Litigation Services. (A) Workers' Compensation Defense: (1) State Fund Legal will provide support to State Fund claims calendar year goals in all key performance areas and will represent Departments in all actions before the California Workers' Compensation Appeals Board (WCAB or "Board"), and the civil courts upon appeal or review of a WCAB decision/order, in accordance with State Fund internal guidelines. (2) The foregoing notwithstanding, State Fund Legal representation at the WCAB pursuant to claims arising out of Article 6 Disability Retirement (Sections 21150-21176) of the Government Code, shall be at the sole discretion of State Fund Legal. State Fund will notify the RTWC of its election whether or not to represent the Department ten (10) working days in advance of the date of a hearing, unless less notice is given by the WCAB. When State Fund receives less than ten (10) working days' notice, the attorney will notify the RTWC within one (1) working day of State Fund's attorney's notice. (3) State Fund will represent Departments in California Labor Code Section 132a (discrimination actions), California Labor Code Sections 4550-4557 (serious and willful misconduct claims), litigation under California Labor Code Section 5813 (WCAB sanctions), applicable Board Rules, and litigation in which an actual conflict of interest exists unless the Department provides written notice to State Fund of the Department's election of legal representation of their own choosing, at the Department's expense. (4) State Fund will represent Departments in litigated out-of-state cases, unless the Department provides written notice to State Fund of the Department's election of legal representation of their own choosing, at the Department's expense. In the event that State Fund does represent a Department in a claim that arises in another state, State Fund, at the Department's expense, may do all things necessary for the adjustment, litigation and disposition of out-of-state claims for the injured employee of a Department under this Agreement including, but not limited to, the selection of Subcontractors qualified to litigate, adjust and dispose of claims in the other jurisdiction. (5) Individual attorney caseload size shall be determined by State Fund management. (6) Departments may contact State Fund and schedule a time to review their legal files. A review of the Department's legal files must be done by either the Department's staff counsel or an attorney hired by the Department and acting as an agent for the Department. The timing and location of the review will be mutually agreed upon. (7) State Fund attorneys will work with Departments' attorneys and litigation staff in Departments' best interests when issues involve litigation in multiple forums (e.g., WCAB, Municipal, Superior, or Federal Court). Unless one of the exceptions above applies, control of workers' compensation litigation will remain under State Fund's Legal Department. State Fund attorneys will cooperate with the Department attorneys and litigation staff and receive cooperation from the Department attorneys and litigation staff. Cooperation will be consistent with sound legal practices in representing Departments' best interests. (8) State Fund shall provide a deposition transcript to the RTWC, upon request, when appropriate under the Law. (9) Departments shall notice State Fund of the Department's address of record. State Fund will notice the WCAB of the name and the address of record. (10) State Fund shall provide Departments with copies of all deposition summaries and reports of hearings and petitions. (11) State Fund legal staff shall be available to meet with a Department's representative on a case and provide a report on the matter within a reasonable time period. The location of the meeting will be mutually agreed upon. (12) State Fund's Appellate Unit will review all cases in which there is a request for a Writ of Review. The Appellate Unit will determine whether the case should be appealed further. This determination will be made within twenty-eight (28) calendar days of State Fund's receipt of the decision after reconsideration. (13) The Department will be notified at the time a case is referred to State Fund's Appellate Unit. The Department may submit written comments concerning the case to State Fund's Appellate Unit by delivering those comments to State Fund's Appellate Unit within ten (10) working days of receipt of the notice. (14) The Appellate Unit will issue its determination by the thirtieth (30th) calendar day from State Fund's receipt of the decision after reconsideration. The RTWC may discuss the Appellate Unit's determination with the local State Fund attorney or supervising attorney/assistant chief counsel if he/she disagrees with the Appellate Unit's determination. CalHR and the Department shall be copied on all cases in which a Writ of Mandate or Writ of Review is filed. (15) State Fund will notify the RTWC ten (10) working days in advance of the date of a hearing unless less notice is given by the WCAB. When State Fund receives less than ten (10) working days' notice, the attorney will notify the RTWC within one (1) working day of State Fund's attorney's notice. (16) State Fund shall notify the RTWC that a hearing date has been rescheduled or canceled. (17) The Department shall identify which individual is authorized to represent the Department with regard to any proceedings before the Workers' Compensation Appeals Board. This authority must include the ability to negotiate settlements. Departments shall have a person available with settlement authority for all conferences and hearings. The authority must meet the requirements of the California Labor Code and WCAB Rules. The person designated by the Department need not be present at the conference or hearing if the State Fund attorney can obtain immediate authority by telephone. (18) Departments are responsible for the preservation of all evidence in the Department's possession. Departments should have written procedures on securing such evidence. (19) Departments are responsible for making witnesses and other relevant parties available for interviews and testimony when requested to do so by State Fund.
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Sources: Master Agreement, Master Agreement