BILL NUMBER: AB 1426 CHAPTERED
BILL TEXT
CHAPTER 559
FILED WITH SECRETARY OF STATE OCTOBER 7, 2011
APPROVED BY GOVERNOR OCTOBER 7, 2011
PASSED THE SENATE SEPTEMBER 9, 2011
PASSED THE ASSEMBLY SEPTEMBER 9, 2011
AMENDED IN SENATE SEPTEMBER 1, 2011
AMENDED IN SENATE AUGUST 29, 2011
INTRODUCED BY Assembly Member Solorio
MARCH 22, 2011
An act to amend Sections 110, 123.5, 123.6, 127, 133, 138, 138.1,
138.2, 5307, 5307.3, 5310, 5311.5, 5500.3, and 5502 of, and to repeal
Section 127.5 of, the Labor Code, relating to workers' compensation,
and declaring the urgency thereof, to take effect immediately.
LEGISLATIVE COUNSEL'S DIGEST
AB 1426, Solorio. Workers' compensation: court administrator.
Existing law creates the position of court administrator with
respect to the workers' compensation adjudicatory process at the
trial level. The court administrator is appointed by the Governor
with the advice and consent of the Senate and has specified powers
and duties relating to the workers' compensation trial process,
including supervision of administrative law judges and prescribing
certain forms and calendars.
This bill would remove the position of court administrator and
distribute the duties to the Workers' Compensation Appeals Board and
the Administrative Director of the Division of Workers' Compensation,
as specified. The bill would make other technical and conforming
changes.
This bill would declare that it is to take effect immediately as
an urgency statute.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature finds and declares that the court
administrator in the Division of Workers' Compensation, created
pursuant to Chapter 6 of the Statutes of 2002, fails to achieve the
intended uniformity and expedition of proceedings in the district
offices of the workers' compensation appeals board. The court
administrator creates divided lines of authority and accountability,
and it does not promote coordination of the functions of the Division
of Workers' Compensation. The Legislature therefore intends to
eliminate the position of the court administrator and to reassign the
powers and duties of the court administrator to the Workers'
Compensation Appeals Board or to the Administrative Director of the
Division of Workers' Compensation, as appropriate.
SEC. 2. Section 110 of the Labor Code is amended to read:
110. As used in this chapter:
(a) "Appeals board" means the Workers' Compensation Appeals Board.
The title of a member of the board is "commissioner."
(b) "Administrative director" means the Administrative Director of
the Division of Workers' Compensation.
(c) "Division" means the Division of Workers' Compensation.
(d) "Medical director" means the physician appointed by the
administrative director pursuant to Section 122.
(e) "Qualified medical evaluator" means physicians appointed by
the administrative director pursuant to Section 139.2.
SEC. 3. Section 123.5 of the Labor Code is amended to read:
123.5. (a) Workers' compensation administrative law judges
employed by the administrative director shall be taken from an
eligible list of attorneys licensed to practice law in this state,
who have the qualifications prescribed by the State Personnel Board.
In establishing eligible lists for this purpose, state civil service
examinations shall be conducted in accordance with the State Civil
Service Act (Part 2 (commencing with Section 18500) of Division 5 of
Title 2 of the Government Code). Every workers' compensation judge
shall maintain membership in the State Bar of California during his
or her tenure.
A workers' compensation administrative law judge may not receive
his or her salary as a workers' compensation administrative law judge
while any cause before the workers' compensation administrative law
judge remains pending and undetermined for 90 days after it has been
submitted for decision.
(b) All workers' compensation administrative law judges appointed
on or after January 1, 2003, shall be attorneys licensed to practice
law in California for five or more years prior to their appointment
and shall have experience in workers' compensation law.
SEC. 4. Section 123.6 of the Labor Code is amended to read:
123.6. (a) All workers' compensation administrative law judges
employed by the administrative director shall subscribe to the Code
of Judicial Ethics adopted by the Supreme Court pursuant to
subdivision (m) of Section 18 of Article VI of the California
Constitution for the conduct of judges and shall not otherwise,
directly or indirectly, engage in conduct contrary to that code or to
the commentary to the Code of Judicial Ethics.
In consultation with the Commission on Judicial Performance, the
administrative director shall adopt regulations to enforce this
section. To the extent possible, the rules shall be consistent with
the procedures established by the Commission on Judicial Performance
for regulating the activities of state judges, and, to the extent
possible, with the gift, honoraria, and travel restrictions on
legislators contained in the Political Reform Act of 1974 (Title 9
(commencing with Section 81000) of the Government Code).
(b) Honoraria or travel allowed by the administrative director,
and not otherwise prohibited by this section in connection with any
public or private conference, convention, meeting, social event, or
like gathering, the cost of which is significantly paid for by
attorneys who practice before the board, may not be accepted unless
the administrative director has provided prior approval in writing to
the workers' compensation administrative law judge allowing him or
her to accept those payments.
SEC. 5. Section 127 of the Labor Code is amended to read:
127. The administrative director may do all of the following:
(a) Charge and collect fees for copies of papers and records, for
certified copies of official documents and orders or of the evidence
taken or proceedings had, for transcripts of testimony, and for
inspection of case files not stored in the place where the inspection
is requested. The administrative director shall fix those fees in an
amount sufficient to recover the actual costs of furnishing the
services. No fees for inspection of case files shall be charged to an
injured employee or his or her representative.
(b) Publish and distribute from time to time, in addition to the
reports to the Governor, further reports and pamphlets covering the
operations, proceedings, and matters relative to the work of the
division.
(c) Prepare, publish, and distribute an office manual, for which a
reasonable fee may be charged, and to which additions, deletions,
amendments, and other changes from time to time may be adopted,
published, and distributed, for which a reasonable fee may be charged
for the revision, or for which a reasonable fee may be fixed on an
annual subscription basis.
(d) Fix and collect reasonable charges for publications issued.
SEC. 6. Section 127.5 of the Labor Code is repealed.
SEC. 7. Section 133 of the Labor Code is amended to read:
133. The Division of Workers' Compensation, including the
administrative director and the appeals board, shall have power and
jurisdiction to do all things necessary or convenient in the exercise
of any power or jurisdiction conferred upon it under this code.
SEC. 8. Section 138 of the Labor Code is amended to read:
138. The administrative director may appoint a deputy to act when
he or she is absent from the state due to official business,
vacation, or illness.
SEC. 9. Section 138.1 of the Labor Code is amended to read:
138.1. The administrative director shall be appointed by the
Governor with the advice and consent of the Senate and shall hold
office at the pleasure of the Governor. He or she shall receive the
salary provided for by Chapter 6 (commencing with Section 11550) of
Part 1 of Division 3 of Title 2 of the Government Code.
SEC. 10. Section 138.2 of the Labor Code is amended to read:
138.2. (a) The headquarters of the Division of Workers'
Compensation shall be based at and operated from a centrally located
city.
The administrative director shall have an office in that city with
suitable rooms, necessary office furniture, stationery, and
supplies, and may rent quarters in other places for the purpose of
establishing branch or service offices, and for that purpose may
provide those offices with necessary furniture, stationery, and
supplies.
(b) The administrative director shall provide suitable rooms, with
necessary office furniture, stationery, and supplies, for the
appeals board at the centrally located city in which the board shall
be based and from which it shall operate, and may rent quarters in
other places for the purpose of establishing branch or service
offices for the appeals board, and for that purpose may provide those
offices with necessary furniture, stationery, and supplies.
(c) All meetings held by the administrative director shall be open
and public. Notice thereof shall be published in papers of general
circulation not more than 30 days and not less than 10 days prior to
each meeting in Sacramento, San Francisco, Fresno, Los Angeles, and
San Diego. Written notice of all meetings shall be given to all
persons who request, in writing directed to the administrative
director, that they be given notice.
SEC. 11. Section 5307 of the Labor Code is amended to read:
5307. (a) The appeals board may, by an order signed by four
members, do all of the following:
(1) Adopt reasonable and proper rules of practice and procedure.
(2) Regulate and provide the manner in which, and by whom, minors
and incompetent persons are to appear and be represented before it.
(3) Regulate and prescribe the kind and character of notices,
where not specifically prescribed by this division, and the service
thereof.
(4) Regulate and prescribe the nature and extent of the proofs and
evidence.
(b) No rule or regulation of the appeals board pursuant to this
section shall be adopted, amended, or rescinded without public
hearings. Any written request filed with the appeals board seeking a
change in its rules or regulations shall be deemed to be denied if
not set by the appeals board for public hearing to be held within six
months of the date on which the request is received by the appeals
board.
SEC. 12. Section 5307.3 of the Labor Code is amended to read:
5307.3. The administrative director may adopt, amend, or repeal
any rules and regulations that are reasonably necessary to enforce
this division, except where this power is specifically reserved to
the appeals board.
No rule or regulation of the administrative director pursuant to
this section shall be adopted, amended, or rescinded without public
hearings. Any written request filed with the administrative director
seeking a change in its rules or regulations shall be deemed to be
denied if not set by the administrative director for public hearing
to be held within six months of the date on which the request is
received by the administrative director.
SEC. 13. Section 5310 of the Labor Code is amended to read:
5310. The appeals board may appoint one or more workers'
compensation administrative law judges in any proceeding, as it may
deem necessary or advisable, and may refer, remove to itself, or
transfer to a workers' compensation administrative law judge the
proceedings on any claim. The administrative director may appoint
workers' compensation administrative law judges. Any workers'
compensation administrative law judge appointed by the administrative
director has the powers, jurisdiction, and authority granted by law,
by the order of appointment, and by the rules of the appeals board.
SEC. 14. Section 5311.5 of the Labor Code is amended to read:
5311.5. The administrative director shall require all workers'
compensation administrative law judges to participate in continuing
education to further their abilities as workers' compensation
administrative law judges, including courses in ethics and conflict
of interest. The director may coordinate the requirements with those
imposed upon attorneys by the State Bar in order that the
requirements may be consistent.
SEC. 15. Section 5500.3 of the Labor Code is amended to read:
5500.3. (a) The appeals board shall establish uniform district
office procedures, uniform forms, and uniform time of court settings
for all district offices of the appeals board. No district office of
the appeals board or workers' compensation administrative law judge
shall require forms or procedures other than as established by the
appeals board. A workers' compensation administrative law judge who
violates this section may be subject to disciplinary proceedings.
(b) The appeals board shall establish uniform court procedures and
uniform forms for all other proceedings of the appeals board.
SEC. 16. Section 5502 of the Labor Code is amended to read:
5502. (a) Except as provided in subdivisions (b) and (d), the
hearing shall be held not less than 10 days, and not more than 60
days, after the date a declaration of readiness to proceed, on a form
prescribed by the appeals board, is filed. If a claim form has been
filed for an injury occurring on or after January 1, 1990, and before
January 1, 1994, an application for adjudication shall accompany the
declaration of readiness to proceed.
(b) The administrative director shall establish a priority
calendar for issues requiring an expedited hearing and decision. A
hearing shall be held and a determination as to the rights of the
parties shall be made and filed within 30 days after the declaration
of readiness to proceed is filed if the issues in dispute are any of
the following:
(1) The employee's entitlement to medical treatment pursuant to
Section 4600.
(2) The employee's entitlement to, or the amount of, temporary
disability indemnity payments.
(3) The employee's entitlement to compensation from one or more
responsible employers when two or more employers dispute liability as
among themselves.
(4) Any other issues requiring an expedited hearing and
determination as prescribed in rules and regulations of the
administrative director.
(c) The administrative director shall establish a priority
conference calendar for cases in which the employee is represented by
an attorney and the issues in dispute are employment or injury
arising out of employment or in the course of employment. The
conference shall be conducted by a workers' compensation
administrative law judge within 30 days after the declaration of
readiness to proceed. If the dispute cannot be resolved at the
conference, a trial shall be set as expeditiously as possible, unless
good cause is shown why discovery is not complete, in which case
status conferences shall be held at regular intervals. The case shall
be set for trial when discovery is complete, or when the workers'
compensation administrative law judge determines that the parties
have had sufficient time in which to complete reasonable discovery. A
determination as to the rights of the parties shall be made and
filed within 30 days after the trial.
(d) The administrative director shall report quarterly to the
Governor and to the Legislature concerning the frequency and types of
issues which are not heard and decided within the period prescribed
in this section and the reasons therefor.
(e) (1) In all cases, a mandatory settlement conference shall be
conducted not less than 10 days, and not more than 30 days, after the
filing of a declaration of readiness to proceed. If the dispute is
not resolved, the regular hearing shall be held within 75 days after
the declaration of readiness to proceed is filed.
(2) The settlement conference shall be conducted by a workers'
compensation administrative law judge or by a referee who is eligible
to be a workers' compensation administrative law judge or eligible
to be an arbitrator under Section 5270.5. At the mandatory settlement
conference, the referee or workers' compensation administrative law
judge shall have the authority to resolve the dispute, including the
authority to approve a compromise and release or issue a stipulated
finding and award, and if the dispute cannot be resolved, to frame
the issues and stipulations for trial. The appeals board shall adopt
any regulations needed to implement this subdivision. The presiding
workers' compensation administrative law judge shall supervise
settlement conference referees in the performance of their judicial
functions under this subdivision.
(3) If the claim is not resolved at the mandatory settlement
conference, the parties shall file a pretrial conference statement
noting the specific issues in dispute, each party's proposed
permanent disability rating, and listing the exhibits, and disclosing
witnesses. Discovery shall close on the date of the mandatory
settlement conference. Evidence not disclosed or obtained thereafter
shall not be admissible unless the proponent of the evidence can
demonstrate that it was not available or could not have been
discovered by the exercise of due diligence prior to the settlement
conference.
(f) In cases involving the Director of the Department of
Industrial Relations in his or her capacity as administrator of the
Uninsured Employers Fund, this section shall not apply unless proof
of service, as specified in paragraph (1) of subdivision (d) of
Section 3716, has been filed with the appeals board and provided to
the Director of Industrial Relations, valid jurisdiction has been
established over the employer, and the fund has been joined.
(g) Except as provided in subdivision (a) and in Section 4065, the
provisions of this section shall apply irrespective of the date of
injury.
SEC. 17. All regulations adopted by the court administrator shall
remain in effect unless amended or repealed by either the Workers'
Compensation Appeals Board or the Administrative Director of the
Division of Workers' Compensation. Regulations of the court
administrator that have been adopted pursuant to Sections 5307,
5500.3, or subdivision (a) of Section 5502 shall be deemed to be
regulations of the Workers' Compensation Appeals Board. All other
regulations of the court administrator shall be deemed to be
regulations of the Administrative Director of the Division of Workers'
Compensation.
SEC. 18. This act is an urgency statute necessary for the
immediate preservation of the public peace, health, or safety within
the meaning of Article IV of the Constitution and shall go into
immediate effect. The facts constituting the necessity are:
In order to streamline the procedures used in the workers'
compensation adjudication system by giving the Administrative
Director of the Division of Workers' Compensation and the Workers'
Compensation Appeals Board the authority that statute presently gives
to the court administrator as quickly as possible while there is
currently no court administrator, it is necessary that this act take
effect immediately.