BILL NUMBER: AB 335	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  MAY 27, 2011

INTRODUCED BY   Assembly Member Solorio

                        FEBRUARY 10, 2011

   An act to amend Sections 138.4, 3550, 4060, 4061, 4658.5, and 5401
of the Labor Code, relating to workers' compensation.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 335, as amended, Solorio. Workers' compensation: notices.
   Existing law establishes a workers' compensation system,
administered by the Administrative Director of the Division of
Workers' Compensation, to compensate an employee for injuries
sustained in the course of his or her employment. Existing law
establishes, in the Department of Industrial Relations, the
Commission on Health and Safety and Workers' Compensation. Existing
law requires that specified notices be provided to injured employees
and prescribes the contents of notices that are required to be
posted, given to, or mailed to an employee. Existing law provides for
specified procedures to be used in notifying employees regarding
benefits and required actions in pursuing a workers' compensation
claim.
   This bill would require the administrative director, in
consultation with the commission, to prescribe reasonable rules and
regulations for serving certain notices on an employee. This bill
would require the administrative director, in consultation with the
commission, to develop, make fully accessible on the department's
Internet Web site, and make available  by mail and 
at district offices  , a booklet   informational
material  written in plain language that describes the overall
workers' compensation claims process. This bill would require each
notice to be written in plain language and to reference the 
booklet   informational material  to enable
employees to understand the context of the notices. This bill would
modify provisions required to be in, and procedures for, specified
notices, and would delete a requirement for notice by certified mail,
and would make conforming changes.
   Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  Section 138.4 of the Labor Code is amended to read:
   138.4.  (a) For the purpose of this section, "claims administrator"
means a self-administered workers' compensation insurer; or a
self-administered self-insured employer; or a self-administered
legally uninsured employer; or a self-administered joint powers
authority; or a third-party claims administrator for an insurer, a
self-insured employer, a legally uninsured employer, or a joint
powers authority.
   (b) With respect to injuries resulting in lost time beyond the
employee's work shift at the time of injury or medical treatment
beyond first aid:
   (1) If the claims administrator obtains knowledge that the
employer has not provided a claim form or a notice of potential
eligibility for benefits to the employee, it shall provide the form
and notice to the employee within three working days of its knowledge
that the form or notice was not provided.
   (2) If the claims administrator cannot determine if the employer
has provided a claim form and notice of potential eligibility for
benefits to the employee, the claims administrator shall provide the
form and notice to the employee within 30 days of the administrator's
date of knowledge of the claim.
   (c) The administrative director, in consultation with the
Commission on Health and Safety and Workers' Compensation, shall
prescribe reasonable rules and regulations for serving on the
employee (or employee's dependents, in the case of death), the
following:
   (1) Notices dealing with the payment, nonpayment, or delay in
payment of temporary disability, permanent disability, supplemental
job displacement, and death benefits.
   (2) Notices of any change in the amount or type of benefits being
provided, the termination of benefits, the rejection of any liability
for compensation, and an accounting of benefits paid.
   (3) Notices of rights to select the primary treating physician,
written continuity of care policies, requests for a comprehensive
medical evaluation, and offers of regular, modified, or alternative
work.
   (d) The administrative director, in consultation with the
Commission on Health and Safety and Workers' Compensation, shall
develop, make fully accessible on the department's Internet Web site,
and make available  by mail and at district offices, a
booklet   at district offices informational material
 written in plain language that describes the overall workers'
compensation claims process, including the rights and obligations of
employees and employers at every stage of a claim when a notice is
required.
   (e) Each notice prescribed by the administrative director shall be
written in plain language, shall reference the  booklet
  informational material  described in subdivision
(d) to enable employees to understand the context of the notices, and
shall clearly state the Internet Web site address and contact
information that an employee may use to obtain the booklet
  access the informational material  .
  SEC. 2.  Section 3550 of the Labor Code is amended to read:
   3550.  (a) Every employer subject to the compensation provisions
of this division shall post and keep posted in a conspicuous location
frequented by employees, and where the notice may be easily read by
employees during the hours of the workday, a notice that states the
name of the current compensation insurance carrier of the employer,
or when such is the fact, that the employer is self-insured, and who
is responsible for claims adjustment.
   (b) Failure to keep any notice required by this section
conspicuously posted shall constitute a misdemeanor, and shall be
prima facie evidence of noninsurance.
   (c) This section shall not apply with respect to the employment of
employees as defined in subdivision (d) of Section 3351.
   (d) The form and content of the notice required by this section
shall be prescribed by the administrative director, after
consultation with the Commission on Health and Safety and Workers'
Compensation, and shall advise employees that all injuries should be
reported to their employer. The notice shall be easily
understandable. It shall be posted in both English and Spanish where
there are Spanish-speaking employees. The notice shall include the
following information:
   (1) How to get emergency medical treatment, if needed.
   (2) The kinds of events, injuries, and illnesses covered by
workers' compensation.
   (3) The injured employee's right to receive medical care.
   (4) The rights of the employee to select and change the treating
physician pursuant to the provisions of Section 4600.
   (5) The rights of the employee to receive temporary disability
indemnity, permanent disability indemnity, supplemental job
displacement, and death benefits, as appropriate.
   (6) To whom injuries should be reported.
   (7) The existence of time limits for the employer to be notified
of an occupational injury.
   (8) The protections against discrimination provided pursuant to
Section 132a.
   (9) The Internet Web site address and contact information that
employees may use to obtain further information about the workers'
compensation claims process and an injured employee's rights and
obligations, including the location and telephone number of the
nearest information and assistance officer.
   (e) Failure of an employer to provide the notice required by this
section shall automatically permit the employee to be treated by his
or her personal physician with respect to an injury occurring during
that failure.
   (f) The form and content of the notice required to be posted by
this section shall be made available to self-insured employers and
insurers by the administrative director. Insurers shall provide this
notice to each of their policyholders, with advice concerning the
requirements of this section and the penalties for a failure to post
this notice.
  SEC. 3.  Section 4060 of the Labor Code is amended to read:
   4060.  (a) This section shall apply to disputes over the
compensability of any injury. This section shall not apply where
injury to any part or parts of the body is accepted as compensable by
the employer.
   (b) Neither the employer nor the employee shall be liable for any
comprehensive medical-legal evaluation performed by other than the
treating physician, except as provided in this section. However,
reports of treating physicians shall be admissible.
   (c) If a medical evaluation is required to determine
compensability at any time after the filing of the claim form, and
the employee is represented by an attorney, a medical evaluation to
determine compensability shall be obtained only by the procedure
provided in Section 4062.2.
   (d) If a medical evaluation is required to determine
compensability at any time after the claim form is filed, and the
employee is not represented by an attorney, the employer shall
provide the employee with notice either that the employer requests a
comprehensive medical evaluation to determine compensability or that
the employer has not accepted liability and the employee may request
a comprehensive medical evaluation to determine compensability.
Either party may request a comprehensive medical evaluation to
determine compensability. The evaluation shall be obtained only by
the procedure provided in Section 4062.1.
   (e) The notice required by subdivision (d) shall be accompanied by
the form prescribed by the administrative director for requesting
the assignment of a panel of qualified medical evaluators.
  SEC. 4.  Section 4061 of the Labor Code is amended to read:
   4061.  (a) Together with the last payment of temporary disability
indemnity, the employer shall, in a form prescribed by the
administrative director pursuant to Section 138.4, provide the
employee one of the following:
   (1) Notice either that no permanent disability indemnity will be
paid because the employer alleges the employee has no permanent
impairment or limitations resulting from the injury or notice of the
amount of permanent disability indemnity determined by the employer
to be payable. If the employer determines permanent disability
indemnity is payable, the employer shall advise the employee of the
amount determined payable and the basis on which the determination
was made and whether there is need for continuing medical care.
   (2) Notice that permanent disability indemnity may be or is
payable, but that the amount cannot be determined because the
employee's medical condition is not yet permanent and stationary. The
notice shall advise the employee that his or her medical condition
will be monitored until it is permanent and stationary, at which time
the necessary evaluation will be performed to determine the
existence and extent of permanent impairment and limitations for the
purpose of rating permanent disability and to determine the need for
continuing medical care, or at which time the employer will advise
the employee of the amount of permanent disability indemnity the
employer has determined to be payable.
   (b) If either the employee or employer objects to a medical
determination made by the treating physician concerning the existence
or extent of permanent impairment and limitations or the need for
continuing medical care, and the employee is represented by an
attorney, a medical evaluation to determine permanent disability
shall be obtained as provided in Section 4062.2.
   (c) If either the employee or employer objects to a medical
determination made by the treating physician concerning the existence
or extent of permanent impairment and limitations or the need for
continuing medical care, and if the employee is not represented by an
attorney, the employer shall immediately provide the employee with a
form prescribed by the medical director with which to request
assignment of a panel of three qualified medical evaluators. Either
party may request a comprehensive medical evaluation to determine
permanent disability or the need for continuing medical care, and the
evaluation shall be obtained only by the procedure provided in
Section 4062.1.
   (d) The qualified medical evaluator who has evaluated an
unrepresented employee shall serve the comprehensive medical
evaluation and the summary form on the employee, employer, and the
administrative director. The unrepresented employee or the employer
may submit the treating physician's evaluation for the calculation of
a permanent disability rating. Within 20 days of receipt of the
comprehensive medical evaluation, the administrative director shall
calculate the permanent disability rating according to Section 4660
and serve the rating on the employee and employer.
   (e) Any comprehensive medical evaluation concerning an
unrepresented employee which indicates that part or all of an
employee's permanent impairment or limitations may be subject to
apportionment pursuant to Sections 4663 and 4664 shall first be
submitted by the administrative director to a workers' compensation
judge who may refer the report back to the qualified medical
evaluator for correction or clarification if the judge determines the
proposed apportionment is inconsistent with the law.
   (f) Within 30 days of receipt of the rating, if the employee is
unrepresented, the employee or employer may request that the
administrative director reconsider the recommended rating or obtain
additional information from the treating physician or medical
evaluator to address issues not addressed or not completely addressed
in the original comprehensive medical evaluation or not prepared in
accord with the procedures promulgated under paragraph (2) or (3) of
subdivision (j) of Section 139.2. This request shall be in writing,
shall specify the reasons the rating should be reconsidered, and
shall be served on the other party. If the administrative director
finds the comprehensive medical evaluation is not complete or not in
compliance with the required procedures, the administrative director
shall return the report to the treating physician or qualified
medical evaluator for appropriate action as the administrative
director instructs. Upon receipt of the treating physician's or
qualified medical evaluator's final comprehensive medical evaluation
and summary form, the administrative director shall recalculate the
permanent disability rating according to Section 4660 and serve the
rating, the comprehensive medical evaluation, and the summary form on
the employee and employer.
   (g) (1) If a comprehensive medical evaluation from the treating
physician or an agreed medical evaluator or a qualified medical
evaluator selected from a three-member panel resolves any issue so as
to require an employer to provide compensation, the employer shall
commence the payment of compensation or promptly commence proceedings
before the appeals board to resolve the dispute.
   (2) If the employee and employer agree to a stipulated findings
and award as provided under Section 5702 or to compromise and release
the claim under Chapter 2 (commencing with Section 5000) of Part 3,
or if the employee wishes to commute the award under Chapter 3
(commencing with Section 5100) of Part 3, the appeals board shall
first determine whether the agreement or commutation is in the best
interests of the employee and whether the proper procedures have been
followed in determining the permanent disability rating. The
administrative director shall promulgate a form to notify the
employee, at the time of service of any rating under this section, of
the options specified in this subdivision, the potential advantages
and disadvantages of each option, and the procedure for disputing the
rating.
   (h) No issue relating to the existence or extent of permanent
impairment and limitations resulting from the injury may be the
subject of a declaration of readiness to proceed unless there has
first been a medical evaluation by a treating physician or an agreed
or qualified medical evaluator. With the exception of an evaluation
or evaluations prepared by the treating physician or physicians, no
evaluation of permanent impairment and limitations resulting from the
injury shall be obtained, except in accordance with Section 4062.1
or 4062.2. Evaluations obtained in violation of this prohibition
shall not be admissible in any proceeding before the appeals board.
  SEC. 5.  Section 4658.5 of the Labor Code is amended to read:
   4658.5.  (a) Except as provided in Section 4658.6, if the injury
causes permanent partial disability and the injured employee does not
return to work for the employer within 60 days of the termination of
temporary disability, the injured employee shall be eligible for a
supplemental job displacement benefit in the form of a
nontransferable voucher for education-related retraining or skill
enhancement, or both, at state-approved or accredited schools, as
follows:
   (1) Up to four thousand dollars ($4,000) for permanent partial
disability awards of less than 15 percent.
   (2) Up to six thousand dollars ($6,000) for permanent partial
disability awards between 15 and 25 percent.
   (3) Up to eight thousand dollars ($8,000) for permanent partial
disability awards between 26 and 49 percent.
   (4) Up to ten thousand dollars ($10,000) for permanent partial
disability awards between 50 and 99 percent.
   (b) The voucher may be used for payment of tuition, fees, books,
and other expenses required by the school for retraining or skill
enhancement. No more than 10 percent of the voucher moneys may be
used for vocational or return-to-work counseling. The administrative
director shall adopt regulations governing the form of payment,
direct reimbursement to the injured employee upon presentation to the
employer of appropriate documentation and receipts, and other
matters necessary to the proper administration of the supplemental
job displacement benefit.
   (c) This section shall apply to injuries occurring on or after
January 1, 2004.
  SEC. 6.  Section 5401 of the Labor Code is amended to read:
   5401.  (a) Within one working day of receiving notice or knowledge
of injury under Section 5400 or 5402, which injury results in lost
time beyond the employee's work shift at the time of injury or which
results in medical treatment beyond first aid, the employer shall
provide, personally or by first-class mail, a claim form and a notice
of potential eligibility for benefits under this division to the
injured employee, or in the case of death, to his or her dependents.
As used in this subdivision, "first aid" means any one-time
treatment, and any followup visit for the purpose of observation of
minor scratches, cuts, burns, splinters, or other minor industrial
injury, which do not ordinarily require medical care. This one-time
treatment, and followup visit for the purpose of observation, is
considered first aid even though provided by a physician or
registered professional personnel. "Minor industrial injury" shall
not include serious exposure to a hazardous substance as defined in
subdivision (i) of Section 6302. The claim form shall request the
injured employee's name and address, social security number, the time
and address where the injury occurred, and the nature of and part of
the body affected by the injury. Claim forms shall be available at
district offices of the Employment Development Department and the
division. Claim forms may be made available to the employee from any
other source.
   (b) Insofar as practicable, the notice of potential eligibility
for benefits required by this section and the claim form shall be a
single document and shall instruct the injured employee to fully read
the notice of potential eligibility. The form and content of the
notice and claim form shall be prescribed by the administrative
director after consultation with the Commission on Health and Safety
and Workers' Compensation. The notice shall be easily understandable
and available in both English and Spanish. The content shall include,
but not be limited to, the following:
   (1) The procedure to be used to commence proceedings for the
collection of compensation for the purposes of this chapter.
   (2) A description of the different types of workers' compensation
benefits.
   (3) What happens to the claim form after it is filed.
   (4) From whom the employee can obtain medical care for the injury.

   (5) The role and function of the primary treating physician.
   (6) The rights of an employee to select and change the treating
physician pursuant to subdivision (e) of Section 3550 and Section
4600.
   (7) How to get medical care while the claim is pending.
   (8) The protections against discrimination provided pursuant to
Section 132a.
   (9) The following written statements:
   (A) You have a right to disagree with decisions affecting your
claim.
   (B) To obtain important information about the workers'
compensation claims process and your rights and obligations, go to
applicable Internet Web site(s)], or contact an information and
assistance (I&A) officer of the state Division of Workers'
Compensation. You can also hear recorded information and a list of
local I&A offices by calling applicable information and assistance
telephone number(s)].
   (C) You can consult an attorney. Most attorneys offer one free
consultation. If you decide to hire an attorney, his or her fee will
be taken out of some of your benefits. For names of workers'
compensation attorneys, call the State Bar of California at telephone
number of the State Bar of California's legal specialization
program, or its equivalent].
   (c) The completed claim form shall be filed with the employer by
the injured employee, or, in the case of death, by a dependent of the
injured employee, or by an agent of the employee or dependent.
Except as provided in subdivision (d), a claim form is deemed filed
when it is personally delivered to the employer or received by the
employer by first-class or certified mail. A dated copy of the
completed form shall be provided by the employer to the employer's
insurer and to the employee, dependent, or agent who filed the claim
form.
   (d) The claim form shall be filed with the employer prior to the
injured employee's entitlement to late payment supplements under
subdivision (d) of Section 4650, or prior to the injured employee's
request for a medical evaluation under Section 4060, 4061, or 4062.
Filing of the claim form with the employer shall toll, for injuries
occurring on or after January 1, 1994, the time limitations set forth
in Sections 5405 and 5406 until the claim is denied by the employer
or the injury becomes presumptively compensable pursuant to Section
5402. For purposes of this subdivision, a claim form is deemed filed
when it is personally delivered to the employer or mailed to the
employer by first-class or certified mail.