May 21, 2019
By Clifford D. Sweet, III
Some clients overlook potential issues which arise when the lien claimant’s representative has failed to timely file and serve a fully executed proper notice of representation as required by Cal. Code Regs., tit.8, §10774.5. WCAB Rule 10774.5 requires the representative (including an attorny) of any lien claimant to file and serve on all parties and their attorneys within 5 days of representation a properly executed notice of representation which includes specifically mandated language and a declaration signed under penalty of perjury. The properly executed notice of representation must be filed with the WCAB no later than “at or before the time of any hearing.”
If there is no fully executed 10774.5 notice of representation timely filed and served, the attorney or hearing representative has no legal standing to act on behalf of the lien claimant at a WCAB hearing. Among other things, that means that a person appearing at a WCAB hearing has no legal standing to enter an appearance, to address the court, to make or oppose motions, to file any document or to complete any forms, such as a Pre-Trial Conference Statement. Cal. Code Regs., tit. 8, § 10774.5 subdivision (e) (5) provides: “If no fully executed notice of representation or change of representation has been filed at or before the time of any hearing: (A) the lien claimant shall be deemed not to be represented even if a representative who purportedly has assumed representation appears; and (B) if the lien claimant does not otherwise appear at the hearing, it shall be subject to all of the consequences of a failure to appear.”
- A failure to comply with Rule 10744.5 may constitute a bad faith action or tactic warranting the imposition of sanctions pursuant to Lab. Code, § 5813. Cal. Code Regs., tit. 8, § 10561 subdivisions (b) and (e) provide, in part: “(b) …Violations subject to the provisions of Labor Code Section 5813 shall include but are not limited to the following: (3) Failure to timely serve documents … (4) Failing to comply with the Workers’ Compensation Appeals Board’s Rules of Practice and Procedure, with the regulations of the Administrative Director… (e) Notwithstanding any other provision of these rules, for purposes of this rule and Labor Code section 5813: (1) a lien claimant may be deemed a “party” at any stage of the proceedings before the Workers’ Compensation Appeals Board; and (2) an “attorney” includes a lay representative of a party or lien claimant.
- There can be no “local rule” exception to the enforcement of WCAB Rule 10774.5. Lab. Code, 5500.3 subdivision (a) provides: “The appeals board shall establish uniform district office procedures, uniform forms, and uniform time of court settings for all district offices of the appeals board. No district office of the appeals board or workers’ compensation administrative law judge shall require forms or procedures other than as established by the appeals board. A workers’ compensation administrative law judge who violates this section may be subject to disciplinary proceedings.”
- A failure to comply with the notice of representation requirement of WCAB Rule 10774.5 therefore cannot constitute good cause for a continuance. Lab. Code, § 5502.5 provides: “A continuance of any conference or hearing required by Section 5502 shall not be favored, but may be granted by a workers’ compensation judge upon any terms as are just upon a showing of good cause. When determining a request for continuance, the workers’ compensation judge shall take into consideration the complexity of the issues, the diligence of the parties, and the prejudice incurred on the part of any party by reasons of granting or denying a continuance.”
NOTE: Many workers’ compensation judges will allow lien claimant representatives to fully participate at hearings notwithstanding their noncompliance with Rule 10774.5. It is up to the client to decide on a case-by-case basis whether to pursue enforcement of Rule 10774.5 by way of a petition for removal.