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Industry Insights

Young: A Premature Decision

  • State: California
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The California Division of Workers’ Compensation announced Wednesday that in-person hearings will resume as of Oct. 1 at most Workers' Compensation Appeals Board district offices.

Julius Young

Julius Young

Trials, lien trials, expedited hearings and special adjudication unit hearings are to be held in person. Mandatory settlement conferences, lien conferences and status conferences would continue telephonically for now.

The widespread resumption of in-person hearings is premature at this time, and the DWC should consider delaying this order.

We’re all tired of COVID, and we’re also tired of cultural wars over masking and vaccinations. I get it. However, while the DWC announcement indicates that mask coverings will be required regardless of vaccination status or county mandates, California is still in the throes of a significant wave of delta variant cases.

Vaccination rates vary in different areas of the state, but this order would apply to all areas, even ones with low vaccination rates.

Consider a few of the following factors according to figures noted in a Los Angeles Times article written the same day that the DWC announced the planned resumption:

  • Only about half of blacks and Latinos in California are at least partially vaccinated. The article noted that California last week saw 13,908 new COVID cases a day. That compares with 990 a day in June 2021.
  • Eighty-five Californians died of COVID last week, a 77% increase from the prior week.
  • Last week, California ICUs were still seeing an increase in COVID patients, and some counties were seeing more COVID ICU activity than at any time in the pandemic.
  • California’s positivity rate was still 4.6%, though that had improved from the week before.
  • Looking at the last 14 days, COVID cases in California were up 18% and deaths up 67%.

It is unclear why the DWC is in a rush to resume in-person widespread hearings. This order strikes me as tone-deaf. Yes, the COVID trends may be getting better, but one of the problems in this pandemic has been the inconsistent and confusing messaging from a hodgepodge of governmental entities.

For example, the Los Angeles community colleges are now requiring students and staff to be vaccinated. State of California workers must be vaccinated or submit to periodic testing.

In the city of San Francisco, if I want to eat inside a restaurant, I must show proof of vaccination. According to a recent PPIC poll, 61% of Californians favor such a policy. Yet, the WCAB policy would apparently not require litigants at the San Francisco WCAB office to have proof of vaccination status or proof of recent test results.

While I am sure there are some stakeholders anxious to get back to things as usual, it would be more prudent to wait a couple of months to make sure this surge has really cooled. Almost everyone I’ve spoken to has been amazed that the system has worked pretty well on a virtual basis.

The reality is that if in-person hearings resume on Oct. 1, there will be lots of unvaccinated people coming down to crowded WCAB district offices. Some of the boards are notorious for how crowded they can be, and this is just asking for trouble. And who will enforce the mask mandate once people get into the waiting rooms?

The DWC Newsline gives little detail on any nuances of the proposed Oct. 1 resumption.

What should the DWC say instead?

At a minimum, the DWC should outline a protocol if one of the parties objects and requests that the hearing be held by remote means. Until the pandemic further wanes, health concerns on the part of judges, reporters, applicants, defendants, attorneys and lien claimants should be given some credence.

Given the context of the pandemic, the party objecting to the in-person hearing should not be required to show personal health data to be exempted. Rather, if there is an objection to in-person hearings, the party still wanting the in-person hearing should show good cause why it is necessary under the current conditions, with the objecting party being allowed to respond.

Julius Young is an applicants' attorney and a partner for the Boxer & Gerson law firm in Oakland. This column was reprinted with his permission from his Workers Comp Zone blog on the firm's website.

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