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Navigating litigation in the time of COVID

By January 24, 2022No Comments

It is no secret that the last two plus years have changed our views on world issues, interactions with others, personal relationships, and how we deal with our work and our professions. 

In the world of Workers’ Compensation, most changes in caselaw and operations in court go in cycles, depending on the current fad case(s) or DWC directives. COVID-19 has not only turned our appearance calendars on their collective heads, it has also opened the door for a new type of injury, classifications of workers, and unknown and unforeseen consequences of the long-term health effects of COVID-19. 

At the start of the pandemic, I drafted an article and outline of the current legislation, breakdown of presumptions, exceptions, and employer/insured responsibilities. I wish now to provide an update on a few interesting pieces of legislation and caselaw that I think will impact Workers’ Compensation for years to come:

California Code of Civil Procedure (CCP) 337.34 – decedent’s cause of action

Why am I mentioning the CCP in Workers’ Compensation?  While we mainly deal with the Labor Code and accompanying Regulations, the CCP does occasionally get referenced as a liberal WCAB interpretation of individual cases impacts industrial causation findings on a regular basis. Additionally, the delays caused by COVID-19 are significant in many areas. Limited calendar slots for appearances and staff at the WCAB to handle filings. Delays in medical care. Litigation over remote appearances, both legal and medical. And in the midst of it all, we do have cases in which the applicant unexpectedly dies  during discovery on a case. When that occurs, we then litigate the issue of accrued benefits and occasionally I have had to go to trial over what benefits were actually “accumulated” versus “speculative” or “unrealized,” if you will.  In the civil arena, if a plaintiff dies before trial, non-economic damages are taken off the table. The legislature amended the CCP 337.34 by adding:

In an action or proceeding by a decedent’s personal representative or successor in interest on the decedent’s cause of action, the damages recoverable are limited to the loss or damage that the decedent sustained or incurred before death, including any penalties or punitive or exemplary damages that the decedent would have been entitled to recover had the decedent lived, and do not include damages for pain, suffering, or disfigurement.”

I see no reason why a diligent applicant’s attorney could not try to stretch this argument into the Workers’ Compensation arena by arguing that due to unforeseen and inevitable delays, the now deceased applicant (through his representative and/or estate) should not be denied due compensation in the same manner as would be obtained if the applicant were living and fully litigated their claim. I can also see a similar argument even in the absence of delays in discovery, using the argument that the defendant should still be liable for all benefits accrued or not, and that a trial should be allowed to proceed on all issues and let the chips fall where they may. I have already seen rough arguments on these points in the past.  

Perhaps I am just being overly cautious. Perhaps I am a conspiracy theorist. Either way, I never cease to be amazed by some of the arguments I encounter on a regular basis by applicant’s counsel who pursues all species of benefits for their client. I could write pages on potential defenses to this possible argument, but for now, I will just throw out the possibility of the argument being made.

This law is temporary for a period of four years and requires Plaintiff’s recovering damages between 1/1/22 and 7/31/24 to submit documentation to the Judicial Council to allow them the opportunity to study the impact of the law and make recommendations to the California legislature.  I cannot imagine there will be a strong push to turn this temporary law into a permanent one. 

Emergency mandates and remote appearences

Relying upon an extensive survey of one (yours truly) with some calls, emails and word of mouth assessment of a few others, it has been my experience that productivity and communication with client and opposition alike has been greatly enhanced with remote appearance options.  If I could wave my magic wand, all non-Trial/Expedited appearances would continue to be held remotely, permanently. I disagree with the assertion that in-person attendance is always needed to feel out the opposing party and their position and to truly understand their article. I recall reading an article last year that addressed the opinions of a few of my colleagues regarding the good and bad of remote appearances and for the most part, both the applicant side and the defense side seemed to agree that the process made litigation overall more efficient. While I echo their comments regarding some appearances likely needing to continue in person, such as Trials and Expedited Hearings, even some of those appearances would be just as efficient via video conference as they would be in person (i.e. simple benefit or treatment issues, lien issues, etc.).

Aside from the occasional attorney/representative forgetting to mute their phone or forgetting how to unmute when called upon, I have found that appearances run smoother and the parties are forced to proceed with a discussion well in advance of an appearance. Take for example, a “typical” appearance prior to COVID-19. I would almost always arrive on time for the start of the appearance (not perfect mind you, but I am a stickler for on-time attendance), after enduring traffic and parking woes. For the most part, opposing counsel would be on time but could also be late (some defense attorneys and applicant’s attorneys are always late). Then comes the task of finding your dance partner, which could take 15-20 minutes alone depending on if one or both of you have multiple appearances. Then we deal with the social component with lawyers and representatives alike shooting the bull in the hallway. Admittedly, I am not usually drawn into extended conversations as I am there to handle my business, but there is always a hello here and there at a minimum.

When it’s time for business, a conversation/argument would ensue. Parties draw their battle positions and lines in the sand and back and forth we go. Then, the long wait in line for the Judge to hear your case and regardless of the disposition, one party shuffles to the calendar clerk while the other waits in line to make copies. This is when the poor overworked copier inevitably suffers a paper jam or gives you the blue screen of death. Two to three hours for a single appearance. Presently, it is a requirement to meet and confer before we call into our appearance. And almost without fail, this has occurred on each of my appearances over the last two years. Emails and calls fly back and forth and documents are circulated quickly thanks to technology.  

To date, I have only had a handful of appearances last greater than two hours and I have seen entire morning and afternoon calendars end within an hour and a half on occasion. With the prospect of sanctions or a dreaded OTOC for failure to adhere to the requirement to meet and confer hanging over our collective heads, why would we run away from this efficient process? It simply makes no sense, and I think the DWC is waking up to the efficiency of this manner of litigation. Remote appearances also allow for greater flexibility in who can handle your case, as physical appearances at a remote jurisdiction are no longer an issue. Is your favorite attorney in California (insert my name here) available to handle a Southern California appearance just as well as a Northern California one? Remote appearances make that possible. I would also argue that attendance is more easily guaranteed, as opposed to an attorney missing an appearance whilst stuck in the inevitable traffic jams that dot most of L.A. and the bay area freeways. 

Indeed, with the new rules and regulations as set forth in 2022, the DWC seems to want to move in this direction. 8 CCR §10745 addresses the setting of any case electronically by the WCAB on its own motion. Further 8 CCR §10759 requires the aforementioned meet and confer and at least a partial draft of the Pre-Trial Conference Statement prior to the appearance. 8 CCR §10815 further discusses electronic hearings before the WCAB and how the court will deal with objections to the same. 8 CCR §10816 allows for the filing of a Petition to appear electronically. I myself have filed a few of these as of late and all have been approved, which further leads me to believe that most Judges seem to be in favor of remote appearances as well. And let us not forget the savings in cost! Fewer miles on the car, less time on each appearance, and more time to tend to the rest of the clients we represent.

On a personal note, due to a recent surgery, I have been forced to work from home for the foreseeable future. And yet, despite this limitation, I have not skipped a beat in the representation of my clients by taking advantage of the electronic technology that makes all of our lives earlier. While 2022 will inevitably lead to further changes as we hone the process, I strongly recommend remote appearances be the norm.

Depositions via electronic means

The vast majority of my current depositions appear via zoom and as noted above with remote appearances in general, I am pleased with the efficiency of the process. Yes, we have technical issues from time to time, and we still have delays with people showing up on time. However, I have every single piece of evidence I could use at my fingertips and the ability to look up caselaw, medical terminology and other research at the tips of my fingers. For the record, the Code of Civil Procedure 2025.310(a) states “A person may take, and any person other than the deponent may attend, a deposition by telephone or other remote electronic means”. In other words, there is no requirement to obtain consent of the other party or the court to proceed with a remote deposition. The California Rules of Court 3.1010(a) affords any party to take a remote deposition once a few steps are made.  See also Simmons v. Just Wingin’ It, Inc. (2017), 2017 Cal. Wrk. Comp. P.D. LEXIS 48.

Until 1/1/22, there was a catch with 3.1010(c) requiring an in-person appearance by the deponent, in the presence of a deposition officer. I did not see any litigation over this Rule in my practice as both parties understood the need for safe deposition practices and social distancing. Fortunately, this rule has been amended to allow for an appearance by the deponent as required by statute or as agreed to by the parties and deponent.  No longer is the requirement to seek a court order and possibly have a remote appearance denied.  Again, the State of California seems to grasp the importance of allowing for remote appearances.

COVID-19 has changed the way we do business and in our personal lives for certain. Maybe forever. And maybe, just maybe, it has opened our eyes in a positive way in how we operate our legal system and how we can finally fully embrace technology to increase efficiency and save time and costs. I, for one, look forward to what 2022 will bring for me professionally and what opportunities it will create to allow me to better serve my client’s and aggressively and ethically defend their best interests.