110. As used in this chapter:
(a) "Appeals board" means the Workers' Compensation Appeals Board.
The title of a member of the board is "commissioner."
(b) "Administrative director" means the Administrative Director of
the Division of Workers' Compensation.
(c) "Division" means the Division of Workers' Compensation.
(d) "Medical director" means the physician appointed by the
administrative director pursuant to Section 122.
(e) "Qualified medical evaluator" means physicians appointed by
the administrative director pursuant to Section 139.2.
(f) "Court administrator" means the administrator of the workers'
compensation adjudicatory process at the trial level.
111. (a) The Workers' Compensation Appeals Board, consisting of
seven members, shall exercise all judicial powers vested in it under
this code. In all other respects, the Division of Workers'
Compensation is under the control of the administrative director and,
except as to those duties, powers, jurisdiction, responsibilities,
and purposes as are specifically vested in the appeals board, the
administrative director shall exercise the powers of the head of a
department within the meaning of Article 1 (commencing with Section
11150) of Chapter 2 of Part 1 of Division 3 of Title 2 of the
Government Code with respect to the Division of Workers' Compensation
which shall include supervision of, and responsibility for,
personnel, and the coordination of the work of the division, except
personnel of the appeals board.
(b) The administrative director shall prepare and submit, on March
1 of each year, a report to the Governor and the Legislature
covering the activities of the division during the prior year. The
report shall include recommendations for improvement and the need, if
any, for legislation to enhance the delivery of compensation to
injured workers. The report shall include data on penalties imposed
on employers or insurers due to delays in compensation or notices, or
both, by category of penalty imposed.
112. The members of the appeals board shall be appointed by the
Governor with the advice and consent of the Senate. The term of
office of the members appointed prior to January 1, 1990, shall be
four years, and the term of office of members appointed on or after
January 1, 1990, shall be six years and they shall hold office until
the appointment and qualification of their successors.
Five of the members of the appeals board shall be experienced
attorneys at law admitted to practice in the State of California. The
other two members need not be attorneys at law. All members shall be
selected with due consideration of their judicial temperament and
abilities. Each member shall receive the salary provided for by
Chapter 6 (commencing with Section 11550) of Part 1 of Division 3 of
Title 2 of the Government Code.
113. The Governor shall designate the chairman of the appeals board
from the membership of the appeals board. The person so designated
shall hold the office of chairman at the pleasure of the Governor.
The chairman may designate in writing one of the other members of
the appeals board to act as chairman during such time as he may be
absent from the state on official business, on vacation, or absent
due to illness.
115. Actions of the appeals board shall be taken by decision of a
majority of the appeals board except as otherwise expressly provided.
The chairman shall assign pending cases in which reconsideration
is sought to any three members thereof for hearing, consideration and
decision. Assignments by the chairman of members to such cases shall
be rotated on a case-by-case basis with the composition of the
members so assigned being varied and changed to assure that there
shall never be a fixed and continued composition of members. Any such
case assigned to any three members in which the finding, order,
decision or award is made and filed by any two or more of such
members shall be the action of the appeals board unless
reconsideration is had in accordance with the provisions of Article 1
(commencing with Section 5900), Chapter 7, Part 4, Division 4 of
this code. Any case assigned to three members shall be heard and
decided only by them, unless the matter has been reassigned by the
chairman on a majority vote of the appeals board to the appeals board
as a whole in order to achieve uniformity of decision, or in cases
presenting novel issues.
116. The seal of the appeals board bearing the inscription "Workers'
Compensation Appeals Board, Seal" shall be affixed to all writs and
authentications of copies of records and to such other instruments as
the appeals board directs.
117. The administrative director may appoint an attorney licensed
to practice law in the state as counsel to the division.
119. The attorney shall:
(a) Represent and appear for the state and the Division of Workers'
Compensation and the appeals board in all actions and proceedings
arising under any provision of this code administered by the division
or under any order or act of the division or the appeals board and,
if directed so to do, intervene, if possible, in any action or
proceeding in which any such question is involved.
(b) Commence, prosecute, and expedite the final determination of
all actions or proceedings, directed or authorized by the
administrative director or the appeals board.
(c) Advise the administrative director and the appeals board and
each member thereof, upon request, in regard to the jurisdiction,
powers or duties of the administrative director, the appeals board
and each member thereof.
(d) Generally perform the duties and services as attorney to the
Division of Workers' Compensation and the appeals board which are
required of him or her.
120. The administrative director and the chairman of the appeals
board may each respectively appoint a secretary and assistant
secretaries to perform such services as shall be prescribed.
121. The chairman of the appeals board may authorize its secretary
and any two assistant secretaries to act as deputy appeals board
members and may delegate authority and duties to these deputies. Not
more than three deputies may act as appeals board members at any one
time. No act of any deputy shall be valid unless it is concurred in
by at least one member of the appeals board.
122. The administrative director shall appoint a medical director
who shall possess a physician's and surgeon's certificate granted
under Chapter 5 (commencing with Section 2000) of Division 2 of the
Business and Professions Code. The medical director shall employ
medical assistants who shall also possess physicians' and surgeons'
certificates and other staff necessary to the performance of his or
her duties. The salaries for the medical director and his or her
assistants shall be fixed by the Department of Personnel
Administration, commensurate with the salaries paid by private
industry to medical directors and assistant medical directors.
123. The administrative director may employ necessary assistants,
officers, experts, statisticians, actuaries, accountants, workers'
compensation administrative law judges, stenographic shorthand
reporters, legal secretaries, disability evaluation raters, program
technicians, and other employees to implement new, efficient court
management systems. The salaries of the workers' compensation
administrative law judges shall be fixed by the Department of
Personnel Administration for a class of positions which perform
judicial functions.
123.3. Any official reporter employed by the administrative
director shall render stenographic or clerical assistance as directed
by the presiding workers' compensation administrative law judge of
the office to which the reporter is assigned, when the presiding
workers' compensation administrative law judge determines that the
reporter is not engaged in the performance of any other duty imposed
by law.
123.5. (a) Workers' compensation administrative law judges employed
by the administrative director and supervised by the court
administrator pursuant to this chapter shall be taken from an
eligible list of attorneys licensed to practice law in this state,
who have the qualifications prescribed by the State Personnel Board.
In establishing eligible lists for this purpose, state civil service
examinations shall be conducted in accordance with the State Civil
Service Act (Part 2 (commencing with Section 18500) of Division 5 of
Title 2 of the Government Code). Every workers' compensation judge
shall maintain membership in the State Bar of California during his
or her tenure.
A workers' compensation administrative law judge may not receive
his or her salary as a workers' compensation administrative law judge
while any cause before the workers' compensation administrative law
judge remains pending and undetermined for 90 days after it has been
submitted for decision.
(b) All workers' compensation administrative law judges appointed
on or after January 1, 2003, shall be attorneys licensed to practice
law in California for five or more years prior to their appointment
and shall have experience in workers' compensation law.
123.6. (a) All workers' compensation administrative law judges
employed by the administrative director and supervised by the court
administrator shall subscribe to the Code of Judicial Ethics adopted
by the Supreme Court pursuant to subdivision (m) of Section 18 of
Article VI of the California Constitution for the conduct of judges
and shall not otherwise, directly or indirectly, engage in conduct
contrary to that code or to the commentary to the Code of Judicial
Ethics.
In consultation with both the court administrator and the
Commission on Judicial Performance, the administrative director shall
adopt regulations to enforce this section. Existing regulations
shall remain in effect until new regulations based on the
recommendations of the court administrator and the Commission on
Judicial Performance have become effective. To the extent possible,
the rules shall be consistent with the procedures established by the
Commission on Judicial Performance for regulating the activities of
state judges, and, to the extent possible, with the gift, honoraria,
and travel restrictions on legislators contained in the Political
Reform Act of 1974 (Title 9 (commencing with Section 81000) of the
Government Code). The court administrator shall have the authority to
enforce the rules adopted by the administrative director.
(b) Honoraria or travel allowed by the court administrator, and
not otherwise prohibited by this section in connection with any
public or private conference, convention, meeting, social event, or
like gathering, the cost of which is significantly paid for by
attorneys who practice before the board, may not be accepted unless
the court administrator has provided prior approval in writing to the
workers' compensation administrative law judge allowing him or her
to accept those payments.
123.7. The appeals board may, by rule or regulation, establish
procedures whereby attorneys who are either certified specialists in
workers' compensation by the California State Bar, or are eligible
for this certification, may be appointed by the presiding workers'
compensation judge of each board office to serve as a pro tempore
workers' compensation judge in a particular case, upon the
stipulation of the employee or his or her representative, and the
employer or the insurance carrier. Service in this capacity by an
attorney shall be voluntary and without pay. It is the intent of the
Legislature that the use of pro tempore workers' compensation judges
pursuant to this section shall not result in a reduction of the
number of permanent civil service employees or the number of
authorized full-time equivalent positions.
124. (a) In administering and enforcing this division and Division
4 (commencing with Section 3200), the division shall protect the
interests of injured workers who are entitled to the timely provision
of compensation.
(b) Forms and notices required to be given to employees by the
division shall be in English and Spanish.
125. The administrative director shall cause to be printed and
furnished free of charge to any person blank forms that may
facilitate or promote the efficient performance of the duties of the
Division of Workers' Compensation.
126. The Division of Workers' Compensation, including the
administrative director and the appeals board, shall keep minutes of
all their proceedings and other books or records requisite for proper
and efficient administration. All records shall be kept in their
respective offices.
127. The administrative director and court administrator may:
(a) Charge and collect fees for copies of papers and records, for
certified copies of official documents and orders or of the evidence
taken or proceedings had, for transcripts of testimony, and for
inspection of case files not stored in the place where the inspection
is requested. The administrative director shall fix those fees in an
amount sufficient to recover the actual costs of furnishing the
services. No fees for inspection of case files shall be charged to an
injured employee or his or her representative.
(b) Publish and distribute from time to time, in addition to the
reports to the Governor, further reports and pamphlets covering the
operations, proceedings, and matters relative to the work of the
division.
(c) Prepare, publish, and distribute an office manual, for which a
reasonable fee may be charged, and to which additions, deletions,
amendments, and other changes from time to time may be adopted,
published, and distributed, for which a reasonable fee may be charged
for the revision, or for which a reasonable fee may be fixed on an
annual subscription basis.
(d) Fix and collect reasonable charges for publications issued.
127.5. In the exercise of his or her functions, the court
administrator shall further the interests of uniformity and
expedition of proceedings before workers' compensation administrative
law judges, assure that all workers' compensation administrative law
judges are qualified and adhere to deadlines mandated by law or
regulations, and manage district office procedural matters at the
trial level.
127.6. (a) The administrative director shall, in consultation with
the Commission on Health and Safety and Workers' Compensation, other
state agencies, and researchers and research institutions with
expertise in health care delivery and occupational health care
service, conduct a study of medical treatment provided to workers who
have sustained industrial injuries and illnesses. The study shall
focus on, but not be limited to, all of the following:
(1) Factors contributing to the rising costs and utilization of
medical treatment and case management in the workers' compensation
system.
(2) An evaluation of case management procedures that contribute to
or achieve early and sustained return to work within the employee's
temporary and permanent work restrictions.
(3) Performance measures for medical services that reflect patient
outcomes.
(4) Physician utilization, quality of care, and outcome
measurement data.
(5) Patient satisfaction.
(b) The administrative director shall begin the study on or before
July 1, 2003, and shall report and make recommendations to the
Legislature based on the results of the study on or before July 1,
2004.
(c) In implementing this section, the administrative director
shall ensure the confidentiality and protection of patient-specific
data.
128. The appeals board may accept appointment as deputy
commissioner under, or any delegation of authority to enforce, the
United States Longshoremen's and Harbor Worker's Compensation Act.
The appeals board may enter into arrangements with the United States,
subject to the approval of the Department of Finance, for the
payment of any expenses incurred in the performance of services under
said act. In the performance of any duties under said act,
appointment, or authority, the appeals board may, subject to the
provisions thereof, exercise any authority conferred upon the appeals
board by the laws of this state.
129. (a) To make certain that injured workers, and their dependents
in the event of their death, receive promptly and accurately the
full measure of compensation to which they are entitled, the
administrative director shall audit insurers, self-insured employers,
and third-party administrators to determine if they have met their
obligations under this code. Each audit subject shall be audited at
least once every five years. The audit subjects shall be selected and
the audits conducted pursuant to subdivision (b). The results of
audits of insurers shall be provided to the Insurance Commissioner,
and the results of audits of self-insurers and third-party
administrators shall be provided to the Director of Industrial
Relations. Nothing in this section shall restrict the authority of
the Director of Industrial Relations or the Insurance Commissioner to
audit their licensees.
(b) The administrative director shall schedule and conduct audits
as follows:
(1) A profile audit review of every audit subject shall be
conducted once every five years and on additional occasions indicated
by target audit criteria. The administrative director shall annually
establish a profile audit review performance standard that will
identify the poorest performing audit subjects.
(2) A full compliance audit shall be conducted of each profile
audited subject failing to meet or exceed the profile audit review
performance standard. The full compliance audit shall be a
comprehensive and detailed evaluation of the audit subject's
performance. The administrative director shall annually establish a
full compliance audit performance standard that will identify the
audit subjects that are performing satisfactorily. Any full
compliance audit subject that fails to meet or exceed the full
compliance audit performance standard shall be audited again within
two years.
(3) A targeted profile audit review or a full compliance audit may
be conducted at any time in accordance with target audit criteria
adopted by the administrative director. The target audit criteria
shall be based on information obtained from benefit notices, from
information and assistance officers, and from other reliable sources
providing factual information that indicates an insurer, self-insured
employer, or third-party administrator is failing to meet its
obligations under this division or Division 4 (commencing with
Section 3200) or the regulations of the administrative director.
(c) If, as a result of a profile audit review or a full compliance
audit, the administrative director determines that any compensation,
interest, or penalty is due and unpaid to an employee or dependent,
the administrative director shall issue and cause to be served upon
the insurer, self-insured employer, or third-party administrator a
notice of assessment detailing the amounts due and unpaid in each
case, and shall order the amounts paid to the person entitled
thereto. The notice of assessment shall be served personally or by
registered mail in accordance with subdivision (c) of Section 11505
of the Government Code. A copy of the notice of assessment shall also
be sent to the affected employee or dependent.
If the amounts are not paid within 30 days after service of the
notice of assessment, the employer shall also be liable for
reasonable attorney's fees necessarily incurred by the employee or
dependent to obtain amounts due. The administrative director shall
advise each employee or dependent still owed compensation after this
30-day period of his or her rights with respect to the commencement
of proceedings to collect the compensation owed. Amounts unpaid
because the person entitled thereto cannot be located shall be paid
to the Workers' Compensation Administration Revolving Fund. The
Director of Industrial Relations shall promulgate rules and
regulations establishing standards and procedures for the payment of
compensation from moneys deposited in the Workers' Compensation
Administration Revolving Fund whenever the person entitled thereto
applies for compensation.
(d) A determination by the administrative director that an amount
is or is not due to an employee or dependent shall not in any manner
limit the jurisdiction or authority of the appeals board to determine
the issue.
(e) Annually, commencing on April 1, 1991, the administrative
director shall publish a report detailing the results of audits
conducted pursuant to this section during the preceding calendar
year. The report shall include the name of each insurer, self-insured
employer, and third-party administrator audited during that period.
For each insurer, self-insured employer, and third-party
administrator audited, the report shall specify the total number of
files audited, the number of violations found by type and amount of
compensation, interest and penalties payable, and the amount
collected for each violation. The administrative director shall also
publish and make available to the public on request a list ranking
all insurers, self-insured employers, and third-party administrators
audited during the period according to their performance measured by
the profile audit review and full compliance audit performance
standards.
These reports shall not identify the particular claim file that
resulted in a particular violation or penalty. Except as required by
this subdivision or other provisions of law, the contents of
individual claim files and auditor's working papers shall be
confidential. Disclosure of claim information to the administrative
director pursuant to an audit shall not waive the provisions of the
Evidence Code relating to privilege.
(f) A profile audit review of the adjustment of claims against the
Uninsured Employers Fund by the claims and collections unit of the
Division of Workers' Compensation shall be conducted at least every
five years. The results of this profile audit review shall be
included in the report required by subdivision (e).
129.5. (a) The administrative director may assess an administrative
penalty against an insurer, self-insured employer, or third-party
administrator for any of the following:
(1) Failure to comply with the notice of assessment issued
pursuant to subdivision (c) of Section 129 within 15 days of receipt.
(2) Failure to pay when due the undisputed portion of an indemnity
payment, the reasonable cost of medical treatment of an injured
worker, or a charge or cost implementing an approved vocational
rehabilitation plan.
(3) Failure to comply with any rule or regulation of the
administrative director.
(b) The administrative director shall promulgate regulations
establishing a schedule of violations and the amount of the
administrative penalty to be imposed for each type of violation. The
schedule shall provide for imposition of a penalty of up to one
hundred dollars ($100) for each violation of the less serious type
and for imposition of penalties in progressively higher amounts for
the most serious types of violations to be set at up to five thousand
dollars ($5,000) per violation. The administrative director is
authorized to impose penalties pursuant to rules and regulations
which give due consideration to the appropriateness of the penalty
with respect to the following factors:
(1) The gravity of the violation.
(2) The good faith of the insurer, self-insured employer, or
third-party administrator.
(3) The history of previous violations, if any.
(4) The frequency of the violations.
(5) Whether the audit subject has met or exceeded the profile
audit review performance standard.
(6) Whether a full compliance audit subject has met or exceeded
the full compliance audit performance standard.
(7) The size of the audit subject location.
(c) The administrative director shall assess penalties as follows:
(1) If, after a profile audit review, the administrative director
determines that the profile audit subject met or exceeded the profile
audit review performance standard, no penalties shall be assessed
under this section, but the audit subject shall be required to pay
any compensation due and penalties due under subdivision (d) of
Section 4650 as provided in subdivision (c) of Section 129.
(2) If, after a full compliance audit, the administrative director
determines that the audit subject met or exceeded the full
compliance audit performance standards, penalties for unpaid or late
paid compensation, but no other penalties under this section, shall
be assessed. The audit subject shall be required to pay any
compensation due and penalties due under subdivision (d) of Section
4650 as provided in subdivision (c) of Section 129.
(3) If, after a full compliance audit, the administrative director
determines that the audit subject failed to meet the full compliance
audit performance standards, penalties shall be assessed as provided
in a full compliance audit failure penalty schedule to be adopted by
the administrative director. The full compliance audit failure
penalty schedule shall adjust penalty levels relative to the size of
the audit location to mitigate inequality between total penalties
assessed against small and large audit subjects. The penalty amounts
provided in the full compliance audit failure penalty schedule for
the most serious type of violations shall not be limited by
subdivision (b), but in no event shall the penalty for a single
violation exceed forty thousand dollars ($40,000).
(d) The notice of penalty assessment shall be served personally or
by registered mail in accordance with subdivision (c) of Section
11505 of the Government Code. The notice shall be in writing and
shall describe the nature of the violation, including reference to
the statutory provision or rule or regulation alleged to have been
violated. The notice shall become final and the assessment shall be
paid unless contested within 15 days of receipt by the insurer,
self-insured employer, or third-party administrator.
(e) In addition to the penalty assessments permitted by
subdivisions (a), (b), and (c), the administrative director may
assess a civil penalty, not to exceed one hundred thousand dollars
($100,000), upon finding, after hearing, that an employer, insurer,
or third-party administrator for an employer has knowingly committed
or performed with sufficient frequency so as to indicate a general
business practice any of the following:
(1) Induced employees to accept less than compensation due, or
made it necessary for employees to resort to proceedings against the
employer to secure compensation.
(2) Refused to comply with known and legally indisputable
compensation obligations.
(3) Discharged or administered compensation obligations in a
dishonest manner.
(4) Discharged or administered compensation obligations in a
manner as to cause injury to the public or those dealing with the
employer or insurer.
Any employer, insurer, or third-party administrator that fails to
meet the full compliance audit performance standards in two
consecutive full compliance audits shall be rebuttably presumed to
have engaged in a general business practice of discharging and
administering its compensation obligations in a manner causing injury
to those dealing with it.
Upon a second or subsequent finding, the administrative director
shall refer the matter to the Insurance Commissioner or the Director
of Industrial Relations and request that a hearing be conducted to
determine whether the certificate of authority, certificate of
consent to self-insure, or certificate of consent to administer
claims of self-insured employers, as the case may be, shall be
revoked.
(f) An insurer, self-insured employer, or third-party
administrator may file a written request for a conference with the
administrative director within seven days after receipt of a notice
of penalty assessment issued pursuant to subdivision (a) or (c).
Within 15 days of the conference, the administrative director shall
issue a notice of findings and serve it upon the contesting party by
registered or certified mail. Any amount found due by the
administrative director shall become due and payable 30 days after
receipt of the notice of findings. The 30-day period shall be tolled
during any appeal. A writ of mandate may be taken from the findings
to the appropriate superior court upon the execution by the
contesting party of a bond to the state in the principal sum that is
double the amount found due and ordered by the administrative
director, on the condition that the contesting party shall pay any
judgment and costs rendered against it for the amount.
(g) An insurer, self-insured employer, or third-party
administrator may file a written request for a hearing before the
Workers' Compensation Appeals Board within seven days after receipt
of a notice of penalty assessment issued pursuant to subdivision (e).
Within 30 days of the hearing, the appeals board shall issue
findings and orders and serve them upon the contesting party in the
manner provided in its rules. Any amount found due by the appeals
board shall become due and payable 45 days after receipt of the
notice of findings. Judicial review of the findings and order shall
be had in the manner provided by Article 2 (commencing with Section
5950) of Chapter 7 of Part 4 of Division 4. The 45-day period shall
be tolled during appellate proceedings upon execution by the
contesting party of a bond to the state in a principal sum that is
double the amount found due and ordered by the appeals board on the
condition that the contesting party shall pay the amount ultimately
determined to be due and any costs awarded by an appellate court.
(h) Nothing in this section shall create nor eliminate a civil
cause of action for the employee and his or her dependents.
(i) All moneys collected under this section shall be deposited in
the State Treasury and credited to the Workers' Compensation
Administration Revolving Fund.
130. The appeals board and each of its members, its secretary,
assistant secretaries, and workers' compensation judges, may
administer oaths, certify to all official acts, and issue subpoenas
for the attendance of witnesses and the production of papers, books,
accounts, documents and testimony in any inquiry, investigation,
hearing or proceeding in any part of the state.
131. Each witness who appears by order of the appeals board or any
of its members, or a workers' compensation judge, shall receive, if
demanded, for his or her attendance the same fees and mileage allowed
by law to a witness in civil cases, paid by the party at whose
request the witness is subpoenaed, unless otherwise ordered by the
appeals board. When any witness who has not been required to attend
at the request of any party is subpoenaed by the appeals board, his
or her fees and mileage may be paid from the funds appropriated for
the use of the appeals board in the same manner as other expenses of
the appeals board are paid. Any witness subpoenaed, except one whose
fees and mileage are paid from the funds of the appeals board, may,
at the time of service, demand the fee to which he or she is entitled
for travel to and from the place at which he or she is required to
appear, and one day's attendance. If a witness demands his or her
fees at the time of service, and they are not at that time paid or
tendered, he or she shall not be required to attend as directed in
the subpoena. All fees and mileage to which any witness is entitled
under this section may be collected by action therefor instituted by
the person to whom the fees are payable.
132. The superior court in and for the county in which any
proceeding is held by the appeals board or a workers' compensation
judge may compel the attendance of witnesses, the giving of testimony
and the production of papers, including books, accounts, and
documents, as required by any subpoena regularly issued hereunder. In
case of the refusal of any witness to obey the subpoena the appeals
board or the workers' compensation judge, before whom the testimony
is to be given or produced, may report to the superior court in and
for the county in which the proceeding is pending, by petition,
setting forth that due notice has been given of the time and place of
attendance of the witness, or the production of the papers, that the
witness has been subpoenaed in the prescribed manner, and that the
witness has failed and refused to obey the subpoena, or has refused
to answer questions propounded to him or her in the course of the
proceeding, and ask an order of the court, compelling the witness to
attend and testify or produce the papers before the appeals board.
The court shall thereupon enter an order directing the witness to
appear before the court at a time and place fixed in the order, the
time to be not more than 10 days from the date of the order, and then
and there show cause why he or she had not attended and testified or
produced the papers before the appeals board or the workers'
compensation judge. A copy of the order shall be served upon the
witness. If it appears to the court that the subpoena was regularly
issued hereunder and that the witness was legally bound to comply
therewith, the court shall thereupon enter an order that the witness
appear before the appeals board or the workers' compensation judge at
a time and place fixed in the order, and testify or produce the
required papers, and upon failure to obey the order, the witness
shall be dealt with as for contempt of court. The remedy provided in
this section is cumulative, and shall not impair or interfere with
the power of the appeals board or a member thereof to enforce the
attendance of witnesses and the production of papers, and to punish
for contempt in the same manner and to the same extent as courts of
record.
132a. It is the declared policy of this state that there should not
be discrimination against workers who are injured in the course and
scope of their employment.
(1) Any employer who discharges, or threatens to discharge, or in
any manner discriminates against any employee because he or she has
filed or made known his or her intention to file a claim for
compensation with his or her employer or an application for
adjudication, or because the employee has received a rating, award,
or settlement, is guilty of a misdemeanor and the employee's
compensation shall be increased by one-half, but in no event more
than ten thousand dollars ($10,000), together with costs and expenses
not in excess of two hundred fifty dollars ($250). Any such employee
shall also be entitled to reinstatement and reimbursement for lost
wages and work benefits caused by the acts of the employer.
(2) Any insurer that advises, directs, or threatens an insured
under penalty of cancellation or a raise in premium or for any other
reason, to discharge an employee because he or she has filed or made
known his or her intention to file a claim for compensation with his
or her employer or an application for adjudication, or because the
employee has received a rating, award, or settlement, is guilty of a
misdemeanor and subject to the increased compensation and costs
provided in paragraph (1).
(3) Any employer who discharges, or threatens to discharge, or in
any manner discriminates against any employee because the employee
testified or made known his or her intentions to testify in another
employee's case before the appeals board, is guilty of a misdemeanor,
and the employee shall be entitled to reinstatement and
reimbursement for lost wages and work benefits caused by the acts of
the employer.
(4) Any insurer that advises, directs, or threatens an insured
employer under penalty of cancellation or a raise in premium or for
any other reason, to discharge or in any manner discriminate against
an employee because the employee testified or made known his or her
intention to testify in another employee's case before the appeals
board, is guilty of a misdemeanor.
Proceedings for increased compensation as provided in paragraph
(1), or for reinstatement and reimbursement for lost wages and work
benefits, are to be instituted by filing an appropriate petition with
the appeals board, but these proceedings may not be commenced more
than one year from the discriminatory act or date of termination of
the employee. The appeals board is vested with full power, authority,
and jurisdiction to try and determine finally all matters specified
in this section subject only to judicial review, except that the
appeals board shall have no jurisdiction to try and determine a
misdemeanor charge. The appeals board may refer and any worker may
complain of suspected violations of the criminal misdemeanor
provisions of this section to the Division of Labor Standards
Enforcement, or directly to the office of the public prosecutor.
133. The Division of Workers' Compensation, including the
administrative director, the court administrator, and the appeals
board, shall have power and jurisdiction to do all things necessary
or convenient in the exercise of any power or jurisdiction conferred
upon it under this code.
134. The appeals board or any member thereof may issue writs or
summons, warrants of attachment, warrants of commitment and all
necessary process in proceedings for contempt, in like manner and to
the same extent as courts of record. The process issued by the
appeals board or any member thereof shall extend to all parts of the
state and may be served by any persons authorized to serve process of
courts of record or by any person designated for that purpose by the
appeals board or any member thereof. The person executing process
shall receive compensation allowed by the appeals board, not to
exceed the fees prescribed by law for similar services. Such fees
shall be paid in the same manner as provided herein for the fees of
witnesses.
135. In accordance with rules of practice and procedure that it may
adopt, the appeals board may, with the approval of the Department of
Finance, destroy or otherwise dispose of any file kept by it in
connection with any proceeding under Division 4 (commencing with
Section 3200) or Division 4.5 (commencing with Section 6100).
138. The administrative director and the court administrator may
each appoint a deputy to act during that time as he or she may be
absent from the state due to official business, vacation, or illness.
138.1. (a) The administrative director shall be appointed by the
Governor with the advice and consent of the Senate and shall hold
office at the pleasure of the Governor. He or she shall receive the
salary provided for by Chapter 6 (commencing with Section 11550) of
Part 1 of Division 3 of Title 2 of the Government Code.
(b) The court administrator shall be appointed by the Governor
with the advice and consent of the Senate. The court administrator
shall hold office for a term of five years. The court administrator
shall receive the salary provided for by Chapter 6 (commencing with
Section 11550) of Part 1 of Division 3 of Title 2 of the Government
Code.
138.2. (a) The headquarters of the Division of Workers'
Compensation shall be based at and operated from a centrally located
city.
The administrative director and the court administrator shall have
an office in that city with suitable rooms, necessary office
furniture, stationery, and supplies, and may rent quarters in other
places for the purpose of establishing branch or service offices, and
for that purpose may provide those offices with necessary furniture,
stationery and supplies.
(b) The administrative director shall provide suitable rooms, with
necessary office furniture, stationery and supplies, for the appeals
board at the centrally located city in which the board shall be
based and from which it shall operate, and may rent quarters in other
places for the purpose of establishing branch or service offices for
the appeals board, and for that purpose may provide those offices
with necessary furniture, stationery, and supplies.
(c) All meetings held by the administrative director shall be open
and public. Notice thereof shall be published in papers of general
circulation not more than 30 days and not less than 10 days prior to
each meeting in Sacramento, San Francisco, Fresno, Los Angeles and
San Diego. Written notice of all meetings shall be given to all
persons who request in writing directed to the administrative
director that they be given notice.
138.3. The administrative director shall, with respect to all
injuries, prescribe, pursuant to Section 5402, reasonable rules and
regulations requiring the employer to serve notice on the injured
employee that he may be entitled to benefits under this division.
138.4. (a) For the purpose of this section, "claims administrator"
means a self-administered workers' compensation insurer; or a
self-administered self-insured employer; or a self-administered
legally uninsured employer; or a self-administered joint powers
authority; or a third-party claims administrator for an insurer, a
self-insured employer, a legally uninsured employer, or a joint
powers authority.
(b) With respect to injuries resulting in lost time beyond the
employee's work shift at the time of injury or medical treatment
beyond first aid:
(1) If the claims administrator obtains knowledge that the
employer has not provided a claim form or a notice of potential
eligibility for benefits to the employee, it shall provide the form
and notice to the employee within three working days of its knowledge
that the form or notice was not provided.
(2) If the claims administrator cannot determine if the employer
has provided a claim form and notice of potential eligibility for
benefits to the employee, the claims administrator shall provide the
form and notice to the employee within 30 days of the administrator's
date of knowledge of the claim.
(c) The administrative director shall prescribe reasonable rules
and regulations for serving on the employee (or employee's
dependents, in the case of death), notices dealing with the payment,
nonpayment, or delay in payment of temporary disability, permanent
disability, and death benefits and the provision of vocational
rehabilitation services, notices of any change in the amount or type
of benefits being provided, the termination of benefits, the
rejection of any liability for compensation, and an accounting of
benefits paid.
138.5. The Division of Workers' Compensation shall cooperate in the
enforcement of child support obligations. At the request of the
Department of Child Support Services, the administrative director
shall assist in providing to the State Department of Child Support
Services information concerning persons who are receiving permanent
disability benefits or who have filed an application for adjudication
of a claim which the Department of Child Support Services determines
is necessary to carry out its responsibilities pursuant to Section
17510 of the Family Code.
The process of sharing information with regard to applicants for
and recipients of permanent disability benefits required by this
section shall be known as the Workers' Compensation Notification
Project.
138.6. (a) The administrative director, in consultation with the
Insurance Commissioner and the Workers' Compensation Insurance Rating
Bureau, shall develop a cost-efficient workers' compensation
information system, which shall be administered by the division. The
administrative director shall adopt regulations specifying the data
elements to be collected by electronic data interchange.
(b) The information system shall do the following:
(1) Assist the department to manage the workers' compensation
system in an effective and efficient manner.
(2) Facilitate the evaluation of the efficiency and effectiveness
of the benefit delivery system.
(3) Assist in measuring how adequately the system indemnifies
injured workers and their dependents.
(4) Provide statistical data for research into specific aspects of
the workers' compensation program.
(c) The data collected electronically shall be compatible with the
Electronic Data Interchange System of the International Association
of Industrial Accident Boards and Commissions. The administrative
director may adopt regulations authorizing the use of other
nationally recognized data transmission formats in addition to those
set forth in the Electronic Data Interchange System for the
transmission of data required pursuant to this section. The
administrative director shall accept data transmissions in any
authorized format. If the administrative director determines that any
authorized data transmission format is not in general use by claims
administrators, conflicts with the requirements of state or federal
law, or is obsolete, the administrative director may adopt
regulations eliminating that data transmission format from those
authorized pursuant to this subdivision.
138.65. (a) The administrative director, after consultation with
the Insurance Commissioner, shall contract with a qualified
organization to study the effects of the 2003 and 2004 legislative
reforms on workers' compensation insurance rates. The study shall do,
but not be limited to, all of the following:
(1) Identify and quantify the savings generated by the reforms.
(2) Review workers' compensation insurance rates to determine the
extent to which the reform savings were reflected in rates. When
reviewing the rates, consideration shall be given to an insurer's
premium revenue, claim costs, and surplus levels.
(3) Assess the effect of the reform savings on replenishing
surpluses for workers' compensation insurance coverage.
(4) Review the effects of the reforms on the workers' compensation
insurance rates, marketplace, and competition.
(5) Review the adequacy and accuracy of the pure premium rate as
recommended by the Workers' Compensation Insurance Bureau and the
pure premium rate adopted by the Insurance Commissioner.
(b) Insurers shall submit to the contracting organization premium
revenue, claims costs, and surplus levels in different timing
aggregates as established by the contracting organization, but at
least quarterly and annually. The contracting organization may also
request additional materials when appropriate. The contracting
organization and the commission shall maintain strict confidentiality
of the data. An insurer that fails to comply with the reporting
requirements of this subdivision is subject to Section 11754 of the
Insurance Code.
(c) The administrative director shall submit to the Governor, the
Insurance Commissioner, and the President pro Tempore of the Senate,
the Speaker of the Assembly, and the chairs of the appropriate policy
committees of the Legislature, a progress report on the study on
January 1, 2005, and July 1, 2005, and the final study on or before
January 1, 2006. The Governor and the Insurance Commissioner shall
review the results of the study and make recommendations as to the
appropriateness of regulating insurance rates. If, after reviewing
the study, the Governor and the Insurance Commissioner determine that
the rates do not appropriately reflect the savings and the timing of
the savings associated with the 2003 and 2004 reforms, the Governor
and the Insurance Commissioner may submit proposals to the
Legislature. The proposals shall take into consideration how rates
should be regulated, and by whom. In no event shall the proposals
unfairly penalize insurers that have properly reflected the 2003 and
2004 reforms in their rates, or can verify that they have not
received any cost savings as a result of the reforms.
(d) The cost of the study shall be borne by the insurers up to one
million dollars ($1,000,000). The cost of the study shall be
allocated to an insurer based on the insurer's proportionate share of
the market.
138.7. (a) Except as expressly permitted in subdivision (b), a
person or public or private entity not a party to a claim for workers'
compensation benefits may not obtain individually identifiable
information obtained or maintained by the division on that claim. For
purposes of this section, "individually identifiable information"
means any data concerning an injury or claim that is linked to a
uniquely identifiable employee, employer, claims administrator, or
any other person or entity.
(b) (1) The administrative director, or a statistical agent
designated by the administrative director, may use individually
identifiable information for purposes of creating and maintaining the
workers' compensation information system as specified in Section
138.6.
(2) (A) The State Department of Public Health may use individually
identifiable information for purposes of establishing and
maintaining a program on occupational health and occupational disease
prevention as specified in Section 105175 of the Health and Safety
Code.
(B) (i) The State Department of Health Care Services may use
individually identifiable information for purposes of seeking
recovery of Medi-Cal costs incurred by the state for treatment
provided to injured workers that should have been incurred by
employers and insurance carriers pursuant to Article 3.5 (commencing
with Section 14124.70) of Chapter 7 of Part 3 of Division 9 of the
Welfare and Institutions Code.
(ii) The Department of Industrial Relations shall furnish
individually identifiable information to the State Department of
Health Care Services, and the State Department of Health Care
Services may furnish the information to its designated agent,
provided that the individually identifiable information shall not be
disclosed for use other than the purposes described in clause (i).
The administrative director may adopt regulations solely for the
purpose of governing access by the State Department of Health Care
Services or its designated agents to the individually identifiable
information as defined in subdivision (a).
(3) (A) Individually identifiable information may be used by the
Division of Workers' Compensation, the Division of Occupational
Safety and Health, and the Division of Labor Statistics and Research
as necessary to carry out their duties. The administrative director
shall adopt regulations governing the access to the information
described in this subdivision by these divisions. Any regulations
adopted pursuant to this subdivision shall set forth the specific
uses for which this information may be obtained.
(B) Individually identifiable information maintained in the
workers' compensation information system and the Division of Workers'
Compensation may be used by researchers employed by or under
contract to the Commission on Health and Safety and Workers'
Compensation as necessary to carry out the commission's research. The
administrative director shall adopt regulations governing the access
to the information described in this subdivision by commission
researchers. These regulations shall set forth the specific uses for
which this information may be obtained and include provisions
guaranteeing the confidentiality of individually identifiable
information. Individually identifiable information obtained under
this subdivision shall not be disclosed to commission members. No
individually identifiable information obtained by researchers under
contract to the commission pursuant to this subparagraph may be
disclosed to any other person or entity, public or private, for a use
other than that research project for which the information was
obtained. Within a reasonable period of time after the research for
which the information was obtained has been completed, the data
collected shall be modified in a manner so that the subjects cannot
be identified, directly or through identifiers linked to the
subjects.
(4) The administrative director shall adopt regulations allowing
reasonable access to individually identifiable information by other
persons or public or private entities for the purpose of bona fide
statistical research. This research shall not divulge individually
identifiable information concerning a particular employee, employer,
claims administrator, or any other person or entity. The regulations
adopted pursuant to this paragraph shall include provisions
guaranteeing the confidentiality of individually identifiable
information. Within a reasonable period of time after the research
for which the information was obtained has been completed, the data
collected shall be modified in a manner so that the subjects cannot
be identified, directly or through identifiers linked to the
subjects.
(5) This section shall not operate to exempt from disclosure any
information that is considered to be a public record pursuant to the
California Public Records Act (Chapter 3.5 (commencing with Section
6250) of Division 7 of Title 1 of the Government Code) contained in
an individual's file once an application for adjudication has been
filed pursuant to Section 5501.5.
However, individually identifiable information shall not be
provided to any person or public or private entity who is not a party
to the claim unless that person identifies himself or herself or
that public or private entity identifies itself and states the reason
for making the request. The administrative director may require the
person or public or private entity making the request to produce
information to verify that the name and address of the requester is
valid and correct. If the purpose of the request is related to
preemployment screening, the administrative director shall notify the
person about whom the information is requested that the information
was provided and shall include the following in 12-point type:
"IT MAY BE A VIOLATION OF FEDERAL AND STATE LAW TO DISCRIMINATE
AGAINST A JOB APPLICANT BECAUSE THE APPLICANT HAS FILED A CLAIM FOR
WORKERS' COMPENSATION BENEFITS."
Any residence address is confidential and shall not be disclosed
to any person or public or private entity except to a party to the
claim, a law enforcement agency, an office of a district attorney,
any person for a journalistic purpose, or other governmental agency.
Nothing in this paragraph shall be construed to prohibit the use
of individually identifiable information for purposes of identifying
bona fide lien claimants.
(c) Except as provided in subdivision (b), individually
identifiable information obtained by the division is privileged and
is not subject to subpoena in a civil proceeding unless, after
reasonable notice to the division and a hearing, a court determines
that the public interest and the intent of this section will not be
jeopardized by disclosure of the information. This section shall not
operate to restrict access to information by any law enforcement
agency or district attorney's office or to limit admissibility of
that information in a criminal proceeding.
(d) It shall be unlawful for any person who has received
individually identifiable information from the division pursuant to
this section to provide that information to any person who is not
entitled to it under this section.
(e) This section shall remain in effect only until January 1,
2017, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2017, deletes or extends
that date.
138.7. (a) Except as expressly permitted in subdivision (b), a
person or public or private entity not a party to a claim for workers'
compensation benefits may not obtain individually identifiable
information obtained or maintained by the division on that claim. For
purposes of this section, "individually identifiable information"
means any data concerning an injury or claim that is linked to a
uniquely identifiable employee, employer, claims administrator, or
any other person or entity.
(b) (1) The administrative director, or a statistical agent
designated by the administrative director, may use individually
identifiable information for purposes of creating and maintaining the
workers' compensation information system as specified in Section
138.6.
(2) The State Department of Public Health may use individually
identifiable information for purposes of establishing and maintaining
a program on occupational health and occupational disease prevention
as specified in Section 105175 of the Health and Safety Code.
(3) (A) Individually identifiable information may be used by the
Division of Workers' Compensation, the Division of Occupational
Safety and Health, and the Division of Labor Statistics and Research
as necessary to carry out their duties. The administrative director
shall adopt regulations governing the access to the information
described in this subdivision by these divisions. Any regulations
adopted pursuant to this subdivision shall set forth the specific
uses for which this information may be obtained.
(B) Individually identifiable information maintained in the
workers' compensation information system and the Division of Workers'
Compensation may be used by researchers employed by or under
contract to the Commission on Health and Safety and Workers'
Compensation as necessary to carry out the commission's research. The
administrative director shall adopt regulations governing the access
to the information described in this subdivision by commission
researchers. These regulations shall set forth the specific uses for
which this information may be obtained and include provisions
guaranteeing the confidentiality of individually identifiable
information. Individually identifiable information obtained under
this subdivision shall not be disclosed to commission members. No
individually identifiable information obtained by researchers under
contract to the commission pursuant to this subparagraph may be
disclosed to any other person or entity, public or private, for a use
other than that research project for which the information was
obtained. Within a reasonable period of time after the research for
which the information was obtained has been completed, the data
collected shall be modified in a manner so that the subjects cannot
be identified, directly or through identifiers linked to the
subjects.
(4) The administrative director shall adopt regulations allowing
reasonable access to individually identifiable information by other
persons or public or private entities for the purpose of bona fide
statistical research. This research shall not divulge individually
identifiable information concerning a particular employee, employer,
claims administrator, or any other person or entity. The regulations
adopted pursuant to this paragraph shall include provisions
guaranteeing the confidentiality of individually identifiable
information. Within a reasonable period of time after the research
for which the information was obtained has been completed, the data
collected shall be modified in a manner so that the subjects cannot
be identified, directly or through identifiers linked to the
subjects.
(5) This section shall not operate to exempt from disclosure any
information that is considered to be a public record pursuant to the
California Public Records Act (Chapter 3.5 (commencing with Section
6250) of Division 7 of Title 1 of the Government Code) contained in
an individual's file once an application for adjudication has been
filed pursuant to Section 5501.5.
However, individually identifiable information shall not be
provided to any person or public or private entity who is not a party
to the claim unless that person identifies himself or herself or
that public or private entity identifies itself and states the reason
for making the request. The administrative director may require the
person or public or private entity making the request to produce
information to verify that the name and address of the requester is
valid and correct. If the purpose of the request is related to
preemployment screening, the administrative director shall notify the
person about whom the information is requested that the information
was provided and shall include the following in 12-point type:
"IT MAY BE A VIOLATION OF FEDERAL AND STATE LAW TO DISCRIMINATE
AGAINST A JOB APPLICANT BECAUSE THE APPLICANT HAS FILED A CLAIM FOR
WORKERS' COMPENSATION BENEFITS."
Any residence address is confidential and shall not be disclosed
to any person or public or private entity except to a party to the
claim, a law enforcement agency, an office of a district attorney,
any person for a journalistic purpose, or other governmental agency.
Nothing in this paragraph shall be construed to prohibit the use
of individually identifiable information for purposes of identifying
bona fide lien claimants.
(c) Except as provided in subdivision (b), individually
identifiable information obtained by the division is privileged and
is not subject to subpoena in a civil proceeding unless, after
reasonable notice to the division and a hearing, a court determines
that the public interest and the intent of this section will not be
jeopardized by disclosure of the information. This section shall not
operate to restrict access to information by any law enforcement
agency or district attorney's office or to limit admissibility of
that information in a criminal proceeding.
(d) It shall be unlawful for any person who has received
individually identifiable information from the division pursuant to
this section to provide that information to any person who is not
entitled to it under this section.
(e) This section shall become operative on January 1, 2017.
139.2. (a) The administrative director shall appoint qualified
medical evaluators in each of the respective specialties as required
for the evaluation of medical-legal issues. The appointments shall be
for two-year terms.
(b) The administrative director shall appoint or reappoint as a
qualified medical evaluator a physician, as defined in Section
3209.3, who is licensed to practice in this state and who
demonstrates that he or she meets the requirements in paragraphs (1),
(2), (6), and (7), and, if the physician is a medical doctor, doctor
of osteopathy, doctor of chiropractic, or a psychologist, that he or
she also meets the applicable requirements in paragraph (3), (4), or
(5).
(1) Prior to his or her appointment as a qualified medical
evaluator, passes an examination written and administered by the
administrative director for the purpose of demonstrating competence
in evaluating medical-legal issues in the workers' compensation
system. Physicians shall not be required to pass an additional
examination as a condition of reappointment. A physician seeking
appointment as a qualified medical evaluator on or after January 1,
2001, shall also complete prior to appointment, a course on
disability evaluation report writing approved by the administrative
director. The administrative director shall specify the curriculum to
be covered by disability evaluation report writing courses, which
shall include, but is not limited to, 12 or more hours of
instruction.
(2) Devotes at least one-third of total practice time to providing
direct medical treatment, or has served as an agreed medical
evaluator on eight or more occasions in the 12 months prior to
applying to be appointed as a qualified medical evaluator.
(3) Is a medical doctor or doctor of osteopathy and meets one of
the following requirements:
(A) Is board certified in a specialty by a board recognized by the
administrative director and either the Medical Board of California
or the Osteopathic Medical Board of California.
(B) Has successfully completed a residency training program
accredited by the American College of Graduate Medical Education or
the osteopathic equivalent.
(C) Was an active qualified medical evaluator on June 30, 2000.
(D) Has qualifications that the administrative director and either
the Medical Board of California or the Osteopathic Medical Board of
California, as appropriate, both deem to be equivalent to board
certification in a specialty.
(4) Is a doctor of chiropractic and meets either of the following
requirements:
(A) Has completed a chiropractic postgraduate specialty program of
a minimum of 300 hours taught by a school or college recognized by
the administrative director, the Board of Chiropractic Examiners and
the Council on Chiropractic Education.
(B) Has been certified in California workers' compensation
evaluation by a provider recognized by the administrative director.
The certification program shall include instruction on disability
evaluation report writing that meets the standards set forth in
paragraph (1).
(5) Is a psychologist and meets one of the following req
110. As used in this chapter:
(a) "Appeals board" means the Workers' Compensation Appeals Board.
The title of a member of the board is "commissioner."
(b) "Administrative director" means the Administrative Director of
the Division of Workers' Compensation.
(c) "Division" means the Division of Workers' Compensation.
(d) "Medical director" means the physician appointed by the
administrative director pursuant to Section 122.
(e) "Qualified medical evaluator" means physicians appointed by
the administrative director pursuant to Section 139.2.
(f) "Court administrator" means the administrator of the workers'
compensation adjudicatory process at the trial level.
111. (a) The Workers' Compensation Appeals Board, consisting of
seven members, shall exercise all judicial powers vested in it under
this code. In all other respects, the Division of Workers'
Compensation is under the control of the administrative director and,
except as to those duties, powers, jurisdiction, responsibilities,
and purposes as are specifically vested in the appeals board, the
administrative director shall exercise the powers of the head of a
department within the meaning of Article 1 (commencing with Section
11150) of Chapter 2 of Part 1 of Division 3 of Title 2 of the
Government Code with respect to the Division of Workers' Compensation
which shall include supervision of, and responsibility for,
personnel, and the coordination of the work of the division, except
personnel of the appeals board.
(b) The administrative director shall prepare and submit, on March
1 of each year, a report to the Governor and the Legislature
covering the activities of the division during the prior year. The
report shall include recommendations for improvement and the need, if
any, for legislation to enhance the delivery of compensation to
injured workers. The report shall include data on penalties imposed
on employers or insurers due to delays in compensation or notices, or
both, by category of penalty imposed.
112. The members of the appeals board shall be appointed by the
Governor with the advice and consent of the Senate. The term of
office of the members appointed prior to January 1, 1990, shall be
four years, and the term of office of members appointed on or after
January 1, 1990, shall be six years and they shall hold office until
the appointment and qualification of their successors.
Five of the members of the appeals board shall be experienced
attorneys at law admitted to practice in the State of California. The
other two members need not be attorneys at law. All members shall be
selected with due consideration of their judicial temperament and
abilities. Each member shall receive the salary provided for by
Chapter 6 (commencing with Section 11550) of Part 1 of Division 3 of
Title 2 of the Government Code.
113. The Governor shall designate the chairman of the appeals board
from the membership of the appeals board. The person so designated
shall hold the office of chairman at the pleasure of the Governor.
The chairman may designate in writing one of the other members of
the appeals board to act as chairman during such time as he may be
absent from the state on official business, on vacation, or absent
due to illness.
115. Actions of the appeals board shall be taken by decision of a
majority of the appeals board except as otherwise expressly provided.
The chairman shall assign pending cases in which reconsideration
is sought to any three members thereof for hearing, consideration and
decision. Assignments by the chairman of members to such cases shall
be rotated on a case-by-case basis with the composition of the
members so assigned being varied and changed to assure that there
shall never be a fixed and continued composition of members. Any such
case assigned to any three members in which the finding, order,
decision or award is made and filed by any two or more of such
members shall be the action of the appeals board unless
reconsideration is had in accordance with the provisions of Article 1
(commencing with Section 5900), Chapter 7, Part 4, Division 4 of
this code. Any case assigned to three members shall be heard and
decided only by them, unless the matter has been reassigned by the
chairman on a majority vote of the appeals board to the appeals board
as a whole in order to achieve uniformity of decision, or in cases
presenting novel issues.
116. The seal of the appeals board bearing the inscription "Workers'
Compensation Appeals Board, Seal" shall be affixed to all writs and
authentications of copies of records and to such other instruments as
the appeals board directs.
117. The administrative director may appoint an attorney licensed
to practice law in the state as counsel to the division.
119. The attorney shall:
(a) Represent and appear for the state and the Division of Workers'
Compensation and the appeals board in all actions and proceedings
arising under any provision of this code administered by the division
or under any order or act of the division or the appeals board and,
if directed so to do, intervene, if possible, in any action or
proceeding in which any such question is involved.
(b) Commence, prosecute, and expedite the final determination of
all actions or proceedings, directed or authorized by the
administrative director or the appeals board.
(c) Advise the administrative director and the appeals board and
each member thereof, upon request, in regard to the jurisdiction,
powers or duties of the administrative director, the appeals board
and each member thereof.
(d) Generally perform the duties and services as attorney to the
Division of Workers' Compensation and the appeals board which are
required of him or her.
120. The administrative director and the chairman of the appeals
board may each respectively appoint a secretary and assistant
secretaries to perform such services as shall be prescribed.
121. The chairman of the appeals board may authorize its secretary
and any two assistant secretaries to act as deputy appeals board
members and may delegate authority and duties to these deputies. Not
more than three deputies may act as appeals board members at any one
time. No act of any deputy shall be valid unless it is concurred in
by at least one member of the appeals board.
122. The administrative director shall appoint a medical director
who shall possess a physician's and surgeon's certificate granted
under Chapter 5 (commencing with Section 2000) of Division 2 of the
Business and Professions Code. The medical director shall employ
medical assistants who shall also possess physicians' and surgeons'
certificates and other staff necessary to the performance of his or
her duties. The salaries for the medical director and his or her
assistants shall be fixed by the Department of Personnel
Administration, commensurate with the salaries paid by private
industry to medical directors and assistant medical directors.
123. The administrative director may employ necessary assistants,
officers, experts, statisticians, actuaries, accountants, workers'
compensation administrative law judges, stenographic shorthand
reporters, legal secretaries, disability evaluation raters, program
technicians, and other employees to implement new, efficient court
management systems. The salaries of the workers' compensation
administrative law judges shall be fixed by the Department of
Personnel Administration for a class of positions which perform
judicial functions.
123.3. Any official reporter employed by the administrative
director shall render stenographic or clerical assistance as directed
by the presiding workers' compensation administrative law judge of
the office to which the reporter is assigned, when the presiding
workers' compensation administrative law judge determines that the
reporter is not engaged in the performance of any other duty imposed
by law.
123.5. (a) Workers' compensation administrative law judges employed
by the administrative director and supervised by the court
administrator pursuant to this chapter shall be taken from an
eligible list of attorneys licensed to practice law in this state,
who have the qualifications prescribed by the State Personnel Board.
In establishing eligible lists for this purpose, state civil service
examinations shall be conducted in accordance with the State Civil
Service Act (Part 2 (commencing with Section 18500) of Division 5 of
Title 2 of the Government Code). Every workers' compensation judge
shall maintain membership in the State Bar of California during his
or her tenure.
A workers' compensation administrative law judge may not receive
his or her salary as a workers' compensation administrative law judge
while any cause before the workers' compensation administrative law
judge remains pending and undetermined for 90 days after it has been
submitted for decision.
(b) All workers' compensation administrative law judges appointed
on or after January 1, 2003, shall be attorneys licensed to practice
law in California for five or more years prior to their appointment
and shall have experience in workers' compensation law.
123.6. (a) All workers' compensation administrative law judges
employed by the administrative director and supervised by the court
administrator shall subscribe to the Code of Judicial Ethics adopted
by the Supreme Court pursuant to subdivision (m) of Section 18 of
Article VI of the California Constitution for the conduct of judges
and shall not otherwise, directly or indirectly, engage in conduct
contrary to that code or to the commentary to the Code of Judicial
Ethics.
In consultation with both the court administrator and the
Commission on Judicial Performance, the administrative director shall
adopt regulations to enforce this section. Existing regulations
shall remain in effect until new regulations based on the
recommendations of the court administrator and the Commission on
Judicial Performance have become effective. To the extent possible,
the rules shall be consistent with the procedures established by the
Commission on Judicial Performance for regulating the activities of
state judges, and, to the extent possible, with the gift, honoraria,
and travel restrictions on legislators contained in the Political
Reform Act of 1974 (Title 9 (commencing with Section 81000) of the
Government Code). The court administrator shall have the authority to
enforce the rules adopted by the administrative director.
(b) Honoraria or travel allowed by the court administrator, and
not otherwise prohibited by this section in connection with any
public or private conference, convention, meeting, social event, or
like gathering, the cost of which is significantly paid for by
attorneys who practice before the board, may not be accepted unless
the court administrator has provided prior approval in writing to the
workers' compensation administrative law judge allowing him or her
to accept those payments.
123.7. The appeals board may, by rule or regulation, establish
procedures whereby attorneys who are either certified specialists in
workers' compensation by the California State Bar, or are eligible
for this certification, may be appointed by the presiding workers'
compensation judge of each board office to serve as a pro tempore
workers' compensation judge in a particular case, upon the
stipulation of the employee or his or her representative, and the
employer or the insurance carrier. Service in this capacity by an
attorney shall be voluntary and without pay. It is the intent of the
Legislature that the use of pro tempore workers' compensation judges
pursuant to this section shall not result in a reduction of the
number of permanent civil service employees or the number of
authorized full-time equivalent positions.
124. (a) In administering and enforcing this division and Division
4 (commencing with Section 3200), the division shall protect the
interests of injured workers who are entitled to the timely provision
of compensation.
(b) Forms and notices required to be given to employees by the
division shall be in English and Spanish.
125. The administrative director shall cause to be printed and
furnished free of charge to any person blank forms that may
facilitate or promote the efficient performance of the duties of the
Division of Workers' Compensation.
126. The Division of Workers' Compensation, including the
administrative director and the appeals board, shall keep minutes of
all their proceedings and other books or records requisite for proper
and efficient administration. All records shall be kept in their
respective offices.
127. The administrative director and court administrator may:
(a) Charge and collect fees for copies of papers and records, for
certified copies of official documents and orders or of the evidence
taken or proceedings had, for transcripts of testimony, and for
inspection of case files not stored in the place where the inspection
is requested. The administrative director shall fix those fees in an
amount sufficient to recover the actual costs of furnishing the
services. No fees for inspection of case files shall be charged to an
injured employee or his or her representative.
(b) Publish and distribute from time to time, in addition to the
reports to the Governor, further reports and pamphlets covering the
operations, proceedings, and matters relative to the work of the
division.
(c) Prepare, publish, and distribute an office manual, for which a
reasonable fee may be charged, and to which additions, deletions,
amendments, and other changes from time to time may be adopted,
published, and distributed, for which a reasonable fee may be charged
for the revision, or for which a reasonable fee may be fixed on an
annual subscription basis.
(d) Fix and collect reasonable charges for publications issued.
127.5. In the exercise of his or her functions, the court
administrator shall further the interests of uniformity and
expedition of proceedings before workers' compensation administrative
law judges, assure that all workers' compensation administrative law
judges are qualified and adhere to deadlines mandated by law or
regulations, and manage district office procedural matters at the
trial level.
127.6. (a) The administrative director shall, in consultation with
the Commission on Health and Safety and Workers' Compensation, other
state agencies, and researchers and research institutions with
expertise in health care delivery and occupational health care
service, conduct a study of medical treatment provided to workers who
have sustained industrial injuries and illnesses. The study shall
focus on, but not be limited to, all of the following:
(1) Factors contributing to the rising costs and utilization of
medical treatment and case management in the workers' compensation
system.
(2) An evaluation of case management procedures that contribute to
or achieve early and sustained return to work within the employee's
temporary and permanent work restrictions.
(3) Performance measures for medical services that reflect patient
outcomes.
(4) Physician utilization, quality of care, and outcome
measurement data.
(5) Patient satisfaction.
(b) The administrative director shall begin the study on or before
July 1, 2003, and shall report and make recommendations to the
Legislature based on the results of the study on or before July 1,
2004.
(c) In implementing this section, the administrative director
shall ensure the confidentiality and protection of patient-specific
data.
128. The appeals board may accept appointment as deputy
commissioner under, or any delegation of authority to enforce, the
United States Longshoremen's and Harbor Worker's Compensation Act.
The appeals board may enter into arrangements with the United States,
subject to the approval of the Department of Finance, for the
payment of any expenses incurred in the performance of services under
said act. In the performance of any duties under said act,
appointment, or authority, the appeals board may, subject to the
provisions thereof, exercise any authority conferred upon the appeals
board by the laws of this state.
129. (a) To make certain that injured workers, and their dependents
in the event of their death, receive promptly and accurately the
full measure of compensation to which they are entitled, the
administrative director shall audit insurers, self-insured employers,
and third-party administrators to determine if they have met their
obligations under this code. Each audit subject shall be audited at
least once every five years. The audit subjects shall be selected and
the audits conducted pursuant to subdivision (b). The results of
audits of insurers shall be provided to the Insurance Commissioner,
and the results of audits of self-insurers and third-party
administrators shall be provided to the Director of Industrial
Relations. Nothing in this section shall restrict the authority of
the Director of Industrial Relations or the Insurance Commissioner to
audit their licensees.
(b) The administrative director shall schedule and conduct audits
as follows:
(1) A profile audit review of every audit subject shall be
conducted once every five years and on additional occasions indicated
by target audit criteria. The administrative director shall annually
establish a profile audit review performance standard that will
identify the poorest performing audit subjects.
(2) A full compliance audit shall be conducted of each profile
audited subject failing to meet or exceed the profile audit review
performance standard. The full compliance audit shall be a
comprehensive and detailed evaluation of the audit subject's
performance. The administrative director shall annually establish a
full compliance audit performance standard that will identify the
audit subjects that are performing satisfactorily. Any full
compliance audit subject that fails to meet or exceed the full
compliance audit performance standard shall be audited again within
two years.
(3) A targeted profile audit review or a full compliance audit may
be conducted at any time in accordance with target audit criteria
adopted by the administrative director. The target audit criteria
shall be based on information obtained from benefit notices, from
information and assistance officers, and from other reliable sources
providing factual information that indicates an insurer, self-insured
employer, or third-party administrator is failing to meet its
obligations under this division or Division 4 (commencing with
Section 3200) or the regulations of the administrative director.
(c) If, as a result of a profile audit review or a full compliance
audit, the administrative director determines that any compensation,
interest, or penalty is due and unpaid to an employee or dependent,
the administrative director shall issue and cause to be served upon
the insurer, self-insured employer, or third-party administrator a
notice of assessment detailing the amounts due and unpaid in each
case, and shall order the amounts paid to the person entitled
thereto. The notice of assessment shall be served personally or by
registered mail in accordance with subdivision (c) of Section 11505
of the Government Code. A copy of the notice of assessment shall also
be sent to the affected employee or dependent.
If the amounts are not paid within 30 days after service of the
notice of assessment, the employer shall also be liable for
reasonable attorney's fees necessarily incurred by the employee or
dependent to obtain amounts due. The administrative director shall
advise each employee or dependent still owed compensation after this
30-day period of his or her rights with respect to the commencement
of proceedings to collect the compensation owed. Amounts unpaid
because the person entitled thereto cannot be located shall be paid
to the Workers' Compensation Administration Revolving Fund. The
Director of Industrial Relations shall promulgate rules and
regulations establishing standards and procedures for the payment of
compensation from moneys deposited in the Workers' Compensation
Administration Revolving Fund whenever the person entitled thereto
applies for compensation.
(d) A determination by the administrative director that an amount
is or is not due to an employee or dependent shall not in any manner
limit the jurisdiction or authority of the appeals board to determine
the issue.
(e) Annually, commencing on April 1, 1991, the administrative
director shall publish a report detailing the results of audits
conducted pursuant to this section during the preceding calendar
year. The report shall include the name of each insurer, self-insured
employer, and third-party administrator audited during that period.
For each insurer, self-insured employer, and third-party
administrator audited, the report shall specify the total number of
files audited, the number of violations found by type and amount of
compensation, interest and penalties payable, and the amount
collected for each violation. The administrative director shall also
publish and make available to the public on request a list ranking
all insurers, self-insured employers, and third-party administrators
audited during the period according to their performance measured by
the profile audit review and full compliance audit performance
standards.
These reports shall not identify the particular claim file that
resulted in a particular violation or penalty. Except as required by
this subdivision or other provisions of law, the contents of
individual claim files and auditor's working papers shall be
confidential. Disclosure of claim information to the administrative
director pursuant to an audit shall not waive the provisions of the
Evidence Code relating to privilege.
(f) A profile audit review of the adjustment of claims against the
Uninsured Employers Fund by the claims and collections unit of the
Division of Workers' Compensation shall be conducted at least every
five years. The results of this profile audit review shall be
included in the report required by subdivision (e).
129.5. (a) The administrative director may assess an administrative
penalty against an insurer, self-insured employer, or third-party
administrator for any of the following:
(1) Failure to comply with the notice of assessment issued
pursuant to subdivision (c) of Section 129 within 15 days of receipt.
(2) Failure to pay when due the undisputed portion of an indemnity
payment, the reasonable cost of medical treatment of an injured
worker, or a charge or cost implementing an approved vocational
rehabilitation plan.
(3) Failure to comply with any rule or regulation of the
administrative director.
(b) The administrative director shall promulgate regulations
establishing a schedule of violations and the amount of the
administrative penalty to be imposed for each type of violation. The
schedule shall provide for imposition of a penalty of up to one
hundred dollars ($100) for each violation of the less serious type
and for imposition of penalties in progressively higher amounts for
the most serious types of violations to be set at up to five thousand
dollars ($5,000) per violation. The administrative director is
authorized to impose penalties pursuant to rules and regulations
which give due consideration to the appropriateness of the penalty
with respect to the following factors:
(1) The gravity of the violation.
(2) The good faith of the insurer, self-insured employer, or
third-party administrator.
(3) The history of previous violations, if any.
(4) The frequency of the violations.
(5) Whether the audit subject has met or exceeded the profile
audit review performance standard.
(6) Whether a full compliance audit subject has met or exceeded
the full compliance audit performance standard.
(7) The size of the audit subject location.
(c) The administrative director shall assess penalties as follows:
(1) If, after a profile audit review, the administrative director
determines that the profile audit subject met or exceeded the profile
audit review performance standard, no penalties shall be assessed
under this section, but the audit subject shall be required to pay
any compensation due and penalties due under subdivision (d) of
Section 4650 as provided in subdivision (c) of Section 129.
(2) If, after a full compliance audit, the administrative director
determines that the audit subject met or exceeded the full
compliance audit performance standards, penalties for unpaid or late
paid compensation, but no other penalties under this section, shall
be assessed. The audit subject shall be required to pay any
compensation due and penalties due under subdivision (d) of Section
4650 as provided in subdivision (c) of Section 129.
(3) If, after a full compliance audit, the administrative director
determines that the audit subject failed to meet the full compliance
audit performance standards, penalties shall be assessed as provided
in a full compliance audit failure penalty schedule to be adopted by
the administrative director. The full compliance audit failure
penalty schedule shall adjust penalty levels relative to the size of
the audit location to mitigate inequality between total penalties
assessed against small and large audit subjects. The penalty amounts
provided in the full compliance audit failure penalty schedule for
the most serious type of violations shall not be limited by
subdivision (b), but in no event shall the penalty for a single
violation exceed forty thousand dollars ($40,000).
(d) The notice of penalty assessment shall be served personally or
by registered mail in accordance with subdivision (c) of Section
11505 of the Government Code. The notice shall be in writing and
shall describe the nature of the violation, including reference to
the statutory provision or rule or regulation alleged to have been
violated. The notice shall become final and the assessment shall be
paid unless contested within 15 days of receipt by the insurer,
self-insured employer, or third-party administrator.
(e) In addition to the penalty assessments permitted by
subdivisions (a), (b), and (c), the administrative director may
assess a civil penalty, not to exceed one hundred thousand dollars
($100,000), upon finding, after hearing, that an employer, insurer,
or third-party administrator for an employer has knowingly committed
or performed with sufficient frequency so as to indicate a general
business practice any of the following:
(1) Induced employees to accept less than compensation due, or
made it necessary for employees to resort to proceedings against the
employer to secure compensation.
(2) Refused to comply with known and legally indisputable
compensation obligations.
(3) Discharged or administered compensation obligations in a
dishonest manner.
(4) Discharged or administered compensation obligations in a
manner as to cause injury to the public or those dealing with the
employer or insurer.
Any employer, insurer, or third-party administrator that fails to
meet the full compliance audit performance standards in two
consecutive full compliance audits shall be rebuttably presumed to
have engaged in a general business practice of discharging and
administering its compensation obligations in a manner causing injury
to those dealing with it.
Upon a second or subsequent finding, the administrative director
shall refer the matter to the Insurance Commissioner or the Director
of Industrial Relations and request that a hearing be conducted to
determine whether the certificate of authority, certificate of
consent to self-insure, or certificate of consent to administer
claims of self-insured employers, as the case may be, shall be
revoked.
(f) An insurer, self-insured employer, or third-party
administrator may file a written request for a conference with the
administrative director within seven days after receipt of a notice
of penalty assessment issued pursuant to subdivision (a) or (c).
Within 15 days of the conference, the administrative director shall
issue a notice of findings and serve it upon the contesting party by
registered or certified mail. Any amount found due by the
administrative director shall become due and payable 30 days after
receipt of the notice of findings. The 30-day period shall be tolled
during any appeal. A writ of mandate may be taken from the findings
to the appropriate superior court upon the execution by the
contesting party of a bond to the state in the principal sum that is
double the amount found due and ordered by the administrative
director, on the condition that the contesting party shall pay any
judgment and costs rendered against it for the amount.
(g) An insurer, self-insured employer, or third-party
administrator may file a written request for a hearing before the
Workers' Compensation Appeals Board within seven days after receipt
of a notice of penalty assessment issued pursuant to subdivision (e).
Within 30 days of the hearing, the appeals board shall issue
findings and orders and serve them upon the contesting party in the
manner provided in its rules. Any amount found due by the appeals
board shall become due and payable 45 days after receipt of the
notice of findings. Judicial review of the findings and order shall
be had in the manner provided by Article 2 (commencing with Section
5950) of Chapter 7 of Part 4 of Division 4. The 45-day period shall
be tolled during appellate proceedings upon execution by the
contesting party of a bond to the state in a principal sum that is
double the amount found due and ordered by the appeals board on the
condition that the contesting party shall pay the amount ultimately
determined to be due and any costs awarded by an appellate court.
(h) Nothing in this section shall create nor eliminate a civil
cause of action for the employee and his or her dependents.
(i) All moneys collected under this section shall be deposited in
the State Treasury and credited to the Workers' Compensation
Administration Revolving Fund.
130. The appeals board and each of its members, its secretary,
assistant secretaries, and workers' compensation judges, may
administer oaths, certify to all official acts, and issue subpoenas
for the attendance of witnesses and the production of papers, books,
accounts, documents and testimony in any inquiry, investigation,
hearing or proceeding in any part of the state.
131. Each witness who appears by order of the appeals board or any
of its members, or a workers' compensation judge, shall receive, if
demanded, for his or her attendance the same fees and mileage allowed
by law to a witness in civil cases, paid by the party at whose
request the witness is subpoenaed, unless otherwise ordered by the
appeals board. When any witness who has not been required to attend
at the request of any party is subpoenaed by the appeals board, his
or her fees and mileage may be paid from the funds appropriated for
the use of the appeals board in the same manner as other expenses of
the appeals board are paid. Any witness subpoenaed, except one whose
fees and mileage are paid from the funds of the appeals board, may,
at the time of service, demand the fee to which he or she is entitled
for travel to and from the place at which he or she is required to
appear, and one day's attendance. If a witness demands his or her
fees at the time of service, and they are not at that time paid or
tendered, he or she shall not be required to attend as directed in
the subpoena. All fees and mileage to which any witness is entitled
under this section may be collected by action therefor instituted by
the person to whom the fees are payable.
132. The superior court in and for the county in which any
proceeding is held by the appeals board or a workers' compensation
judge may compel the attendance of witnesses, the giving of testimony
and the production of papers, including books, accounts, and
documents, as required by any subpoena regularly issued hereunder. In
case of the refusal of any witness to obey the subpoena the appeals
board or the workers' compensation judge, before whom the testimony
is to be given or produced, may report to the superior court in and
for the county in which the proceeding is pending, by petition,
setting forth that due notice has been given of the time and place of
attendance of the witness, or the production of the papers, that the
witness has been subpoenaed in the prescribed manner, and that the
witness has failed and refused to obey the subpoena, or has refused
to answer questions propounded to him or her in the course of the
proceeding, and ask an order of the court, compelling the witness to
attend and testify or produce the papers before the appeals board.
The court shall thereupon enter an order directing the witness to
appear before the court at a time and place fixed in the order, the
time to be not more than 10 days from the date of the order, and then
and there show cause why he or she had not attended and testified or
produced the papers before the appeals board or the workers'
compensation judge. A copy of the order shall be served upon the
witness. If it appears to the court that the subpoena was regularly
issued hereunder and that the witness was legally bound to comply
therewith, the court shall thereupon enter an order that the witness
appear before the appeals board or the workers' compensation judge at
a time and place fixed in the order, and testify or produce the
required papers, and upon failure to obey the order, the witness
shall be dealt with as for contempt of court. The remedy provided in
this section is cumulative, and shall not impair or interfere with
the power of the appeals board or a member thereof to enforce the
attendance of witnesses and the production of papers, and to punish
for contempt in the same manner and to the same extent as courts of
record.
132a. It is the declared policy of this state that there should not
be discrimination against workers who are injured in the course and
scope of their employment.
(1) Any employer who discharges, or threatens to discharge, or in
any manner discriminates against any employee because he or she has
filed or made known his or her intention to file a claim for
compensation with his or her employer or an application for
adjudication, or because the employee has received a rating, award,
or settlement, is guilty of a misdemeanor and the employee's
compensation shall be increased by one-half, but in no event more
than ten thousand dollars ($10,000), together with costs and expenses
not in excess of two hundred fifty dollars ($250). Any such employee
shall also be entitled to reinstatement and reimbursement for lost
wages and work benefits caused by the acts of the employer.
(2) Any insurer that advises, directs, or threatens an insured
under penalty of cancellation or a raise in premium or for any other
reason, to discharge an employee because he or she has filed or made
known his or her intention to file a claim for compensation with his
or her employer or an application for adjudication, or because the
employee has received a rating, award, or settlement, is guilty of a
misdemeanor and subject to the increased compensation and costs
provided in paragraph (1).
(3) Any employer who discharges, or threatens to discharge, or in
any manner discriminates against any employee because the employee
testified or made known his or her intentions to testify in another
employee's case before the appeals board, is guilty of a misdemeanor,
and the employee shall be entitled to reinstatement and
reimbursement for lost wages and work benefits caused by the acts of
the employer.
(4) Any insurer that advises, directs, or threatens an insured
employer under penalty of cancellation or a raise in premium or for
any other reason, to discharge or in any manner discriminate against
an employee because the employee testified or made known his or her
intention to testify in another employee's case before the appeals
board, is guilty of a misdemeanor.
Proceedings for increased compensation as provided in paragraph
(1), or for reinstatement and reimbursement for lost wages and work
benefits, are to be instituted by filing an appropriate petition with
the appeals board, but these proceedings may not be commenced more
than one year from the discriminatory act or date of termination of
the employee. The appeals board is vested with full power, authority,
and jurisdiction to try and determine finally all matters specified
in this section subject only to judicial review, except that the
appeals board shall have no jurisdiction to try and determine a
misdemeanor charge. The appeals board may refer and any worker may
complain of suspected violations of the criminal misdemeanor
provisions of this section to the Division of Labor Standards
Enforcement, or directly to the office of the public prosecutor.
133. The Division of Workers' Compensation, including the
administrative director, the court administrator, and the appeals
board, shall have power and jurisdiction to do all things necessary
or convenient in the exercise of any power or jurisdiction conferred
upon it under this code.
134. The appeals board or any member thereof may issue writs or
summons, warrants of attachment, warrants of commitment and all
necessary process in proceedings for contempt, in like manner and to
the same extent as courts of record. The process issued by the
appeals board or any member thereof shall extend to all parts of the
state and may be served by any persons authorized to serve process of
courts of record or by any person designated for that purpose by the
appeals board or any member thereof. The person executing process
shall receive compensation allowed by the appeals board, not to
exceed the fees prescribed by law for similar services. Such fees
shall be paid in the same manner as provided herein for the fees of
witnesses.
135. In accordance with rules of practice and procedure that it may
adopt, the appeals board may, with the approval of the Department of
Finance, destroy or otherwise dispose of any file kept by it in
connection with any proceeding under Division 4 (commencing with
Section 3200) or Division 4.5 (commencing with Section 6100).
138. The administrative director and the court administrator may
each appoint a deputy to act during that time as he or she may be
absent from the state due to official business, vacation, or illness.
138.1. (a) The administrative director shall be appointed by the
Governor with the advice and consent of the Senate and shall hold
office at the pleasure of the Governor. He or she shall receive the
salary provided for by Chapter 6 (commencing with Section 11550) of
Part 1 of Division 3 of Title 2 of the Government Code.
(b) The court administrator shall be appointed by the Governor
with the advice and consent of the Senate. The court administrator
shall hold office for a term of five years. The court administrator
shall receive the salary provided for by Chapter 6 (commencing with
Section 11550) of Part 1 of Division 3 of Title 2 of the Government
Code.
138.2. (a) The headquarters of the Division of Workers'
Compensation shall be based at and operated from a centrally located
city.
The administrative director and the court administrator shall have
an office in that city with suitable rooms, necessary office
furniture, stationery, and supplies, and may rent quarters in other
places for the purpose of establishing branch or service offices, and
for that purpose may provide those offices with necessary furniture,
stationery and supplies.
(b) The administrative director shall provide suitable rooms, with
necessary office furniture, stationery and supplies, for the appeals
board at the centrally located city in which the board shall be
based and from which it shall operate, and may rent quarters in other
places for the purpose of establishing branch or service offices for
the appeals board, and for that purpose may provide those offices
with necessary furniture, stationery, and supplies.
(c) All meetings held by the administrative director shall be open
and public. Notice thereof shall be published in papers of general
circulation not more than 30 days and not less than 10 days prior to
each meeting in Sacramento, San Francisco, Fresno, Los Angeles and
San Diego. Written notice of all meetings shall be given to all
persons who request in writing directed to the administrative
director that they be given notice.
138.3. The administrative director shall, with respect to all
injuries, prescribe, pursuant to Section 5402, reasonable rules and
regulations requiring the employer to serve notice on the injured
employee that he may be entitled to benefits under this division.
138.4. (a) For the purpose of this section, "claims administrator"
means a self-administered workers' compensation insurer; or a
self-administered self-insured employer; or a self-administered
legally uninsured employer; or a self-administered joint powers
authority; or a third-party claims administrator for an insurer, a
self-insured employer, a legally uninsured employer, or a joint
powers authority.
(b) With respect to injuries resulting in lost time beyond the
employee's work shift at the time of injury or medical treatment
beyond first aid:
(1) If the claims administrator obtains knowledge that the
employer has not provided a claim form or a notice of potential
eligibility for benefits to the employee, it shall provide the form
and notice to the employee within three working days of its knowledge
that the form or notice was not provided.
(2) If the claims administrator cannot determine if the employer
has provided a claim form and notice of potential eligibility for
benefits to the employee, the claims administrator shall provide the
form and notice to the employee within 30 days of the administrator's
date of knowledge of the claim.
(c) The administrative director shall prescribe reasonable rules
and regulations for serving on the employee (or employee's
dependents, in the case of death), notices dealing with the payment,
nonpayment, or delay in payment of temporary disability, permanent
disability, and death benefits and the provision of vocational
rehabilitation services, notices of any change in the amount or type
of benefits being provided, the termination of benefits, the
rejection of any liability for compensation, and an accounting of
benefits paid.
138.5. The Division of Workers' Compensation shall cooperate in the
enforcement of child support obligations. At the request of the
Department of Child Support Services, the administrative director
shall assist in providing to the State Department of Child Support
Services information concerning persons who are receiving permanent
disability benefits or who have filed an application for adjudication
of a claim which the Department of Child Support Services determines
is necessary to carry out its responsibilities pursuant to Section
17510 of the Family Code.
The process of sharing information with regard to applicants for
and recipients of permanent disability benefits required by this
section shall be known as the Workers' Compensation Notification
Project.
138.6. (a) The administrative director, in consultation with the
Insurance Commissioner and the Workers' Compensation Insurance Rating
Bureau, shall develop a cost-efficient workers' compensation
information system, which shall be administered by the division. The
administrative director shall adopt regulations specifying the data
elements to be collected by electronic data interchange.
(b) The information system shall do the following:
(1) Assist the department to manage the workers' compensation
system in an effective and efficient manner.
(2) Facilitate the evaluation of the efficiency and effectiveness
of the benefit delivery system.
(3) Assist in measuring how adequately the system indemnifies
injured workers and their dependents.
(4) Provide statistical data for research into specific aspects of
the workers' compensation program.
(c) The data collected electronically shall be compatible with the
Electronic Data Interchange System of the International Association
of Industrial Accident Boards and Commissions. The administrative
director may adopt regulations authorizing the use of other
nationally recognized data transmission formats in addition to those
set forth in the Electronic Data Interchange System for the
transmission of data required pursuant to this section. The
administrative director shall accept data transmissions in any
authorized format. If the administrative director determines that any
authorized data transmission format is not in general use by claims
administrators, conflicts with the requirements of state or federal
law, or is obsolete, the administrative director may adopt
regulations eliminating that data transmission format from those
authorized pursuant to this subdivision.
138.65. (a) The administrative director, after consultation with
the Insurance Commissioner, shall contract with a qualified
organization to study the effects of the 2003 and 2004 legislative
reforms on workers' compensation insurance rates. The study shall do,
but not be limited to, all of the following:
(1) Identify and quantify the savings generated by the reforms.
(2) Review workers' compensation insurance rates to determine the
extent to which the reform savings were reflected in rates. When
reviewing the rates, consideration shall be given to an insurer's
premium revenue, claim costs, and surplus levels.
(3) Assess the effect of the reform savings on replenishing
surpluses for workers' compensation insurance coverage.
(4) Review the effects of the reforms on the workers' compensation
insurance rates, marketplace, and competition.
(5) Review the adequacy and accuracy of the pure premium rate as
recommended by the Workers' Compensation Insurance Bureau and the
pure premium rate adopted by the Insurance Commissioner.
(b) Insurers shall submit to the contracting organization premium
revenue, claims costs, and surplus levels in different timing
aggregates as established by the contracting organization, but at
least quarterly and annually. The contracting organization may also
request additional materials when appropriate. The contracting
organization and the commission shall maintain strict confidentiality
of the data. An insurer that fails to comply with the reporting
requirements of this subdivision is subject to Section 11754 of the
Insurance Code.
(c) The administrative director shall submit to the Governor, the
Insurance Commissioner, and the President pro Tempore of the Senate,
the Speaker of the Assembly, and the chairs of the appropriate policy
committees of the Legislature, a progress report on the study on
January 1, 2005, and July 1, 2005, and the final study on or before
January 1, 2006. The Governor and the Insurance Commissioner shall
review the results of the study and make recommendations as to the
appropriateness of regulating insurance rates. If, after reviewing
the study, the Governor and the Insurance Commissioner determine that
the rates do not appropriately reflect the savings and the timing of
the savings associated with the 2003 and 2004 reforms, the Governor
and the Insurance Commissioner may submit proposals to the
Legislature. The proposals shall take into consideration how rates
should be regulated, and by whom. In no event shall the proposals
unfairly penalize insurers that have properly reflected the 2003 and
2004 reforms in their rates, or can verify that they have not
received any cost savings as a result of the reforms.
(d) The cost of the study shall be borne by the insurers up to one
million dollars ($1,000,000). The cost of the study shall be
allocated to an insurer based on the insurer's proportionate share of
the market.
138.7. (a) Except as expressly permitted in subdivision (b), a
person or public or private entity not a party to a claim for workers'
compensation benefits may not obtain individually identifiable
information obtained or maintained by the division on that claim. For
purposes of this section, "individually identifiable information"
means any data concerning an injury or claim that is linked to a
uniquely identifiable employee, employer, claims administrator, or
any other person or entity.
(b) (1) The administrative director, or a statistical agent
designated by the administrative director, may use individually
identifiable information for purposes of creating and maintaining the
workers' compensation information system as specified in Section
138.6.
(2) (A) The State Department of Public Health may use individually
identifiable information for purposes of establishing and
maintaining a program on occupational health and occupational disease
prevention as specified in Section 105175 of the Health and Safety
Code.
(B) (i) The State Department of Health Care Services may use
individually identifiable information for purposes of seeking
recovery of Medi-Cal costs incurred by the state for treatment
provided to injured workers that should have been incurred by
employers and insurance carriers pursuant to Article 3.5 (commencing
with Section 14124.70) of Chapter 7 of Part 3 of Division 9 of the
Welfare and Institutions Code.
(ii) The Department of Industrial Relations shall furnish
individually identifiable information to the State Department of
Health Care Services, and the State Department of Health Care
Services may furnish the information to its designated agent,
provided that the individually identifiable information shall not be
disclosed for use other than the purposes described in clause (i).
The administrative director may adopt regulations solely for the
purpose of governing access by the State Department of Health Care
Services or its designated agents to the individually identifiable
information as defined in subdivision (a).
(3) (A) Individually identifiable information may be used by the
Division of Workers' Compensation, the Division of Occupational
Safety and Health, and the Division of Labor Statistics and Research
as necessary to carry out their duties. The administrative director
shall adopt regulations governing the access to the information
described in this subdivision by these divisions. Any regulations
adopted pursuant to this subdivision shall set forth the specific
uses for which this information may be obtained.
(B) Individually identifiable information maintained in the
workers' compensation information system and the Division of Workers'
Compensation may be used by researchers employed by or under
contract to the Commission on Health and Safety and Workers'
Compensation as necessary to carry out the commission's research. The
administrative director shall adopt regulations governing the access
to the information described in this subdivision by commission
researchers. These regulations shall set forth the specific uses for
which this information may be obtained and include provisions
guaranteeing the confidentiality of individually identifiable
information. Individually identifiable information obtained under
this subdivision shall not be disclosed to commission members. No
individually identifiable information obtained by researchers under
contract to the commission pursuant to this subparagraph may be
disclosed to any other person or entity, public or private, for a use
other than that research project for which the information was
obtained. Within a reasonable period of time after the research for
which the information was obtained has been completed, the data
collected shall be modified in a manner so that the subjects cannot
be identified, directly or through identifiers linked to the
subjects.
(4) The administrative director shall adopt regulations allowing
reasonable access to individually identifiable information by other
persons or public or private entities for the purpose of bona fide
statistical research. This research shall not divulge individually
identifiable information concerning a particular employee, employer,
claims administrator, or any other person or entity. The regulations
adopted pursuant to this paragraph shall include provisions
guaranteeing the confidentiality of individually identifiable
information. Within a reasonable period of time after the research
for which the information was obtained has been completed, the data
collected shall be modified in a manner so that the subjects cannot
be identified, directly or through identifiers linked to the
subjects.
(5) This section shall not operate to exempt from disclosure any
information that is considered to be a public record pursuant to the
California Public Records Act (Chapter 3.5 (commencing with Section
6250) of Division 7 of Title 1 of the Government Code) contained in
an individual's file once an application for adjudication has been
filed pursuant to Section 5501.5.
However, individually identifiable information shall not be
provided to any person or public or private entity who is not a party
to the claim unless that person identifies himself or herself or
that public or private entity identifies itself and states the reason
for making the request. The administrative director may require the
person or public or private entity making the request to produce
information to verify that the name and address of the requester is
valid and correct. If the purpose of the request is related to
preemployment screening, the administrative director shall notify the
person about whom the information is requested that the information
was provided and shall include the following in 12-point type:
"IT MAY BE A VIOLATION OF FEDERAL AND STATE LAW TO DISCRIMINATE
AGAINST A JOB APPLICANT BECAUSE THE APPLICANT HAS FILED A CLAIM FOR
WORKERS' COMPENSATION BENEFITS."
Any residence address is confidential and shall not be disclosed
to any person or public or private entity except to a party to the
claim, a law enforcement agency, an office of a district attorney,
any person for a journalistic purpose, or other governmental agency.
Nothing in this paragraph shall be construed to prohibit the use
of individually identifiable information for purposes of identifying
bona fide lien claimants.
(c) Except as provided in subdivision (b), individually
identifiable information obtained by the division is privileged and
is not subject to subpoena in a civil proceeding unless, after
reasonable notice to the division and a hearing, a court determines
that the public interest and the intent of this section will not be
jeopardized by disclosure of the information. This section shall not
operate to restrict access to information by any law enforcement
agency or district attorney's office or to limit admissibility of
that information in a criminal proceeding.
(d) It shall be unlawful for any person who has received
individually identifiable information from the division pursuant to
this section to provide that information to any person who is not
entitled to it under this section.
(e) This section shall remain in effect only until January 1,
2017, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2017, deletes or extends
that date.
138.7. (a) Except as expressly permitted in subdivision (b), a
person or public or private entity not a party to a claim for workers'
compensation benefits may not obtain individually identifiable
information obtained or maintained by the division on that claim. For
purposes of this section, "individually identifiable information"
means any data concerning an injury or claim that is linked to a
uniquely identifiable employee, employer, claims administrator, or
any other person or entity.
(b) (1) The administrative director, or a statistical agent
designated by the administrative director, may use individually
identifiable information for purposes of creating and maintaining the
workers' compensation information system as specified in Section
138.6.
(2) The State Department of Public Health may use individually
identifiable information for purposes of establishing and maintaining
a program on occupational health and occupational disease prevention
as specified in Section 105175 of the Health and Safety Code.
(3) (A) Individually identifiable information may be used by the
Division of Workers' Compensation, the Division of Occupational
Safety and Health, and the Division of Labor Statistics and Research
as necessary to carry out their duties. The administrative director
shall adopt regulations governing the access to the information
described in this subdivision by these divisions. Any regulations
adopted pursuant to this subdivision shall set forth the specific
uses for which this information may be obtained.
(B) Individually identifiable information maintained in the
workers' compensation information system and the Division of Workers'
Compensation may be used by researchers employed by or under
contract to the Commission on Health and Safety and Workers'
Compensation as necessary to carry out the commission's research. The
administrative director shall adopt regulations governing the access
to the information described in this subdivision by commission
researchers. These regulations shall set forth the specific uses for
which this information may be obtained and include provisions
guaranteeing the confidentiality of individually identifiable
information. Individually identifiable information obtained under
this subdivision shall not be disclosed to commission members. No
individually identifiable information obtained by researchers under
contract to the commission pursuant to this subparagraph may be
disclosed to any other person or entity, public or private, for a use
other than that research project for which the information was
obtained. Within a reasonable period of time after the research for
which the information was obtained has been completed, the data
collected shall be modified in a manner so that the subjects cannot
be identified, directly or through identifiers linked to the
subjects.
(4) The administrative director shall adopt regulations allowing
reasonable access to individually identifiable information by other
persons or public or private entities for the purpose of bona fide
statistical research. This research shall not divulge individually
identifiable information concerning a particular employee, employer,
claims administrator, or any other person or entity. The regulations
adopted pursuant to this paragraph shall include provisions
guaranteeing the confidentiality of individually identifiable
information. Within a reasonable period of time after the research
for which the information was obtained has been completed, the data
collected shall be modified in a manner so that the subjects cannot
be identified, directly or through identifiers linked to the
subjects.
(5) This section shall not operate to exempt from disclosure any
information that is considered to be a public record pursuant to the
California Public Records Act (Chapter 3.5 (commencing with Section
6250) of Division 7 of Title 1 of the Government Code) contained in
an individual's file once an application for adjudication has been
filed pursuant to Section 5501.5.
However, individually identifiable information shall not be
provided to any person or public or private entity who is not a party
to the claim unless that person identifies himself or herself or
that public or private entity identifies itself and states the reason
for making the request. The administrative director may require the
person or public or private entity making the request to produce
information to verify that the name and address of the requester is
valid and correct. If the purpose of the request is related to
preemployment screening, the administrative director shall notify the
person about whom the information is requested that the information
was provided and shall include the following in 12-point type:
"IT MAY BE A VIOLATION OF FEDERAL AND STATE LAW TO DISCRIMINATE
AGAINST A JOB APPLICANT BECAUSE THE APPLICANT HAS FILED A CLAIM FOR
WORKERS' COMPENSATION BENEFITS."
Any residence address is confidential and shall not be disclosed
to any person or public or private entity except to a party to the
claim, a law enforcement agency, an office of a district attorney,
any person for a journalistic purpose, or other governmental agency.
Nothing in this paragraph shall be construed to prohibit the use
of individually identifiable information for purposes of identifying
bona fide lien claimants.
(c) Except as provided in subdivision (b), individually
identifiable information obtained by the division is privileged and
is not subject to subpoena in a civil proceeding unless, after
reasonable notice to the division and a hearing, a court determines
that the public interest and the intent of this section will not be
jeopardized by disclosure of the information. This section shall not
operate to restrict access to information by any law enforcement
agency or district attorney's office or to limit admissibility of
that information in a criminal proceeding.
(d) It shall be unlawful for any person who has received
individually identifiable information from the division pursuant to
this section to provide that information to any person who is not
entitled to it under this section.
(e) This section shall become operative on January 1, 2017.
139.2. (a) The administrative director shall appoint qualified
medical evaluators in each of the respective specialties as required
for the evaluation of medical-legal issues. The appointments shall be
for two-year terms.
(b) The administrative director shall appoint or reappoint as a
qualified medical evaluator a physician, as defined in Section
3209.3, who is licensed to practice in this state and who
demonstrates that he or she meets the requirements in paragraphs (1),
(2), (6), and (7), and, if the physician is a medical doctor, doctor
of osteopathy, doctor of chiropractic, or a psychologist, that he or
she also meets the applicable requirements in paragraph (3), (4), or
(5).
(1) Prior to his or her appointment as a qualified medical
evaluator, passes an examination written and administered by the
administrative director for the purpose of demonstrating competence
in evaluating medical-legal issues in the workers' compensation
system. Physicians shall not be required to pass an additional
examination as a condition of reappointment. A physician seeking
appointment as a qualified medical evaluator on or after January 1,
2001, shall also complete prior to appointment, a course on
disability evaluation report writing approved by the administrative
director. The administrative director shall specify the curriculum to
be covered by disability evaluation report writing courses, which
shall include, but is not limited to, 12 or more hours of
instruction.
(2) Devotes at least one-third of total practice time to providing
direct medical treatment, or has served as an agreed medical
evaluator on eight or more occasions in the 12 months prior to
applying to be appointed as a qualified medical evaluator.
(3) Is a medical doctor or doctor of osteopathy and meets one of
the following requirements:
(A) Is board certified in a specialty by a board recognized by the
administrative director and either the Medical Board of California
or the Osteopathic Medical Board of California.
(B) Has successfully completed a residency training program
accredited by the American College of Graduate Medical Education or
the osteopathic equivalent.
(C) Was an active qualified medical evaluator on June 30, 2000.
(D) Has qualifications that the administrative director and either
the Medical Board of California or the Osteopathic Medical Board of
California, as appropriate, both deem to be equivalent to board
certification in a specialty.
(4) Is a doctor of chiropractic and meets either of the following
requirements:
(A) Has completed a chiropractic postgraduate specialty program of
a minimum of 300 hours taught by a school or college recognized by
the administrative director, the Board of Chiropractic Examiners and
the Council on Chiropractic Education.
(B) Has been certified in California workers' compensation
evaluation by a provider recognized by the administrative director.
The certification program shall include instruction on disability
evaluation report writing that meets the standards set forth in
paragraph (1).
(5) Is a psychologist and meets one of the following req
110. As used in this chapter:
(a) "Appeals board" means the Workers' Compensation Appeals Board.
The title of a member of the board is "commissioner."
(b) "Administrative director" means the Administrative Director of
the Division of Workers' Compensation.
(c) "Division" means the Division of Workers' Compensation.
(d) "Medical director" means the physician appointed by the
administrative director pursuant to Section 122.
(e) "Qualified medical evaluator" means physicians appointed by
the administrative director pursuant to Section 139.2.
(f) "Court administrator" means the administrator of the workers'
compensation adjudicatory process at the trial level.
111. (a) The Workers' Compensation Appeals Board, consisting of
seven members, shall exercise all judicial powers vested in it under
this code. In all other respects, the Division of Workers'
Compensation is under the control of the administrative director and,
except as to those duties, powers, jurisdiction, responsibilities,
and purposes as are specifically vested in the appeals board, the
administrative director shall exercise the powers of the head of a
department within the meaning of Article 1 (commencing with Section
11150) of Chapter 2 of Part 1 of Division 3 of Title 2 of the
Government Code with respect to the Division of Workers' Compensation
which shall include supervision of, and responsibility for,
personnel, and the coordination of the work of the division, except
personnel of the appeals board.
(b) The administrative director shall prepare and submit, on March
1 of each year, a report to the Governor and the Legislature
covering the activities of the division during the prior year. The
report shall include recommendations for improvement and the need, if
any, for legislation to enhance the delivery of compensation to
injured workers. The report shall include data on penalties imposed
on employers or insurers due to delays in compensation or notices, or
both, by category of penalty imposed.
112. The members of the appeals board shall be appointed by the
Governor with the advice and consent of the Senate. The term of
office of the members appointed prior to January 1, 1990, shall be
four years, and the term of office of members appointed on or after
January 1, 1990, shall be six years and they shall hold office until
the appointment and qualification of their successors.
Five of the members of the appeals board shall be experienced
attorneys at law admitted to practice in the State of California. The
other two members need not be attorneys at law. All members shall be
selected with due consideration of their judicial temperament and
abilities. Each member shall receive the salary provided for by
Chapter 6 (commencing with Section 11550) of Part 1 of Division 3 of
Title 2 of the Government Code.
113. The Governor shall designate the chairman of the appeals board
from the membership of the appeals board. The person so designated
shall hold the office of chairman at the pleasure of the Governor.
The chairman may designate in writing one of the other members of
the appeals board to act as chairman during such time as he may be
absent from the state on official business, on vacation, or absent
due to illness.
115. Actions of the appeals board shall be taken by decision of a
majority of the appeals board except as otherwise expressly provided.
The chairman shall assign pending cases in which reconsideration
is sought to any three members thereof for hearing, consideration and
decision. Assignments by the chairman of members to such cases shall
be rotated on a case-by-case basis with the composition of the
members so assigned being varied and changed to assure that there
shall never be a fixed and continued composition of members. Any such
case assigned to any three members in which the finding, order,
decision or award is made and filed by any two or more of such
members shall be the action of the appeals board unless
reconsideration is had in accordance with the provisions of Article 1
(commencing with Section 5900), Chapter 7, Part 4, Division 4 of
this code. Any case assigned to three members shall be heard and
decided only by them, unless the matter has been reassigned by the
chairman on a majority vote of the appeals board to the appeals board
as a whole in order to achieve uniformity of decision, or in cases
presenting novel issues.
116. The seal of the appeals board bearing the inscription "Workers'
Compensation Appeals Board, Seal" shall be affixed to all writs and
authentications of copies of records and to such other instruments as
the appeals board directs.
117. The administrative director may appoint an attorney licensed
to practice law in the state as counsel to the division.
119. The attorney shall:
(a) Represent and appear for the state and the Division of Workers'
Compensation and the appeals board in all actions and proceedings
arising under any provision of this code administered by the division
or under any order or act of the division or the appeals board and,
if directed so to do, intervene, if possible, in any action or
proceeding in which any such question is involved.
(b) Commence, prosecute, and expedite the final determination of
all actions or proceedings, directed or authorized by the
administrative director or the appeals board.
(c) Advise the administrative director and the appeals board and
each member thereof, upon request, in regard to the jurisdiction,
powers or duties of the administrative director, the appeals board
and each member thereof.
(d) Generally perform the duties and services as attorney to the
Division of Workers' Compensation and the appeals board which are
required of him or her.
120. The administrative director and the chairman of the appeals
board may each respectively appoint a secretary and assistant
secretaries to perform such services as shall be prescribed.
121. The chairman of the appeals board may authorize its secretary
and any two assistant secretaries to act as deputy appeals board
members and may delegate authority and duties to these deputies. Not
more than three deputies may act as appeals board members at any one
time. No act of any deputy shall be valid unless it is concurred in
by at least one member of the appeals board.
122. The administrative director shall appoint a medical director
who shall possess a physician's and surgeon's certificate granted
under Chapter 5 (commencing with Section 2000) of Division 2 of the
Business and Professions Code. The medical director shall employ
medical assistants who shall also possess physicians' and surgeons'
certificates and other staff necessary to the performance of his or
her duties. The salaries for the medical director and his or her
assistants shall be fixed by the Department of Personnel
Administration, commensurate with the salaries paid by private
industry to medical directors and assistant medical directors.
123. The administrative director may employ necessary assistants,
officers, experts, statisticians, actuaries, accountants, workers'
compensation administrative law judges, stenographic shorthand
reporters, legal secretaries, disability evaluation raters, program
technicians, and other employees to implement new, efficient court
management systems. The salaries of the workers' compensation
administrative law judges shall be fixed by the Department of
Personnel Administration for a class of positions which perform
judicial functions.
123.3. Any official reporter employed by the administrative
director shall render stenographic or clerical assistance as directed
by the presiding workers' compensation administrative law judge of
the office to which the reporter is assigned, when the presiding
workers' compensation administrative law judge determines that the
reporter is not engaged in the performance of any other duty imposed
by law.
123.5. (a) Workers' compensation administrative law judges employed
by the administrative director and supervised by the court
administrator pursuant to this chapter shall be taken from an
eligible list of attorneys licensed to practice law in this state,
who have the qualifications prescribed by the State Personnel Board.
In establishing eligible lists for this purpose, state civil service
examinations shall be conducted in accordance with the State Civil
Service Act (Part 2 (commencing with Section 18500) of Division 5 of
Title 2 of the Government Code). Every workers' compensation judge
shall maintain membership in the State Bar of California during his
or her tenure.
A workers' compensation administrative law judge may not receive
his or her salary as a workers' compensation administrative law judge
while any cause before the workers' compensation administrative law
judge remains pending and undetermined for 90 days after it has been
submitted for decision.
(b) All workers' compensation administrative law judges appointed
on or after January 1, 2003, shall be attorneys licensed to practice
law in California for five or more years prior to their appointment
and shall have experience in workers' compensation law.
123.6. (a) All workers' compensation administrative law judges
employed by the administrative director and supervised by the court
administrator shall subscribe to the Code of Judicial Ethics adopted
by the Supreme Court pursuant to subdivision (m) of Section 18 of
Article VI of the California Constitution for the conduct of judges
and shall not otherwise, directly or indirectly, engage in conduct
contrary to that code or to the commentary to the Code of Judicial
Ethics.
In consultation with both the court administrator and the
Commission on Judicial Performance, the administrative director shall
adopt regulations to enforce this section. Existing regulations
shall remain in effect until new regulations based on the
recommendations of the court administrator and the Commission on
Judicial Performance have become effective. To the extent possible,
the rules shall be consistent with the procedures established by the
Commission on Judicial Performance for regulating the activities of
state judges, and, to the extent possible, with the gift, honoraria,
and travel restrictions on legislators contained in the Political
Reform Act of 1974 (Title 9 (commencing with Section 81000) of the
Government Code). The court administrator shall have the authority to
enforce the rules adopted by the administrative director.
(b) Honoraria or travel allowed by the court administrator, and
not otherwise prohibited by this section in connection with any
public or private conference, convention, meeting, social event, or
like gathering, the cost of which is significantly paid for by
attorneys who practice before the board, may not be accepted unless
the court administrator has provided prior approval in writing to the
workers' compensation administrative law judge allowing him or her
to accept those payments.
123.7. The appeals board may, by rule or regulation, establish
procedures whereby attorneys who are either certified specialists in
workers' compensation by the California State Bar, or are eligible
for this certification, may be appointed by the presiding workers'
compensation judge of each board office to serve as a pro tempore
workers' compensation judge in a particular case, upon the
stipulation of the employee or his or her representative, and the
employer or the insurance carrier. Service in this capacity by an
attorney shall be voluntary and without pay. It is the intent of the
Legislature that the use of pro tempore workers' compensation judges
pursuant to this section shall not result in a reduction of the
number of permanent civil service employees or the number of
authorized full-time equivalent positions.
124. (a) In administering and enforcing this division and Division
4 (commencing with Section 3200), the division shall protect the
interests of injured workers who are entitled to the timely provision
of compensation.
(b) Forms and notices required to be given to employees by the
division shall be in English and Spanish.
125. The administrative director shall cause to be printed and
furnished free of charge to any person blank forms that may
facilitate or promote the efficient performance of the duties of the
Division of Workers' Compensation.
126. The Division of Workers' Compensation, including the
administrative director and the appeals board, shall keep minutes of
all their proceedings and other books or records requisite for proper
and efficient administration. All records shall be kept in their
respective offices.
127. The administrative director and court administrator may:
(a) Charge and collect fees for copies of papers and records, for
certified copies of official documents and orders or of the evidence
taken or proceedings had, for transcripts of testimony, and for
inspection of case files not stored in the place where the inspection
is requested. The administrative director shall fix those fees in an
amount sufficient to recover the actual costs of furnishing the
services. No fees for inspection of case files shall be charged to an
injured employee or his or her representative.
(b) Publish and distribute from time to time, in addition to the
reports to the Governor, further reports and pamphlets covering the
operations, proceedings, and matters relative to the work of the
division.
(c) Prepare, publish, and distribute an office manual, for which a
reasonable fee may be charged, and to which additions, deletions,
amendments, and other changes from time to time may be adopted,
published, and distributed, for which a reasonable fee may be charged
for the revision, or for which a reasonable fee may be fixed on an
annual subscription basis.
(d) Fix and collect reasonable charges for publications issued.
127.5. In the exercise of his or her functions, the court
administrator shall further the interests of uniformity and
expedition of proceedings before workers' compensation administrative
law judges, assure that all workers' compensation administrative law
judges are qualified and adhere to deadlines mandated by law or
regulations, and manage district office procedural matters at the
trial level.
127.6. (a) The administrative director shall, in consultation with
the Commission on Health and Safety and Workers' Compensation, other
state agencies, and researchers and research institutions with
expertise in health care delivery and occupational health care
service, conduct a study of medical treatment provided to workers who
have sustained industrial injuries and illnesses. The study shall
focus on, but not be limited to, all of the following:
(1) Factors contributing to the rising costs and utilization of
medical treatment and case management in the workers' compensation
system.
(2) An evaluation of case management procedures that contribute to
or achieve early and sustained return to work within the employee's
temporary and permanent work restrictions.
(3) Performance measures for medical services that reflect patient
outcomes.
(4) Physician utilization, quality of care, and outcome
measurement data.
(5) Patient satisfaction.
(b) The administrative director shall begin the study on or before
July 1, 2003, and shall report and make recommendations to the
Legislature based on the results of the study on or before July 1,
2004.
(c) In implementing this section, the administrative director
shall ensure the confidentiality and protection of patient-specific
data.
128. The appeals board may accept appointment as deputy
commissioner under, or any delegation of authority to enforce, the
United States Longshoremen's and Harbor Worker's Compensation Act.
The appeals board may enter into arrangements with the United States,
subject to the approval of the Department of Finance, for the
payment of any expenses incurred in the performance of services under
said act. In the performance of any duties under said act,
appointment, or authority, the appeals board may, subject to the
provisions thereof, exercise any authority conferred upon the appeals
board by the laws of this state.
129. (a) To make certain that injured workers, and their dependents
in the event of their death, receive promptly and accurately the
full measure of compensation to which they are entitled, the
administrative director shall audit insurers, self-insured employers,
and third-party administrators to determine if they have met their
obligations under this code. Each audit subject shall be audited at
least once every five years. The audit subjects shall be selected and
the audits conducted pursuant to subdivision (b). The results of
audits of insurers shall be provided to the Insurance Commissioner,
and the results of audits of self-insurers and third-party
administrators shall be provided to the Director of Industrial
Relations. Nothing in this section shall restrict the authority of
the Director of Industrial Relations or the Insurance Commissioner to
audit their licensees.
(b) The administrative director shall schedule and conduct audits
as follows:
(1) A profile audit review of every audit subject shall be
conducted once every five years and on additional occasions indicated
by target audit criteria. The administrative director shall annually
establish a profile audit review performance standard that will
identify the poorest performing audit subjects.
(2) A full compliance audit shall be conducted of each profile
audited subject failing to meet or exceed the profile audit review
performance standard. The full compliance audit shall be a
comprehensive and detailed evaluation of the audit subject's
performance. The administrative director shall annually establish a
full compliance audit performance standard that will identify the
audit subjects that are performing satisfactorily. Any full
compliance audit subject that fails to meet or exceed the full
compliance audit performance standard shall be audited again within
two years.
(3) A targeted profile audit review or a full compliance audit may
be conducted at any time in accordance with target audit criteria
adopted by the administrative director. The target audit criteria
shall be based on information obtained from benefit notices, from
information and assistance officers, and from other reliable sources
providing factual information that indicates an insurer, self-insured
employer, or third-party administrator is failing to meet its
obligations under this division or Division 4 (commencing with
Section 3200) or the regulations of the administrative director.
(c) If, as a result of a profile audit review or a full compliance
audit, the administrative director determines that any compensation,
interest, or penalty is due and unpaid to an employee or dependent,
the administrative director shall issue and cause to be served upon
the insurer, self-insured employer, or third-party administrator a
notice of assessment detailing the amounts due and unpaid in each
case, and shall order the amounts paid to the person entitled
thereto. The notice of assessment shall be served personally or by
registered mail in accordance with subdivision (c) of Section 11505
of the Government Code. A copy of the notice of assessment shall also
be sent to the affected employee or dependent.
If the amounts are not paid within 30 days after service of the
notice of assessment, the employer shall also be liable for
reasonable attorney's fees necessarily incurred by the employee or
dependent to obtain amounts due. The administrative director shall
advise each employee or dependent still owed compensation after this
30-day period of his or her rights with respect to the commencement
of proceedings to collect the compensation owed. Amounts unpaid
because the person entitled thereto cannot be located shall be paid
to the Workers' Compensation Administration Revolving Fund. The
Director of Industrial Relations shall promulgate rules and
regulations establishing standards and procedures for the payment of
compensation from moneys deposited in the Workers' Compensation
Administration Revolving Fund whenever the person entitled thereto
applies for compensation.
(d) A determination by the administrative director that an amount
is or is not due to an employee or dependent shall not in any manner
limit the jurisdiction or authority of the appeals board to determine
the issue.
(e) Annually, commencing on April 1, 1991, the administrative
director shall publish a report detailing the results of audits
conducted pursuant to this section during the preceding calendar
year. The report shall include the name of each insurer, self-insured
employer, and third-party administrator audited during that period.
For each insurer, self-insured employer, and third-party
administrator audited, the report shall specify the total number of
files audited, the number of violations found by type and amount of
compensation, interest and penalties payable, and the amount
collected for each violation. The administrative director shall also
publish and make available to the public on request a list ranking
all insurers, self-insured employers, and third-party administrators
audited during the period according to their performance measured by
the profile audit review and full compliance audit performance
standards.
These reports shall not identify the particular claim file that
resulted in a particular violation or penalty. Except as required by
this subdivision or other provisions of law, the contents of
individual claim files and auditor's working papers shall be
confidential. Disclosure of claim information to the administrative
director pursuant to an audit shall not waive the provisions of the
Evidence Code relating to privilege.
(f) A profile audit review of the adjustment of claims against the
Uninsured Employers Fund by the claims and collections unit of the
Division of Workers' Compensation shall be conducted at least every
five years. The results of this profile audit review shall be
included in the report required by subdivision (e).
129.5. (a) The administrative director may assess an administrative
penalty against an insurer, self-insured employer, or third-party
administrator for any of the following:
(1) Failure to comply with the notice of assessment issued
pursuant to subdivision (c) of Section 129 within 15 days of receipt.
(2) Failure to pay when due the undisputed portion of an indemnity
payment, the reasonable cost of medical treatment of an injured
worker, or a charge or cost implementing an approved vocational
rehabilitation plan.
(3) Failure to comply with any rule or regulation of the
administrative director.
(b) The administrative director shall promulgate regulations
establishing a schedule of violations and the amount of the
administrative penalty to be imposed for each type of violation. The
schedule shall provide for imposition of a penalty of up to one
hundred dollars ($100) for each violation of the less serious type
and for imposition of penalties in progressively higher amounts for
the most serious types of violations to be set at up to five thousand
dollars ($5,000) per violation. The administrative director is
authorized to impose penalties pursuant to rules and regulations
which give due consideration to the appropriateness of the penalty
with respect to the following factors:
(1) The gravity of the violation.
(2) The good faith of the insurer, self-insured employer, or
third-party administrator.
(3) The history of previous violations, if any.
(4) The frequency of the violations.
(5) Whether the audit subject has met or exceeded the profile
audit review performance standard.
(6) Whether a full compliance audit subject has met or exceeded
the full compliance audit performance standard.
(7) The size of the audit subject location.
(c) The administrative director shall assess penalties as follows:
(1) If, after a profile audit review, the administrative director
determines that the profile audit subject met or exceeded the profile
audit review performance standard, no penalties shall be assessed
under this section, but the audit subject shall be required to pay
any compensation due and penalties due under subdivision (d) of
Section 4650 as provided in subdivision (c) of Section 129.
(2) If, after a full compliance audit, the administrative director
determines that the audit subject met or exceeded the full
compliance audit performance standards, penalties for unpaid or late
paid compensation, but no other penalties under this section, shall
be assessed. The audit subject shall be required to pay any
compensation due and penalties due under subdivision (d) of Section
4650 as provided in subdivision (c) of Section 129.
(3) If, after a full compliance audit, the administrative director
determines that the audit subject failed to meet the full compliance
audit performance standards, penalties shall be assessed as provided
in a full compliance audit failure penalty schedule to be adopted by
the administrative director. The full compliance audit failure
penalty schedule shall adjust penalty levels relative to the size of
the audit location to mitigate inequality between total penalties
assessed against small and large audit subjects. The penalty amounts
provided in the full compliance audit failure penalty schedule for
the most serious type of violations shall not be limited by
subdivision (b), but in no event shall the penalty for a single
violation exceed forty thousand dollars ($40,000).
(d) The notice of penalty assessment shall be served personally or
by registered mail in accordance with subdivision (c) of Section
11505 of the Government Code. The notice shall be in writing and
shall describe the nature of the violation, including reference to
the statutory provision or rule or regulation alleged to have been
violated. The notice shall become final and the assessment shall be
paid unless contested within 15 days of receipt by the insurer,
self-insured employer, or third-party administrator.
(e) In addition to the penalty assessments permitted by
subdivisions (a), (b), and (c), the administrative director may
assess a civil penalty, not to exceed one hundred thousand dollars
($100,000), upon finding, after hearing, that an employer, insurer,
or third-party administrator for an employer has knowingly committed
or performed with sufficient frequency so as to indicate a general
business practice any of the following:
(1) Induced employees to accept less than compensation due, or
made it necessary for employees to resort to proceedings against the
employer to secure compensation.
(2) Refused to comply with known and legally indisputable
compensation obligations.
(3) Discharged or administered compensation obligations in a
dishonest manner.
(4) Discharged or administered compensation obligations in a
manner as to cause injury to the public or those dealing with the
employer or insurer.
Any employer, insurer, or third-party administrator that fails to
meet the full compliance audit performance standards in two
consecutive full compliance audits shall be rebuttably presumed to
have engaged in a general business practice of discharging and
administering its compensation obligations in a manner causing injury
to those dealing with it.
Upon a second or subsequent finding, the administrative director
shall refer the matter to the Insurance Commissioner or the Director
of Industrial Relations and request that a hearing be conducted to
determine whether the certificate of authority, certificate of
consent to self-insure, or certificate of consent to administer
claims of self-insured employers, as the case may be, shall be
revoked.
(f) An insurer, self-insured employer, or third-party
administrator may file a written request for a conference with the
administrative director within seven days after receipt of a notice
of penalty assessment issued pursuant to subdivision (a) or (c).
Within 15 days of the conference, the administrative director shall
issue a notice of findings and serve it upon the contesting party by
registered or certified mail. Any amount found due by the
administrative director shall become due and payable 30 days after
receipt of the notice of findings. The 30-day period shall be tolled
during any appeal. A writ of mandate may be taken from the findings
to the appropriate superior court upon the execution by the
contesting party of a bond to the state in the principal sum that is
double the amount found due and ordered by the administrative
director, on the condition that the contesting party shall pay any
judgment and costs rendered against it for the amount.
(g) An insurer, self-insured employer, or third-party
administrator may file a written request for a hearing before the
Workers' Compensation Appeals Board within seven days after receipt
of a notice of penalty assessment issued pursuant to subdivision (e).
Within 30 days of the hearing, the appeals board shall issue
findings and orders and serve them upon the contesting party in the
manner provided in its rules. Any amount found due by the appeals
board shall become due and payable 45 days after receipt of the
notice of findings. Judicial review of the findings and order shall
be had in the manner provided by Article 2 (commencing with Section
5950) of Chapter 7 of Part 4 of Division 4. The 45-day period shall
be tolled during appellate proceedings upon execution by the
contesting party of a bond to the state in a principal sum that is
double the amount found due and ordered by the appeals board on the
condition that the contesting party shall pay the amount ultimately
determined to be due and any costs awarded by an appellate court.
(h) Nothing in this section shall create nor eliminate a civil
cause of action for the employee and his or her dependents.
(i) All moneys collected under this section shall be deposited in
the State Treasury and credited to the Workers' Compensation
Administration Revolving Fund.
130. The appeals board and each of its members, its secretary,
assistant secretaries, and workers' compensation judges, may
administer oaths, certify to all official acts, and issue subpoenas
for the attendance of witnesses and the production of papers, books,
accounts, documents and testimony in any inquiry, investigation,
hearing or proceeding in any part of the state.
131. Each witness who appears by order of the appeals board or any
of its members, or a workers' compensation judge, shall receive, if
demanded, for his or her attendance the same fees and mileage allowed
by law to a witness in civil cases, paid by the party at whose
request the witness is subpoenaed, unless otherwise ordered by the
appeals board. When any witness who has not been required to attend
at the request of any party is subpoenaed by the appeals board, his
or her fees and mileage may be paid from the funds appropriated for
the use of the appeals board in the same manner as other expenses of
the appeals board are paid. Any witness subpoenaed, except one whose
fees and mileage are paid from the funds of the appeals board, may,
at the time of service, demand the fee to which he or she is entitled
for travel to and from the place at which he or she is required to
appear, and one day's attendance. If a witness demands his or her
fees at the time of service, and they are not at that time paid or
tendered, he or she shall not be required to attend as directed in
the subpoena. All fees and mileage to which any witness is entitled
under this section may be collected by action therefor instituted by
the person to whom the fees are payable.
132. The superior court in and for the county in which any
proceeding is held by the appeals board or a workers' compensation
judge may compel the attendance of witnesses, the giving of testimony
and the production of papers, including books, accounts, and
documents, as required by any subpoena regularly issued hereunder. In
case of the refusal of any witness to obey the subpoena the appeals
board or the workers' compensation judge, before whom the testimony
is to be given or produced, may report to the superior court in and
for the county in which the proceeding is pending, by petition,
setting forth that due notice has been given of the time and place of
attendance of the witness, or the production of the papers, that the
witness has been subpoenaed in the prescribed manner, and that the
witness has failed and refused to obey the subpoena, or has refused
to answer questions propounded to him or her in the course of the
proceeding, and ask an order of the court, compelling the witness to
attend and testify or produce the papers before the appeals board.
The court shall thereupon enter an order directing the witness to
appear before the court at a time and place fixed in the order, the
time to be not more than 10 days from the date of the order, and then
and there show cause why he or she had not attended and testified or
produced the papers before the appeals board or the workers'
compensation judge. A copy of the order shall be served upon the
witness. If it appears to the court that the subpoena was regularly
issued hereunder and that the witness was legally bound to comply
therewith, the court shall thereupon enter an order that the witness
appear before the appeals board or the workers' compensation judge at
a time and place fixed in the order, and testify or produce the
required papers, and upon failure to obey the order, the witness
shall be dealt with as for contempt of court. The remedy provided in
this section is cumulative, and shall not impair or interfere with
the power of the appeals board or a member thereof to enforce the
attendance of witnesses and the production of papers, and to punish
for contempt in the same manner and to the same extent as courts of
record.
132a. It is the declared policy of this state that there should not
be discrimination against workers who are injured in the course and
scope of their employment.
(1) Any employer who discharges, or threatens to discharge, or in
any manner discriminates against any employee because he or she has
filed or made known his or her intention to file a claim for
compensation with his or her employer or an application for
adjudication, or because the employee has received a rating, award,
or settlement, is guilty of a misdemeanor and the employee's
compensation shall be increased by one-half, but in no event more
than ten thousand dollars ($10,000), together with costs and expenses
not in excess of two hundred fifty dollars ($250). Any such employee
shall also be entitled to reinstatement and reimbursement for lost
wages and work benefits caused by the acts of the employer.
(2) Any insurer that advises, directs, or threatens an insured
under penalty of cancellation or a raise in premium or for any other
reason, to discharge an employee because he or she has filed or made
known his or her intention to file a claim for compensation with his
or her employer or an application for adjudication, or because the
employee has received a rating, award, or settlement, is guilty of a
misdemeanor and subject to the increased compensation and costs
provided in paragraph (1).
(3) Any employer who discharges, or threatens to discharge, or in
any manner discriminates against any employee because the employee
testified or made known his or her intentions to testify in another
employee's case before the appeals board, is guilty of a misdemeanor,
and the employee shall be entitled to reinstatement and
reimbursement for lost wages and work benefits caused by the acts of
the employer.
(4) Any insurer that advises, directs, or threatens an insured
employer under penalty of cancellation or a raise in premium or for
any other reason, to discharge or in any manner discriminate against
an employee because the employee testified or made known his or her
intention to testify in another employee's case before the appeals
board, is guilty of a misdemeanor.
Proceedings for increased compensation as provided in paragraph
(1), or for reinstatement and reimbursement for lost wages and work
benefits, are to be instituted by filing an appropriate petition with
the appeals board, but these proceedings may not be commenced more
than one year from the discriminatory act or date of termination of
the employee. The appeals board is vested with full power, authority,
and jurisdiction to try and determine finally all matters specified
in this section subject only to judicial review, except that the
appeals board shall have no jurisdiction to try and determine a
misdemeanor charge. The appeals board may refer and any worker may
complain of suspected violations of the criminal misdemeanor
provisions of this section to the Division of Labor Standards
Enforcement, or directly to the office of the public prosecutor.
133. The Division of Workers' Compensation, including the
administrative director, the court administrator, and the appeals
board, shall have power and jurisdiction to do all things necessary
or convenient in the exercise of any power or jurisdiction conferred
upon it under this code.
134. The appeals board or any member thereof may issue writs or
summons, warrants of attachment, warrants of commitment and all
necessary process in proceedings for contempt, in like manner and to
the same extent as courts of record. The process issued by the
appeals board or any member thereof shall extend to all parts of the
state and may be served by any persons authorized to serve process of
courts of record or by any person designated for that purpose by the
appeals board or any member thereof. The person executing process
shall receive compensation allowed by the appeals board, not to
exceed the fees prescribed by law for similar services. Such fees
shall be paid in the same manner as provided herein for the fees of
witnesses.
135. In accordance with rules of practice and procedure that it may
adopt, the appeals board may, with the approval of the Department of
Finance, destroy or otherwise dispose of any file kept by it in
connection with any proceeding under Division 4 (commencing with
Section 3200) or Division 4.5 (commencing with Section 6100).
138. The administrative director and the court administrator may
each appoint a deputy to act during that time as he or she may be
absent from the state due to official business, vacation, or illness.
138.1. (a) The administrative director shall be appointed by the
Governor with the advice and consent of the Senate and shall hold
office at the pleasure of the Governor. He or she shall receive the
salary provided for by Chapter 6 (commencing with Section 11550) of
Part 1 of Division 3 of Title 2 of the Government Code.
(b) The court administrator shall be appointed by the Governor
with the advice and consent of the Senate. The court administrator
shall hold office for a term of five years. The court administrator
shall receive the salary provided for by Chapter 6 (commencing with
Section 11550) of Part 1 of Division 3 of Title 2 of the Government
Code.
138.2. (a) The headquarters of the Division of Workers'
Compensation shall be based at and operated from a centrally located
city.
The administrative director and the court administrator shall have
an office in that city with suitable rooms, necessary office
furniture, stationery, and supplies, and may rent quarters in other
places for the purpose of establishing branch or service offices, and
for that purpose may provide those offices with necessary furniture,
stationery and supplies.
(b) The administrative director shall provide suitable rooms, with
necessary office furniture, stationery and supplies, for the appeals
board at the centrally located city in which the board shall be
based and from which it shall operate, and may rent quarters in other
places for the purpose of establishing branch or service offices for
the appeals board, and for that purpose may provide those offices
with necessary furniture, stationery, and supplies.
(c) All meetings held by the administrative director shall be open
and public. Notice thereof shall be published in papers of general
circulation not more than 30 days and not less than 10 days prior to
each meeting in Sacramento, San Francisco, Fresno, Los Angeles and
San Diego. Written notice of all meetings shall be given to all
persons who request in writing directed to the administrative
director that they be given notice.
138.3. The administrative director shall, with respect to all
injuries, prescribe, pursuant to Section 5402, reasonable rules and
regulations requiring the employer to serve notice on the injured
employee that he may be entitled to benefits under this division.
138.4. (a) For the purpose of this section, "claims administrator"
means a self-administered workers' compensation insurer; or a
self-administered self-insured employer; or a self-administered
legally uninsured employer; or a self-administered joint powers
authority; or a third-party claims administrator for an insurer, a
self-insured employer, a legally uninsured employer, or a joint
powers authority.
(b) With respect to injuries resulting in lost time beyond the
employee's work shift at the time of injury or medical treatment
beyond first aid:
(1) If the claims administrator obtains knowledge that the
employer has not provided a claim form or a notice of potential
eligibility for benefits to the employee, it shall provide the form
and notice to the employee within three working days of its knowledge
that the form or notice was not provided.
(2) If the claims administrator cannot determine if the employer
has provided a claim form and notice of potential eligibility for
benefits to the employee, the claims administrator shall provide the
form and notice to the employee within 30 days of the administrator's
date of knowledge of the claim.
(c) The administrative director shall prescribe reasonable rules
and regulations for serving on the employee (or employee's
dependents, in the case of death), notices dealing with the payment,
nonpayment, or delay in payment of temporary disability, permanent
disability, and death benefits and the provision of vocational
rehabilitation services, notices of any change in the amount or type
of benefits being provided, the termination of benefits, the
rejection of any liability for compensation, and an accounting of
benefits paid.
138.5. The Division of Workers' Compensation shall cooperate in the
enforcement of child support obligations. At the request of the
Department of Child Support Services, the administrative director
shall assist in providing to the State Department of Child Support
Services information concerning persons who are receiving permanent
disability benefits or who have filed an application for adjudication
of a claim which the Department of Child Support Services determines
is necessary to carry out its responsibilities pursuant to Section
17510 of the Family Code.
The process of sharing information with regard to applicants for
and recipients of permanent disability benefits required by this
section shall be known as the Workers' Compensation Notification
Project.
138.6. (a) The administrative director, in consultation with the
Insurance Commissioner and the Workers' Compensation Insurance Rating
Bureau, shall develop a cost-efficient workers' compensation
information system, which shall be administered by the division. The
administrative director shall adopt regulations specifying the data
elements to be collected by electronic data interchange.
(b) The information system shall do the following:
(1) Assist the department to manage the workers' compensation
system in an effective and efficient manner.
(2) Facilitate the evaluation of the efficiency and effectiveness
of the benefit delivery system.
(3) Assist in measuring how adequately the system indemnifies
injured workers and their dependents.
(4) Provide statistical data for research into specific aspects of
the workers' compensation program.
(c) The data collected electronically shall be compatible with the
Electronic Data Interchange System of the International Association
of Industrial Accident Boards and Commissions. The administrative
director may adopt regulations authorizing the use of other
nationally recognized data transmission formats in addition to those
set forth in the Electronic Data Interchange System for the
transmission of data required pursuant to this section. The
administrative director shall accept data transmissions in any
authorized format. If the administrative director determines that any
authorized data transmission format is not in general use by claims
administrators, conflicts with the requirements of state or federal
law, or is obsolete, the administrative director may adopt
regulations eliminating that data transmission format from those
authorized pursuant to this subdivision.
138.65. (a) The administrative director, after consultation with
the Insurance Commissioner, shall contract with a qualified
organization to study the effects of the 2003 and 2004 legislative
reforms on workers' compensation insurance rates. The study shall do,
but not be limited to, all of the following:
(1) Identify and quantify the savings generated by the reforms.
(2) Review workers' compensation insurance rates to determine the
extent to which the reform savings were reflected in rates. When
reviewing the rates, consideration shall be given to an insurer's
premium revenue, claim costs, and surplus levels.
(3) Assess the effect of the reform savings on replenishing
surpluses for workers' compensation insurance coverage.
(4) Review the effects of the reforms on the workers' compensation
insurance rates, marketplace, and competition.
(5) Review the adequacy and accuracy of the pure premium rate as
recommended by the Workers' Compensation Insurance Bureau and the
pure premium rate adopted by the Insurance Commissioner.
(b) Insurers shall submit to the contracting organization premium
revenue, claims costs, and surplus levels in different timing
aggregates as established by the contracting organization, but at
least quarterly and annually. The contracting organization may also
request additional materials when appropriate. The contracting
organization and the commission shall maintain strict confidentiality
of the data. An insurer that fails to comply with the reporting
requirements of this subdivision is subject to Section 11754 of the
Insurance Code.
(c) The administrative director shall submit to the Governor, the
Insurance Commissioner, and the President pro Tempore of the Senate,
the Speaker of the Assembly, and the chairs of the appropriate policy
committees of the Legislature, a progress report on the study on
January 1, 2005, and July 1, 2005, and the final study on or before
January 1, 2006. The Governor and the Insurance Commissioner shall
review the results of the study and make recommendations as to the
appropriateness of regulating insurance rates. If, after reviewing
the study, the Governor and the Insurance Commissioner determine that
the rates do not appropriately reflect the savings and the timing of
the savings associated with the 2003 and 2004 reforms, the Governor
and the Insurance Commissioner may submit proposals to the
Legislature. The proposals shall take into consideration how rates
should be regulated, and by whom. In no event shall the proposals
unfairly penalize insurers that have properly reflected the 2003 and
2004 reforms in their rates, or can verify that they have not
received any cost savings as a result of the reforms.
(d) The cost of the study shall be borne by the insurers up to one
million dollars ($1,000,000). The cost of the study shall be
allocated to an insurer based on the insurer's proportionate share of
the market.
138.7. (a) Except as expressly permitted in subdivision (b), a
person or public or private entity not a party to a claim for workers'
compensation benefits may not obtain individually identifiable
information obtained or maintained by the division on that claim. For
purposes of this section, "individually identifiable information"
means any data concerning an injury or claim that is linked to a
uniquely identifiable employee, employer, claims administrator, or
any other person or entity.
(b) (1) The administrative director, or a statistical agent
designated by the administrative director, may use individually
identifiable information for purposes of creating and maintaining the
workers' compensation information system as specified in Section
138.6.
(2) (A) The State Department of Public Health may use individually
identifiable information for purposes of establishing and
maintaining a program on occupational health and occupational disease
prevention as specified in Section 105175 of the Health and Safety
Code.
(B) (i) The State Department of Health Care Services may use
individually identifiable information for purposes of seeking
recovery of Medi-Cal costs incurred by the state for treatment
provided to injured workers that should have been incurred by
employers and insurance carriers pursuant to Article 3.5 (commencing
with Section 14124.70) of Chapter 7 of Part 3 of Division 9 of the
Welfare and Institutions Code.
(ii) The Department of Industrial Relations shall furnish
individually identifiable information to the State Department of
Health Care Services, and the State Department of Health Care
Services may furnish the information to its designated agent,
provided that the individually identifiable information shall not be
disclosed for use other than the purposes described in clause (i).
The administrative director may adopt regulations solely for the
purpose of governing access by the State Department of Health Care
Services or its designated agents to the individually identifiable
information as defined in subdivision (a).
(3) (A) Individually identifiable information may be used by the
Division of Workers' Compensation, the Division of Occupational
Safety and Health, and the Division of Labor Statistics and Research
as necessary to carry out their duties. The administrative director
shall adopt regulations governing the access to the information
described in this subdivision by these divisions. Any regulations
adopted pursuant to this subdivision shall set forth the specific
uses for which this information may be obtained.
(B) Individually identifiable information maintained in the
workers' compensation information system and the Division of Workers'
Compensation may be used by researchers employed by or under
contract to the Commission on Health and Safety and Workers'
Compensation as necessary to carry out the commission's research. The
administrative director shall adopt regulations governing the access
to the information described in this subdivision by commission
researchers. These regulations shall set forth the specific uses for
which this information may be obtained and include provisions
guaranteeing the confidentiality of individually identifiable
information. Individually identifiable information obtained under
this subdivision shall not be disclosed to commission members. No
individually identifiable information obtained by researchers under
contract to the commission pursuant to this subparagraph may be
disclosed to any other person or entity, public or private, for a use
other than that research project for which the information was
obtained. Within a reasonable period of time after the research for
which the information was obtained has been completed, the data
collected shall be modified in a manner so that the subjects cannot
be identified, directly or through identifiers linked to the
subjects.
(4) The administrative director shall adopt regulations allowing
reasonable access to individually identifiable information by other
persons or public or private entities for the purpose of bona fide
statistical research. This research shall not divulge individually
identifiable information concerning a particular employee, employer,
claims administrator, or any other person or entity. The regulations
adopted pursuant to this paragraph shall include provisions
guaranteeing the confidentiality of individually identifiable
information. Within a reasonable period of time after the research
for which the information was obtained has been completed, the data
collected shall be modified in a manner so that the subjects cannot
be identified, directly or through identifiers linked to the
subjects.
(5) This section shall not operate to exempt from disclosure any
information that is considered to be a public record pursuant to the
California Public Records Act (Chapter 3.5 (commencing with Section
6250) of Division 7 of Title 1 of the Government Code) contained in
an individual's file once an application for adjudication has been
filed pursuant to Section 5501.5.
However, individually identifiable information shall not be
provided to any person or public or private entity who is not a party
to the claim unless that person identifies himself or herself or
that public or private entity identifies itself and states the reason
for making the request. The administrative director may require the
person or public or private entity making the request to produce
information to verify that the name and address of the requester is
valid and correct. If the purpose of the request is related to
preemployment screening, the administrative director shall notify the
person about whom the information is requested that the information
was provided and shall include the following in 12-point type:
"IT MAY BE A VIOLATION OF FEDERAL AND STATE LAW TO DISCRIMINATE
AGAINST A JOB APPLICANT BECAUSE THE APPLICANT HAS FILED A CLAIM FOR
WORKERS' COMPENSATION BENEFITS."
Any residence address is confidential and shall not be disclosed
to any person or public or private entity except to a party to the
claim, a law enforcement agency, an office of a district attorney,
any person for a journalistic purpose, or other governmental agency.
Nothing in this paragraph shall be construed to prohibit the use
of individually identifiable information for purposes of identifying
bona fide lien claimants.
(c) Except as provided in subdivision (b), individually
identifiable information obtained by the division is privileged and
is not subject to subpoena in a civil proceeding unless, after
reasonable notice to the division and a hearing, a court determines
that the public interest and the intent of this section will not be
jeopardized by disclosure of the information. This section shall not
operate to restrict access to information by any law enforcement
agency or district attorney's office or to limit admissibility of
that information in a criminal proceeding.
(d) It shall be unlawful for any person who has received
individually identifiable information from the division pursuant to
this section to provide that information to any person who is not
entitled to it under this section.
(e) This section shall remain in effect only until January 1,
2017, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2017, deletes or extends
that date.
138.7. (a) Except as expressly permitted in subdivision (b), a
person or public or private entity not a party to a claim for workers'
compensation benefits may not obtain individually identifiable
information obtained or maintained by the division on that claim. For
purposes of this section, "individually identifiable information"
means any data concerning an injury or claim that is linked to a
uniquely identifiable employee, employer, claims administrator, or
any other person or entity.
(b) (1) The administrative director, or a statistical agent
designated by the administrative director, may use individually
identifiable information for purposes of creating and maintaining the
workers' compensation information system as specified in Section
138.6.
(2) The State Department of Public Health may use individually
identifiable information for purposes of establishing and maintaining
a program on occupational health and occupational disease prevention
as specified in Section 105175 of the Health and Safety Code.
(3) (A) Individually identifiable information may be used by the
Division of Workers' Compensation, the Division of Occupational
Safety and Health, and the Division of Labor Statistics and Research
as necessary to carry out their duties. The administrative director
shall adopt regulations governing the access to the information
described in this subdivision by these divisions. Any regulations
adopted pursuant to this subdivision shall set forth the specific
uses for which this information may be obtained.
(B) Individually identifiable information maintained in the
workers' compensation information system and the Division of Workers'
Compensation may be used by researchers employed by or under
contract to the Commission on Health and Safety and Workers'
Compensation as necessary to carry out the commission's research. The
administrative director shall adopt regulations governing the access
to the information described in this subdivision by commission
researchers. These regulations shall set forth the specific uses for
which this information may be obtained and include provisions
guaranteeing the confidentiality of individually identifiable
information. Individually identifiable information obtained under
this subdivision shall not be disclosed to commission members. No
individually identifiable information obtained by researchers under
contract to the commission pursuant to this subparagraph may be
disclosed to any other person or entity, public or private, for a use
other than that research project for which the information was
obtained. Within a reasonable period of time after the research for
which the information was obtained has been completed, the data
collected shall be modified in a manner so that the subjects cannot
be identified, directly or through identifiers linked to the
subjects.
(4) The administrative director shall adopt regulations allowing
reasonable access to individually identifiable information by other
persons or public or private entities for the purpose of bona fide
statistical research. This research shall not divulge individually
identifiable information concerning a particular employee, employer,
claims administrator, or any other person or entity. The regulations
adopted pursuant to this paragraph shall include provisions
guaranteeing the confidentiality of individually identifiable
information. Within a reasonable period of time after the research
for which the information was obtained has been completed, the data
collected shall be modified in a manner so that the subjects cannot
be identified, directly or through identifiers linked to the
subjects.
(5) This section shall not operate to exempt from disclosure any
information that is considered to be a public record pursuant to the
California Public Records Act (Chapter 3.5 (commencing with Section
6250) of Division 7 of Title 1 of the Government Code) contained in
an individual's file once an application for adjudication has been
filed pursuant to Section 5501.5.
However, individually identifiable information shall not be
provided to any person or public or private entity who is not a party
to the claim unless that person identifies himself or herself or
that public or private entity identifies itself and states the reason
for making the request. The administrative director may require the
person or public or private entity making the request to produce
information to verify that the name and address of the requester is
valid and correct. If the purpose of the request is related to
preemployment screening, the administrative director shall notify the
person about whom the information is requested that the information
was provided and shall include the following in 12-point type:
"IT MAY BE A VIOLATION OF FEDERAL AND STATE LAW TO DISCRIMINATE
AGAINST A JOB APPLICANT BECAUSE THE APPLICANT HAS FILED A CLAIM FOR
WORKERS' COMPENSATION BENEFITS."
Any residence address is confidential and shall not be disclosed
to any person or public or private entity except to a party to the
claim, a law enforcement agency, an office of a district attorney,
any person for a journalistic purpose, or other governmental agency.
Nothing in this paragraph shall be construed to prohibit the use
of individually identifiable information for purposes of identifying
bona fide lien claimants.
(c) Except as provided in subdivision (b), individually
identifiable information obtained by the division is privileged and
is not subject to subpoena in a civil proceeding unless, after
reasonable notice to the division and a hearing, a court determines
that the public interest and the intent of this section will not be
jeopardized by disclosure of the information. This section shall not
operate to restrict access to information by any law enforcement
agency or district attorney's office or to limit admissibility of
that information in a criminal proceeding.
(d) It shall be unlawful for any person who has received
individually identifiable information from the division pursuant to
this section to provide that information to any person who is not
entitled to it under this section.
(e) This section shall become operative on January 1, 2017.
139.2. (a) The administrative director shall appoint qualified
medical evaluators in each of the respective specialties as required
for the evaluation of medical-legal issues. The appointments shall be
for two-year terms.
(b) The administrative director shall appoint or reappoint as a
qualified medical evaluator a physician, as defined in Section
3209.3, who is licensed to practice in this state and who
demonstrates that he or she meets the requirements in paragraphs (1),
(2), (6), and (7), and, if the physician is a medical doctor, doctor
of osteopathy, doctor of chiropractic, or a psychologist, that he or
she also meets the applicable requirements in paragraph (3), (4), or
(5).
(1) Prior to his or her appointment as a qualified medical
evaluator, passes an examination written and administered by the
administrative director for the purpose of demonstrating competence
in evaluating medical-legal issues in the workers' compensation
system. Physicians shall not be required to pass an additional
examination as a condition of reappointment. A physician seeking
appointment as a qualified medical evaluator on or after January 1,
2001, shall also complete prior to appointment, a course on
disability evaluation report writing approved by the administrative
director. The administrative director shall specify the curriculum to
be covered by disability evaluation report writing courses, which
shall include, but is not limited to, 12 or more hours of
instruction.
(2) Devotes at least one-third of total practice time to providing
direct medical treatment, or has served as an agreed medical
evaluator on eight or more occasions in the 12 months prior to
applying to be appointed as a qualified medical evaluator.
(3) Is a medical doctor or doctor of osteopathy and meets one of
the following requirements:
(A) Is board certified in a specialty by a board recognized by the
administrative director and either the Medical Board of California
or the Osteopathic Medical Board of California.
(B) Has successfully completed a residency training program
accredited by the American College of Graduate Medical Education or
the osteopathic equivalent.
(C) Was an active qualified medical evaluator on June 30, 2000.
(D) Has qualifications that the administrative director and either
the Medical Board of California or the Osteopathic Medical Board of
California, as appropriate, both deem to be equivalent to board
certification in a specialty.
(4) Is a doctor of chiropractic and meets either of the following
requirements:
(A) Has completed a chiropractic postgraduate specialty program of
a minimum of 300 hours taught by a school or college recognized by
the administrative director, the Board of Chiropractic Examiners and
the Council on Chiropractic Education.
(B) Has been certified in California workers' compensation
evaluation by a provider recognized by the administrative director.
The certification program shall include instruction on disability
evaluation report writing that meets the standards set forth in
paragraph (1).
(5) Is a psychologist and meets one of the following req
