BILL NUMBER: AB 1564 INTRODUCED
BILL TEXT
INTRODUCED BY Committee on Insurance (Coto (Chair), Charles
Calderon, Carter, Feuer, Hayashi, Nava, and Torres)
MARCH 12, 2009
An act to amend Sections 3201.5, 3201.7, 3351, 3370, 3743, 4054,
4062, 4062.3, 4062.5, 4067, 4621, 4651, 4903, 4903.1, 4905, 4907,
5270.5, 5271, 5402, 5451, 5453, 5500.5, 5501.5, 5502, 5505, 5700,
5708, and 5813 of, to add Section 3206.5 to, to repeal Section 4651.2
of, and to repeal Chapter 11 (commencing with Section 4401) of Part
1 of Division 4 of, the Labor Code, relating to workers'
compensation.
LEGISLATIVE COUNSEL'S DIGEST
AB 1564, as introduced, Committee on Insurance. Workers'
compensation.
(1) Existing law establishes a workers' compensation system,
administered by the Administrative Director of the Division of
Workers' Compensation, which requires employers to secure the payment
of workers' compensation, including medical treatment, for injuries
incurred by their employees that arise out of, or in the course of,
employment.
Existing law authorizes collective bargaining agreements between a
private employer or groups of employers engaged in
construction-related activities and a recognized or certified
exclusive bargaining representative that establishes, among other
things, a vocational rehabilitation or retraining program utilizing
an agreed list of providers of rehabilitation services that may be
the exclusive source of providers of rehabilitation services.
This bill would delete the provision providing that a collective
bargaining agreement may establish a vocational rehabilitation or
retraining program and would make conforming changes.
(2) Existing law authorizes labor-management agreements between an
employer or groups of employers and a union that is the recognized
or certified exclusive bargaining representative regarding various
issues that are negotiated separate and apart from any collective
bargaining agreement covering affected employees. The
labor-management agreements may establish an alternative dispute
resolution system, use of an agreed list of providers of medical
treatment that may be the exclusive source of all workers'
compensation medical treatment, the use of an agreed, limited list of
qualified medical evaluators that may be used exclusively for
workers' compensation purposes, joint labor management safety
committees, a light-duty modified job, or return-to-work program, or
a vocation rehabilitation or retraining program that may be used
exclusively for workers' compensation purposes.
This bill would delete the provision providing that the
labor-management agreement may include a vocation rehabilitation or
retraining program and would make conforming changes.
(3) Existing law provides that each inmate of a state penal or
correctional institution shall be entitled to workers' compensation
benefits for injury arising out of, and in the course of, assigned
employment and for the death of the inmate if the injury proximately
causes the death, subject to specified conditions. Existing law
provides that an employee who is an inmate, as defined, who is
eligible for vocational rehabilitation, as defined, shall only be
eligible for direct placement services.
This bill would delete the provision limiting eligibility to
direct placement services.
(4) Existing workers' compensation law requires the treating
physician primarily responsible for managing the care of an injured
worker, or a physician designated by the treating physician, to
render opinions on all medical issues necessary to determine
eligibility for compensation.
This bill would provide that no disputed medical issue, as
specified, shall be the subject of declaration of readiness to
proceed to a hearing unless there has been an evaluation by the
treating physician or agreed or qualified medical evaluator.
(5) Existing law provides that if an employer objects to a report
of the treating physician recommending that spinal surgery be
performed, an orthopedic surgeon or neurosurgeon shall prepare a
second opinion report resolving the disputed surgical recommendation,
as specified. Existing law provides that if the second opinion
report does not recommend surgery, the employer shall file a
declaration of readiness to proceed.
This bill would provide that if the second opinion does not
recommend surgery, the employer shall file a declaration of readiness
to proceed, unless the employee agrees in writing with the
recommendation of the second opinion physician.
(6) Existing law provides that if a qualified medical evaluator
selected from a panel of evaluators fails to complete the formal
medical evaluation within the timeframes established by the
Administrative Director of the Division of Workers' Compensation, a
new evaluation may be obtained, upon the request of either party.
This bill would require that a new evaluation may only be obtained
if the party requests the new evaluation prior to the receipt of the
evaluator's report.
(7) Existing law provides that neither the employee nor the
employer shall have any liability for payment for the formal medical
evaluation that was not completed within the required timeframes
unless the employee or employer, on prescribed forms, each then
waives the right to a new evaluation and elects to accept the
original evaluation even though it was not completed within the
required timeframes.
This bill would, instead, provide that neither the employee nor
the employer shall have any liability if either party objects to the
report prior to receipt of the report and that if neither objects,
each then waives the right to a new evaluation and elects to accept
the original evaluation.
(8) Existing law provides that where an asbestos worker, as
defined, is injured as a result of asbestosis, as defined, and makes
a claim for workers' compensation, if the responsible employer cannot
be located or fails to provider workers' compensation within 30
days, the worker may seek the payment of workers' compensation
temporary disability and medical benefits from the continuously
appropriated Asbestos Workers' Account in the Uninsured Employers
Fund in the State Treasury. Existing law provides that once a
decision establishing the responsible employer or insurance carrier
is agreed upon between the parties, or is issued by the Workers'
Compensation Appeals Board, and becomes final, the Asbestos Workers'
Account shall terminate payment of compensation benefits, notify all
interested parties accordingly, and seek reimbursement for the
benefits the account paid out.
(9) Existing law provides that the above provisions shall be
operative only until January 1, 1989, and as of that date all
payments from the fund shall be terminated, and the state shall have
no further obligation to pay asbestos workers' benefits, unless a
later enacted act that is chaptered before January 1, 1989, deletes
or extends that date. Existing law provides, however, that if no
statute is enacted to delete or extend that date prior to January 1,
1989, the authority of the Asbestos Workers' Account to recover the
benefits and costs paid to asbestos workers prior to that date shall
continue until the benefits and costs have been recovered.
This bill would delete the above provisions.
(10) Under existing law, the employee, or the dependents of a
deceased employee, shall be reimbursed for his or her medical-legal
expenses, as defined. Existing law provides that, except as provided,
no comprehensive medical-legal evaluations, except those at the
request of the employer, shall be performed during the first 60 days
after the notice of claim has been filed, and neither the employer
nor the employee shall be liable for any expenses incurred for
comprehensive medical-legal evaluations performed within the first 60
days after the notice of claim has been filed.
This bill would, instead, provide that neither the employer nor
the employee shall be liable for any medical-legal expenses incurred
outside of specified provisions.
(11) Existing law requires that a disability indemnity payment
made by any written instrument be immediately negotiable and payable
in cash on demand. Existing law provides that an employer may deposit
the disability indemnity payment in an account in any bank, savings
and loan association, or credit union of the employee's choice in
California, provided the employee has voluntarily authorized the
deposit.
This bill would no longer authorize an employer to deposit the
disability indemnity payment in an account in a savings and loan
association.
(12) Under the workers' compensation system, the Workers'
Compensation Appeals Board has jurisdiction to determine claims by
employees who have sustained injuries in the course of his or her
employment.
Existing law prohibits petitions filed with the appeals board
concerning a continuing temporary disability award from being granted
while the injured worker is pursuing a rehabilitation plan.
This bill would delete the above provision.
(13) Existing workers' compensation law authorizes the appeals
board to determine and allow specified expenses, including reasonable
attorney's fees for legal services, as liens against any sum to be
paid as compensation. Existing law prohibits a fee for legal services
from being awarded to any representative who is not an attorney,
except with respect to those claims for compensation for which an
application, as specified, has been filed with the appeals board on
or before December 31, 1991, or for which a disclosure form, as
specified, has been sent to the employer, or insurer or 3rd-party
administrator, if either is known, on or before December 31, 1991.
This bill would, instead, prohibit a fee for legal services from
being awarded to any representative who is not an attorney and would
no longer provide for an exception.
(14) Existing law prohibits a lien claim for reasonable expenses
incurred by or on behalf of the injured employee and medical-legal
expenses from being filed after 6 months from the date on which the
appeals board or a workers' compensation administrative law judge
issues a final decision, findings, order, including an order
approving compromise and release, or award, on the merits of the
claim, after 5 years from the date of the injury for which the
services were provided, or after one year from the date the services
were provided, whichever is later.
(15) Existing law provides that where it appears in any proceeding
pending before the appeals board that a lien should be allowed if it
had been duly requested by the party entitled thereto, the appeals
board may, without any request for the lien having been made, order
the payment of the claim to be made directly to the person entitled,
as specified.
This bill would prohibit the appeals board from ordering the
payment of the claim if the party entitled to it did not comply with
the 6-month timeframe relating to reasonable expenses incurred by or
on behalf of the injured employee and medical-legal expenses.
(16) Existing law requires the workers' compensation judge at each
district office to prepare a list of all eligible attorneys who
apply to be placed on the list of eligible arbitrators. Existing law
prohibits an attorney from being included in the panel of arbitrators
if he or she has served as a judge in any proceeding involving the
same case.
This bill would authorize the parties to the case to waive the
prohibition of an attorney who had served as a judge in any
proceeding involving the same case.
(17) Under existing law, when a workers' compensation dispute is
submitted for arbitration, the workers' compensation judge is
required to add certain arbitrators to the arbitration panel
depending upon the composition of the parties in the case.
This bill would provide that when an applicant or lien claimant is
a party to the relevant claim, for each additional party in the
capacity of employer, the presiding judge shall assign a retired
workers' compensation judge or retired appeals board commissioner and
an applicant's attorney to the arbitration panel. The bill would
provide that when the dispute involves solely defendants, for each
additional party in the capacity of employer beyond 2 employers, the
presiding judge shall assign a workers' compensation judge or retired
appeals board commissioner and an applicant's attorney.
(18) Existing law specifies locations where a workers'
compensation claim may be filed. Under existing law, if the venue
site where the application is to be filed is the county where the
employee's attorney maintains his or her principal business, the
attorney for the employee shall indicate that venue site when
forwarding a information request form. Existing law provides the
employer with 30 days from receipt of the information request form to
object to the selected venue site.
This bill would, instead, provide that if the venue site where the
application is to be filed is the county where the employee's
attorney maintains his or her principal business, the employer shall
have 30 days from receipt of the conforming application, as defined,
to file and serve an objection to the selected venue site.
(19) Existing law requires all oral testimony, objections, and
rulings at all hearings and investigations before the appeals board
or a workers' compensation judge to be taken down in shorthand by a
competent phonographic reporter.
This bill would, instead, require all oral testimony, objections,
and rulings to be recorded on a permanent accessible record by a
competent hearing reporter.
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 3201.5 of the Labor Code is amended to read:
3201.5. (a) Except as provided in subdivisions (b) and (c), the
Department of Industrial Relations and the courts of this state shall
recognize as valid and binding any provision in a collective
bargaining agreement between a private employer or groups of
employers engaged in construction, construction maintenance, or
activities limited to rock, sand, gravel, cement and asphalt
operations, heavy-duty mechanics, surveying, and construction
inspection and a union that is the recognized or certified exclusive
bargaining representative that establishes any of the following:
(1) An alternative dispute resolution system governing disputes
between employees and employers or their insurers that supplements or
replaces all or part of those dispute resolution processes contained
in this division, including, but not limited to, mediation and
arbitration. Any system of arbitration shall provide that the
decision of the arbiter or board of arbitration is subject to review
by the appeals board in the same manner as provided for
reconsideration of a final order, decision, or award made and filed
by a workers' compensation administrative law judge pursuant to the
procedures set forth in Article 1 (commencing with Section 5900) of
Chapter 7 of Part 4 of Division 4, and the court of appeals pursuant
to the procedures set forth in Article 2 (commencing with Section
5950) of Chapter 7 of Part 4 of Division 4, governing orders,
decisions, or awards of the appeals board. The findings of fact,
award, order, or decision of the arbitrator shall have the same force
and effect as an award, order, or decision of a workers'
compensation administrative law judge. Any provision for arbitration
established pursuant to this section shall not be subject to Sections
5270, 5270.5, 5271, 5272, 5273, 5275, and 5277.
(2) The use of an agreed list of providers of medical treatment
that may be the exclusive source of all medical treatment provided
under this division.
(3) The use of an agreed, limited list of qualified medical
evaluators and agreed medical evaluators that may be the exclusive
source of qualified medical evaluators and agreed medical evaluators
under this division.
(4) Joint labor management safety committees.
(5) A light-duty, modified job or return-to-work program.
(6) A vocational rehabilitation or retraining program utilizing an
agreed list of providers of rehabilitation services that may be the
exclusive source of providers of rehabilitation services under this
division.
(b) (1) Nothing in this section shall allow a collective
bargaining agreement that diminishes the entitlement of an employee
to compensation payments for total or partial disability, temporary
disability, vocational rehabilitation, or medical
treatment fully paid by the employer as otherwise provided in this
division. The portion of any agreement that violates this paragraph
shall be declared null and void.
(2) The parties may negotiate any aspect of the delivery of
medical benefits and the delivery of disability compensation to
employees of the employer or group of employers that are eligible for
group health benefits and nonoccupational disability benefits
through their employer.
(c) Subdivision (a) shall apply only to the following:
(1) An employer developing or projecting an annual workers'
compensation insurance premium, in California, of two hundred fifty
thousand dollars ($250,000) or more, or any employer that paid an
annual workers' compensation insurance premium, in California, of two
hundred fifty thousand dollars ($250,000) in at least one of the
previous three years.
(2) Groups of employers engaged in a workers' compensation safety
group complying with Sections 11656.6 and 11656.7 of the Insurance
Code, and established pursuant to a joint labor management safety
committee or committees, that develops or projects annual workers'
compensation insurance premiums of two million dollars ($2,000,000)
or more.
(3) Employers or groups of employers that are self-insured in
compliance with Section 3700 that would have projected annual workers'
compensation costs that meet the requirements of, and that meet the
other requirements of, paragraph (1) in the case of employers, or
paragraph (2) in the case of groups of employers.
(4) Employers covered by an owner or general contractor provided
wrap-up insurance policy applicable to a single construction site
that develops workers' compensation insurance premiums of two million
dollars ($2,000,000) or more with respect to those employees covered
by that wrap-up insurance policy.
(d) Employers and labor representatives who meet the eligibility
requirements of this section shall be issued a letter by the
administrative director advising each employer and labor
representative that, based upon the review of all documents and
materials submitted as required by the administrative director, each
has met the eligibility requirements of this section.
(e) The premium rate for a policy of insurance issued pursuant to
this section shall not be subject to the requirements of Section
11732 or 11732.5 of the Insurance Code.
(f) No employer may establish or continue a program established
under this section until it has provided the administrative director
with all of the following:
(1) Upon its original application and whenever it is renegotiated
thereafter, a copy of the collective bargaining agreement and the
approximate number of employees who will be covered thereby.
(2) Upon its original application and annually thereafter, a valid
and active license where that license is required by law as a
condition of doing business in the state within the industries set
forth in subdivision (a) of Section 3201.5.
(3) Upon its original application and annually thereafter, a
statement signed under penalty of perjury, that no action has been
taken by any administrative agency or court of the United States to
invalidate the collective bargaining agreement.
(4) The name, address, and telephone number of the contact person
of the employer.
(5) Any other information that the administrative director deems
necessary to further the purposes of this section.
(g) No collective bargaining representative may establish or
continue to participate in a program established under this section
unless all of the following requirements are met:
(1) Upon its original application and annually thereafter, it has
provided to the administrative director a copy of its most recent
LM-2 or LM-3 filing with the United States Department of Labor, along
with a statement, signed under penalty of perjury, that the document
is a true and correct copy.
(2) It has provided to the administrative director the name,
address, and telephone number of the contact person or persons of the
collective bargaining representative or representatives.
(h) Commencing July 1, 1995, and annually thereafter, the Division
of Workers' Compensation shall report to the Director of the
Department of Industrial Relations the number of collective
bargaining agreements received and the number of employees covered by
these agreements.
(i) By June 30, 1996, and annually thereafter, the Administrative
Director of the Division of Workers' Compensation shall prepare and
notify Members of the Legislature that a report authorized by this
section is available upon request. The report based upon aggregate
data shall include the following:
(1) Person hours and payroll covered by agreements filed.
(2) The number of claims filed.
(3) The average cost per claim shall be reported by cost
components whenever practicable.
(4) The number of litigated claims, including the number of claims
submitted to mediation, the appeals board, or the court of appeal.
(5) The number of contested claims resolved prior to arbitration.
(6) The projected incurred costs and actual costs of claims.
(7) Safety history.
(8) The number of workers participating in vocational
rehabilitation.
(9)
(8) The number of workers participating in light-duty
programs.
The division shall have the authority to require those employers
and groups of employers listed in subdivision (c) to provide the data
listed above.
(j) The data obtained by the administrative director pursuant to
this section shall be confidential and not subject to public
disclosure under any law of this state. However, the Division of
Workers' Compensation shall create derivative works pursuant to
subdivisions (h) and (i) based on the collective bargaining
agreements and data. Those derivative works shall not be
confidential, but shall be public. On a monthly basis the
administrative director shall make available an updated list of
employers and unions entering into collective bargaining agreements
containing provisions authorized by this section.
SEC. 2. Section 3201.7 of the Labor Code is amended to read:
3201.7. (a) Except as provided in subdivision (b), the Department
of Industrial Relations and the courts of this state shall recognize
as valid and binding any labor-management agreement that meets all
of the following requirements:
(1) The labor-management agreement has been negotiated separate
and apart from any collective bargaining agreement covering affected
employees.
(2) The labor-management agreement is restricted to the
establishment of the terms and conditions necessary to implement this
section.
(3) The labor-management agreement has been negotiated in
accordance with the authorization of the administrative director
pursuant to subdivision (d), between an employer or groups of
employers and a union that is the recognized or certified exclusive
bargaining representative that establishes any of the following:
(A) An alternative dispute resolution system governing disputes
between employees and employers or their insurers that supplements or
replaces all or part of those dispute resolution processes contained
in this division, including, but not limited to, mediation and
arbitration. Any system of arbitration shall provide that the
decision of the arbiter or board of arbitration is subject to review
by the appeals board in the same manner as provided for
reconsideration of a final order, decision, or award made and filed
by a workers' compensation administrative law judge pursuant to the
procedures set forth in Article 1 (commencing with Section 5900) of
Chapter 7 of Part 4 of Division 4, and the court of appeals pursuant
to the procedures set forth in Article 2 (commencing with Section
5950) of Chapter 7 of Part 4 of Division 4, governing orders,
decisions, or awards of the appeals board. The findings of fact,
award, order, or decision of the arbitrator shall have the same force
and effect as an award, order, or decision of a workers'
compensation administrative law judge. Any provision for arbitration
established pursuant to this section shall not be subject to Sections
5270, 5270.5, 5271, 5272, 5273, 5275, and 5277.
(B) The use of an agreed list of providers of medical treatment
that may be the exclusive source of all medical treatment provided
under this division.
(C) The use of an agreed, limited list of qualified medical
evaluators and agreed medical evaluators that may be the exclusive
source of qualified medical evaluators and agreed medical evaluators
under this division.
(D) Joint labor management safety committees.
(E) A light-duty, modified job, or return-to-work program.
(F) A vocational rehabilitation or retraining program utilizing an
agreed list of providers of rehabilitation services that may be the
exclusive source of providers of rehabilitation services under this
division.
(b) (1) Nothing in this section shall allow a labor-management
agreement that diminishes the entitlement of an employee to
compensation payments for total or partial disability, temporary
disability, vocational rehabilitation, or medical
treatment fully paid by the employer as otherwise provided in this
division; nor shall any agreement authorized by this section deny to
any employee the right to representation by counsel at all stages
during the alternative dispute resolution process. The portion of any
agreement that violates this paragraph shall be declared null and
void.
(2) The parties may negotiate any aspect of the delivery of
medical benefits and the delivery of disability compensation to
employees of the employer or group of employers that are eligible for
group health benefits and nonoccupational disability benefits
through their employer.
(c) Subdivision (a) shall apply only to the following:
(1) An employer developing or projecting an annual workers'
compensation insurance premium, in California, of fifty thousand
dollars ($50,000) or more, and employing at least 50 employees, or
any employer that paid an annual workers' compensation insurance
premium, in California, of fifty thousand dollars ($50,000), and
employing at least 50 employees in at least one of the previous three
years.
(2) Groups of employers engaged in a workers' compensation safety
group complying with Sections 11656.6 and 11656.7 of the Insurance
Code, and established pursuant to a joint labor management safety
committee or committees, that develops or projects annual workers'
compensation insurance premiums of five hundred thousand dollars
($500,000) or more.
(3) Employers or groups of employers, including cities and
counties, that are self-insured in compliance with Section 3700 that
would have projected annual workers' compensation costs that meet the
requirements of, and that meet the other requirements of, paragraph
(1) in the case of employers, or paragraph (2) in the case of groups
of employers.
(d) Any recognized or certified exclusive bargaining
representative in an industry not covered by Section 3201.5, may file
a petition with the administrative director seeking permission to
negotiate with an employer or group of employers to enter into a
labor-management agreement pursuant to this section. The petition
shall specify the bargaining unit or units to be included, the names
of the employers or groups of employers, and shall be accompanied by
proof of the labor union's status as the exclusive bargaining
representative. The current collective bargaining agreement or
agreements shall be attached to the petition. The petition shall be
in the form designated by the administrative director. Upon receipt
of the petition, the administrative director shall promptly verify
the petitioner's status as the exclusive bargaining representative.
If the petition satisfies the requirements set forth in this
subdivision, the administrative director shall issue a letter
advising each employer and labor representative of their eligibility
to enter into negotiations, for a period not to exceed one year, for
the purpose of reaching agreement on a labor-management agreement
pursuant to this section. The parties may jointly request, and shall
be granted, by the administrative director, an additional one-year
period to negotiate an agreement.
(e) No employer may establish or continue a program established
under this section until it has provided the administrative director
with all of the following:
(1) Upon its original application and whenever it is renegotiated
thereafter, a copy of the labor-management agreement and the
approximate number of employees who will be covered thereby.
(2) Upon its original application and annually thereafter, a
statement signed under penalty of perjury, that no action has been
taken by any administrative agency or court of the United States to
invalidate the labor-management agreement.
(3) The name, address, and telephone number of the contact person
of the employer.
(4) Any other information that the administrative director deems
necessary to further the purposes of this section.
(f) No collective bargaining representative may establish or
continue to participate in a program established under this section
unless all of the following requirements are met:
(1) Upon its original application and annually thereafter, it has
provided to the administrative director a copy of its most recent
LM-2 or LM-3 filing with the United States Department of Labor, where
such filing is required by law, along with a statement, signed under
penalty of perjury, that the document is a true and correct copy.
(2) It has provided to the administrative director the name,
address, and telephone number of the contact person or persons of the
collective bargaining representative or representatives.
(g) Commencing July 1, 2005, and annually thereafter, the Division
of Workers' Compensation shall report to the Director of Industrial
Relations the number of labor-management agreements received and the
number of employees covered by these agreements.
(h) By June 30, 2006, and annually thereafter, the administrative
director shall prepare and notify Members of the Legislature that a
report authorized by this section is available upon request. The
report based upon aggregate data shall include the following:
(1) Person hours and payroll covered by agreements filed.
(2) The number of claims filed.
(3) The average cost per claim shall be reported by cost
components whenever practicable.
(4) The number of litigated claims, including the number of claims
submitted to mediation, the appeals board, or the court of appeal.
(5) The number of contested claims resolved prior to arbitration.
(6) The projected incurred costs and actual costs of claims.
(7) Safety history.
(8) The number of workers participating in vocational
rehabilitation.
(9)
(8) The number of workers participating in light-duty
programs.
(10)
(9) Overall worker satisfaction.
The division shall have the authority to require employers and
groups of employers participating in labor-management agreements
pursuant to this section to provide the data listed above.
(i) The data obtained by the administrative director pursuant to
this section shall be confidential and not subject to public
disclosure under any law of this state. However, the Division of
Workers' Compensation shall create derivative works pursuant to
subdivisions (f) and (g) based on the labor-management agreements and
data. Those derivative works shall not be confidential, but shall be
public. On a monthly basis, the administrative director shall make
available an updated list of employers and unions entering into
labor-management agreements authorized by this section.
SEC. 3. Section 3206.5 is added to the Labor Code, to read:
3206.5. "Court administrator" means the administrator of the
workers' compensation adjudication process at the trial level.
SEC. 4. Section 3351 of the Labor Code is amended to read:
3351. "Employee" means every person in the service of an employer
under any appointment or contract of hire or apprenticeship, express
or implied, oral or written, whether lawfully or unlawfully
employed, and includes:
(a) Aliens and minors.
(b) All elected and appointed paid public officers.
(c) All officers and members of boards of directors of
quasi-public or private corporations while rendering actual service
for the corporations for pay; provided that, where the officers and
directors of the private corporation are the sole shareholders
thereof, the corporation and the officers and directors shall come
under the compensation provisions of this division only by election
as provided in subdivision (a) of Section 4151.
(d) Except as provided in subdivision (h) of Section 3352, any
person employed by the owner or occupant of a residential dwelling
whose duties are incidental to the ownership, maintenance, or use of
the dwelling, including the care and supervision of children, or
whose duties are personal and not in the course of the trade,
business, profession, or occupation of the owner or occupant.
(e) All persons incarcerated in a state penal or correctional
institution while engaged in assigned work or employment as defined
in paragraph (1) of subdivision (a) of Section 10021
10133.4 of Title 8 of the California Code of
Regulations, or engaged in work performed under contract.
(f) All working members of a partnership or limited liability
company receiving wages irrespective of profits from the partnership
or limited liability company; provided that where the working members
of the partnership or limited liability company are general partners
or managers, the partnership or limited liability company and the
partners or managers shall come under the compensation provisions of
this division only by election as provided in subdivision (a) of
Section 4151. If a private corporation is a general partner or
manager, "working members of a partnership or limited liability
company" shall include the corporation and the officers and directors
of the corporation, provided that the officers and directors are the
sole shareholders of the corporation. If a limited liability company
is a partner or member, "working members of the partnership or
limited liability company" shall include the managers of the limited
liability company.
(g) For the purposes of subdivisions (c) and (f), the persons
holding the power to revoke a trust as to shares of a private
corporation or as to general partnership or limited liability company
interests held in the trust, shall be deemed to be the shareholders
of the private corporation, or the general partners of the
partnership, or the managers of the limited liability company.
SEC. 5. Section 3370 of the Labor Code is amended to read:
3370. (a) Each inmate of a state penal or correctional
institution shall be entitled to the workers' compensation benefits
provided by this division for injury arising out of and in the course
of assigned employment and for the death of the inmate if the injury
proximately causes death, subject to all of the following
conditions:
(1) The inmate was not injured as the result of an assault in
which the inmate was the initial aggressor, or as the result of the
intentional act of the inmate injuring himself or herself.
(2) The inmate shall not be entitled to any temporary disability
indemnity benefits while incarcerated in a state prison.
(3) No benefits shall be paid to an inmate while he or she is
incarcerated. The period of benefit payment shall instead commence
upon release from incarceration. If an inmate who has been released
from incarceration, and has been receiving benefits under this
section, is reincarcerated in a city or county jail, or state penal
or correctional institution, the benefits shall cease immediately
upon the inmate's reincarceration and shall not be paid for the
duration of the reincarceration.
(4) This section shall not be construed to provide for the payment
to an inmate, upon release from incarceration, of temporary
disability benefits which that were not
paid due to the prohibition of paragraph (2).
(5) In determining temporary and permanent disability indemnity
benefits for the inmate, the average weekly earnings shall be taken
at not more than the minimum amount set forth in Section 4453.
(6) Where a dispute exists respecting an inmate's rights to the
workers' compensation benefits provided herein, the inmate may file
an application with the appeals board to resolve the dispute. The
application may be filed at any time during the inmate's
incarceration.
(7) After release or discharge from a correctional institution,
the former inmate shall have one year in which to file an original
application with the appeals board, unless the time of injury is such
that it would allow more time under Section 5804 of the Labor Code.
(8) The percentage of disability to total disability shall be
determined as for the occupation of a laborer of like age by applying
the schedule for the determination of the percentages of permanent
disabilities prepared and adopted by the administrative director.
(9) This division shall be the exclusive remedy against the state
for injuries occurring while engaged in assigned work or work under
contract. Nothing in this division shall affect any right or remedy
of an injured inmate for injuries not compensated by this division.
(b) The Department of Corrections shall present to each inmate of
a state penal or correctional institution, prior to his or her first
assignment to work at the institution, a printed statement of his or
her rights under this division, and a description of procedures to be
followed in filing for benefits under this section. The statement
shall be approved by the administrative director and be posted in a
conspicuous place at each place where an inmate works.
(c) Notwithstanding any other provision of this division, the
Department of Corrections shall have medical control over treatment
provided an injured inmate while incarcerated in a state prison,
except, that in serious cases, the inmate is entitled, upon request,
to the services of a consulting physician.
(d) Paragraphs (2), (3), and (4) of subdivision (a) shall also be
applicable to an inmate of a state penal or correctional institution
who would otherwise be entitled to receive workers' compensation
benefits based on an injury sustained prior to his or her
incarceration. However, temporary and permanent disability benefits
which, except for this subdivision, would otherwise be payable to an
inmate during incarceration based on an injury sustained prior to
incarceration shall be paid to the dependents of the inmate. If the
inmate has no dependents, the temporary disability benefits which,
except for this subdivision, would otherwise be payable during the
inmate's incarceration shall be paid to the State Treasury to the
credit of the Uninsured Employers Fund, and the permanent disability
benefits which that would otherwise be
payable during the inmate's incarceration shall be held in trust for
the inmate by the Department of Corrections during the period of
incarceration.
For purposes of this subdivision, "dependents" means the inmate's
spouse or children, including an inmate's former spouse due to
divorce and the inmate's children from that marriage.
(e) Notwithstanding any other provision of this division, an
employee who is an inmate, as defined in subdivision (e) of Section
3351 who is eligible for vocational rehabilitation services as
defined in Section 4635 shall only be eligible for direct placement
services.
SEC. 6. Section 3743 of the Labor Code is amended to read:
3743. (a) Upon order of the director pursuant to Section 3701.5,
the fund shall assume the workers' compensation obligations of an
insolvent self-insurer.
(b) Notwithstanding subdivision (a), the fund shall not be liable
for the payment of any penalties assessed for any act or omission on
the part of any person other than the fund, including, but not
limited to, the penalties provided in Section 132a, 3706, 4553, 4554,
4556, 4557, 4558, 4601.5, 5814, or 5814.1.
(c) The fund shall be a party in interest in all proceedings
involving compensation claims against an insolvent self-insurer whose
compensation obligations have been paid or assumed by the fund. The
fund shall have the same rights and defenses as the insolvent
self-insurer, including, but not limited to, all of the following:
(1) To appear, defend, and appeal claims.
(2) To receive notice of, investigate, adjust, compromise, settle,
and pay claims.
(3) To investigate, handle, and deny claims.
SEC. 7. Section 4054 of the Labor Code is amended to read:
4054. If the employee fails or refuses to submit to examination
after direction by the appeals board, or a referee
workers' compensation judge thereof, or in any way
obstructs the examination, his or her right to the
disability payments which that accrue
during the period of such the failure,
refusal , or obstruction, shall be barred.
SEC. 8. Section 4062 of the Labor Code is amended to read:
4062. (a) If either the employee or employer objects to a medical
determination made by the treating physician concerning any medical
issues not covered by Section 4060 or 4061 and not subject to Section
4610, the objecting party shall notify the other party in writing of
the objection within 20 days of receipt of the report if the
employee is represented by an attorney or within 30 days of receipt
of the report if the employee is not represented by an attorney.
Employer objections to the treating physician's recommendation for
spinal surgery shall be subject to subdivision (b), and after denial
of the physician's recommendation, in accordance with Section 4610.
If the employee objects to a decision made pursuant to Section 4610
to modify, delay, or deny a treatment recommendation, the employee
shall notify the employer of the objection in writing within 20 days
of receipt of that decision. These time limits may be extended for
good cause or by mutual agreement. If the employee is represented by
an attorney, a medical evaluation to determine the disputed medical
issue shall be obtained as provided in Section 4062.2, and no other
medical evaluation shall be obtained. 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, the evaluation shall be obtained as provided in Section
4062.1, and no other medical evaluation shall be obtained.
(b) The employer may object to a report of the treating physician
recommending that spinal surgery be performed within 10 days of the
receipt of the report. If the employee is represented by an attorney,
the parties shall seek agreement with the other party on a
California licensed board-certified or board-eligible orthopedic
surgeon or neurosurgeon to prepare a second opinion report resolving
the disputed surgical recommendation. If no agreement is reached
within 10 days, or if the employee is not represented by an attorney,
an orthopedic surgeon or neurosurgeon shall be randomly selected by
the administrative director to prepare a second opinion report
resolving the disputed surgical recommendation. Examinations shall be
scheduled on an expedited basis. The second opinion report shall be
served on the parties within 45 days of receipt of the treating
physician's report. If the second opinion report recommends surgery,
the employer shall authorize the surgery. If the second opinion
report does not recommend surgery, the employer shall file a
declaration of readiness to proceed , unless the employee agrees
in writing with the recommendation of the second opinion
physician . The employer shall not be liable for medical
treatment costs for the disputed surgical procedure, whether through
a lien filed with the appeals board or as a self-procured medical
expense, or for periods of temporary disability resulting from the
surgery, if the disputed surgical procedure is performed prior to the
completion of the second opinion process required by this
subdivision.
(c) The second opinion physician shall not have any material
professional, familial, or financial affiliation, as determined by
the administrative director, with any of the following:
(1) The employer, his or her workers' compensation insurer,
third-party claims administrator, or other entity contracted to
provide utilization review services pursuant to Section 4610.
(2) Any officer, director, or employee of the employer's health
care provider, workers' compensation insurer, or third-party claims
administrator.
(3) A physician, the physician's medical group, or the independent
practice association involved in the health care service in dispute.
(4) The facility or institution at which either the proposed
health care service, or the alternative service, if any, recommended
by the employer's health care provider, workers' compensation
insurer, or third-party claims administrator, would be provided.
(5) The development or manufacture of the principal drug, device,
procedure, or other therapy proposed by the employee or his or her
treating physician whose treatment is under review, or the
alternative therapy, if any, recommended by the employer or other
entity.
(6) The employee or the employee's immediate family.
(d) A disputed medical issue specified in subdivision (a) shall
not be the subject of declaration of readiness to process unless
there has been an evaluation by the treating physician or an agreed
or qualified medical evaluator.
SEC. 9. Section 4062.3 of the Labor Code is amended to read:
4062.3. (a) Any party may provide to the qualified medical
evaluator selected from a panel any of the following information:
(1) Records prepared or maintained by the employee's treating
physician or physicians.
(2) Medical and nonmedical records relevant to determination of
the medical issue.
(b) Information that a party proposes to provide to the qualified
medical evaluator selected from a panel shall be served on the
opposing party 20 days before the information is provided to the
evaluator. If the opposing party objects to consideration of
nonmedical records within 10 days thereafter, the records shall not
be provided to the evaluator. Either party may use discovery to
establish the accuracy or authenticity of nonmedical records prior to
the evaluation.
(c) If an agreed medical evaluator is selected, as part of their
agreement on an evaluator, the parties shall agree on what
information is to be provided to the agreed medical evaluator.
(d) In any formal medical evaluation, the agreed or qualified
medical evaluator shall identify the following:
(1) All information received from the parties.
(2) All information reviewed in preparation of the report.
(3) All information relied upon in the formulation of his or her
opinion.
(e) All communications with an agreed medical evaluator or a
qualified medical evaluator selected from a panel before a medical
evaluation shall be in writing and shall be served on the opposing
party 20 days in advance of the evaluation. Any subsequent
communication with the medical evaluator shall be in writing and
shall be served on the opposing party when sent to the medical
evaluator.
(f) Ex parte communication with an agreed medical evaluator or a
qualified medical evaluator selected from a panel is prohibited. If a
party communicates with the agreed medical evaluator or the
qualified medical evaluator in violation of subdivision (e), the
aggrieved party may elect to terminate the medical evaluation and
seek a new evaluation from another qualified medical evaluator to be
selected according to Section 4062.1 or 4062.2, as applicable, or
proceed with the initial evaluation.
(g) The party making the communication prohibited by this section
shall be subject to being charged with contempt before the appeals
board and shall be liable for the costs incurred by the aggrieved
party as a result of the prohibited communication, including the cost
of the medical evaluation, additional discovery costs, and attorney'
s fees for related discovery.
(h) Subdivisions (e) and (f) shall not apply to oral or written
communications by the employee or, if the employee is deceased, the
employee's dependent, in the course of the examination or at the
request of the evaluator in connection with the examination.
(i) Upon completing a determination of the disputed medical issue,
the medical evaluator shall summarize the medical findings on a form
prescribed by the administrative director and shall serve the formal
medical evaluation and the summary form on the employee and the
employer. The medical evaluation shall address all contested medical
issues arising from all injuries reported on one or more claim forms
prior to the date of the employee's initial appointment with the
medical evaluator.
(j) If, after a medical evaluation is prepared, the employer or
the employee subsequently objects to any new medical issue, the
parties, to the extent possible, shall utilize the same medical
evaluator who prepared the previous evaluation to resolve the medical
dispute.
(k) No disputed medical issue specified in subdivision (a) may be
the subject of declaration of readiness to proceed unless there has
first been an evaluation by the treating physician or an agreed or
qualified medical evaluator.
SEC. 10. Section 4062.5 of the Labor Code is amended to read:
4062.5. If a qualified medical evaluator selected from a panel
fails to complete the formal medical evaluation within the timeframes
established by the administrative director pursuant to paragraph (1)
of subdivision (j) of Section 139.2, a new evaluation may be
obtained , if requested prior to receipt of the report by either
party, upon the request of either party, as provided in
Sections 4062.1 or 4062.2. Neither the employee nor the employer
shall have any liability for payment for the formal medical
evaluation which that was not completed
within the required timeframes unless the employee or
employer, on forms prescribed by the administrative director, each
waive if either party objects to the report prior to
receipt. If neither party objects to the report prior to receipt,
each party waives the right to a new evaluation and elects to
accept the original evaluation even though it was not completed
within the required timeframes.
SEC. 11. Section 4067 of the Labor Code is amended to read:
4067. If the jurisdiction of the appeals board is invoked
pursuant to Section 5803 upon the grounds that the effects of the
injury have recurred, increased, diminished, or terminated, a formal
medical evaluation shall be obtained pursuant to this article.
When an agreed medical evaluator or a qualified medical evaluator
selected by an unrepresented employee from a
three-member panel has previously made a formal medical evaluation of
the same or similar issues, the subsequent or additional formal
medical evaluation shall be conducted by the same agreed medical
evaluator or qualified medical evaluator, unless the workers'
compensation judge has made a finding that he or she did not rely on
the prior evaluator's formal medical evaluation, any party contested
the original medical evaluation by filing an application for
adjudication, the unrepresented employee hired an
attorney and selected a qualified medical evaluator to conduct
another evaluation pursuant to subdivision (b) of Section 4064, or
the prior evaluator is no longer qualified or readily available to
prepare a formal medical evaluation, in which case Sections 4061 or
4062, as the case may be, shall apply as if there had been no prior
formal medical evaluation.
SEC. 12. Chapter 11 (commencing with Section 4401) of Part 1 of
Division 4 of the Labor Code is repealed.
SEC. 13. Section 4621 of the Labor Code is amended to read:
4621. (a) In accordance with the rules of practice and procedure
of the appeals board, the employee, or the dependents of a deceased
employee, shall be reimbursed for his or her medical-legal expenses
and reasonably, actually, and necessarily incurred, except as
provided in Section 4064. The reasonableness of, and necessity for,
incurring these expenses shall be determined with respect to the time
when the expenses were actually incurred. Costs for medical
evaluations, diagnostic tests, and interpreters' services incidental
to the production of a medical report shall not be incurred earlier
than the date of receipt by the employer, the employer's insurance
carrier, or, if represented, the attorney of record, of all reports
and documents required by the administrative director incidental to
the services. This subdivision is not applicable unless there has
been compliance with Section 4620.
(b) Except as provided in subdivision (c) and Sections 4060,
4061 and 4062, no comprehensive medical-legal
evaluations, except those at the request of an employer, shall be
performed during the first 60 days after the notice of claim has been
filed pursuant to Section 5401, and neither the employer nor the
employee shall be liable for any expenses incurred for comprehensive
medical-legal evaluations performed within the first 60 days after
the notice of claim has been filed pursuant to Section 5401
, 4061.5, 4062, 4062.1, and 4062.2, neither the employer nor
the employee shall be liable for any medical-legal
expenses incurred outside of these provisions .
(c) Comprehensive medical-legal evaluations may be performed at
any time after the claim form has been filed pursuant to Section 5401
if the employer has rejected the claim.
(d) Where, at the request of the employer, the employer's
insurance carrier, the administrative director, the appeals board, or
a referee workers' compensation judge
, the employee submits to examination by a physician, he or she
shall be entitled to receive, in addition to all other benefits
herein provided, all reasonable expenses of transportation, meals,
and lodging incident to reporting for the examination to the same
extent and manner as provided for in Section 4600.
SEC. 14. Section 4651 of the Labor Code is amended to read:
4651. (a) No disability indemnity payment shall be made by any
written instrument unless it is immediately negotiable and payable in
cash, on demand, without discount at some established place of
business in the state.
Nothing in this section shall prohibit an employer from depositing
the disability indemnity payment in an account in any bank,
savings and loan association bank or credit
union of the employee's choice in this state, provided the employee
has voluntarily authorized the deposit, nor shall it prohibit an
employer from electronically depositing the disability indemnity
payment in an account in any bank, savings and loan
association, bank or credit union, that the
employee has previously authorized to receive electronic deposits of
payroll, unless the employee has requested, in writing, that
disability indemnity benefits not be electronically deposited in the
account.
(b) It is not a violation of this section if a delay in the
negotiation of a written instrument is caused solely by the
application of state or federal banking laws or regulations.
(c) On or before July 1, 2004, the administrative director shall
present to the Governor recommendations on how to provide better
access to funds paid to injured workers in light of the requirements
of federal and state laws and regulations governing the negotiability
of disability indemnity payments. The administrative director shall
make specific recommendations regarding payments to migratory and
seasonal farmworkers. The Commission on Health and Safety and Workers'
Compensation and the Employment Development Department shall assist
the administrative director in the completion of this report.
SEC. 15. Section 4651.2 of the Labor Code is repealed.
4651.2. No petitions filed under Section 4651.1 shall be granted
while the injured workman is pursuing a rehabilitation plan under
Section 139.5 of this code.
SEC. 16. Section 4903 of the Labor Code is amended to read:
4903. The appeals board may determine, and allow as liens against
any sum to be paid as compensation, any amount determined as
hereinafter set forth in subdivisions (a) through
to (i) , inclusive . If more than one lien is
allowed, the appeals board may determine the priorities, if any,
between the liens allowed. The liens that may be allowed hereunder
are as follows:
(a) A reasonable attorney's fee for legal services pertaining to
any claim for compensation either before the appeals board or before
any of the appellate courts, and the reasonable disbursements in
connection therewith. No fee for legal services shall be awarded to
any representative who is not an attorney, except with
respect to those claims for compensation for which an application,
pursuant to Section 5501, has been filed with the appeals board on or
before December 31, 1991, or for which a disclosure form, pursuant
to Section 4906, has been sent to the employer, or insurer or
third-party administrator, if either is known, on or before December
31, 1991 attorney .
(b) The reasonable expense incurred by or on behalf of the injured
employee, as provided by Article 2 (commencing with Section 4600)
and, to the extent the employee is entitled to reimbursement under
Section 4621, medical-legal expenses as provided by Article 2.5
(commencing with Section 4620) of Chapter 2 of Part 2.
(c) The reasonable value of the living expenses of an injured
employee or of his or her dependents, subsequent to the injury.
(d) The reasonable burial expenses of the deceased employee, not
to exceed the amount provided for by Section 4701.
(e) The reasonable living expenses of the spouse or minor children
of the injured employee, or both, subsequent to the date of the
injury, where the employee has deserted or is neglecting his or her
family. These expenses shall be allowed in the proportion that the
appeals board deems proper, under application of the spouse, guardian
of the minor children, or the assignee, pursuant to subdivision (a)
of Section 11477 of the Welfare and Institutions Code, of the spouse,
a former spouse, or minor children. A collection received as a
result of a lien against a workers' compensation award imposed
pursuant to this subdivision for payment of child support ordered by
a court shall be credited as provided in Section 695.221 of the Code
of Civil Procedure.
(f) The amount of unemployment compensation disability benefits
that have been paid under or pursuant to the Unemployment Insurance
Code in those cases where, pending a determination under this
division there was uncertainty whether the benefits were payable
under the Unemployment Insurance Code or payable hereunder; provided,
however, that any lien under this subdivision shall be allowed and
paid as provided in Section 4904.
(g) The amount of unemployment compensation benefits and extended
duration benefits paid to the injured employee for the same day or
days for which he or she receives, or is entitled to receive,
temporary total disability indemnity payments under this division;
provided, however, that any lien under this subdivision shall be
allowed and paid as provided in Section 4904.
(h) The amount of family temporary disability insurance benefits
that have been paid to the injured employee pursuant to the
Unemployment Insurance Code for the same day or days for which that
employee receives, or is entitled to receive, temporary total
disability indemnity payments under this division, provided, however,
that any lien under this subdivision shall be allowed and paid as
provided in Section 4904.
(i) The amount of indemnification granted by the California
Victims of Crime Program pursuant to Article 1 (commencing with
Section 13959) of Chapter 5 of Part 4 of Division 3 of Title 2 of the
Government Code.
(j) The amount of compensation, including expenses of medical
treatment , and recoverable costs that have been paid by the
Asbestos Workers' Account pursuant to the provisions of Chapter 11
(commencing with Section 4401) of Part 1 .
SEC. 17. Section 4903.1 of the Labor Code is amended to read:
4903.1. (a) The appeals board, arbitrator, or settlement
conference referee workers' compensation judge
, before issuing an award or approval of any compromise of claim,
shall determine, on the basis of liens filed with it pursuant to
subdivision (b) or (c), whether any benefits have been paid or
services provided by a health care provider, a health care service
plan, a group disability policy, including a loss of income policy, a
self-insured employee welfare benefit plan, or a hospital service
contract, and its award or approval shall provide for reimbursement
for benefits paid or services provided under these plans as follows:
(1) When the referee workers' compensation
judge issues an award finding that an injury or illness arises
out of and in the course of employment, but denies the applicant
reimbursement for self-procured medical costs solely because of lack
of notice to the applicant's employer of his need for hospital,
surgical, or medical care, the appeals board shall nevertheless award
a lien against the employee's recovery, to the extent of benefits
paid or services provided, for the effects of the industrial injury
or illness, by a health care provider, a health care service plan, a
group disability policy, a self-insured employee welfare benefit
plan, or a hospital service contract.
(2) When the referee workers' compensation
judge issues an award finding that an injury or illness arises
out of and in the course of employment, and makes an award for
reimbursement for self-procured medical costs, the appeals board
shall allow a lien, to the extent of benefits paid or services
provided, for the effects of the industrial injury or illness, by a
health care provider, a health care service plan, a group disability
policy, a self-insured employee welfare benefit plan, or a hospital
service contract.
(3) When the referee workers' compensation
judge issues an award finding that an injury or illness arises
out of and in the course of employment and makes an award for
temporary disability indemnity, the appeals board shall allow a lien
as living expense under Section 4903, for benefits paid by a group
disability policy providing loss of time benefits. Such lien shall be
allowed to the extent that benefits have been paid for the same day
or days for which temporary disability indemnity is awarded and shall
not exceed the award for temporary disability indemnity. No lien
shall be allowed hereunder unless the group disability policy
provides for reduction, exclusion, or coordination of loss of time
benefits on account of workers' compensation benefits.
(4) When the parties propose that the case be disposed of by way
of a compromise and release agreement, in the event the lien
claimant, other than a health care provider, does not agree to the
amount allocated to it, then the referee
workers' compensation judge shall determine the
potential recovery and reduce the amount of the lien in the ratio of
the applicant's recovery to the potential recovery in full
satisfaction of its lien claim.
(b) When a compromise of claim or an award is submitted to the
appeals board, arbitrator, or settlement conference referee
workers' compensation judge for approval, the
parties shall file with the appeals board, arbitrator, or
settlement conference referee workers' compensation
judge any liens served on the parties.
(c) Any lien claimant under Section 4903 or this section shall
file its lien with the appeals board in writing upon a form approved
by the appeals board. The lien shall be accompanied by a full
statement or itemized voucher supporting the lien and justifying the
right to reimbursement and proof of service upon the injured worker,
or if deceased, upon the worker's dependents, the employer, the
insurer, and the respective attorneys or other agents of record.
(d) The appeals board shall file liens required by subdivision (c)
immediately upon receipt. Numbers shall be assigned pursuant to
subdivision (c) of Section 5500.
SEC. 18. Section 4905 of the Labor Code is amended to read:
4905. Where it appears in any proceeding pending before the
appeals board that a lien should be allowed if it had been duly
requested by the party entitled thereto, except as provided in
Section 4903.5 and subdivision (a) of Section 4904, the appeals
board may, without any request for such the
lien having been made, order the payment of the claim to be
made directly to the person entitled, in the same manner and with the
same effect as though the lien had been regularly requested, and the
award to such person shall constitute a lien against unpaid
compensation due at the time of service of the award.
SEC. 19. Section 4907 of the Labor Code is amended to read:
4907. The privilege of any person, including attorneys admitted
to practice in the Supreme Court of the state to appear in any
proceeding as a representative of any party before the appeals board,
or any of its referees workers' compensation
judges , may, after a hearing, be removed, denied, or
suspended by the appeals board for a violation of this chapter or for
other good cause.
SEC. 20. Section 5270.5 of the Labor Code is amended to read:
5270.5. (a) The presiding workers' compensation judge at each
district office shall prepare a list of all eligible attorneys who
apply to be placed on the list of eligible arbitrators. Attorneys are
eligible to become arbitrators if they are active members of the
California State
Bar Association and are one of the following:
(1) A certified specialist in workers' compensation, or eligible
to become certified.
(2) A retired workers' compensation judge.
(3) A retired appeals board member.
(4) An attorney who has been certified to serve as a judge pro
tempore.
(b) No attorney shall be included in a panel of arbitrators, if he
or she has served as a judge in any proceeding involving the same
case , unless expressly waived by the parties , or has
represented, or whose firm has represented, any party in the same
case.
SEC. 21. Section 5271 of the Labor Code is amended to read:
5271. (a) The parties to a dispute submitted for arbitration may
select any eligible attorney from the list prepared by the presiding
workers' compensation judge to serve as arbitrator. However, when the
disputed issue involves insurance coverage, the parties may select
any attorney as arbitrator upon agreement of the parties.
(b) If the parties cannot select an arbitrator by agreement,
either party may request the presiding workers' compensation judge to
assign a panel of five arbitrators selected at random from the list
of eligible attorneys. No more than three arbitrators on a
five-member panel may be defense attorneys, no more than three may be
applicant's attorneys, and no more than two may be retired workers'
compensation judges or appeals board commissioners.
(c) For each party in excess of one party in the capacity of
employer and one party in the capacity of injured employee or lien
claimant, the presiding judge shall randomly select two additional
arbitrators to add to the panel. For When an
applicant or lien claimant is a party to the relevant claim, for
each additional party in the capacity of employer, the
presiding judge shall assign a retired workers' compensation judge or
retired appeals board commissioner and an applicant's attorney.
When the dispute involves solely defendants, for each additional
party in the capacity of employer beyond two employers, the presiding
judge shall assign a workers' compensation judge or
retired appeals board commissioner and an applicant's attorney.
For each additional party in the capacity of injured employee or
lien claimant, the presiding judge shall assign a retired workers'
compensation judge or retired appeals board commissioner and a
defense attorney. For each additional other party, the presiding
judge shall assign two arbitrators to the panel, in order of rotation
from case to case, as follows: a retired workers' compensation judge
or retired appeals board commissioner, an applicant's attorney, a
defense attorney.
(d) A party may petition the presiding workers' compensation judge
to remove a member from the panel pursuant to Section 170.1 of the
Code of Civil Procedure. The presiding workers' compensation judge
shall assign another eligible attorney to replace any member removed
under this subdivision.
(e) Each party or lien claimant shall strike two members from the
panel, and the remaining attorney shall serve as arbitrator.
SEC. 22. Section 5402 of the Labor Code is amended to read:
5402. (a) Knowledge of an injury, obtained from any source, on
the part of an employer, his or her managing agent, superintendent,
foreman, or other person in authority, or knowledge of the assertion
of a claim of injury sufficient to afford opportunity to the employer
to make an investigation into the facts, is equivalent to service
under Section 5400 and shall constitute notice of the injury
.
(b) If liability is not rejected within 90 days after the date the
claim form is filed under Section 5401, the injury shall be presumed
compensable under this division. The presumption of this subdivision
is rebuttable only by evidence discovered subsequent to the 90-day
period.
(c) Within one working day after an employee files a claim form
under Section 5401, the employer shall authorize the provision of all
treatment, consistent with Section 5307.27 or the American College
of Occupational and Environmental Medicine's Occupational Medicine
Practice Guidelines, for the alleged injury and shall continue to
provide the treatment until the date that liability for the claim is
accepted or rejected. Until the date the claim is accepted or
rejected, liability for medical treatment shall be limited to ten
thousand dollars ($10,000).
(d) Treatment provided under subdivision (c) shall not give rise
to a presumption of liability on the part of the employer.
SEC. 23. Section 5451 of the Labor Code is amended to read:
5451. Any party may consult with, or seek the advice of, an
information and assistance officer within the Division of Workers'
Compensation as designated by the administrative director. If no
application is filed, if the employee is not represented, or upon
agreement of the parties, the information and assistance officer
shall consider the contentions of the parties and may refer the
matter to the appropriate bureau or unit within
the Division of Workers' Compensation for review and recommendations.
The information and assistance officer shall advise the employer and
the employee of their rights, benefits, and obligations under this
division. Upon making a referral, the information and assistance
officer shall arrange for a copy of any pertinent material submitted
to be served upon the parties or their representatives, if any. The
procedures to be followed by the information and assistance officer
shall be governed by the rules and regulations of the administrative
director adopted after public hearings.
SEC. 24. Section 5453 of the Labor Code is amended to read:
5453. After consideration of the information submitted, including
the reports of any bureau or unit within the
Division of Workers' Compensation which that
have been received, the information and assistance officer
shall make a recommendation which that
shall be served on the parties or their representatives, if any.
SEC. 25. Section 5500.5 of the Labor Code is amended to read:
5500.5. (a) Except as otherwise provided in Section 5500.6,
liability for occupational disease or cumulative injury claims filed
or asserted on or after January 1, 1978, shall be limited to those
employers who employed the employee during a one-year
period of four years immediately preceding either
the date of injury, as determined pursuant to Section 5412, or the
last date on which the employee was employed in an occupation
exposing him or her to the hazards of the occupational disease or
cumulative injury, whichever occurs first. Commencing
January 1, 1979, and thereafter on the first day of January for each
of the next two years, the liability period for occupational disease
or cumulative injury shall be decreased by one year so that liability
is limited in the following manner:
For claims filed
or The period
asserted on or after: shall be:
January 1, 1979........... three years
January 1, 1980........... two years
January 1, 1981 and one year
thereafter................
In the event that none of the employers during the above
referenced periods period of
occupational disease or cumulative injury are insured for workers'
compensation coverage or an approved alternative thereof, liability
shall be imposed upon the last year of employment exposing the
employee to the hazards of the occupational disease or cumulative
injury for which an employer is insured for workers' compensation
coverage or an approved alternative thereof.
Any employer held liable for workers' compensation benefits as a
result of another employer's failure to secure the payment of
compensation as required by this division shall be entitled to
reimbursement from the employers who were unlawfully uninsured during
the last year of the employee's employment, and shall be subrogated
to the rights granted to the employee against the unlawfully
uninsured employers under the provisions of Article 1 (commencing
with Section 3700) of Chapter 4 of Part 1 of Division 4.
If, based upon all the evidence presented, the appeals board or
workers' compensation judge finds the existence of cumulative injury
or occupational disease, liability for the cumulative injury or
occupational disease shall not be apportioned to prior or subsequent
years ; however, . However, in
determining the liability, evidence of disability due to specific
injury, disability due to nonindustrial causes, or disability
previously compensated for by way of a findings and award or order
approving compromise and release, or a voluntary payment of
disability, may be admissible for purposes of apportionment.
(b) Where a claim for compensation benefits is made on account of
an occupational disease or cumulative injury which
that may have arisen out of more than one employment, the
application shall state the names and addresses of all employers
liable under subdivision (a), the places of employment, and the
approximate periods of employment where the employee was exposed to
the hazards of the occupational disease or cumulative injury. If the
application is not so prepared or omits necessary and proper
employers, any interested party, at or prior to the first hearing,
may request the appeals board to join as defendant any necessary or
proper party. If the request is made prior to the first hearing on
the application, the appeals board shall forthwith join the employer
as a party defendant and cause a copy of the application together
with a notice of the time and place of hearing to be served upon the
omitted employer; provided, the notice can be given within the time
specified in this division. If the notice cannot be timely given or
if the motion for joinder is made at the time of the first hearing,
then the appeals board or the workers' compensation judge before whom
the hearing is held, if it is found that the omitted employer named
is a necessary or proper party, may order a joinder of the party and
continue the hearing so that proper notice may be given to the party
or parties so joined. Only one continuance shall be allowed for the
purpose of joining additional parties. Subsequent to the first
hearing the appeals board shall join as a party defendant any
additional employer when it appears that the employer is a proper
party, but the liability of the employer shall not be determined
until supplemental proceedings are instituted.
(c) In any case involving a claim of occupational disease or
cumulative injury occurring as a result of more than one employment
within the appropriate time period set forth in subdivision (a), the
employee making the claim, or his or her dependents, may elect to
proceed against any one or more of the employers. Where such an
election is made, the employee must successfully prove his or her
claim against any one of the employers named, and any award
which that the appeals board shall issue
awarding compensation benefits shall be a joint and several award as
against any two or more employers who may be held liable for
compensation benefits. If, during the pendency of any claim wherein
the employee or his or her dependents has made an election to proceed
against one or more employers, it should appear that there is
another proper party not yet joined, the additional party shall be
joined as a defendant by the appeals board on the motion of any party
in interest, but the liability of the employer shall not be
determined until supplemental proceedings are instituted. Any
employer joined as a defendant subsequent to the first hearing or
subsequent to the election provided herein shall not be entitled to
participate either in any of the proceedings prior to the
appeal board's final decision, nor or
to any continuance or further proceedings, but may be permitted to
ascertain from the employee or his or her dependents such
the information as that
will enable the employer to determine the time, place, and
duration of the alleged employment. On supplemental proceedings,
however, the right of the employer to full and complete examination
or cross-examination shall not be restricted.
(d) (1) In the event a self-insured employer which owns and
operates a work location in the State of California, sells or has
sold the ownership and operation of the work location pursuant to a
sale of a business or all or part of the assets of a business to
another self-insured person or entity after January 1, 1974, but
before January 1, 1978, and all the requirements of subparagraphs (A)
to (D), inclusive, exist, then the liability of the employer-seller
and employer-buyer, respectively, for cumulative injuries suffered by
employees employed at the work location immediately before the sale
shall, until January 1, 1986, be governed by the provisions of this
section which were in effect on the date of that sale.
(A) The sale constitutes a material change in ownership of
such the work location.
(B) The person or entity making the purchase continues the
operation of the work location.
(C) The person or entity becomes the employer of substantially all
of the employees of the employer-seller.
(D) The agreement of sale makes no special provision for the
allocation of liabilities for workers' compensation between the buyer
and the seller.
(2) For purposes of this subdivision:
(A) "Work location" shall mean any fixed place of business,
office, or plant where employees regularly work in the trade or
business of the employer.
(B) A "material change in ownership" shall mean a change in
ownership whereby the employer-seller does not retain, directly or
indirectly, through one or more corporate entities, associations,
trusts, partnerships, joint ventures, or family members, a
controlling interest in the work location.
(3) This subdivision shall have no force or effect on or after
January 1, 1986, unless otherwise extended by the Legislature prior
to that date, and it shall not have any force or effect as respects
an employee who, subsequent to the sale described in paragraph (1)
and prior to the date of his or her application for compensation
benefits has been filed, is transferred to a different work location
by the employer-buyer.
(4) If any provision of this subdivision or the application
thereof to any person or circumstances is held invalid, that
invalidity shall not affect other provisions or applications of this
subdivision which can be given effect without the invalid provision
or application, and to this end the provisions of this subdivision
are severable.
(e) At any time within one year after the appeals board has made
an award for compensation benefits in connection with an occupational
disease or cumulative injury, any employer held liable under the
award may institute proceedings before the appeals board for the
purpose of determining an apportionment of liability or right of
contribution. The proceeding shall not diminish, restrict, or alter
in any way the recovery previously allowed the employee or his or her
dependents, but shall be limited to a determination of the
respective contribution rights, interest or liabilities of all the
employers joined in the proceeding, either initially or
supplementally ; provided, however, .
However, if the appeals board finds on supplemental proceedings
for the purpose of determining an apportionment of liability or of a
right of contribution that an employer previously held liable in
fact has no liability, it may dismiss the employer and amend its
original award in such manner as may be required.
(f) If any proceeding before the appeals board for the purpose of
determining an apportionment of liability or of a right of
contribution where any employee incurred a disability or death
resulting from silicosis in underground metal mining operations, the
determination of the respective rights and interests of all of the
employers joined in the proceedings either initially or
supplementally shall be as follows:
(1) All employers whose underground metal mining operations
resulted in a silicotic exposure during the period of the employee's
employment in those operations shall be jointly and severally liable
for the payment of compensation and of medical, surgical, legal and
hospital expense which that may be
awarded to the employee or his or her estate or dependents as the
result of disability or death resulting from or aggravated by the
exposure.
(2) In making its determination in the supplemental proceeding for
the purpose of determining an apportionment of liability or of a
right of contribution of percentage liabilities of the various
employers engaged in underground metal mining operations the appeals
board shall consider as a rebuttal presumption that employment in
underground work in any mine for a continuous period of more than
three calendar months will result in a silicotic exposure for the
employee so employed during the period of employment if the
underground metal mine was driven or sunk in rock having a
composition which that will result in
dissemination of silica or silicotic dust particles when drilled,
blasted, or transported.
(g) Any employer shall be entitled to rebut the presumption by
showing to the satisfaction of the appeals board, or the workers'
compensation judge, that the mining methods used by the employer in
the employee's place of employment did not result during his or her
employment in the creation of silica dust in sufficient amount or
concentration to constitute a silicotic hazard. Dust counts,
competently made, at intervals and in locations as meet the
requirements of the Division of Occupational Safety and Health for
safe working conditions may be received as evidence of the amount and
concentration of silica dust in the workings where the counts have
been made at the time when they were made. The appeals board may from
time to time, as its experience may indicate proper, promulgate
orders as to the frequency with which dust counts shall be taken in
different types of workings in order to justify their acceptance as
evidence of the existence or nonexistence of a silicotic hazard in
the property where they have been taken.
(h) The amendments to this section adopted at the 1959
1959-60 Regular Session of the Legislature shall
operate retroactively, and shall apply retrospectively to any cases
pending before the appeals board or courts. From and after the date
this section becomes effective no payment shall be made out of the
fund used for payment of the additional compensation provided for in
Section 4751, or out of any other state funds, in satisfaction of any
liability heretofore incurred or hereafter incurred, except awards
which that have become final without
regard to the continuing jurisdiction of the appeals board on that
effective date, and the state and its funds shall be without
liability therefor. This subdivision shall not in any way effect a
reduction in any benefit conferred or which
that may be conferred upon any injured employee or his or
her dependents.
(i) The amendments to this section adopted at the 1977
1977-78 Regular Session of the Legislature shall
apply to any claims for benefits under this division which are filed
or asserted on or after January 1, 1978, unless otherwise specified
in this section.
SEC. 26. Section 5501.5 of the Labor Code is amended to read:
5501.5. (a) The application for adjudication of claim shall be
filed in any of the following locations:
(1) In the county where the injured employee or dependent of a
deceased employee resides on the date of filing.
(2) In the county where the injury allegedly occurred, or, in
cumulative trauma and industrial disease claims, where the last
alleged injurious exposure occurred.
(3) In the county where the employee's attorney maintains his or
her principal place of business, if the employee is represented by an
attorney.
(b) If the county selected for filing has more than one office of
the appeals board, the application shall be filed at any location of
the appeals board within that county that meets the criteria
specified in subdivision (a). The written consent of the employee, or
dependent of a deceased employee, to the selected venue site shall
be filed with the application.
(c) If the venue site where the application is to be filed is the
county where the employee's attorney maintains his or her principal
place of business, the attorney for the employee shall
indicate that venue site when forwarding the information request form
required by Section 5401.5. The employer shall have 30
days from receipt of the information request form
conforming application to object
file and serve an objection to the selected venue site. Where
there is an employer objection to a venue site under paragraph (3) of
subdivision (a), then the application shall be filed pursuant to
either paragraph (1) or (2) of subdivision (a). For purposes of
this subdivision, a conforming application is one that includes the
date it was filed with the appeals board and a case number.
(d) If there is no appeals board office in the county where venue
is permitted under subdivision (a), the application shall be filed at
the appeals board office nearest the residence on the date of filing
of the injured employee or dependent of a deceased employee, or the
nearest place where the injury allegedly occurred, or, in cumulative
trauma and industrial disease claims, where the last injurious
exposure occurred, or nearest the location where the attorney of the
employee maintains his or her principal place of business, unless the
employer objects under subdivision (c).
SEC. 27. 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 court administrator, 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 court administrator 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 vocational rehabilitation
services, or the termination of an employer's liability to provide
these services to an employee.
(4) The employee's entitlement to compensation from one or more
responsible employers when two or more employers dispute liability as
among themselves.
(5) Any other issues requiring an expedited hearing and
determination as prescribed in rules and regulations of the
administrative director or court administrator .
(c) The court administrator 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 court administrator shall report quarterly to the Governor
and to the Legislature concerning the frequency and types of issues
which that 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
judge, a pro tempore workers' compensation judge, or a
person eligible to be an arbitrator under
pursuant to Section 5270.5. At the mandatory settlement
conference, the referee or workers' compensation
administrative law judge or other authorized
officiant 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 workers' compensation
judges 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. 28. Section 5505 of the Labor Code is amended to read:
5505. If any defendant desires to disclaim any interest in the
subject matter of the claim in controversy, or considers that the
application is in any respect inaccurate or incomplete, or desires to
bring any fact, paper, or document to the attention of the appeals
board as a defense to the claim or otherwise, he or she
may, within 10 days after the service of the application upon him
or her , file with or mail to the appeals board his
or her answer in such form as the appeals board may prescribe,
setting forth the particulars in which the application is inaccurate
or incomplete, and the facts upon which he or she intends
to rely. A copy of the answer shall be forthwith served upon all
adverse parties. Evidence upon matters not pleaded by answer shall be
allowed only upon the terms and conditions imposed by the appeals
board or referee workers' compensation judge
holding the hearing.
SEC. 29. Section 5700 of the Labor Code is amended to read:
5700. The hearing on the application may be adjourned from time
to time and from place to place in the discretion of the appeals
board or the workers' compensation judge holding the hearing. Any
trial hearing adjourned by the workers' compensation judge
shall be continued to be heard by and shall be concluded and the
decision made by the workers' compensation judge who previously heard
it. Either party may be present at any hearing, in person, by
attorney, or by any other agent, and may present testimony pertinent
under the pleadings.
SEC. 30. Section 5708 of the Labor Code is amended to read:
5708. All hearings and investigations before the appeals board or
a workers' compensation judge are governed by this division and by
the rules of practice and procedures adopted by the appeals board. In
the conduct thereof they shall not be bound by the common law or
statutory rules of evidence and procedure, but may make inquiry in
the manner, through oral testimony and records, which is best
calculated to ascertain the substantial rights of the parties and
carry out justly the spirit and provisions of this division. All oral
testimony, objections, and rulings shall be taken down in
shorthand recorded on a permanent accessible record
by a competent phonographic hearing
reporter.
SEC. 31. Section 5813 of the Labor Code is amended to read:
5813. (a) The workers' compensation referee
judge or appeals board may order a party, the party's
attorney, or both, to pay any reasonable expenses, including attorney'
s fees and costs, incurred by another party as a result of bad-faith
actions or tactics that are frivolous or solely intended to cause
unnecessary delay. In addition, a workers' compensation
referee judge or the appeals board, in its sole
discretion, may order additional sanctions not to exceed two thousand
five hundred dollars ($2,500) to be transmitted to the General Fund.
(b) The determination of sanctions shall be made after written
application by the party seeking sanctions or upon the appeal board's
own motion.
(c) This section shall apply to all applications for adjudication
that are filed on or after January 1, 1994.