Arbitration of certain issues, such as insurance coverage and contribution under Labor Code section 5500.5, took effect on January 1, 1990. Where an injured employee is represented by an attorney, the parties may agree to arbitrate other issues as discussed below.
Issues involving insurance coverage and the right to contribution in accordance with Labor Code section 5500.5 must go to arbitration. Other issues may be resolved through the arbitration process if the parties agree.
The following Labor Code sections set forth the arbitration procedures.
Employee Must be Represented by an Attorney
Labor Code section 5270 provides:
This part shall not apply in cases where an injured employee or dependent is involved unless the employee or dependent is represented by an attorney.
Labor Code section 5270.5 provides:
List of eligible arbitrators
(a) The presiding workers' compensation judge at each district office shall prepare a list of all eligible attorneys who apply to be placed on the list of eligible arbitrators. Attorneys are eligible to become arbitrators if they are active members of the California State Bar Association and are one of the following:
(1) A certified specialist in workers' compensation, or eligible to become certified.
(2) A retired workers' compensation judge.
(3) A retired appeals board member.
(4) An attorney who has been certified to serve as a judge pro tempore.
(b) No attorney shall be included in a panel of arbitrators, if he or she has served as a judge in any proceeding involving the same case, or has represented, or whose firm has represented, any party in the same case.
Selection of Arbitrator
Labor Code section 5271 provides:
(a) The parties to a dispute submitted for arbitration may select any eligible attorney from the list prepared by the presiding workers' compensation judge to serve as arbitrator. However, when the disputed issue involves insurance coverage, the parties may select any attorney as arbitrator upon agreement of the parties.
(b) If the parties cannot select an arbitrator by agreement, either party may request the presiding workers' compensation judge to assign a panel of five arbitrators selected at random from the list of eligible attorneys. No more than three arbitrators on a five-member panel may be defense attorneys, no more than three may be applicant's attorneys, and no more than two may be retired workers' compensation judges or appeals board commissioners.
(c) For each party in excess of one party in the capacity of employer and one party in the capacity of injured employee or lien claimant, the presiding judge shall randomly select two additional arbitrators to add to the panel. For each additional party in the capacity of employer, the presiding judge shall assign a retired workers' compensation judge or retired appeals board commissioner and an applicant's attorney. For each additional party in the capacity of injured employee or lien claimant, the presiding judge shall assign a retired workers' compensation judge or retired appeals board commissioner and a defense attorney. For each additional other party, the presiding judge shall assign two arbitrators to the panel, in order of rotation from case to case, as follows: a retired workers' compensation judge or retired appeals board commissioner, an applicant's attorney, a defense attorney.
(d) A party may petition the presiding workers' compensation judge to remove a member from the panel pursuant to Section 170.1 of the Code of Civil Procedure. The presiding workers' compensation judge shall assign another eligible attorney to replace any member removed under this subdivision.
(e) Each party or lien claimant shall strike two members from the panel, and the remaining attorney shall serve as arbitrator.
Arbitrator's Duties and Limits of Power
Labor Code section 5272 provides:
Arbitrators shall have all of the statutory and regulatory duties and responsibilities of a workers' compensation judge, as set forth in Chapter 1 (commencing with Section 5300) of Part 4, except for the following:
(a) Arbitrators shall have no power to order the injured worker to be examined by a qualified medical evaluator pursuant to Sections 5701 and 5703.5.
(b) Arbitrators shall not have power of contempt.
Payment of Cost of Proceedings
Labor Code section 5273 provides:
(a) In disputes between an employee and an employer, the employer shall pay all costs related to the arbitration proceeding, including use of facilities, hearing reporter per diems and transcript costs.
(b) In all other disputes, the costs of the arbitration proceedings, including the arbitrator's compensation, shall be paid as follows:
(1) By the parties equally in any dispute between an employer and an insurer, or an employer and a lien claimant.
(2) By the parties equally in proceedings subject to Section 5500.5.
(3) By the dependents in accordance with their proportionate share of death benefits, where there is no dispute as to the injury causing death.
(c) Disputes regarding the costs or fees for arbitration shall be within the exclusive jurisdiction of the appeals board, and shall be determined initially by the presiding judge of the district office.
Types of Disputes That Must and/or may be Arbitrated
Labor Code section 5275 provides:
(a) Disputes involving the following issues shall be submitted for arbitration:
(1) Insurance coverage.
(2) Right of contribution in accordance with Section 5500.5.
(b) By agreement of the parties, any issue arising under Division 1 (commencing with Section 50) or Division 4 (commencing with Section 3200) may be submitted for arbitration, regardless of the date of injury.
Arbitrators do not have jurisdiction over Labor Code Section 132a claims. Jurisdiction over section 132a rests solely with the Board. Commenting on this in Kiewit Pacific et al. v. W.C.A.B. (Beaver) (2003) 68 Cal.Comp.Cases 1873 (Writ Denied), the Board stated, in part:
Section 132a, however, is not in Division 4. Moreover, section 132a vests only the W.C.A.B. "with full power, authority and jurisdiction to try and determine finally all [employee discrimination claims]." (Lab. Code, §132a.) Finally, unlike section 5300, there is nothing in section 132a that expressly permits any exceptions to the W.C.A.B.'s exclusive jurisdiction over employee discrimination claims.... See also SunLine Transit Agency v. Amalgamated Transit Union, Local 1277 (Navarette) (2010) 75 Cal.Comp.Cases 1155 (Published), where the Court of Appeal, Fourth District held that an arbitrator did not exceed his powers under a collective bargaining agreement, and Brunton Enterprises, Inc., SeaBright Insurance Company, v. Shilts (Guest) (2010) 75 Cal.Comp.Cases 1172 (Writ Denied),wherein the Appeals Board held that a "carve-out" agreement between a decedent's union and the employer did not apply to non-employee dependants claim for death benefits, based on the clear language of Labor Code Section 3201.5, which expressly allows alternative dispute resolutions systems between certain union-represented employees and employers or their insurers.
Further, disputes involving liability of excess insurance carriers may not be subjected to mandatory arbitration. Commenting upon this, in Contra Costa County et al. v. W.C.A.B. (Millman) (2014) 79 Cal.Comp.Cases 439 (Writ Denied), the Board stated, in part:
Because GRC provided excess insurance rather than workers’ compensation insurance, there can be no dispute between the County and GRC [443] over whether GRC provided workers’ compensation coverage. While Labor Code section 5275(a) does not explicitly state that only workers’ compensation coverage disputes are subject to mandatory arbitration, given its location in Division Four of the Labor Code, and the congruence between workers’ compensation liability and workers’ compensation insurance policies, we conclude that Labor Code section 5275(a) applies to workers’ compensation insurance coverage disputes. Interpretation of policy provisions regarding reimbursement of certain expenses could be submitted to an arbitrator by agreement of the parties, but it is not an insurance coverage dispute subject to mandatory arbitration.... See section 70.3.15 of this book for a discussion of excess insurance.
Date, Time and Place of Proceedings
Labor Code section 5276 provides:
(a) Arbitration proceedings may commence at any place and time agreed upon by all parties.
(b) If the parties cannot agree on a time or place to commence arbitration proceedings, the arbitrator shall order the date time and place for commencement of the proceeding. Unless all parties agree otherwise, arbitration proceedings shall commence not less than 30 days nor more than 60 days from the date an arbitrator is selected.
(c) Ten days before the arbitration, each party shall submit to the arbitrator and serve on the opposing party reports, records and other documentary evidence on which that party intends to rely. If a party intends to rely upon excerpts of records or depositions, only copies of the excerpts shall be submitted to the arbitrator.
Arbitrator's Findings and Award
Labor Code section 5277 provides:
(a) The arbitrator's findings and award shall be served on all parties within 30 days of submission of the case for decision.
(b) The arbitrator's award shall comply with Section 5313 and shall be filed with the appeals board office pursuant to venue rules published by the appeals board.
(c) The findings of fact, award, order, or decision of the arbitrator shall have the same force and effect as an award, order, or decision of a workers' compensation judge.
(d) Use of an arbitrator for any part of a proceeding or any issue shall not bind the parties to the use of the same arbitrator for any subsequent issues or proceedings.
(e) Unless all parties agree to a longer period of time, the failure of the arbitrator to submit the decision within 30 days shall result in forfeiture of the arbitrator's fee and shall vacate the submission order and all stipulations.
(f) The presiding workers' compensation judge may submit supplemental proceedings to arbitration pursuant to this part.
Inasmuch as an arbitrator has the same duties and responsibilities as a Workers’ Compensation Judge, he or she is required to prepare and submit a summary of evidence when issuing an award. Commenting on this requirement in Sharareh, et al., v. W.C.A.B. (2007) 72 Cal.Comp.Cases 1371 (Published), the Court of Appeal, First District, stated, in part:
A. A WCJ Must Prepare a Summary of Evidence in Every Case
Section 5313 provides that a WCJ shall, within 30 days after the case is submitted, issue and serve a findings and order, along with a ''summary of the evidence received and relied upon and the reasons or grounds upon which the determination was made.'' (Italics added.) California Code of Regulations, title 8, section 10566, echoes this requirement: ''Minutes of hearing and summary of evidence shall be prepared at the conclusion of each hearing and filed in the record of proceedings. They shall include: [P ] . . . [P ] (d) A summary of the evidence required by Labor Code Section 5313 that shall include a fair and unbiased summary of the testimony given by each witness.'' Because section 5313 and the parallel regulatory provision unambiguously require WCJs to prepare this document, and an arbitrator acting as a WCJ assumes all responsibilities and duties of a WCJ (§ 5272), the Board correctly held the arbitrator erred in failing to prepare a summary of evidence….
In Wilson v. Centinela Hospital Medical Center (1998) 63 Cal.Comp.Cases 1048 (Published), the Appeals Board vacated an arbitrator's Findings and Award and submission under Labor Code section 5277(e) and ordered the arbitrator's fee forfeited and remanded the case to the trial level for further action on the merits where the arbitrator did not issue his Findings and Award within 30 days after the matter was submitted to him.
See also Alva v. W.C.A.B. (1999) 64 Cal.Comp.Cases 736 (Unpublished), for a case where an arbitrator's decision was not in compliance with Labor Code section 5313 in that it was not issued within 30 days after submission.But see Faeth v. W.C.A.B. (Gault) (2006) 71 Cal.Comp.Cases 355 (Unpublished).
See Arrowpoint Capital Corporation, et al., v. W.C.A.B. (Vasquez) (2011) 76 Cal.Comp.Cases 488 (Writ Denied), where the Arbitrator did not err or violate carriers due process rights in arbitration proceeding by admitting into evidence an AME's served by the carrier on the day of arbitration, rather than ten days prior to the proceedings, pursuant to Labor Code section 5276(c), where the Board found that the ten-day service requirements in section 5276(c) was not mandatory, and that the carrier had substantially complied with the provisions of the Code by attaching the AME's report to its petition for contribution, which it had timely served on applicant's employer, who should have forwarded it to another carrier in the case.
Prohibition of Disclosure to Arbitrator Prior to Award
Labor Code section 5278 provides:
(a) No disclosure of any offers of settlement made by any party shall be made to the arbitrator prior to the filing of the award.
(b) Article 7 (commencing with Section 11430.10) of Chapter 4.5 of Part 1 of Division 3 of title 2 of the Government Code applies to a communication to the arbitrator or a potential arbitrator.
Appeals Board Rule on Mandatory Arbitration
The Board's Regulations on arbitration follows.
Title 8 of the California Code of Regulations, section 10995 provides:
(a) This rule applies to injuries occurring on or after January 1, 1990.
(b) Any application for adjudication that lists one or more disputes involving an issue set forth in Labor Code section 5275(a), shall be accompanied by an arbitration submittal form. The arbitration submittal form shall indicate that either:
(1) an arbitrator has been selected pursuant to Labor Code section 5271(a), or
(2) an unsuccessful attempt has been made to select an arbitrator and the presiding workers' compensation judge is requested pursuant to Labor Code section 5271(b), to assign a panel of five arbitrators.
(c) If the parties have agreed to an arbitrator pursuant to Labor Code section 5271(c), the presiding judge shall, within six (6) days of receipt of the arbitration submittal form, order the issue or issues in dispute submitted for arbitration pursuant to Labor Code sections 5272, 5273, 5276 and 5277.
(d) If the arbitration submittal form requests a panel pursuant to Labor Code section 5271(b), the presiding judge shall, within six (6) days of receipt of the arbitration submittal form, serve on each of the parties an identical list of five arbitrators selected at random pursuant to Labor Code 5271(b). For each party in excess of one party in the capacity of employer and one party in the capacity of injured employee or lien claimant, the presiding judge shall randomly select two additional arbitrators to add to the panel in accordance with the selection process set forth in Labor Code section 5721(c). Each of the parties shall strike two arbitrators from the list and return it to the presiding judge within six (6) days after service. Failure to timely return the list shall constitute a waiver of a party's right to participate in the selection process. If one arbitrator remains, the presiding judge shall, within six (6) days of return of the lists from the parties, order the issue or issues submitted for arbitration before the selected arbitrator pursuant to Labor Code sections 5272, 5273, 5276 and 5277. If more than one arbitrator remains on the panel, the presiding judge shall randomly select an arbitrator from the remaining panelists.
(e) If the parties to the dispute have stricken all the arbitrators from the panel, the presiding judge shall, within six (6) days of receipt of the last of the returned lists, serve on each of the parties to the dispute a new list of five arbitrators and any additional arbitrators required by Labor Code section 5271(c), selected at random but excluding the names of the arbitrators on the prior list. Each of the parties to the dispute shall again strike two arbitrators from the list and return it to the presiding judge within six (6) days after service. This procedure shall continue until one or more arbitrators remain on the lists returned to the presiding judge.
(f) The parties shall provide all necessary materials to the arbitrator. Any paper file shall remain in the custody of the district office.
(g) A copy of any final decision, order or award from the arbitrator, together with a copy of the record developed as set forth in Labor Code sections 5276 and 5277, shall be filed with the presiding judge of the district office having venue. The district office shall scan the copies of the arbitrator's the decision, order or award and record into the EAMS adjudication file and, after scanning, shall destroy the copies.
Voluntary Arbitration
The parties may agree at any time to submit their disputes to arbitration but limited to the types of disputes set forth in Labor Code section 5275, which provides:
(a) Disputes involving the following issues shall be submitted for arbitration:
(1) Insurance coverage
(2) Right of contribution in accordance with Section 5500.5
(b) By agreement of the parties, any issue arising under Division 1 (commencing with Section 50) or Division 4 (commencing with Section 3200) may be submitted for arbitration, regardless of the date of injury.
Title 8 of the California Code of Regulation, section 10996 provides:
(a) At any time, the parties may agree to submit any issue for arbitration pursuant to Labor Code section 5275(b), by submitting an arbitration submittal form that indicates that the parties have selected an arbitrator pursuant to Labor Code section 5271(a), and by filing an application for adjudication if one has not been previously filed.
(b) Within six (6) days of receipt of the arbitration submittal form, the presiding workers' compensation judge shall order the issues in dispute submitted for arbitration pursuant to Labor Code sections 5272, 5273, 5276 and 5277.
(c) If the parties are unable to agree to an arbitrator under Labor Code section 5271(a), the parties may agree to follow the procedures for selecting an arbitrator under Labor Code section 5271(b) and (c), as set forth in section 10995.
(d) The parties shall provide all necessary materials to the arbitrator.
(e) A copy of any final decision, order or award from the arbitrator, together with a copy of the record developed as set forth in Labor Code sections 5276 and 5277, shall be filed with the presiding judge of the district office having venue. The district office shall scan the copies of the arbitrator's decision, order or award and the record into the EAMS adjudication file and, after scanning, shall destroy the copies.
Request for Arbitration
Title 8 of the California Code of Regulations, section 10208.12 provides:
DWC-CA form 10297 (Arbitration Submittal form) revision dated 11/2008 is incorporated by reference.
Disqualification of Arbitrator
Title 8 of the California Code of Regulations, section 10998 provides:
This rule applies to injuries occurring on or after January 1, 1990, except that this rule applies regardless of the date of injury for voluntary arbitration pursuant to Labor Code section 5275, subdivision (b).
After service of a list of panel members pursuant to rule 10995, any party may, within six (6) days, petition the workers' compensation judge to remove any member from the panel pursuant to section 170.1 of the Code of Civil Procedure. In event the presiding workers' compensation judge finds cause under section 170.1 of the Code of Civil Procedure, the presiding workers' compensation judge shall remove the member or members of the panel challenged and add to the original list the appropriate number of arbitrators at random to make a full panel and, within six (6) days, serve the list on the parties.
In event the presiding workers' compensation judge selects an arbitrator pursuant to rule 10995, the parties will have six (6) days after service of the name of the arbitrator to petition to disqualify that arbitrator pursuant to section 170.1 of the Code of Civil Procedure. If the presiding workers' compensation judge finds cause, the presiding workers' compensation judge shall assign another arbitrator pursuant to Labor Code section 5271, subdivision (d) and order the issue or issues in dispute submitted to that arbitrator.
Arbitration Fees
Immediately after the initial filing requirements of arbitration services are met, SB 762 which amended Code of Civil Procedure Section 1281.97 and Section 1281.98, provides, as follows:
After an employee or consumer meets the filing requirements necessary to initiate an arbitration, the arbitration provider shall immediately provide an invoice for any fees and costs required before the arbitration can proceed to all of the parties to the arbitration. The invoice shall be provided in its entirety, shall state the full amount owed and the date that payment is due, and shall be sent to all parties by the same means on the same day. To avoid delay, absent an express provision in the arbitration agreement stating the number of days in which the parties to the arbitration must pay any required fees or costs, the arbitration provider shall issue all invoices to the parties as due upon receipt...
Disputes Over Arbitrator's Fees and Costs
Title 8 of the California Code of Regulations, section 10999 provides:
Any dispute involving an arbitrator's fee or cost shall be resolved by the presiding workers' compensation judge of the appropriate local office or, in his or her absence, the acting presiding workers' compensation judge.
Any request to resolve a dispute about arbitrator fees or costs must be accompanied by any written agreement pertaining to arbitrator fees or costs and a statement which shall include the nature of the dispute and an itemization of the hours spent in actual arbitration hearing, in preparation for arbitration, and in preparation of the decision. The statement shall also include an itemization of the verifiable costs including use of facility, reporters and transcript preparation.
An arbitrator fee shall not exceed a reasonable amount. In establishing a reasonable fee, the presiding workers' compensation judge shall consider:
(a) responsibility assumed by the arbitrator;
(b) experience of the arbitrator;
(c) number and complexity of the issues being arbitrated;
(d) time involved; and
(e) expeditiousness and completeness of issue resolution.
The presiding workers' compensation judge of each local office shall maintain statistics on all arbitration fees awarded pursuant to Labor Code Section 5273, subdivision (c), including the amount thereof and rationale or basis for the award pursuant to (a) through (e) herein above.
Arbitration costs will be allowed in a reasonable amount pursuant to Labor Code Section 5273, subdivision (a).
Disputes Over Medical Expenses May be Arbitrated
Disputes arising over medical expenses, may be resolved by binding arbitration upon agreement of the parties.
Labor Code section 4903.4 amended, effective January 1, 2013, provides:
(a) If a dispute arises concerning a lien for expenses incurred by or on behalf of the injured employee as provided by Article 2 (commencing with Section 4600) of Chapter 2 of Part 2, the appeals board may resolve the dispute in a separate proceeding, which may include binding arbitration upon agreement of the employer, lien claimant, and the employee, if the employee remains a party to the dispute, according to the rules of practice and procedure.
(b) If the dispute is heard at a separate proceeding it shall be calendared for hearing or hearings as determined by the appeals board based upon the resources available to the appeals board and other considerations as the appeals board deems appropriate and shall not be subject to Section 5501.
Orders, decisions, and awards of an arbitrator are subject to reconsideration.
Reconsideration of Arbitrator's Decision or Award
Title 8 of the California Code of Regulations, section 10866 provides:
(a) Any final order, decision or award filed by an arbitrator under the mandatory or voluntary arbitration provisions of Labor Code Sections 5270 through 5275 shall be subject to the reconsideration process as set forth in Labor Code Sections 5900 through 5911 and Rules 10842 through 10850. The parties, respectively, shall serve the arbitrator with the petition for reconsideration and the answer.
(b) A petition for reconsideration from any final order, decision or award filed by an arbitrator under the mandatory or voluntary arbitration provisions of Labor Code sections 5270 through 5275, and any answer to such a petition, may be filed with any district office or with the office of the Appeals Board in San Francisco. Duplicate copies of petitions filed with a district office shall not also be filed with any other district office or with the Appeals Board in San Francisco.
(c) When a petition for reconsideration is filed from any final order, decision or award made by an arbitrator under Labor Code Sections 5270 through 5275, the arbitrator shall prepare and serve a report on reconsideration as provided in Rule 10860. Upon completion of the report on reconsideration, the arbitrator shall concurrently forward the arbitrator's original report and a photocopy of the complete arbitration file directly to the presiding workers' compensation judge of the district office having venue over the matter. Upon receipt of the arbitrator's original report and the photocopy of the arbitration file, the district office shall scan the report and the photocopied file into the EAMS adjudication file and, after scanning, shall destroy these documents. Thereafter, the adjudication file shall be electronically transferred to the Appeals Board for action on the petition for reconsideration or, to the extent that the adjudication file is in paper form, the file shall be delivered to the Appeals Board.
(d) The petition for reconsideration, any answer, and the arbitration record shall be deemed part of the Workers' Compensation Appeals Board's record of proceedings under section 10750.
(e) The costs of photocopying the arbitrator's file shall be reimbursed to the arbitrator in accordance with the provisions of Labor Code section 5273, within 30 days after the liable party or parties receives the arbitrator's billing for those costs.
A Petition for Reconsideration of an arbitrator's decision must be filed no later than 25 days from the date of service of the decision (if filed by mail) and must be filed with the Appeals Board office which was the originating Board office and copies must be served on the parties. Commenting on this in CIGA, et al. v. W.C.A.B. (Sadeque) (2003) 68 Cal.Comp.Cases 239 (Writ Denied), the Appeals Board, after observing that reconsideration of an arbitrator's decision is governed by the process set forth in Title 8 of the California Code of Regulations, section 10866 and that venue was properly with the Santa Monica district office of the Appeals Board where the application was filed and earlier proceedings held, when the matter was assigned for arbitration from that office and the arbitrator properly filed his decision with that office, stated, in part:
Though the Rule does not specifically refer to arbitrator's [sic] decisions, we note that no separate statutory or regulatory procedure for reconsideration of arbitrator's [sic] decisions has been established, and arbitrator's [sic] decisions have not been exempted from the existing procedure for reconsideration. Thus, the established procedure for seeking reconsideration in this matter required CIGA's Petition for Reconsideration to be filed at the Santa Monica office of the Appeals Board within the statutory time limit.
Here, the arbitrator's Findings and Order of June 28, 2002, was served by mail on defendant CIGA on that date. However, defendant CIGA did not file its Petition for Reconsideration at the Santa Monica office of the Appeals Board until July 24, 2002, one day beyond the time allowed by statute for filing a petition. CIGA's having served the arbitrator with its Petition for Reconsideration one day earlier does not constitute compliance with the statutory procedure and does not establish the Appeals Board's jurisdiction to act on the petition filed the following day. Thus, defendant CIGA's petition was not timely filed and must be dismissed....