When are issues finalized for trial in a California workers' compensation case?  Does a party to a workers' compensation proceeding waive an issue if it is not raised at the MSC?  Or, as long as an issue is raised by the start of trial, is waiver avoided?  Parties frequently dispute this question when one or the other raises an issue at trial that was not raised at the MSC.  Some say all issues must be set forth on the Pre-Trial Conference Statement (PTCS) to avoid waiver.  Others take the position that, as long as an issue is identified and articulated by the start of trial, waiver is avoided.

This Commentary addresses this question and offers an approach to answering it.  The author concludes that the time by which an issue must be raised to avoid waiver is at trial when the parties agree to stipulations and issues on the record, in the presence of the Workers' Compensation Judge (WCJ) and when they are recorded by the court reporter.  A practitioner is forewarned, however, that no particular case, statute, or regulation clearly and concisely answers this question.

The full text of this expert commentary can be accessed here.