California Lawyers Association

Information and Assistance Officers—Who, What, When, Why, Where & How

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by

Information and Assistance Officers—Who, What, When, Why, Where & How

THE HON. ROBERT G. RASSP

ROSE STEPHANIAN, I&A OFFICER, WCAB

OLIVIA INIGUEZ, I&A OFFICER, WCAB

LOS ANGELES, CALIFORNIA

Disclaimer: The opinions expressed in this article are those of the authors and not those of the California Department of Industrial Relations, the Division of Workers’ Compensation or the Workers’ Compensation Appeals Board.

INTRODUCTION

Do you know what "Hopper-izing" the Information and Assistance Office was? Who initiated it and why? The functions Information and Assistance (I&A) officers perform? Where they come from—how they are recruited? How they work within the Division of Workers’ Compensation (DWC) and the WCAB? Why it is important for counsel to understand the I&A Officer program? What a judge does when the applicant’s attorney asks to withdraw from representing the applicant in the middle of trial, during a break in the proceedings? What an alleged uninsured employer can do when served with a Notice of Special Lawsuit? What an employer can do when surcharged with a high X-mod premium? Who besides a judge reviews a proposed settlement of a case where a party is not represented by legal counsel?

This article answers all of these questions and more. Over the years, applicant’s attorneys have had very few interactions with I&A officers simply because the injured workers are represented by counsel. On occasion, a frustrated applicant will contact an I&A Officer if the applicant’s attorney is not communicating with the applicant and a friendly call or e-mail from the I&A Officer to the attorney’s office will help set the ship back on course. That said, I&A officers are not enforcers of the law but are what their title says: they provide information and assistance to the public who request their help.

Before looking at the various roles of I&A officers, this article explores their statutory and regulatory origin.

ENABLING LEGISLATION

Information and Assistance officers have been available for the public to consult with for decades. The Information & Assistance Officer program was a creation of the Legislature. In 1993, the Legislature updated the enabling legislation that created the I&A program. Labor Code section 139.6 mandates that the Administrative Director establish the I&A Officer program. Here is a synopsis of that section:

  • Labor Code section 139.6(a) mandates that the Administrative Director (AD) establish within the DWC a continuing program to provide information and assistance to the public concerning the rights, benefits and obligations of the workers’ compensation law to employees and employers who are subject to California workers’ compensation law. The I&A program is mandated to provide the following:

    • ? (1) Preparation and publishing guides to the California workers’ compensation system that are written in easily understandable language, updated regularly, and describe in layman’s terms the rights and obligations of employees and employers, the procedures for obtaining benefits and the means of resolving disputes. Separate guides can be prepared for employees and employers, with copies sent to any and all labor and employer organizations known to the AD.
    ? (2) Preparation of a pamphlet, written in easily understandable language (English and Spanish), advising injured workers of their basic rights under workers’ compensation law, their rights under the Americans with Disabilities Act (ADA) and the Fair Employment and Housing Act relating to disabilities. The pamphlet must contain the following information:

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    ¦ The circumstances under which injured employees are entitled to the various types of workers’ compensation benefits
    ¦ The protections against discrimination because of a work injury
    ¦ The procedures for resolving disputes that may arise
    ¦ The right to seek information and advice from an Information and Assistance Office or an attorney

  • Labor Code section 139.6(b) mandates that the AD appoint an I&A Officer for every DWC/WCAB district office and, depending on the operational needs of each office, any deputy I&A officers. The I&A officers are to be provided office facilities and clerical support.
  • Labor Code section 139.6(c) mandates that each I&A Officer be responsible for the following duties:

    • ? Provide continuing information concerning rights, benefits and obligations under workers’ compensation law to injured workers, employers, lien claimants and other interested parties.
    ? On request by an injured worker, assist in prompt resolution of misunderstandings, disputes and controversies arising out of claims for compensation, without formal proceedings, in order that full and timely compensation benefits shall be furnished.
    ? I&A officers, in performing their duties, shall not be responsible for reviewing applications for adjudication of claims or declarations of readiness to proceed. This function shall be performed by workers’ compensation judges.
    ? Distributing information pamphlets in English and Spanish that are approved by the AD to anyone who requests them.
    ? Establishing and maintaining a liaison with the persons located in the geographic area the district office serves, with other affected state agencies and with organizations representing employees, employers, insurers and the medical community.

Labor Code sections 5450 through 5455 also pertain to Information and Assistance officers:

  • Labor Code section 5450: Amended in 1994, this Labor Code section mandates that: "The Division of Workers’ Compensation shall make available to employees, employers and other interested parties information, assistance, and advice to assure the proper and timely furnishing of benefits and to assist in the resolution of disputes on an informal basis."
  • Labor Code section 5451: Also amended in 1994, this section states: "Any party may consult with, or seek the advice of, an information and assistance officer within the Division of Workers’ Compensation as designated by the administrative director. If no application is filed, if the employee is not represented, or upon agreement of the parties, the information and assistance officer shall consider the contentions of the parties and may refer the matter to the appropriate bureau or unit within the Division of Workers’ Compensation for review and recommendations. The information and assistance officer shall advise the employer and the employee of their rights, benefits, and obligations under this division. Upon making a referral, the information and assistance officer shall arrange for a copy of any pertinent material submitted to be served upon the parties or their representatives, if any. The procedures to be followed by the information and assistance officer shall be governed by the rules and regulations of the administrative director adopted after public hearings."
  • There is no Labor Code section 5452.
  • Labor Code section 5453: This section, amended in 1994, states that "After consideration of the information submitted, including the reports of any bureau or unit within the Division of Workers’ Compensation which have been received, the information and assistance officer shall make a recommendation which shall be served on the parties or their representatives, if any."
  • Labor Code section 5454: Amended in 1994, this section reads: "Submission of any matter to an information and assistance officer of the Division of Workers’ Compensation shall toll any applicable statute of limitations for the period that the matter is under consideration by the information and assistance officer, and for 60 days following the issuance of his or her recommendation."
  • Labor Code section 5455: Under this statute, "Nothing in this chapter shall prohibit any party from filing an application for benefits under this division. In any proceeding pursuant to such application, the admissibility of written evidence or reports submitted by any party pursuant to this chapter, or Section 5502, shall be governed by Chapter 5 (commencing with Section 5700)."

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This section simply places the responsibility for the determination of admissibility of evidence in the hands of a trial judge and is not the responsibility of any other person once jurisdiction of the WCAB is invoked.

REGULATORY IMPLEMENTATION

The provisions of Labor Code sections 139.6 and 5450 through 5455 are implemented by specific regulatory mandates in 8 CCR sections 9921 through 9929 that appear in the "Blue Book" every year (Workers’ Compensation Laws of California, 2022 Edition (LexisNexis)). The 2022 edition of the Blue Book, beginning on page 1050, provides the regulations. A summary of those provisions in the California Code of Regulations is provided here:

  • 8 CCR section 9921: This section enables these regulations to go into effect once the Office of Administrative Law has adopted them and the Secretary of State has signed them. This language is not in the regulation itself, but in order for a regulation to be adopted, it has to be approved, after public hearings, by the agency that promulgates it; it has to implement a statutory mandate, be approved by the Office of Administrative Law, and be adopted by the Secretary of State.
  • 8 CCR section 9922: This section mandates an affirmative impartial service to employees, employers, claims administrators, labor unions, medical providers and any others subject to or interested in California workers’ compensation laws. Here is the implementation language of this regulation: "This service shall be provided so that all such parties are informed of the provisions of the workers’ compensation laws, that benefits due are paid promptly, that disputes and misunderstandings are resolved informally insofar as possible, and that premature and unnecessary litigation be minimized."
  • 8 CCR section 9923: This section, "Designation," directly implements Labor Code sections 139.6(b) and 139.6(c) by mandating the AD establish an I&A Office at each WCAB district office and appoint I&A officers and deputy I&A officers based on operational needs. This section repeats the purpose of I&A officers: to inform the general public, labor unions, employees, employers, claims administrators, medical providers and all other interested parties of the rights, benefits and obligations of the workers’ compensation law.
  • 8 CCR section 9924: This section is titled, "Scope of Duties." It directs additional specific duties I&A officers are required to perform:

    • ? Provide continuing information concerning the rights and obligations under California workers’ compensation laws.
    ? Assist in bringing a prompt resolution of misunderstandings, disputes and controversies that arise from claims for compensation, without formal proceedings, with the goal of furnishing full and timely compensation benefits.
    ? Distribute pamphlets in English, Spanish and "other languages as needed," as approved by the AD, to injured workers and anyone else who requests one.
    ? Establish and maintain a liaison between the community that is served by the district office and other state agencies and organizations representing employees, employers, claims administrators and the medical community.
    ? Discharge other duties that are "consistent with the purposes of this Article as from time to time may be delegated by the Administrator Director."

  • 8 CCR section 9925: Titled, "Use of Other Division Facilities," this section empowers I&A officers to consult with other DWC services, including the Industrial Medical Council (now the DWC Medical Unit), Disability Evaluation Unit (that is, DEU raters), the Rehabilitation Unit (which disbanded in 2009), the Audit Unit and any other DWC unit that may aid in the resolution of disputes. A significant provision in this Rule states: "Copies of medical reports, permanent disability rating evaluations, earnings data and other

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  • pertinent information obtained by the Information and Assistance Officer shall be furnished to all parties involved in a dispute."

This means the I&A Officer has a regulatory duty to serve all "parties involved in a dispute" with these documents.

  • 8 CCR section 9926: This section, "Referrals to a Qualified Medical Evaluator," allows an I&A Officer, with the agreement of a party to pay the cost and with an unrepresented injured worker’s consent, to request that the DWC Medical Director appoint a physician to address any clinical question within the scope of practice of the QME as long as the issue(s) are not within Labor Code section 4061. This means issues subject to this section would involve Labor Code section 4060 compensability or, for temporary disability, part(s) of body injured, or need for future medical treatment, Labor Code section 4062.
  • 8 CCR section 9927: This section is "Jurisdiction." It was adopted in 1981 and implements Labor Code sections 5450 and 5451.

    • ? 8 CCR section 9927(a) states, "Any party to a claim may consult with an Information and Assistance Officer at any time to seek advice and assistance in the resolution of any misunderstanding, dispute, or controversy."
    ? The request for assistance does not have to be in writing or in any particular form.
    ? The requesting party shall provide the I&A Officer with information about what the dispute involves and "provide any other pertinent information to facilitate an appropriate inquiry by the Information and Assistance Officer. The Information and Assistance Officer shall communicate with the parties and provide information and assistance in resolving disputes."
    ? 8 CCR section 9927(b) indicates that if an Application for Adjudication of Claim has been filed, any party may consult with an I&A Officer for purposes of "resolving controverted issues or misunderstandings at any time prior to the filing of a Declaration of Readiness to Proceed." If the injured worker is not represented by counsel or by consent of counsel, an I&A Officer may continue to provide assistance after a DOR has been filed.
    ? 8 CCR section 9927(c) mandates that I&A officers "shall provide assistance to asbestos workers in obtaining benefits from the Asbestos Workers’ Account and/or the responsible employer pursuant to section 4410 of the Labor Code.
    ? 8 CCR section 9927(d) is one of the most important subsections of 8 CCR section 9927. It mandates that when an injured worker is not represented by an attorney or any other representative and a C&R or Stipulations with Request for Award has been filed with the WCAB (but not "presented at or subsequent to a regularly scheduled hearing"), the I&A Officer shall:

    ¦ "Review the C&R or Stipulations settlement documents."
    ¦ "Contact the parties when indicated."
    ¦ "Coordinate with other units within the DWC."
    ¦ "Seek to determine that the employee is aware of the significance of the agreement."
    ¦ "Make recommendations to the parties and the workers’ compensation judge."

    Also,

    ¦ "The Manager of the Information and Assistance Unit shall notify the Presiding Workers’ Compensation Judge when this service cannot be provided timely."

  • 8 CCR section 9928: This section is titled, "Procedures for Mediation and Recommendation." Many workers’ compensation practitioners are not aware of this Rule.

    • ? 8 CCR section 9928(a) states: "The I&A Officer is not bound by technical or formal rules of procedure but may make inquiries into any matter referred to him or her in a manner best suited to protect the rights of all parties and to achieve substantial justice."
    ? 8 CCR section 9928(b) states: "When there is a dispute regarding the provision of workers’ compensation benefits, the employee, claims administrator, or any party may request the Information and Assistance Officer to mediate the dispute. The Information and Assistance Officer will attempt to resolve the dispute by mediation, which may include a conference. The Officer shall make appropriate inquiries to determine the contentions

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    of the parties, identify the matters which may prevent amicable resolution, and afford all parties an opportunity to present their positions."
    ? Under 8 CCR section 9928(c), "In the event a dispute is not resolved through mediation, the Information and Assistance Officer shall issue a recommendation as soon as possible."
    ? Under 8 CCR section 9928(d), "In order to toll the statutes of limitations pursuant to Section 5454 of the Labor Code, the Information and Assistance Officer must notify in writing all parties to any misunderstanding, dispute or controversy of the fact that said Information and Assistance Officer has taken under consideration the misunderstanding, dispute or controversy submitted to him or her for a recommendation."
    ? 8 CCR section 9928(e) declares: "Upon issuing a recommendation, the Officer shall advise the parties of his or her recommendation in a written communication which describes in non-technical terms the nature of the differences, the proposed resolution and the rationale used in arriving at that resolution. The communication shall also advise the parties that the tolling of any applicable statute of limitations will cease 60 days after the issuance of the recommendation, and shall further advise the parties of their right to obtain a decision from the appeals board if the recommendation is not accepted by the parties. In the event a party does not accept the recommendation of the Information and Assistance Officer, the party must notify all other parties in writing within 30 days of receipt of the recommendation. Where the Information and Assistance Officer feels that further mediation may resolve the dispute, he or she will notify the parties of the availability of the Information and Assistance Officer to provide such further mediation."

  • 8 CCR section 9928.1, which applies to asbestos workers, mandates that if an asbestos worker consults with an I&A Officer, the I&A Officer shall aid the worker in procuring records, reports and other information that are necessary for the identification of responsible employers and insurance carriers and will obtain information required by the Asbestos Workers’ Account Act before payments may be made pursuant to Labor Code section 4406.
  • 8 CCR section 9929, titled "Costs," has two subsections:

    • ? 8 CCR section 9929(a) states: "(a) Except as otherwse provided by this Section or by Section 5452 of the Labor Code, no fees or costs shall be charged to any party for services provided by the Division of Industrial Accidents under this Article."
    ? Under 8 CCR section 9929(b): "If the employee is represented, such representative may request that the Information and Assistance Officer refer the matter to a Workers’ Compensation Judge for the determination of the value of the services of such representative. The Information and Assistance Officer shall, thereafter, refer such request to the Presiding Judge of the office which has jurisdiction over the claim."

COMMENTARY AND DISCUSSION

What Do I&A Officers Do?

Information and Assistance officers are an important part of most WCAB district office teams. These I&A officers work closely with the judges, secretaries, clerks, DEU raters and other support in the district office. During 2020, the first year of the Covid-19 pandemic, I&A officers have been available by telephone, with their public access numbers posted on the DWC website and in the WCAB directory. On July 26, 2021, the I&A offices reopened for in-person consultations.

How are I&A officers selected? I&A officers are not required to be attorneys. In fact, most I&A officers are former claims professionals—claims adjusters, EDD representatives, or non-attorney hearing representatives. Extensive knowledge of the workers’ compensation claims process is essential, along with the ability to recognize disputes, misunderstandings and controversies. I&A officers have to be neutral in their approach when communicating with anyone who seeks their advice. The number-one attribute for being a successful I&A Officer is patience. The second is resourcefulness. Information and Assistance officers are technically called workers’ compensation consultants under the State of California and Department of Industrial Relations Human Resources rubric. There used to be a statewide manager of the I&A officers, a northern California regional manager and a southern California regional manager. For the last few years, there has been no statewide I&A officer manager.

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Instead, the DWC has three regional supervisors of the officers. The northern California I&A officer regional supervisor is Marife Solano, the central California I&A officer regional supervisor is Tristan Juan and the southern California I&A officer regional supervisor is Linda Guillen. The presiding judge of the assigned WCAB district office and the respective regional supervisors also supervise the officers. I&A officers provide all parties, whether or not represented by counsel, with information on all matters concerning the workers’ compensation system.

About 50 percent of the duties of I&A officers involve reviewing workers’ compensation claims for injured workers who have a dispute, misunderstanding or disagreement with their self-insured employer or insurance company. The process would include a review of the amount and type of benefits payable and and proposed settlement offers a claims administrator has made to an unrepresented injured employee. The officers determine whether insurance companies and self-insured employers are fulfilling their obligations and responsibilities under the workers’ compensation law and regulations. They also make recommendations to workers’ compensation judges regarding the adequacy of settlements.

In addition, I&A officers provide community outreach through public injured worker workshops, assist in the management and execution of the annual DWC educational conference and act as a liaison between the WCAB office and the local surrounding community for training purposes. Most important, I&A officers have daily interactions with the public at the WCAB offices—in person and by telephone, e-mail and U.S. mail—responding to inquiries from the public regarding the proper application of workers’ compensation law, rules, policies and procedures.

About 30 percent of the duties of I&A officers involve assisting injured workers in the prompt resolution of misunderstandings, disputes and controversies arising out of claims for compensation, without formal proceedings, so that full and timely compensation benefits are furnished. Additionally, I&A officers participate in special projects that may include assisting in data compilation, research, analysis and distribution of workers’ compensation written fact sheets, guides, pamphlets and flyers. Finally, I&A officers may be asked to assist the DWC call center in taking calls from the public and routing them to the appropriate WCAB district office for action by a secretary, an I&A Officer, or DEU rater, clerk or judge.

The DWC call center, located in San Bernardino, is not part of the I&A Office; it is an independent component of the DWC, under the auspices of the Administrative Director. The call center may route calls to a WCAB office’s I&A Officer for action, but the call center’s role is broader than simply providing information to the public. Their staff includes a manager and about 23 people who provide statewide service. The call center handles directly many of the calls it receives. It also routes calls it receives to specific people: a judge’s secretary or clerk, an I&A Officer, a DEU rater, someone at the Electronic Adjudication Management System (EAMS) help desk, or a supervisor at a specific WCAB office where a case has venue.

I&A Officers Cannot Practice Law

I&A officers are not allowed to give legal advice since they do not represent any party to a workers’ compensation claim. This means I&A officers cannot assist an injured worker in completing a claim form (DWC-1), an Application for Adjudication of Claim, a Declaration of Readiness to Proceed, a pretrial conference statement, a Petition for Reconsideration or a Petition for Removal. An I&A Officer must remain neutral and cannot advocate for a party.

What an I&A Officer can do is provide a person with the appropriate DWC/WCAB form related to the person’s query and accept a completed one for filing with the WCAB. The forms for filing with the WCAB are available on the DWC website and are publicly accessible as Optical Character Recognition (OCR) forms. See www.dir.dwc.gov/forms.html. The DWC website also has fact sheets and 21 guides for injured workers, in Chinese, English, Spanish, Korean, Tagalog and Vietnamese, that describe how to file specific documents, including cover sheets and separator sheets EAMS requires. (Go to www.dir.ca.gov/dwc/iwguides.html for details.) Providing these pages and links is part of the I&A Officer’s duties and services to the public.

However, I&A officers are not permitted to practice law. Providing help in completing a form such as an Application for Adjudication of Claim, a DWC-1 Claim Form, a Declaration of Readiness to Proceed, a Pre-Trial Conference Statement or a Petition for Reconsideration or Removal is considered the practice of law. An I&A Officer can, however, provide a person with the appropriate form. The I&A Officer can also accept the document for

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filing with the WCAB. The I&A Officer then forwards the document to the clerical staff, who will finish, serve, upload into FileNet and complete the document in the appropriate ADJ file. Due to a shortage of clerical staff at some WCAB offices, the I&A Officer may guide an in pro per party on how to serve documents on all interested parties listed on the applicable case’s official address record.

I&A Officers Can Refer People to Other State Agencies

The DWC website includes links to sub-agencies and to personnel, including Cal OSHA, the Labor Commissioner’s office, EDD, the DIR Director, and other agencies related to the California workforce. The DWC website complies, through the I&A offices, with the statutory and regulatory mandates imposed on it, to provide information and access to related state agencies.

How Does One Become an I&A Officer?

The position of I&A officer is competitive. When openings arise, announcements are made at the Cal HR and DIR HR websites. Most I&A officers have experience as claims professionals, EDD representatives, or non-attorney hearing representatives. A lower level DIR or WCAB employee can be promoted into the position.

What Does "Hopper-izing" Mean?

An I&A Officer cannot refer a party to a specific attorney. Prior to his retirement from state service, Bob Wong managed all of the I&A officers statewide from what, at the time, was the DWC Headquarters in San Francisco. Before Mr. Wong, however, a man named John Hopper managed the entire I&A Officer team from the then-existing DWC headquarters in San Francisco, and he was passionate about making sure that injured workers who were facing a trial in a complex case were able to hire legal assistance.

Sometimes injured workers or uninsured employers would ask for a referral to an attorney who specialized in workers’ compensation law. Mr. Hopper felt it was not a fair fight if an injured worker without good representation was facing an aggressive defense attorney in the hostile atmosphere of a court setting. Against the agency’s then-existing management and practices, Mr. Hopper quietly instructed the I&A officers at each WCAB district office to maintain a list of the names, addresses and phone numbers of reputable applicant and defense attorneys who regularly appeared at a given WCAB district office to give to injured workers or employers who expressed a desire to seek legal counsel in their workers’ compensation case. That quiet tradition has become part of the public services that I&A officers provide to the public who may ask about obtaining legal representation. However, I&A officers cannot refer a person or company to a specific attorney or law firm.

I&A Officers Work with Unrepresented Parties

I&A officers may explain to unrepresented injured workers how to obtain medical treatment through an employer or claims administrator’s Medical Provider Network and may assist the injured worker in navigating the process through a medical access assistant under Labor Code sections 4600 and 4616 and 8 CCR section 9767.5. An I&A Officer cannot recommend a specific physician. However, an I&A Officer may help an injured worker get a list of providers within a geographic area reasonably close to where the injured worker lives or works. An I&A Officer may contact a claims administrator to obtain the Medical Access Assistant access information and give that to the injured worker. I&A officers routinely explain to injured workers how they can appeal, by way of an independent medical review, a denial, by means of a claims administrator’s utilization review process, of a treating physician’s request for authorization. I&A officers can also facilitate the filing of an appeal of an IMR decision that upholds denial of a requested treatment; that is, to assist an injured worker in filing a Petition Appealing IMR decision and a Determination of Readiness to Proceed.

I&A officers commonly advise unrepresented injured workers about their option to obtain a qualified medical evaluation when a medical dispute occurs. These officers explain how to obtain a QME panel in accordance with the unrepresented medical-legal track under Labor Code section 4062.1. This information pertains to disputes that may arise under compensability of a claim (Labor Code section 4060), permanent disability (Labor Code section 4061), or parts of body injured, entitlement to temporary disability, temporary partial disability and need for future medical treatment (Labor Code section 4062). In addition, an I&A Officer can request the DWC Medical Unit to arrange for a QME examination of an unrepresented injured worker as long as a party agrees to pay the cost of that examination and the dispute is

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not over a Labor Code section 4061 issue of permanent disability. (See the description of 8 CCR section 9926 above.)

Another function of I&A officers is to assist parties in obtaining a replacement or an additional QME panel under 8 CCR section 31.5 or 31.7, respectively. Specifically, 8 CCR section 31.7(b)(4) mandates:

In an unrepresented case, that the parties have conferred with an Information and Assistance Officer, have explained the need for an additional QME evaluator in another specialty to address disputed issues and, as noted by the Information and Assistance Officer on the panel request form, the parties have reached agreement in the presence of and with the assistance of the Officer on the specialty requested for the additional QME panel. The parties may confer with the Information and Assistance Officer in person or by conference call.

Many times, a medical-legal report is sent to an I&A Officer when the injured worker is in pro per and the issue is whether apportionment of permanent disability under Labor Code section 4663 or 4664 is consistent with the law. In those cases, the I&A Officer will route the medical report (without any settlement documents) to the presiding judge or their designee for review of the report to see whether it is consistent with the law of apportionment. Often the report is not, and the judge will so indicate on a form. If a judge finds the apportionment inconsistent with the law, the claims administrator has the option of either settling the case without consideration for apportionment of permanent disability or asking the doctor to issue a supplemental report.

I&A Officers Review Settlements for Unrepresented Injured Workers and Make Recommendations Regarding Approval or Disapproval

One of the essential functions of an I&A Officer is to review settlements where the injured worker is not represented by counsel. 8 CCR section 9927(d), discussed above, mandates this review. For any C&R or Stipulations with Request for Award, an I&A Officer must review the settlement and make a written recommendation in the case notes for judicial approval or disapproval of the settlement. There are case notes in each EAMS file, and settlements for unrepresented injured workers are first routed to an I&A Officer, usually by alpha, and the I&A Officer reviews the settlement. To facilitate this process, claims administrators are required to file, with the WCAB office having venue over the claim, the proposed settlement documents, the medical evidence that supports the settlement, a wage statement, a benefits printout and any other document that may be relevant to the adequacy of the reasons for the settlement.

The I&A Officer confirms the dollar figures for temporary disability and permanent disability rates, along with the injured worker’s earnings—essential since an injured worker often earns less than maximum wages—for the calculation of earnings, TTD rate and PD rates. In addition, the I&A Officer checks the permanent disability indemnity charts to confirm that the permanent disability indemnity matches the percentage of permanent disability. If the injured worker had less than maximum wages, the I&A Officer checks the math of the claims administrator to make sure the TTD and PD rates are correct. Also, the I&A Officer reviews the case file in FileNet and leaves a case note for the assigned judge as to whether the I&A Officer recommends for or against approval of the settlement as adequate.

The I&A Officer ensures settlements are adequate by following the WCAB Policy and Procedure Manual, section 1.91, "Submissions of Settlement Determination of Adequacy and Approval." The I&A Officer cannot advocate for a party, but the process of settlement review has to be consistent with the law requiring adequacy of settlements. I&A officers review settlements for in pro per injured workers and make recommendations to a judge to approve them or not. I&A officers communicate with judges by way of e-mail, telephone, notes in the EAMS file, in person or through a combination of these. In addition, an I&A Officer may explain to an in pro per applicant the walk-through procedures under the WCAB Rules of Practice and Procedure, section 10789.

The assigned judge may agree or disagree with the I&A Officer’s recommendation to approve a settlement and then either approve the settlement or issue an Order Suspending Action that requires the claims administrator to submit additional documents, or the judge can set an adequacy hearing.

It is critical for an I&A Officer to review proposed settlements for injured workers who are in pro per. In many cases judges have issued multiple orders suspending action in the same case because the proposed settlement

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is based on medical evidence that does not constitute substantial evidence. Usually that is because the doctor uses the AMA Guides incorrectly or the conclusions about apportionment are not explained. Best practices dictate that the judge who rejects a settlement set the case for an adequacy hearing before that judge and notify the I&A Officer to inform the injured worker why the settlement was rejected and is being set for a status conference. On the day of a hearing, the I&A Officer will assist the unrepresented party to gain access to the ATT Teleconference line for the assigned judge or otherwise to appear in person as allowed by the DWC administration.

I&A Officers May Assist Unrepresented Injured Workers to Settle Their Future Medical Treatment Award

In many cases, an injured worker consults with an I&A Officer to see whether a buyout of an award of future medical treatment can be obtained with an employer or claims administrator in a case where a prior Findings and Award or Stipulations with Request of Award included a provision for future medical treatment. The difficulties and frustrations associated with treatment by an MPN physician who is limited under utilization reviews and independent medical reviews result in many cases where the injured worker just wants to close the case completely. The I&A Officer will reach out to the claims administrator and facilitate the injured worker’s negotiation of a C&R of future medical treatment rights. If the injured worker was previously represented by counsel, the I&A Officer will direct the injured worker to contact the attorney for possible negotiation of a buyout of future medical treatment.

Many times injured workers settle their case through a C&R and, after receiving the money, want to reopen their case, alleging they did not know about the consequences of a C&R; or they claim fraud, duress, mistake or undue influence (from their attorney, if they have one; the claims adjuster; the employer; or anyone else, including, in some cases, God). Needless to say, I&A officers are on the front line to deal with people who have mental illness, drug addiction, or just plain buyer’s remorse. Due process requires that these people get a hearing on whether a settlement can be rescinded under any of the legal grounds stated above. (See, for example, PT Gaming LLC v. Workers’ Comp. Appeals Bd. (Pecoraro) (2017) 82 Cal.Comp.Cases 405 (writ denied).)

In Pecoraro, the applicant was represented by counsel and either fired the attorney or the attorney fired the applicant. However, defense counsel walked through a C&R anyway and obtained approval by a judge. The WCAB rescinded approval of the C&R and ordered the judge to set the matter for a hearing on two issues: whether defense counsel sending information without consent or a court order was ex-parte communication with a QME, and walking through a settlement when the applicant is not represented. The Board indicated that the judge should have referred the settlement to an I&A Officer, who could have clarified whether the applicant was still represented by counsel and, if not, whether settlement approval was recommended.

I&A Officers Assist in Obtaining Supplemental Job Displacement Voucher and Return-to-Work Fund Benefits

I&A officers may assist an unrepresented injured worker obtaining a Supplemental Job Displacement Benefit voucher if one is required to be issued in a case, pursuant to Labor Code section 4658(d), 4658.5 or 4658.7. The voucher is owed when a physician opines that the injured worker cannot return to regular, modified or alternative work with the at-injury employer due to the worker’s having permanent disability at the time the physician finds the person at maximum medical improvement. An I&A Officer gets involved in this regard only if the injured worker asks for help from a WCAB district office.

In addition, I&A officers assist injured workers who apply for Return-to-Work funds pursuant to Labor Code section 139.48; each WCAB district office has a kiosk for injured workers to apply for those benefits. The kiosks are usually located near the offices of the I&A Officer.

I&A Officers May Conduct Mediation of Disputes, Disagreements or Controversies

Title 8 of the California Code of Regulations, sections 9928(a) through 9928(d), describe the option parties have to agree to having an I&A Officer mediate disputes, disagreements or controversies. This is an underutilized function of I&A offices; perhaps this service should be used more often before these matters go before a judge. Mediation of legal disputes is a well-settled procedure in the California legal system and is more broadly governed by California Code of Civil Procedure sections 1775 through 1775.15; Title 11.6, Civil Action Mediation; and

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California Evidence Code sections 703.5 and 1152. These code sections set forth the mechanism of mediation "in any tribunal" of this state and provide protections for the participants.

Mediation is a completely separate process from arbitration. Arbitration is a formal trial with a final determination that can be appealed to a higher court. (See, for example, Labor Code sections 5270 through 5278 for contribution proceedings.) Mediation is a voluntary process allowing each party to meet with a mediator, who tries to get the parties to resolve their differences without a formal trial.

If disputes, controversies or disagreements go through a mediation process, all information is confidential; the mediator cannot disclose any information to the parties unless a party gives permission for the disclosure. A mediator cannot be called as a witness in a case that goes to trial or be deposed about the mediation process. A good mediator meets with all the parties together to see what they can agree on. Then the mediator meets with each party separately, sometimes with and sometimes without counsel, and parses the differences between the parties. The goal of mediation is for the parties to resolve their differences amicably, without going to trial before a judge.

State law allows I&A officers to mediate disputes, disagreements and controversies between parties. Much of this mediation process occurs by telephone and e-mail.

An I&A Officer Is Sometimes the ADA Compliance Officer at a WCAB District Office

Some WCAB district offices designate a specific I&A Officer to be the office’s ADA Compliance Officer (Americans with Disabilities Act (1990) 42 U.S.C. §12101 et seq.). This role has been especially important during the pandemic. When WCAB district offices opened for in-person hearings on October 1, 2021, many immunocompromised individuals were given permission to appear remotely at the WCAB. The DWC has a robust ADA compliance program that includes a statewide ADA coordinator for non-state employees, along with a local ADA compliance officer at each WCAB district office.

Some of the Ways an I&A Officer Functions

Here are some scenarios that demonstrate different ways that I&A officers interact with the community and workers’ compensation judges:

  • An injured worker claims he cannot find a job due to his having had a workers’ compensation case and wants his workers’ compensation case sealed (pursuant to 8 CCR section 10813). The I&A Officer explains the Rule to the injured worker and may set the matter for a status conference before the judge who approved the settlement. By Rule, the judge has to set this issue for a hearing to formally see if, pursuant to the Rule, there are grounds to seal any part of the file.
  • An injured worker feels they were cheated by their attorney, a claims administrator or their employer and wants a judge to rescind approval of a settlement. The issue would be set before the judge so that a determination can be made as to whether there was mutual mistake, fraud, duress or undue influence.
  • It is the middle of a trial and the applicant’s attorney tells the trial judge during a break that they no longer represent the applicant. Not only is this a violation of State Bar rules—abandonment of a client during a trial—it is a problem for opposing counsel and the judge. The judge must refer the applicant to an I&A Officer at that time for guidance, and there is good cause for the judge to continue the trial to give the applicant an opportunity to seek new counsel.
  • The injured worker is accused of being or already has been declared to be a vexatious litigant pursuant to 8 CCR section 10430. An I&A Officer can describe the rule to the potential vexatious litigant only if opposing counsel or anyone else has filed a Petition to Declare a Person a Vexatious Litigant. The responsibility to review future filings, if any, by a vexatious litigant is that of the presiding judge, not the I&A Officer.
  • Defense counsel presents a walk-through Compromise and Release or Stipulations with Request for Award for approval by a judge where the injured worker is not represented by counsel. The walk-through judge is instructed in cases like this to refer defense counsel to the I&A Office to consult with an I&A Officer, who needs to review the settlement and reach out to the injured worker to confirm the elements required under 8 CCR section 9927(d).
  • An uninsured employer is served with a Notice of Special Lawsuit and copies of the Application for Adjudication of Claim. They show up at the WCAB office demanding to be dismissed from the case since the applicant was an independent contractor. I&A officers would meet with

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  • the employer, provide a copy of the I&A Handbook and probably provide the employer with a copy of the names, addresses and phone numbers of reputable defense attorneys.
  • An employer receives a notice from their insurer informing them that their insurance coverage is being surcharged due to a gap in coverage and a high recent claims history, or the employer has received a Notice of Cancellation of their workers’ compensation insurance coverage. The I&A Officer explains the employer’s right to challenge the insurance surcharge or cancellation notice or make any other objection the employer has with premiums. These disputes are essentially beyond the scope of work I&A officers deal with, but they could result in the I&A Officer referring the employer to its insurance broker or an attorney on the attorney referral list. The empowerment of I&A officers to be consulted concerning any rights, benefits or obligations of employers is found under 8 CCR section 9924(a).
  • An insurance company that writes workers’ compensation coverage receives a notice of an audit from the DWC Audit Unit. Subsequently, the insurance company wants to appeal numerous audit penalties. The I&A Officer explains the employer’s right to appeal an audit penalty pursuant to Labor Code section 129.5(g) and 8 CCR sections 10560 and 10590.
  • An applicant, after settling their workers’ compensation case and receiving their money, fails to timely apply for a Return-to-Work Supplement. An I&A Officer explains 8 CCR section 10565, which permits the filing of a Petition Appealing Denial of Return-to-Work Supplement with the WCAB district office that has venue over the settlement. The I&A Officer also provides the applicant with a Declaration of Readiness to Proceed to put the issue on calendar.

Judge Rassp practiced workers’ compensation and social security disability law for 38 years. In April 2018 he was appointed as a workers’ compensation Administrative Law Judge at the Los Angeles WCAB District Office. He has written 15 books on how to use the AMA Guides, Fifth Edition, and is the editor-in-chief of the Rassp & Herlick treatise. He teaches workers’ compensation law at Pepperdine University School of Law and enjoys the ocean view during his office hours there.

Rose Stephanian is one of the three Information and Assistance officers at the WCAB Los Angeles District Office. She has been in that position since December of 2012. Prior to that, she served for 15 years as a hearing representative for the law Offices of Wax & Wax.

Oliva Iniguez is also one of the three Information and Assistance officers at the WCAB Los Angeles District Office and has been in that position since 2019. Additionally, she serves as our ADA Coordinator. Prior to that employment, she was a paralegal at Stockwell, Harris, Woolverton & Muehl for 14 years.

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