When setting a case for hearing, parties must carefully consider the goal of the hearing, and select the appropriate type. Frequently, an Expedited Hearing or Priority Conference is selected improperly. Either the subject matter of the hearing is inappropriate for the type of hearing selected, or the case status (accepted or denied) is inappropriate for the hearing type. Although the WCAB preference is for a single trial on all issues, with the exception of liens, a showing of good cause can persuade a Judge to hold a hearing on limited issues only. Both Expedited Hearings, which is a trial itself, and Priority Conferences allow for trials on limited issues. However, a party may move for a trial on limited issues from an MSC as well even where the case status or issues involved are not appropriate for an Expedited Hearing or Priority Conference. (Title 8 CCR § 10560) This article will focus on the limited issue options of an Expedited Hearing and a Priority Conference.
An Expedited Hearing allows parties to have a Trial on limited issues as specified in Labor Code § 5502(b), and include the entitlement to medical treatment and temporary disability among other issues. When the Expedited Hearing occurs, the parties must be prepared with all witnesses and evidence (documentary and otherwise), ready for Trial and submission of the issue on the date of the hearing. (Title 8 CCR § 10552(e)). This is a unique constraint to the Expedited Hearing, where all other hearing types require merely the submission of a Pre-Trial Conference Statement on the date of the hearing.
There are important constraints to filing for an Expedited Hearing. Chief among these is that the injury must have been accepted. “Where injury to any part or parts of the body is accepted as compensable by the employer, a party is entitled to an Expedited Hearing and decision…” (Title 8 CCR § 10552(a)). On occasion an attorney will submit for an Expedited Hearing on “the employee’s entitlement to medical treatment pursuant to Labor Code Section 4600.” Labor Code § 5502(b)(1) where a claim is denied. This necessitates an AOE/COE determination, which is not appropriate for an Expedited Hearing. In such a case, there should be no hearing, and certainly no trial on the AOE/COE issue which is a threshold for entitlement to medical treatment.
Exceptions to the rule requiring the injury be accepted are in a dispute over the specialty of a QME panel in a denied claim which has been found appropriate for an Expedited Hearing. (Papageorge v. YMCA of San Francisco, 2015 Cal. Wrk. Comp. P.D. LEXIS 398, *5-6). Another exception has been found involving an expedited hearing during the delay period of CA Lab Code . During that period an Expedited Hearing may be had under CA Lab Code 5502(b)(2) on the issue of whether the empoyee’s treatment is to be within the MPN. (Kim v. B.C.D. Tofu House, Inc., 79 Cal. Comp. Cases 140 (W.C.A.B. Feb. 7, 2014)).
Where the injury has been accepted but there is a dispute as to the body parts injured, an Expedited Hearing may be used to determine whether or not an applicant is entitled to medical treatment or temporary disability for the disputed body parts. In such an instance, the Workers’ Compensation Judge (WCJ) may hear the issue on the date of the hearing. As an alternative, the WCJ, in consultation with the Presiding Judge, may close discovery and receive a Pre-Trial Conference Statement and set those issues for Trial. (Title 8 CCR §10552(c)). However, without an accepted injury, there can be no Expedited Hearing..
Another limited type of hearing is the Priority Conference, which may be set on issues of employment, and injury AOE/COE. (CA Lab Code § 5502(c)). A priority conference may only be set where the applicant is represented by an attorney or was employed by an illegally uninsured employer. Thus, there can be no Priority Conference where the applicant is pro-per and worked for an insured employer.
Often overlooked, but important to note, is that once a Priority Conference is set, the case should not come off calendar until the dispute is resolved. If the dispute over employment or injury AOE/COE is not resolved at the Priority Conference then the case should either be set for a trial on that issue, or rescheduled to a Status Conference after the parties have outlined what further discovery is required. (CA Lab Code § 5502(c), Title 8 CCR §10555(b) & (C)) Thus, rather than going off-calendar after a Priority Conference where the issue is not resolved, the case should be set for a further Status Conference, and then again for a Status Conference or trial. The case thus remains on-calendar until the dispute is resolved by agreement, or trial. Parties should therefore be careful in setting a Priority Conference where extensive discovery on the issue of injury AOE/COE or employment is required. It is the goal of the Board to set the issue for Trial as expeditiously as possible. This has been considered to be within a six month period. (Milbauer v Boostan; UEF (2003) 68 Cal. Comp. Cases 1834, 1843)
Although a Priority Conference may not have a provision for going off calendar while the dispute remains, it is the common practice of many Judges to take the matter off calendar where discovery is ongoing. No doubt, this is a concession to the realities of over-burdened calendars and caseloads. Nonetheless, any party filing for a Priority Conference should be prepared to have no other issue heard which may arise until the AOE/COE or employment dispute is resolved.
A Status Conference or Mandatory Settlement Conference may be set on any of the issues which would otherwise be involved in an Expedited Hearing or Priority Conference, as well as on all other issues. Filing a Declaration of Readiness to Proceed (DOR) to a Mandatory Settlement Conference carries its own requirements. These include that all discovery on the issues indicated in the DOR be completed, and that a genuine and good faith effort to resolve the disputed issues has been made prior to filing the DOR. (Title 8 CCR §10414(d)).
Regardless of deficiencies in preparation of a DOR, or in the failure of parties to submit objections, the caseload of the various District Offices will have an inevitable influence on the proceedings. A deficient DOR will be set for a hearing, and many times a matter may be taken off calendar even where there was no objection, if the opposing party shows good cause at the MSC. Nevertheless, these realities should not deter parties from selecting the proper proceeding for their dispute, and selecting a Priority Conference or Expedited Hearing where appropriate.