Practice and procedure at the Workers’ Disability Compensation Agency (WDCA) has evolved over the years. Most recently, new administrative rules governing contested cases before the Workers’ Compensation Board of Magistrates, AC, R 418.81–.99, and the Workers’ Disability Compensation Appeals Commission, AC, R 418.61–.70, became effective on November 12, 2021. Although MCL 418.853 continues to require that the process be “as summary as reasonably may be,” it has been decades since this simply involved deposing the claimant’s physician and asking the claimant quick questions in a “trial by ambush” (as my grandfather’s partner was known to do).
The new board rules continue the expansion of the types of information that must be exchanged between the parties before trial. AC, R 418.91. Copies of records received in response to subpoenas must be promptly provided to all other parties. AC, R 418.89. Information required under MCL 418.222 on an application (and carrier’s response) must be supplemented as the case proceeds, including information regarding any new treatment or subsequent employment. Employers and carriers must produce vocational reports within 21 days of receipt, and they must provide timely specific information regarding purportedly available employment (or risk exclusion of such evidence at trial). Employers and carriers must now produce most nonprivileged employment and claims records on written request. Willful failure to comply with this discovery rule can result in the exclusion of evidence or prohibit a party from proceeding under the Worker’s Disability Compensation Act, MCL 418.101 et seq.
The new board rules also introduce new procedures permitting a magistrate to manage a case’s development, including an early exhibit admissibility hearing, AC, R 418.92, and a joint final pretrial conference and order, AC, R 418.93. A new evidentiary rule more clearly allows for documentary evidence not prepared for purposes of the litigation (including treating medical records, diagnostic reports, etc.) to be admitted without the need for a sponsoring witness, while preserving an opposing party’s right to schedule cross-examination of the person or entity who prepared the document. AC, R 418.97.
Among the new commission rules, new filing and service rules allow use of the electronic State of Michigan File Transfer Service. AC, R 418.63. Practitioners mastered the art of videoconferencing during the initial COVID-19 shutdown. While the agency reopened for in-person business in June 2021, the new board rules now provide that “[w]ith prior approval of the magistrate, the parties or their attorneys may appear by telephone, video conference, or other electronic means.” AC, R 418.85.
Be sure to read the new rules in their entirety to familiarize yourself with these and other changes. For the most up-to-date information, be sure to monitor the WDCA website.