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Industry Insights

Stevens: Return to In-Person Walk-Throughs

  • State: California

Because of the COVID-19 pandemic, how we interact with the Division of Workers' Compensation district offices has been, and continues to be, significantly impacted.

Daniel R. Stevens

Daniel R. Stevens

This went well beyond how we attended hearings, but also how proposed settlements could get before a judge for approval, or basic petitions for LC 5710 fees or costs could be filed as well.

One of the most helpful developments was the ability to do virtual walk-throughs of settlement documents by getting before a workers’ compensation judge utilizing the Lifesize platform. This change went into effect on Jan. 11, 2021.

Now, after more than a year of fine-tuning this process and everyone getting used to it, the DWC has decided to do away with it. Beginning Sept. 6, every DWC district office except Eureka now allows an in-person walk-through as before the pandemic.

However, in announcing this change, it was also mandated that the virtual walk-through procedure will no longer be allowed. Thus, to get a settlement approved, the documents, along with a succinct letter highlighting the terms of the settlement, either can be mailed to or e-filed with the DWC district offices, or you can go in person. The same can be said for all the other types of documents that can be walked through, per CCR Section 10789.

This has the greatest impact in terms of walking through settlements.

Why would you want to physically go to DWC district office to get a settlement approved? The simple answer is speed. It is easily the fastest way to get a settlement before a WCJ and the settlement approved (and yes, possibly suspended if something is out of order). Otherwise, mailing/e-filing settlement documents turns into a waiting game of when the settlement is going to land on a WCJ’s desk for review.

Thus, before you go running off to your local DWC district office to do a walk-through, here are some friendly tips and reminders to help you avoid getting your settlement suspended and/or having to make another trip.

  • Have a well-written letter ready to go that you can provide to the WCJ reviewing the settlement that provides the key details of the settlement. This means more than just the gross/net settlement amounts and how much the applicant’s attorney is receiving, but also what benefits were issued, how is the Supplemental Job Displacement Benefit voucher being handled, whether the claim accepted or denied and whether there are apportionment issues.
  • Were all the supporting medical reports already filed with the DWC district office? If not, then you need to submit them with the settlement documents. Otherwise, how is the reviewing WCJ supposed to know whether the settlement is adequate?
  • Are there Employment Development Department or child support liens at issue? If they were already resolved, include the settlement agreement so there will be no doubt that the issue has been addressed.
  • On a more basic level, make sure you have your cover and separator sheets. If you show up with just your compromise and release or stipulated award, then prepare for some extra handwritten paperwork.
  • Bring a proposed order approving compromise and release/award with you. True, the reviewing WCJ may prefer to complete her own, but make the walk-through as easy as possible for the reviewing judge to approve your settlement.
  • Bring a lien affidavit that discusses whether any liens are outstanding and if so, what steps have been undertaken to resolve them.

Of course, the above are most applicable to cases where all sides are represented. If you are requesting approval of a pro per applicant’s settlement, then you will need even more documents submitted with the settlement than what is discussed above. While each district office, or each WCJ for that matter, may require different documents in these situations, the following generally are always necessary and should be ready to go:

  • A rating of the applicable reports, whether from the Disability Evaluation Unit, an outside rating or the claims administrator’s rating.
  • Disclosure of all temporary disability benefits issued and when, which is easiest with a benefits printout.
  • If the settlement is not based on a panel-qualified medical examiner report, a copy of the notice to applicant that she has a right to a QME evaluation.
  • If there is not also a PTP PR-4 (i.e. maximum medical improvement/permanent and stationary report), what steps were taken to obtain one?
  • A wage statement so the reviewing WCJ can determine whether the TD rate is correct.
  • Medical reports from the date of injury and not just MMI/P&S reports.
  • Any offers of modified work.
  • Were all the body parts claimed in the application addressed in the C&R/stipulated award? If not, you will need to explain why.

While we all have grown accustomed to the convenience of handling settlements from the comfort of our office or home, we have to remind ourselves of the intricacies of walking through settlements in person if we want or need a quick turnaround for an approval order.

You do not want to be at court, about to do your walk-through when the light bulb goes off that additional documents should have come along for the ride to help assist the reviewing WCJ to assess the adequacy of the settlement. Err on the side of over-inclusion. The worst-case scenario is that you brought documents with you that you ultimately did not need.

Daniel R. Stevens is a workers’ compensation defense attorney and partner at Bradford & Barthel’s Ventura location. This entry from Bradford & Barthel's blog appears with permission.

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