.

7) Boards Set Their Own Rules for Accepting DORs.

8) The Marking of Exhibits and Organization of Files is Completely up to the Preferences of the Judge.

G) Minimizing Undesirable Non-Uniformity in Practices and Procedures

1) Minimize the Instances When The Actions of Individual Judges Are Due to Understandable Differences in Interpretation; A Standing Committee of WCJs and Commissioners Should Jointly Clarify Problem Areas.

2) Perform Regular Audits of Case Files, Orders, and Board and Judge Practices.

3) Disseminate the Results of Such Regular Audits.

A) Variation in Trial Decision-Making Is Unacceptable When it Goes Beyond Legal Boundaries; Within Those Boundaries, Variation Must Be Tolerated

B) Most Effective Ways To Address Variation in Trial Decision-Making are Through Adequate Training of Judicial Officers, A Sufficiently Detailed Deliberation Process, and Liberal Review of Trial Decisions

1) Trial decision-makers should have similar levels of training and on-going education.

2) The process for reaching a trial decision should be deliberate.

3) A process to liberally review the trial decision should be in place.

C) The WCAB Trial Decision-Making Process is Already Characterized By A Wealth of Safeguards That Promote Uniformity

1) The trier of fact is a judge rather than a jury.

2) Judges are required to take copious notes during testimony.

3) Complex medical testimony typically comes in the form of thoughtful, detailed written reports.

4) Judges have the authority and the obligation to develop the record.

5) Judges are required to provide detailed explanations of their findings and how they reached their trial decision.

6) Snap trial decisions are rarely required.

7) Appeals of trial decisions can made to the Commissioners based on errors of fact, not just law.

8) For purposes of appeal, the Summary of Evidence clearly documents how the judge viewed the testimony and the Opinion Decision clearly documents the judge’s reasoning.

9) Judges are required to re-review their trial decision on appeal as well as address the issues contained in the Petition for Reconsideration.

10) The Commissioners have wide powers to overrule a judge.

D) However Effective at Promoting Uniformity in Trial Decision-Making, the Current Process with its Wealth of Safeguards is Expensive and Slow

E) Policymakers Need To Be In Agreement Whether Increased Uniformity in Trial Decision-Making Is Worth The Additional Expense and Time; Whether Some Existing Trial Decision-Making Safeguards Can Be Dropped in the Interest of Resource Savings; or Whether the Existing Process Should Be Adequately Funded to Achieve Maximum Uniformity

F) Judicial Education at the Beginning and Throughout the Career of the WCJs is a Cost Effective Way to Increase Trial Uniformity

A) Costs of Producing Summaries of Evidence Are Not Insignificant, Either In Judge And Reporter Time, Work Injury Claims For Judges, And The Reduced Attention For Witness Demeanor

B) While Summaries of Evidence Do Have Benefits, Alternatives To Current Practices Should be Explored

C) At the Present Time, Replacing Judicially Produced Summaries of Evidence with Formal Transcripts Upon Demand Would Likely Increase the Private Costs of Litigation and the Average Time to Disposition

D) At the Present Time, It Is Not Possible to Use the Initial Draft of the Reporter’s Transcription As a Substitute for Summaries of Evidence

E) At the Present Time, It Is Not Possible to Substitute Real-Time Court Reporting for the Current Process of Judicially Produced Summaries of Evidence; However, The Process Should Be Tested on an Experimental Basis and Jointly Evaluated By Key Stakeholders

A) Current Rules That Allow Inappropriate Deferment of Submission of the Trial Solely For the Purposes of Delay Should Be Reviewed

B) With Adequate Resources and Training, Judges Should Always Meet the 30 Day Time Limit Absent Extraordinary Circumstances

C) Judges Who Consistently Fail To Get Decisions Out in 60 Days or More At Boards Where The Average Is Much Less Need Training In Basic Organizational Skills

A) Judges Should Be Allowed The Option to Adopt their Original Opinion and Decision as their Report on Reconsideration as long as They Have Reviewed the Decision and Considered Possible Modification or Rescission

A) The DWC Should Review the Possibility of Archiving of Files To the State Records Center Based Upon Case-In-Chief Resolution and Inactivity Rather than Simply The Date of Case Opening

B) No New Boards Should Be Opened In Counties Where Open Venue is Possible

A) Robes Should Be Worn During Trial

B) Informational Pamphlets Should Be Made Prominently Available In The Board’s Waiting Room, Not Just In the I&A Area

C) A Highly Visible Sign in the Most Common Languages In California Should Be Placed In The Board’s Waiting Room With Instructions As To Where Assistance Can Be Obtained In Languages Other Than English and Spanish

D) WCAB Hearing Notices to Litigants Should Include A Simple Explanation of What Is Supposed to Take Place

E) A More Organized Way Should Be Developed for Workers Who Are Appearing At The Board For The First Time To Meet With Their Representatives or Seek The Services of an Information and Assistance Officer

F) D�cor and Design At Some Boards Should Be Upgraded To Minimally Acceptable and Uniform Standards

G) Boards Should Maximize Space Available for Attorney-Attorney and Attorney-Client Interaction Including Leaving Hearing Rooms Unlocked When Not In Use

H) Safety and Security [RESEARCH CONTINUING]

A) Current Claims Adjudication On-Line System (CAOLS) Does Not Meet Standards of a Contemporary Modern Case Management System and Requires Significant Levels of Labor

Problems with CAOLS:

1) The CAOLS does not "talk" to other DWC computer systems.

2) The CAOLS does not provide an easy-to-understand case history.

3) The CAOLS’ event file codes use terminology prone to misinterpretation.

4) The CAOLS writes over important types of events in the interests of file space savings.

5) The CAOLS requires data entry personnel to hunt down matching addresses in order to assign unique codes to parties and their representatives’ law firm and if an exact match is not found, create new ones.

6) The CAOLS uses attorney codes that identify law firms rather than specific practitioners.

7) CAOLS codes have not been adjusted to keep pace with changes in workers’ compensation law.

8) The CAOLS is not well suited to protecting the identity of applicants with HIV positive status.

9) As a state-wide system with central administration and central file maintenance, the CAOLS is occasionally subject to slowed response rates.

10) The CAOLS does not keep track of important types of pleadings and events.

11) The CAOLS does not allow for the routine entry of information contained in pleadings, orders, memos, or other documents, only the fact of the documents itself.

12) Data entry errors are difficult to correct at the Board level.

13) Key judicial personnel at Boards are generally ignorant of how the CAOLS operates and how their decisions and orders are translated into event histories.

B) Immediately Begin Process of Investigating the Best Alternatives to the Existing DWC On-Line System but No New System Should be Implemented at This Time Given The Confusing and Non-Uniform State of Rules, Policies, and Procedures

C) Any Replacement System For the CAOLS Should Be Done Through The Services of Outside Vendors With Extensive Experience In Court Case Management Systems

D) A Unified Off-The-Shelf Calendaring System that Uses California Bar ID numbers rather than Law Firm ID And Allows Internet Submission Of Attorney Availability Information Should be Instituted As Soon As Possible

E) The Time for "Electronic Filing" of Pleadings Has Not Yet Come.

1) The current and historical experience with electronic filing of court documents is a mixed one.

2) A court system that has neither a modern case management system nor even a rudimentary document management system is in no position to implement e-filing.

3) Some of the most touted benefits of e-filing may not be as pronounced in the context of the WCAB.

F) Document Management Systems with a High Volume Scanning Capability for Older Files Should be A Component of Any New Case Management System

G) The Assumption that Advances in Electronic Management Information Systems or Centralized Information Systems Will Result in Personnel Cost Savings Large Enough and Immediate Enough to Justify the Expense of Implementation is Flawed

A) Legislative Time Standards Should Focus On Dispositions, Not Events

B) Legislative Time Standards Should Include Percentiles, Not Maximums

C) If Legislative Time Standards Continue to Use Events As Benchmarks, They Should Be Based On Realistic Settings, Not When Actually Held

D) Board and Individual Judge Statistics Regarding Meeting Statutory Time Standards Should Be Available For Public Inspection

A) Immediately Fill All Existing Appeals Board Vacancies to Facilitate Prompt Disposition of Reconsiderations, to Facilitate En Banc Decisions, and to Facilitate the Rule Making Process

B) Address The Extent to Which Time to Complete the Process Before the Commissioners Increases the Overall Time To Disposition For Reconsidered Cases

A) Disciplinary Process Should Be Made More Effective [RESEARCH CONTINUING]

B) It Should be Understood by All Stakeholders that Management Styles Must be Tailored to the Realities of Judicial Independence, Civil Service Requirements, and Government Practices

C) DWC Administrators Need to View the Court as an Evolving System; On-Going Assessment of Past, Current, and Future Needs and Resources are Required

D) Policymakers Appear to Rely on Litigants Acting as "Team Players" Rather Than Taking Into Account Underlying Incentives and Realities

E) Broad Statements Of General Policy Are a Poor Substitute for Specific Rules of Practice and Procedure

1) Identifying undesirable patterns in decisions that are not in line with general policy directives is difficult.

2) General policy directives are difficult to enforce.

3) The ultimate target audience (attorneys and litigants) for such general policy directives is often slow on the uptake.

4) The potential for non-uniform application of general policy directives is great.

F) If Reducing Time to Disposition, Costs of Litigation, and Non-Uniformity are the Sole Goals of Policymakers, Radical Reform Similar to that Instituted in 1989 and 1993 Would be Unnecessary and Disruptive

G) Short of Radical Reform, Changes in the Way the WCAB Operates are Clearly Indicated

H) It Does Not Appear That Creating the Position of a System-Wide "Court Administrator" With Separate Lines of Authority Would Be the Best or Most Immediate Way to Address Current DWC Budget Constraints, Procedural Problems, or Litigant Discontent

I) The WCAB Should Not Be Thought of as the Primary Governor for Costs in the Workers’ Compensation System

Your response to the above would be greatly appreciated…

Please address all correspondence to…

Project Manager,
Workers' Compensation Court Management Study
Institute for Civil Justice
RAND Corporation, Mail Stop M-29
1700 Main Street
Santa Monica, CA 90401-3297

FAX: 310-393-4818

Please address the fax to…

Attention: Project Manager,
Workers' Compensation Court Management Study
RAND Institute for Civil Justice, Mail Stop M-29

wccm@rand.org

www.rand.org/icj/projects/wccm/comments.html