3200. The Legislature hereby declares its intent that the term
"workmen's compensation" shall hereafter also be known as "workers'
compensation, " and that the "Workmen's Compensation Appeals Board"
shall hereafter be known as the "Workers' Compensation Appeals Board."
In furtherance of this policy it is the desire of the Legislature
that references to the terms "workmen's compensation" and "Workmen's
Compensation Appeals Board" in this code or elsewhere be changed to
"workers' compensation" and "Workers' Compensation Appeals Board"
when such laws are being amended for any purpose. This act is
declaratory and not amendatory of existing law.
3201. This division and Division 5 (commencing with Section 6300)
are an expression of the police power and are intended to make
effective and apply to a complete system of workers' compensation the
provisions of Section 4 of Article XIV of the California
Constitution.
3201.5. (a) Except as provided in subdivisions (b) and (c), the
Department of Industrial Relations and the courts of this state shall
recognize as valid and binding any provision in a collective
bargaining agreement between a private employer or groups of
employers engaged in construction, construction maintenance, or
activities limited to rock, sand, gravel, cement and asphalt
operations, heavy-duty mechanics, surveying, and construction
inspection and a union that is the recognized or certified exclusive
bargaining representative that establishes any of the following:
(1) An alternative dispute resolution system governing disputes
between employees and employers or their insurers that supplements or
replaces all or part of those dispute resolution processes contained
in this division, including, but not limited to, mediation and
arbitration. Any system of arbitration shall provide that the
decision of the arbiter or board of arbitration is subject to review
by the appeals board in the same manner as provided for
reconsideration of a final order, decision, or award made and filed
by a workers' compensation administrative law judge pursuant to the
procedures set forth in Article 1 (commencing with Section 5900) of
Chapter 7 of Part 4 of Division 4, and the court of appeals pursuant
to the procedures set forth in Article 2 (commencing with Section
5950) of Chapter 7 of Part 4 of Division 4, governing orders,
decisions, or awards of the appeals board. The findings of fact,
award, order, or decision of the arbitrator shall have the same force
and effect as an award, order, or decision of a workers'
compensation administrative law judge. Any provision for arbitration
established pursuant to this section shall not be subject to Sections
5270, 5270.5, 5271, 5272, 5273, 5275, and 5277.
(2) The use of an agreed list of providers of medical treatment
that may be the exclusive source of all medical treatment provided
under this division.
(3) The use of an agreed, limited list of qualified medical
evaluators and agreed medical evaluators that may be the exclusive
source of qualified medical evaluators and agreed medical evaluators
under this division.
(4) Joint labor management safety committees.
(5) A light-duty, modified job or return-to-work program.
(6) A vocational rehabilitation or retraining program utilizing an
agreed list of providers of rehabilitation services that may be the
exclusive source of providers of rehabilitation services under this
division.
(b) (1) Nothing in this section shall allow a collective
bargaining agreement that diminishes the entitlement of an employee
to compensation payments for total or partial disability, temporary
disability, vocational rehabilitation, or medical treatment fully
paid by the employer as otherwise provided in this division. The
portion of any agreement that violates this paragraph shall be
declared null and void.
(2) The parties may negotiate any aspect of the delivery of
medical benefits and the delivery of disability compensation to
employees of the employer or group of employers that are eligible for
group health benefits and nonoccupational disability benefits
through their employer.
(c) Subdivision (a) shall apply only to the following:
(1) An employer developing or projecting an annual workers'
compensation insurance premium, in California, of two hundred fifty
thousand dollars ($250,000) or more, or any employer that paid an
annual workers' compensation insurance premium, in California, of two
hundred fifty thousand dollars ($250,000) in at least one of the
previous three years.
(2) Groups of employers engaged in a workers' compensation safety
group complying with Sections 11656.6 and 11656.7 of the Insurance
Code, and established pursuant to a joint labor management safety
committee or committees, that develops or projects annual workers'
compensation insurance premiums of two million dollars ($2,000,000)
or more.
(3) Employers or groups of employers that are self-insured in
compliance with Section 3700 that would have projected annual workers'
compensation costs that meet the requirements of, and that meet the
other requirements of, paragraph (1) in the case of employers, or
paragraph (2) in the case of groups of employers.
(4) Employers covered by an owner or general contractor provided
wrap-up insurance policy applicable to a single construction site
that develops workers' compensation insurance premiums of two million
dollars ($2,000,000) or more with respect to those employees covered
by that wrap-up insurance policy.
(d) Employers and labor representatives who meet the eligibility
requirements of this section shall be issued a letter by the
administrative director advising each employer and labor
representative that, based upon the review of all documents and
materials submitted as required by the administrative director, each
has met the eligibility requirements of this section.
(e) The premium rate for a policy of insurance issued pursuant to
this section shall not be subject to the requirements of Section
11732 or 11732.5 of the Insurance Code.
(f) No employer may establish or continue a program established
under this section until it has provided the administrative director
with all of the following:
(1) Upon its original application and whenever it is renegotiated
thereafter, a copy of the collective bargaining agreement and the
approximate number of employees who will be covered thereby.
(2) Upon its original application and annually thereafter, a valid
and active license where that license is required by law as a
condition of doing business in the state within the industries set
forth in subdivision (a) of Section 3201.5.
(3) Upon its original application and annually thereafter, a
statement signed under penalty of perjury, that no action has been
taken by any administrative agency or court of the United States to
invalidate the collective bargaining agreement.
(4) The name, address, and telephone number of the contact person
of the employer.
(5) Any other information that the administrative director deems
necessary to further the purposes of this section.
(g) No collective bargaining representative may establish or
continue to participate in a program established under this section
unless all of the following requirements are met:
(1) Upon its original application and annually thereafter, it has
provided to the administrative director a copy of its most recent
LM-2 or LM-3 filing with the United States Department of Labor, along
with a statement, signed under penalty of perjury, that the document
is a true and correct copy.
(2) It has provided to the administrative director the name,
address, and telephone number of the contact person or persons of the
collective bargaining representative or representatives.
(h) Commencing July 1, 1995, and annually thereafter, the Division
of Workers' Compensation shall report to the Director of the
Department of Industrial Relations the number of collective
bargaining agreements received and the number of employees covered by
these agreements.
(i) By June 30, 1996, and annually thereafter, the Administrative
Director of the Division of Workers' Compensation shall prepare and
notify Members of the Legislature that a report authorized by this
section is available upon request. The report based upon aggregate
data shall include the following:
(1) Person hours and payroll covered by agreements filed.
(2) The number of claims filed.
(3) The average cost per claim shall be reported by cost
components whenever practicable.
(4) The number of litigated claims, including the number of claims
submitted to mediation, the appeals board, or the court of appeal.
(5) The number of contested claims resolved prior to arbitration.
(6) The projected incurred costs and actual costs of claims.
(7) Safety history.
(8) The number of workers participating in vocational
rehabilitation.
(9) The number of workers participating in light-duty programs.
The division shall have the authority to require those employers
and groups of employers listed in subdivision (c) to provide the data
listed above.
(j) The data obtained by the administrative director pursuant to
this section shall be confidential and not subject to public
disclosure under any law of this state. However, the Division of
Workers' Compensation shall create derivative works pursuant to
subdivisions (h) and (i) based on the collective bargaining
agreements and data. Those derivative works shall not be
confidential, but shall be public. On a monthly basis the
administrative director shall make available an updated list of
employers and unions entering into collective bargaining agreements
containing provisions authorized by this section.
3201.7. (a) Except as provided in subdivision (b), the Department
of Industrial Relations and the courts of this state shall recognize
as valid and binding any labor-management agreement that meets all of
the following requirements:
(1) The labor-management agreement has been negotiated separate
and apart from any collective bargaining agreement covering affected
employees.
(2) The labor-management agreement is restricted to the
establishment of the terms and conditions necessary to implement this
section.
(3) The labor-management agreement has been negotiated in
accordance with the authorization of the administrative director
pursuant to subdivision (d), between an employer or groups of
employers and a union that is the recognized or certified exclusive
bargaining representative that establishes any of the following:
(A) An alternative dispute resolution system governing disputes
between employees and employers or their insurers that supplements or
replaces all or part of those dispute resolution processes contained
in this division, including, but not limited to, mediation and
arbitration. Any system of arbitration shall provide that the
decision of the arbiter or board of arbitration is subject to review
by the appeals board in the same manner as provided for
reconsideration of a final order, decision, or award made and filed
by a workers' compensation administrative law judge pursuant to the
procedures set forth in Article 1 (commencing with Section 5900) of
Chapter 7 of Part 4 of Division 4, and the court of appeals pursuant
to the procedures set forth in Article 2 (commencing with Section
5950) of Chapter 7 of Part 4 of Division 4, governing orders,
decisions, or awards of the appeals board. The findings of fact,
award, order, or decision of the arbitrator shall have the same force
and effect as an award, order, or decision of a workers'
compensation administrative law judge. Any provision for arbitration
established pursuant to this section shall not be subject to Sections
5270, 5270.5, 5271, 5272, 5273, 5275, and 5277.
(B) The use of an agreed list of providers of medical treatment
that may be the exclusive source of all medical treatment provided
under this division.
(C) The use of an agreed, limited list of qualified medical
evaluators and agreed medical evaluators that may be the exclusive
source of qualified medical evaluators and agreed medical evaluators
under this division.
(D) Joint labor management safety committees.
(E) A light-duty, modified job, or return-to-work program.
(F) A vocational rehabilitation or retraining program utilizing an
agreed list of providers of rehabilitation services that may be the
exclusive source of providers of rehabilitation services under this
division.
(b) (1) Nothing in this section shall allow a labor-management
agreement that diminishes the entitlement of an employee to
compensation payments for total or partial disability, temporary
disability, vocational rehabilitation, or medical treatment fully
paid by the employer as otherwise provided in this division; nor
shall any agreement authorized by this section deny to any employee
the right to representation by counsel at all stages during the
alternative dispute resolution process. The portion of any agreement
that violates this paragraph shall be declared null and void.
(2) The parties may negotiate any aspect of the delivery of
medical benefits and the delivery of disability compensation to
employees of the employer or group of employers that are eligible for
group health benefits and nonoccupational disability benefits
through their employer.
(c) Subdivision (a) shall apply only to the following:
(1) An employer developing or projecting an annual workers'
compensation insurance premium, in California, of fifty thousand
dollars ($50,000) or more, and employing at least 50 employees, or
any employer that paid an annual workers' compensation insurance
premium, in California, of fifty thousand dollars ($50,000), and
employing at least 50 employees in at least one of the previous three
years.
(2) Groups of employers engaged in a workers' compensation safety
group complying with Sections 11656.6 and 11656.7 of the Insurance
Code, and established pursuant to a joint labor management safety
committee or committees, that develops or projects annual workers'
compensation insurance premiums of five hundred thousand dollars
($500,000) or more.
(3) Employers or groups of employers, including cities and
counties, that are self-insured in compliance with Section 3700 that
would have projected annual workers' compensation costs that meet the
requirements of, and that meet the other requirements of, paragraph
(1) in the case of employers, or paragraph (2) in the case of groups
of employers.
(d) Any recognized or certified exclusive bargaining
representative in an industry not covered by Section 3201.5, may file
a petition with the administrative director seeking permission to
negotiate with an employer or group of employers to enter into a
labor-management agreement pursuant to this section. The petition
shall specify the bargaining unit or units to be included, the names
of the employers or groups of employers, and shall be accompanied by
proof of the labor union's status as the exclusive bargaining
representative. The current collective bargaining agreement or
agreements shall be attached to the petition. The petition shall be
in the form designated by the administrative director. Upon receipt
of the petition, the administrative director shall promptly verify
the petitioner's status as the exclusive bargaining representative.
If the petition satisfies the requirements set forth in this
subdivision, the administrative director shall issue a letter
advising each employer and labor representative of their eligibility
to enter into negotiations, for a period not to exceed one year, for
the purpose of reaching agreement on a labor-management agreement
pursuant to this section. The parties may jointly request, and shall
be granted, by the administrative director, an additional one-year
period to negotiate an agreement.
(e) No employer may establish or continue a program established
under this section until it has provided the administrative director
with all of the following:
(1) Upon its original application and whenever it is renegotiated
thereafter, a copy of the labor-management agreement and the
approximate number of employees who will be covered thereby.
(2) Upon its original application and annually thereafter, a
statement signed under penalty of perjury, that no action has been
taken by any administrative agency or court of the United States to
invalidate the labor-management agreement.
(3) The name, address, and telephone number of the contact person
of the employer.
(4) Any other information that the administrative director deems
necessary to further the purposes of this section.
(f) No collective bargaining representative may establish or
continue to participate in a program established under this section
unless all of the following requirements are met:
(1) Upon its original application and annually thereafter, it has
provided to the administrative director a copy of its most recent
LM-2 or LM-3 filing with the United States Department of Labor, where
such filing is required by law, along with a statement, signed under
penalty of perjury, that the document is a true and correct copy.
(2) It has provided to the administrative director the name,
address, and telephone number of the contact person or persons of the
collective bargaining representative or representatives.
(g) Commencing July 1, 2005, and annually thereafter, the Division
of Workers' Compensation shall report to the Director of Industrial
Relations the number of labor-management agreements received and the
number of employees covered by these agreements.
(h) By June 30, 2006, and annually thereafter, the administrative
director shall prepare and notify Members of the Legislature that a
report authorized by this section is available upon request. The
report based upon aggregate data shall include the following:
(1) Person hours and payroll covered by agreements filed.
(2) The number of claims filed.
(3) The average cost per claim shall be reported by cost
components whenever practicable.
(4) The number of litigated claims, including the number of claims
submitted to mediation, the appeals board, or the court of appeal.
(5) The number of contested claims resolved prior to arbitration.
(6) The projected incurred costs and actual costs of claims.
(7) Safety history.
(8) The number of workers participating in vocational
rehabilitation.
(9) The number of workers participating in light-duty programs.
(10) Overall worker satisfaction.
The division shall have the authority to require employers and
groups of employers participating in labor-management agreements
pursuant to this section to provide the data listed above.
(i) The data obtained by the administrative director pursuant to
this section shall be confidential and not subject to public
disclosure under any law of this state. However, the Division of
Workers' Compensation shall create derivative works pursuant to
subdivisions (f) and (g) based on the labor-management agreements and
data. Those derivative works shall not be confidential, but shall be
public. On a monthly basis, the administrative director shall make
available an updated list of employers and unions entering into
labor-management agreements authorized by this section.
3201.81. In the horse racing industry, the organization certified
by the California Horse Racing Board to represent the majority of
licensed jockeys pursuant to subdivision (b) of Section 19612.9 of
the Business and Professions Code is the labor organization
authorized to negotiate the collective bargaining agreement
establishing an alternative dispute resolution system for licensed
jockeys pursuant to Section 3201.7.
3201.9. (a) On or before June 30, 2004, and biannually thereafter,
the report required in subdivision (i) of Section 3201.5 and
subdivision (h) of Section 3201.7 shall include updated loss
experience for all employers and groups of employers participating in
a program established under those sections. The report shall include
updated data on each item set forth in subdivision (i) of Section
3201.5 and subdivision (h) of Section 3201.7 for the previous year
for injuries in 2003 and beyond. Updates for each program shall be
done for the original program year and for subsequent years. The
insurers, the Department of Insurance, and the rating organization
designated by the Insurance Commissioner pursuant to Article 3
(commencing with Section 11750) of Chapter 3 of Part 3 of Division 2
of the Insurance Code, shall provide the administrative director with
any information that the administrative director determines is
reasonably necessary to conduct the study.
(b) Commencing on and after June 30, 2004, the Insurance
Commissioner, or the commissioner's designee, shall prepare for
inclusion in the report required in subdivision (i) of Section 3201.5
and subdivision (h) of Section 3201.7 a review of both of the
following:
(1) The adequacy of rates charged for these programs, including
the impact of scheduled credits and debits.
(2) The comparative results for these programs with other programs
not subject to Section 3201.5 or Section 3201.7.
(c) Upon completion of the report, the administrative director
shall report the findings to the Legislature, the Department of
Insurance, the designated rating organization, and the programs and
insurers participating in the study.
(d) The data obtained by the administrative director pursuant to
this section shall be confidential and not subject to public
disclosure under any law of this state.
3202. This division and Division 5 (commencing with Section 6300)
shall be liberally construed by the courts with the purpose of
extending their benefits for the protection of persons injured in the
course of their employment.
3202.5. All parties and lien claimants shall meet the evidentiary
burden of proof on all issues by a preponderance of the evidence in
order that all parties are considered equal before the law.
"Preponderance of the evidence" means that evidence that, when
weighed with that opposed to it, has more convincing force and the
greater probability of truth. When weighing the evidence, the test is
not the relative number of witnesses, but the relative convincing
force of the evidence.
3203. This division and Division 5 (commencing with Section 6300)
do not apply to employers or employments which, according to law, are
so engaged in interstate commerce as not to be subject to the
legislative power of the state, nor to employees injured while they
are so engaged, except in so far as these divisions are permitted to
apply under the Constitution or laws of the United States.
3204. Unless the context otherwise requires, the definitions
hereinafter set forth in this chapter shall govern the construction
and meaning of the terms and phrases used in this division.
3205. "Division" means the Division of Workers' Compensation.
3205.5. "Appeals board" means the Workers' Compensation Appeals
Board of the Division of Workers' Compensation.
3206. "Administrative director" means the Director of the Division
of Workers' Compensation.
3207. "Compensation" means compensation under this division and
includes every benefit or payment conferred by this division upon an
injured employee, or in the event of his or her death, upon his or
her dependents, without regard to negligence.
3208. "Injury" includes any injury or disease arising out of the
employment, including injuries to artificial members, dentures,
hearing aids, eyeglasses and medical braces of all types; provided,
however, that eyeglasses and hearing aids will not be replaced,
repaired, or otherwise compensated for, unless injury to them is
incident to an injury causing disability.
3208.05. (a) "Injury" includes a reaction to or a side effect
arising from health care provided by an employer to a health care
worker, which health care is intended to prevent the development or
manifestation of any bloodborne disease, illness, syndrome, or
condition recognized as occupationally incurred by Cal-OSHA, the
Federal Centers for Disease Control, or other appropriate
governmental entities. This section shall apply only to preventive
health care that the employer provided to a health care worker under
the following circumstances: (1) prior to an exposure because of risk
of occupational exposure to such a disease, illness, syndrome, or
condition, or (2) where the preventive care is provided as a
consequence of a documented exposure to blood or bodily fluid
containing blood that arose out of and in the course of employment.
Such a disease, illness, syndrome, or condition includes, but is not
limited to, hepatitis, and the human immunodeficiency virus. Such
preventive health care, and any disability indemnity or other
benefits required as a result of the preventive health care provided
by the employer, shall be compensable under the workers' compensation
system. The employer may require the health care worker to document
that the employer provided the preventive health care and that the
reaction or side effects arising from the preventive health care
resulted in lost work time, health care costs, or other costs
normally compensable under workers' compensation.
(b) The benefits of this section shall not be provided to a health
care worker for a reaction to or side effect from health care
intended to prevent the development of the human immunodeficiency
virus if the worker claims a work-related exposure and if the worker
tests positive within 48 hours of that exposure to a test to
determine the presence of the human immunodeficiency virus.
(c) For purposes of this section, "health care worker" includes
any person who is an employee of a provider of health care as defined
in subdivision (d) of Section 56.05 of the Civil Code, and who is
exposed to human blood or other bodily fluids contaminated with blood
in the course of employment, including, but not limited to, a
registered nurse, a licensed vocational nurse, a certified nurse
aide, clinical laboratory technologist, dental hygienist, physician,
janitor, and housekeeping worker. "Health care worker" does not
include an employee who provides employee health services for an
employer primarily engaged in a business other than providing health
care.
3208.1. An injury may be either: (a) "specific," occurring as the
result of one incident or exposure which causes disability or need
for medical treatment; or (b) "cumulative," occurring as repetitive
mentally or physically traumatic activities extending over a period
of time, the combined effect of which causes any disability or need
for medical treatment. The date of a cumulative injury shall be the
date determined under Section 5412.
3208.2. When disability, need for medical treatment, or death
results from the combined effects of two or more injuries, either
specific, cumulative, or both, all questions of fact and law shall be
separately determined with respect to each such injury, including,
but not limited to, the apportionment between such injuries of
liability for disability benefits, the cost of medical treatment, and
any death benefit.
3208.3. (a) A psychiatric injury shall be compensable if it is a
mental disorder which causes disability or need for medical
treatment, and it is diagnosed pursuant to procedures promulgated
under paragraph (4) of subdivision (j) of Section 139.2 or, until
these procedures are promulgated, it is diagnosed using the
terminology and criteria of the American Psychiatric Association's
Diagnostic and Statistical Manual of Mental Disorders, Third
Edition-Revised, or the terminology and diagnostic criteria of other
psychiatric diagnostic manuals generally approved and accepted
nationally by practitioners in the field of psychiatric medicine.
(b) (1) In order to establish that a psychiatric injury is
compensable, an employee shall demonstrate by a preponderance of the
evidence that actual events of employment were predominant as to all
causes combined of the psychiatric injury.
(2) Notwithstanding paragraph (1), in the case of employees whose
injuries resulted from being a victim of a violent act or from direct
exposure to a significant violent act, the employee shall be
required to demonstrate by a preponderance of the evidence that
actual events of employment were a substantial cause of the injury.
(3) For the purposes of this section, "substantial cause" means at
least 35 to 40 percent of the causation from all sources combined.
(c) It is the intent of the Legislature in enacting this section
to establish a new and higher threshold of compensability for
psychiatric injury under this division.
(d) Notwithstanding any other provision of this division, no
compensation shall be paid pursuant to this division for a
psychiatric injury related to a claim against an employer unless the
employee has been employed by that employer for at least six months.
The six months of employment need not be continuous. This subdivision
shall not apply if the psychiatric injury is caused by a sudden and
extraordinary employment condition. Nothing in this subdivision shall
be construed to authorize an employee, or his or her dependents, to
bring an action at law or equity for damages against the employer for
a psychiatric injury, where those rights would not exist pursuant to
the exclusive remedy doctrine set forth in Section 3602 in the
absence of the amendment of this section by the act adding this
subdivision.
(e) Where the claim for compensation is filed after notice of
termination of employment or layoff, including voluntary layoff, and
the claim is for an injury occurring prior to the time of notice of
termination or layoff, no compensation shall be paid unless the
employee demonstrates by a preponderance of the evidence that actual
events of employment were predominant as to all causes combined of
the psychiatric injury and one or more of the following conditions
exist:
(1) Sudden and extraordinary events of employment were the cause
of the injury.
(2) The employer has notice of the psychiatric injury under
Chapter 2 (commencing with Section 5400) prior to the notice of
termination or layoff.
(3) The employee's medical records existing prior to notice of
termination or layoff contain evidence of treatment of the
psychiatric injury.
(4) Upon a finding of sexual or racial harassment by any trier of
fact, whether contractual, administrative, regulatory, or judicial.
(5) Evidence that the date of injury, as specified in Section 5411
or 5412, is subsequent to the date of the notice of termination or
layoff, but prior to the effective date of the termination or layoff.
(f) For purposes of this section, an employee provided notice
pursuant to Sections 44948.5, 44949, 44951, 44955, 44955.6, 72411,
87740, and 87743 of the Education Code shall be considered to have
been provided a notice of termination or layoff only upon a district'
s final decision not to reemploy that person.
(g) A notice of termination or layoff that is not followed within
60 days by that termination or layoff shall not be subject to the
provisions of this subdivision, and this subdivision shall not apply
until receipt of a later notice of termination or layoff. The
issuance of frequent notices of termination or layoff to an employee
shall be considered a bad faith personnel action and shall make this
subdivision inapplicable to the employee.
(h) No compensation under this division shall be paid by an
employer for a psychiatric injury if the injury was substantially
caused by a lawful, nondiscriminatory, good faith personnel action.
The burden of proof shall rest with the party asserting the issue.
(i) When a psychiatric injury claim is filed against an employer,
and an application for adjudication of claim is filed by an employer
or employee, the division shall provide the employer with information
concerning psychiatric injury prevention programs.
(j) An employee who is an inmate, as defined in subdivision (e) of
Section 3351, or his or her family on behalf of an inmate, shall not
be entitled to compensation for a psychiatric injury except as
provided in subdivision (d) of Section 3370.
3208.4. In any proceeding under this division involving an injury
arising out of alleged conduct that constitutes sexual harassment,
sexual assault, or sexual battery, any party seeking discovery
concerning sexual conduct of the applicant with any person other than
the defendant, whether consensual or nonconsensual or prior or
subsequent to the alleged act complained of, shall establish specific
facts showing good cause for that discovery on a noticed motion to
the appeals board. The motion shall not be made or considered at an
ex parte hearing.
The procedures set forth in Section 783 of the Evidence Code shall
be followed if evidence of sexual conduct of the applicant is
offered to attack his or her credibility. Opinion evidence, evidence
of reputation, and evidence of specific instances of sexual conduct
of the applicant with any person other than the defendant, or any of
such evidence, is not admissible by the defendant to prove consent by
or the absence of injury to the applicant, unless the injury alleged
by the applicant is in the nature of loss of consortium.
3209. "Damages" means the recovery allowed in an action at law as
contrasted with compensation.
3209.3. (a) "Physician" includes physicians and surgeons holding an
M.D. or D.O. degree, psychologists, acupuncturists, optometrists,
dentists, podiatrists, and chiropractic practitioners licensed by
California state law and within the scope of their practice as
defined by California state law.
(b) "Psychologist" means a licensed psychologist with a doctoral
degree in psychology, or a doctoral degree deemed equivalent for
licensure by the Board of Psychology pursuant to Section 2914 of the
Business and Professions Code, and who either has at least two years
of clinical experience in a recognized health setting or has met the
standards of the National Register of the Health Service Providers in
Psychology.
(c) When treatment or evaluation for an injury is provided by a
psychologist, provision shall be made for appropriate medical
collaboration when requested by the employer or the insurer.
(d) "Acupuncturist" means a person who holds an acupuncturist's
certificate issued pursuant to Chapter 12 (commencing with Section
4925) of Division 2 of the Business and Professions Code.
(e) Nothing in this section shall be construed to authorize
acupuncturists to determine disability for the purposes of Article 3
(commencing with Section 4650) of Chapter 2 of Part 2, or under
Section 2708 of the Unemployment Insurance Code.
3209.4. The inclusion of optometrists in Section 3209.3 does not
imply any right or entitle any optometrist to represent, advertise,
or hold himself out as a physician.
3209.5. Medical, surgical, and hospital treatment, including
nursing, medicines, medical and surgical supplies, crutches, and
apparatus, includes but is not limited to services and supplies by
physical therapists, chiropractic practitioners, and acupuncturists,
as licensed by California state law and within the scope of their
practice as defined by law.
3209.6. The inclusion of chiropractors in Sections 3209.3 and
3209.5 does not imply any right or entitle any chiropractor to
represent, advertise, or hold himself out as a physician.
3209.7. Treatment of injuries at the expense of the employer may
also include, either in addition to or in place of medical, surgical,
and hospital services, as specified in Section 3209.5, any other
form of therapy, treatment, or healing practice agreed upon
voluntarily in writing, between the employee and his employer. Such
agreement may be entered into at any time after employment and shall
be in a form approved by the Department of Industrial Relations, and
shall include at least the following items:
(a) A description of the form of healing practice intended to be
relied upon and designation of individuals and facilities qualified
to administer it.
(b) The employee shall not by entering into such an agreement or
by selecting such therapy, treatment or healing practice, waive any
rights conferred upon him by law, or forfeit any benefits to which he
might otherwise be entitled.
(c) The employer and the employee shall each reserve the right to
terminate such agreement upon seven days written notice to the other
party.
No liability shall be incurred by the employer under the
provisions of this section, except as provided for in Chapter 3
(commencing with Section 3600), of this part.
3209.8. Treatment reasonably required to cure or relieve from the
effects of an injury shall include the services of marriage and
family therapists and clinical social workers licensed by California
state law and within the scope of their practice as defined by
California state law if the injured person is referred to the
marriage and family therapist or the clinical social worker by a
licensed physician and surgeon, with the approval of the employer,
for treatment of a condition arising out of the injury. Nothing in
this section shall be construed to authorize marriage and family
therapists or clinical social workers to determine disability for the
purposes of Article 3 (commencing with Section 4650) of Chapter 2 of
Part 2. The requirement of this section that the employer approve
the referral by a licensed physician or surgeon shall not be
construed to preclude reimbursement for self-procured treatment,
found by the appeals board to be otherwise compensable pursuant to
this division, where the employer has refused to authorize any
treatment for the condition arising from the injury treated by the
marriage and family therapist or clinical social worker.
3209.9. The inclusion of acupuncturists in Section 3209.3 does not
imply any right or entitle any acupuncturist to represent, advertise,
or hold himself or herself out as a physician or surgeon holding an
M.D. or D.O. degree.
3209.10. (a) Medical treatment of a work-related injury required to
cure or relieve the effects of the injury may be provided by a state
licensed physician assistant or nurse practitioner, acting under the
review or supervision of a physician and surgeon pursuant to
standardized procedures or protocols within their lawfully authorized
scope of practice. The reviewing or supervising physician and
surgeon of the physician assistant or nurse practitioner shall be
deemed to be the treating physician. For the purposes of this
section, "medical treatment" includes the authority of the nurse
practitioner or physician assistant to authorize the patient to
receive time off from work for a period not to exceed three calendar
days if that authority is included in a standardized procedure or
protocol approved by the supervising physician. The nurse
practitioner or physician assistant may cosign the Doctor's First
Report of Occupational Injury or Illness. The treating physician
shall make any determination of temporary disability and shall sign
the report.
(b) The provision of subdivision (a) that requires the cosignature
of the treating physician applies to this section only and it is not
the intent of the Legislature that the requirement apply to any
other section of law or to any other statute or regulation. Nothing
in this section implies that a nurse practitioner or physician
assistant is a physician as defined in Section 3209.3.
3210. "Person" includes an individual, firm, voluntary association,
or a public, quasi public, or private corporation.
3211. "Insurer" includes the State Compensation Insurance Fund and
any private company, corporation, mutual association, reciprocal or
interinsurance exchange authorized under the laws of this State to
insure employers against liability for compensation and any employer
to whom a certificate of consent to self-insure has been issued.
3211.5. For purposes of this division, whenever the term
"firefighter," "firefighting member," and "member of a fire
department" is used, the term shall include, but shall not be limited
to, unless the context expressly provides otherwise, a person
engaged in providing firefighting services who is an apprentice,
volunteer, or employee on a partly paid or fully paid basis.
3211.9. "Disaster council" means a public agency established by
ordinance which is empowered to register and direct the activities of
disaster service workers within the area of the county, city, city
and county, or any part thereof, and is thus, because of such
registration and direction, acting as an instrumentality of the state
in aid of the carrying out of the general governmental functions and
policy of the state.
3211.91. "Accredited disaster council" means a disaster council
that is certified by the California Emergency Management Agency as
conforming with the rules and regulations established by the office
pursuant to Article 10 (commencing with Section 8610) of Chapter 7 of
Division 1 of Title 2 of the Government Code. A disaster council
remains accredited only while the certification of the California
Emergency Management Agency is in effect and is not revoked.
3211.92. (a) "Disaster service worker" means any natural person who
is registered with an accredited disaster council or a state agency
for the purpose of engaging in disaster service pursuant to the
California Emergency Services Act without pay or other consideration.
(b) "Disaster service worker" includes public employees performing
disaster work that is outside the course and scope of their regular
employment without pay and also includes any unregistered person
impressed into service during a state of war emergency, a state of
emergency, or a local emergency by a person having authority to
command the aid of citizens in the execution of his or her duties.
(c) Persons registered with a disaster council at the time that
council becomes accredited need not reregister in order to be
entitled to the benefits provided by Chapter 10 (commencing with
Section 4351).
(d) "Disaster service worker" does not include any member
registered as an active firefighting member of any regularly
organized volunteer fire department, having official recognition, and
full or partial support of the county, city, or district in which
the fire department is located.
3211.93. "Disaster service" means all activities authorized by and
carried on pursuant to the California Emergency Services Act,
including training necessary or proper to engage in such activities.
3211.93a. "Disaster service" does not include any activities or
functions performed by a person if the accredited disaster council
with which that person is registered receives a fee or other
compensation for the performance of those activities or functions by
that person.
3212. In the case of members of a sheriff's office or the
California Highway Patrol, district attorney's staff of inspectors
and investigators or of police or fire departments of cities,
counties, cities and counties, districts or other public or municipal
corporations or political subdivisions, whether those members are
volunteer, partly paid, or fully paid, and in the case of active
firefighting members of the Department of Forestry and Fire
Protection whose duties require firefighting or of any county
forestry or firefighting department or unit, whether voluntary, fully
paid, or partly paid, and in the case of members of the warden
service of the Wildlife Protection Branch of the Department of Fish
and Game whose principal duties consist of active law enforcement
service, excepting those whose principal duties are clerical or
otherwise do not clearly fall within the scope of active law
enforcement service such as stenographers, telephone operators, and
other officeworkers, the term "injury" as used in this act includes
hernia when any part of the hernia develops or manifests itself
during a period while the member is in the service in the office,
staff, division, department, or unit, and in the case of members of
fire departments, except those whose principal duties are clerical,
such as stenographers, telephone operators, and other officeworkers,
and in the case of county forestry or firefighting departments,
except those whose principal duties are clerical, such as
stenographers, telephone operators, and other officeworkers, and in
the case of active firefighting members of the Department of Forestry
and Fire Protection whose duties require firefighting, and in the
case of members of the warden service of the Wildlife Protection
Branch of the Department of Fish and Game whose principal duties
consist of active law enforcement service, excepting those whose
principal duties are clerical or otherwise do not clearly fall within
the scope of active law enforcement service such as stenographers,
telephone operators, and other officeworkers, the term "injury"
includes pneumonia and heart trouble that develops or manifests
itself during a period while the member is in the service of the
office, staff, department, or unit. In the case of regular salaried
county or city and county peace officers, the term "injury" also
includes any hernia that manifests itself or develops during a period
while the officer is in the service. The compensation that is
awarded for the hernia, heart trouble, or pneumonia shall include
full hospital, surgical, medical treatment, disability indemnity, and
death benefits, as provided by the workers' compensation laws of
this state.
The hernia, heart trouble, or pneumonia so developing or
manifesting itself in those cases shall be presumed to arise out of
and in the course of the employment. This presumption is disputable
and may be controverted by other evidence, but unless so
controverted, the appeals board is bound to find in accordance with
it. The presumption shall be extended to a member following
termination of service for a period of three calendar months for each
full year of the requisite service, but not to exceed 60 months in
any circumstance, commencing with the last date actually worked in
the specified capacity.
The hernia, heart trouble, or pneumonia so developing or
manifesting itself in those cases shall in no case be attributed to
any disease existing prior to that development or manifestation.
3212.1. (a) This section applies to all of the following:
(1) Active firefighting members, whether volunteers, partly paid,
or fully paid, of all of the following fire departments:
(A) A fire department of a city, county, city and county,
district, or other public or municipal corporation or political
subdivision.
(B) A fire department of the University of California and the
California State University.
(C) The Department of Forestry and Fire Protection.
(D) A county forestry or firefighting department or unit.
(2) Active firefighting members of a fire department that serves a
United States Department of Defense installation and who are
certified by the Department of Defense as meeting its standards for
firefighters.
(3) Peace officers, as defined in Section 830.1, subdivision (a)
of Section 830.2, and subdivisions (a) and (b) of Section 830.37, of
the Penal Code, who are primarily engaged in active law enforcement
activities.
(4) (A) Fire and rescue services coordinators who work for the
Office of Emergency Services.
(B) For purposes of this paragraph, "fire and rescue services
coordinator" means a coordinator with any of the following job
classifications: coordinator, senior coordinator, or chief
coordinator.
(b) The term "injury," as used in this division, includes cancer,
including leukemia, that develops or manifests itself during a period
in which any member described in subdivision (a) is in the service
of the department or unit, if the member demonstrates that he or she
was exposed, while in the service of the department or unit, to a
known carcinogen as defined by the International Agency for Research
on Cancer, or as defined by the director.
(c) The compensation that is awarded for cancer shall include full
hospital, surgical, medical treatment, disability indemnity, and
death benefits, as provided by this division.
(d) The cancer so developing or manifesting itself in these cases
shall be presumed to arise out of and in the course of the
employment. This presumption is disputable and may be controverted by
evidence that the primary site of the cancer has been established
and that the carcinogen to which the member has demonstrated exposure
is not reasonably linked to the disabling cancer. Unless so
controverted, the appeals board is bound to find in accordance with
the presumption. This presumption shall be extended to a member
following termination of service for a period of three calendar
months for each full year of the requisite service, but not to exceed
120 months in any circumstance, commencing with the last date
actually worked in the specified capacity.
(e) The amendments to this section enacted during the 1999 portion
of the 1999-2000 Regular Session shall be applied to claims for
benefits filed or pending on or after January 1, 1997, including, but
not limited to, claims for benefits filed on or after that date that
have previously been denied, or that are being appealed following
denial.
(f) This section shall be known, and may be cited, as the William
Dallas Jones Cancer Presumption Act of 2010.
3212.2. In the case of officers and employees in the Department of
Corrections having custodial duties, each officer and employee in the
Department of Youth Authority having group supervisory duties, and
each security officer employed at the Atascadero State Hospital, the
term "injury" includes heart trouble which develops or manifests
itself during a period while such officer or employee is in the
service of such department or hospital.
The compensation which is awarded for such heart trouble shall
include full hospital, surgical, medical treatment, disability
indemnity, and death benefits, as provided by the workmen's
compensation laws of this state.
Such heart trouble so developing or manifesting itself in such
cases shall be presumed to arise out of and in the course of the
employment. This presumption is disputable and may be controverted by
other evidence, but unless so controverted, the appeals board is
bound to find in accordance with it. This presumption shall be
extended to a member following termination of service for a period of
three calendar months for each full year of the requisite service,
but not to exceed 60 months in any circumstance, commencing with the
last date actually worked in the specified capacity.
3212.3. In the case of a peace officer who is designated under
subdivision (a) of Section 2250.1 of the Vehicle Code and who has
graduated from an academy certified by the Commission on Peace
Officer Standards and Training, when that officer is employed upon a
regular, full-time salary, the term "injury," as used in this
division, includes heart trouble and pneumonia which develops or
manifests itself during a period while that officer is in the service
of the Department of the California Highway Patrol. The compensation
which is awarded for the heart trouble or pneumonia shall include
full hospital, surgical, medical treatment, disability indemnity, and
death benefits as provided by this division.
The heart trouble or pneumonia so developing or manifesting itself
shall be presumed to arise out of and in the course of the
employment. However, a peace officer of the Department of the
California Highway Patrol, as designated under subdivision (a) of
Section 2250.1 of the Vehicle Code, shall have served five years or
more in that capacity or as a peace officer with the former
California State Police Division, or in both capacities, before the
presumption shall arise as to the compensability of heart trouble so
developing or manifesting itself. This presumption is disputable and
may be controverted by other evidence, but unless so controverted,
the appeals board is bound to find in accordance with it. This
presumption shall be extended to a member following termination of
service for a period of three calendar months for each full year of
the requisite service, but not to exceed 60 months in any
circumstance, commencing with the last date actually worked in the
specified capacity.
The heart trouble or pneumonia so developing or manifesting itself
in these cases shall in no case be attributed to any disease
existing prior to that development or manifestation.
The term "peace officers" as used herein shall be limited to those
employees of the Department of the California Highway Patrol who are
designated as peace officers under subdivision (a) of Section 2250.1
of the Vehicle Code.
3212.4. In the case of a member of a University of California fire
department located at a campus or other facility administered by the
Regents of University of California, when any such member is employed
by such a department upon a regular, full-time salary, on a
nonprobationary basis, the term "injury" as used in this division
includes heart trouble, hernia, or pneumonia which develops or
manifests itself during a period while such member is in the service
of such a University of California fire department. The compensation
which is awarded for such heart trouble, hernia, or pneumonia shall
include full hospital, surgical, medical treatment, disability
indemnity, and death benefits as provided by the provisions of this
division.
Such heart trouble, hernia, or pneumonia so developing or
manifesting itself shall be presumed to arise out of and in the
course of the employment. This presumption is disputable and may be
controverted by other evidence, but unless so controverted, the
appeals board is bound to find in accordance with it. This
presumption shall be extended to a member following termination of
service for a period of three calendar months for each full year of
the requisite service, but not to exceed 60 months in any
circumstance, commencing with the last date actually worked in the
specified capacity.
Such heart trouble, hernia, or pneumonia so developing or
manifesting itself in such cases shall in no case be attributed to
any disease existing prior to such development or manifestation.
The term "member" as used herein shall exclude those employees of
a University of California fire department whose principal duties are
those of a telephone operator, clerk, stenographer, machinist,
mechanic, or otherwise, and whose functions do not clearly fall
within the scope of active firefighting and prevention service.
3212.5. In the case of a member of a police department of a city or
municipality, or a member of the State Highway Patrol, when any such
member is employed upon a regular, full-time salary, and in the case
of a sheriff or deputy sheriff, or an inspector or investigator in a
district attorney's office of any county, employed upon a regular,
full-time salary, the term "injury" as used in this division includes
heart trouble and pneumonia which develops or manifests itself
during a period while such member, sheriff, or deputy sheriff,
inspector or investigator is in the service of the police department,
the State Highway Patrol, the sheriff's office or the district
attorney's office, as the case may be. The compensation which is
awarded for such heart trouble or pneumonia shall include full
hospital, surgical, medical treatment, disability indemnity, and
death benefits as provided by the provisions of this division.
Such heart trouble or pneumonia so developing or manifesting
itself shall be presumed to arise out of and in the course of the
employment; provided, however, that the member of the police
department, State Highway Patrol, the sheriff or deputy sheriff, or
an inspector or investigator in a district attorney's office of any
county shall have served five years or more in such capacity before
the presumption shall arise as to the compensability of heart trouble
so developing or manifesting itself. This presumption is disputable
and may be controverted by other evidence, but unless so
controverted, the appeals board is bound to find in accordance with
it. This presumption shall be extended to a member following
termination of service for a period of three calendar months for each
full year of the requisite service, but not to exceed 60 months in
any circumstance, commencing with the last date actually worked in
the specified capacity.
Such heart trouble or pneumonia so developing or manifesting
itself in such cases shall in no case be attributed to any disease
existing prior to such development or manifestation.
The term "members" as used herein shall be limited to those
employees of police departments, the California Highway Patrol and
sheriffs' departments and inspectors and investigators of a district
attorney's office who are defined as peace officers in Section 830.1,
830.2, or 830.3 of the Penal Code.
3212.6. In the case of a member of a police department of a city or
county, or a member of the sheriff's office of a county, or a member
of the California Highway Patrol, or an inspector or investigator in
a district attorney's office of any county whose principal duties
consist of active law enforcement service, or a prison or jail guard
or correctional officer who is employed by a public agency, when that
person is employed upon a regular, full-time salary, or in the case
of members of fire departments of any city, county, or district, or
other public or municipal corporations or political subdivisions,
when those members are employed on a regular fully paid basis, and in
the case of active firefighting members of the Department of
Forestry and Fire Protection whose duties require firefighting and
first-aid response services, or of any county forestry or
firefighting department or unit, where those members are employed on
a regular fully paid basis, excepting those whose principal duties
are clerical or otherwise do not clearly fall within the scope of
active law enforcement, firefighting, or emergency first-aid response
service such as stenographers, telephone operators, and other
officeworkers, the term "injury" includes tuberculosis that develops
or manifests itself during a period while that member is in the
service of that department or office. The compensation that is
awarded for the tuberculosis shall include full hospital, surgical,
medical treatment, disability indemnity, and death benefits as
provided by the provisions of this division.
The tuberculosis so developing or manifesting itself shall be
presumed to arise out of and in the course of the employment. This
presumption is disputable and may be controverted by other evidence,
but unless so controverted, the appeals board is bound to find in
accordance with it. This presumption shall be extended to a member
following termination of service for a period of three calendar
months for each full year of the requisite service, but not to exceed
60 months in any circumstance, commencing with the last date
actually worked in the specified capacity.
A public entity may require applicants for employment in
firefighting positions who would be entitled to the benefits granted
by this section to be tested for infection for tuberculosis.
3212.7. In the case of an employee in the Department of Justice
falling within the "state safety" class, when any such individual is
employed under civil service upon a regular, full-time salary, the
term "injury," as used in this division, includes heart trouble or
hernia or pneumonia or tuberculosis which develops or manifests
itself during the period while such individual is in the service of
the Department of Justice. The compensation which is awarded for any
such injury shall include full hospital, surgical, medical treatment,
disability indemnity, and death benefits as provided by the
provisions of this division.
Such heart trouble, hernia, pneumonia, or tuberculosis so
developing or manifesting itself shall be presumed to arise out of
and in the course of the employment. This presumption is disputable
and may be controverted by other evidence but unless so controverted,
the appeals board is bound to find in accordance with it. This
presumption shall be extended to a member following termination of
service for a period of three calendar months for each full year of
the requisite service, but not to exceed 60 months in any
circumstance, commencing with the last date actually worked in the
specified capacity.
Such heart trouble, hernia, pneumonia, or tuberculosis developing
or manifesting itself in such cases shall in no case be attributed to
any disease existing prior to such development or manifestation.
3212.8. (a) In the case of members of a sheriff's office, of police
or fire departments of cities, counties, cities and counties,
districts, or other public or municipal corporations or political
subdivisions, or individuals described in Chapter 4.5 (commencing
with Section 830) of Title 3 of Part 2 of the Penal Code, whether
those persons are volunteer, partly paid, or fully paid, and in the
case of active firefighting members of the Department of Forestry and
Fire Protection, or of any county forestry or firefighting
department or unit, whether voluntary, fully paid, or partly paid,
excepting those whose principal duties are clerical or otherwise do
not clearly fall within the scope of active law enforcement service
or active firefighting services, such as stenographers, telephone
operators, and other office workers, the term "injury" as used in
this division, includes a blood-borne infectious disease or
methicillin-resistant Staphylococcus aureus skin infection when any
part of the blood-borne infectious disease or methicillin-resistant
Staphylococcus aureus skin infection develops or manifests itself
during a period while that person is in the service of that office,
staff, division, department, or unit. The compensation that is
awarded for a blood-borne infectious disease or methicillin-resistant
Staphylococcus aureus skin infection shall include, but not be
limited to, full hospital, surgical, medical treatment, disability
indemnity, and death benefits, as provided by the workers'
compensation laws of this state.
(b) (1) The blood-borne infectious disease or
methicillin-resistant Staphylococcus aureus skin infection so
developing or manifesting itself in those cases shall be presumed to
arise out of and in the course of the employment or service. This
presumption is disputable and may be controverted by other evidence,
but unless so controverted, the appeals board is bound to find in
accordance with it.
(2) The blood-borne infectious disease presumption shall be
extended to a person covered by subdivision (a) following termination
of service for a period of three calendar months for each full year
of service, but not to exceed 60 months in any circumstance,
commencing with the last date actually worked in the specified
capacity.
(3) Notwithstanding paragraph (2), the methicillin-resistant
Staphylococcus aureus skin infection presumption shall be extended to
a person covered by subdivision (a) following termination of service
for a period of 90 days, commencing with the last day actually
worked in the specified capacity.
(c) The blood-borne infectious disease or methicillin-resistant
Staphylococcus aureus skin infection so developing or manifesting
itself in those cases shall in no case be attributed to any disease
or skin infection existing prior to that development or
manifestation.
(d) For the purposes of this section, "blood-borne infectious
disease" means a disease caused by exposure to pathogenic
microorganisms that are present in human blood that can cause disease
in humans, including those pathogenic microorganisms defined as
blood-borne pathogens by the Department of Industrial Relations.
3212.85. (a) This section applies to peace officers described in
Sections 830.1 to 830.5, inclusive, of the Penal Code, and members of
a fire department.
(b) The term "injury," as used in this division, includes illness
or resulting death due to exposure to a biochemical substance that
develops or occurs during a period in which any member described in
subdivision (a) is in the service of the department or unit.
(c) The compensation that is awarded for injury pursuant to this
section shall include full hospital, surgical, medical treatment,
disability indemnity, and death benefits, as provided by this
division.
(d) The injury that develops or manifests itself in these cases
shall be presumed to arise out of, and in the course of, the
employment. This presumption is disputable and may be controverted by
other evidence. U
3200. The Legislature hereby declares its intent that the term
"workmen's compensation" shall hereafter also be known as "workers'
compensation, " and that the "Workmen's Compensation Appeals Board"
shall hereafter be known as the "Workers' Compensation Appeals Board."
In furtherance of this policy it is the desire of the Legislature
that references to the terms "workmen's compensation" and "Workmen's
Compensation Appeals Board" in this code or elsewhere be changed to
"workers' compensation" and "Workers' Compensation Appeals Board"
when such laws are being amended for any purpose. This act is
declaratory and not amendatory of existing law.
3201. This division and Division 5 (commencing with Section 6300)
are an expression of the police power and are intended to make
effective and apply to a complete system of workers' compensation the
provisions of Section 4 of Article XIV of the California
Constitution.
3201.5. (a) Except as provided in subdivisions (b) and (c), the
Department of Industrial Relations and the courts of this state shall
recognize as valid and binding any provision in a collective
bargaining agreement between a private employer or groups of
employers engaged in construction, construction maintenance, or
activities limited to rock, sand, gravel, cement and asphalt
operations, heavy-duty mechanics, surveying, and construction
inspection and a union that is the recognized or certified exclusive
bargaining representative that establishes any of the following:
(1) An alternative dispute resolution system governing disputes
between employees and employers or their insurers that supplements or
replaces all or part of those dispute resolution processes contained
in this division, including, but not limited to, mediation and
arbitration. Any system of arbitration shall provide that the
decision of the arbiter or board of arbitration is subject to review
by the appeals board in the same manner as provided for
reconsideration of a final order, decision, or award made and filed
by a workers' compensation administrative law judge pursuant to the
procedures set forth in Article 1 (commencing with Section 5900) of
Chapter 7 of Part 4 of Division 4, and the court of appeals pursuant
to the procedures set forth in Article 2 (commencing with Section
5950) of Chapter 7 of Part 4 of Division 4, governing orders,
decisions, or awards of the appeals board. The findings of fact,
award, order, or decision of the arbitrator shall have the same force
and effect as an award, order, or decision of a workers'
compensation administrative law judge. Any provision for arbitration
established pursuant to this section shall not be subject to Sections
5270, 5270.5, 5271, 5272, 5273, 5275, and 5277.
(2) The use of an agreed list of providers of medical treatment
that may be the exclusive source of all medical treatment provided
under this division.
(3) The use of an agreed, limited list of qualified medical
evaluators and agreed medical evaluators that may be the exclusive
source of qualified medical evaluators and agreed medical evaluators
under this division.
(4) Joint labor management safety committees.
(5) A light-duty, modified job or return-to-work program.
(6) A vocational rehabilitation or retraining program utilizing an
agreed list of providers of rehabilitation services that may be the
exclusive source of providers of rehabilitation services under this
division.
(b) (1) Nothing in this section shall allow a collective
bargaining agreement that diminishes the entitlement of an employee
to compensation payments for total or partial disability, temporary
disability, vocational rehabilitation, or medical treatment fully
paid by the employer as otherwise provided in this division. The
portion of any agreement that violates this paragraph shall be
declared null and void.
(2) The parties may negotiate any aspect of the delivery of
medical benefits and the delivery of disability compensation to
employees of the employer or group of employers that are eligible for
group health benefits and nonoccupational disability benefits
through their employer.
(c) Subdivision (a) shall apply only to the following:
(1) An employer developing or projecting an annual workers'
compensation insurance premium, in California, of two hundred fifty
thousand dollars ($250,000) or more, or any employer that paid an
annual workers' compensation insurance premium, in California, of two
hundred fifty thousand dollars ($250,000) in at least one of the
previous three years.
(2) Groups of employers engaged in a workers' compensation safety
group complying with Sections 11656.6 and 11656.7 of the Insurance
Code, and established pursuant to a joint labor management safety
committee or committees, that develops or projects annual workers'
compensation insurance premiums of two million dollars ($2,000,000)
or more.
(3) Employers or groups of employers that are self-insured in
compliance with Section 3700 that would have projected annual workers'
compensation costs that meet the requirements of, and that meet the
other requirements of, paragraph (1) in the case of employers, or
paragraph (2) in the case of groups of employers.
(4) Employers covered by an owner or general contractor provided
wrap-up insurance policy applicable to a single construction site
that develops workers' compensation insurance premiums of two million
dollars ($2,000,000) or more with respect to those employees covered
by that wrap-up insurance policy.
(d) Employers and labor representatives who meet the eligibility
requirements of this section shall be issued a letter by the
administrative director advising each employer and labor
representative that, based upon the review of all documents and
materials submitted as required by the administrative director, each
has met the eligibility requirements of this section.
(e) The premium rate for a policy of insurance issued pursuant to
this section shall not be subject to the requirements of Section
11732 or 11732.5 of the Insurance Code.
(f) No employer may establish or continue a program established
under this section until it has provided the administrative director
with all of the following:
(1) Upon its original application and whenever it is renegotiated
thereafter, a copy of the collective bargaining agreement and the
approximate number of employees who will be covered thereby.
(2) Upon its original application and annually thereafter, a valid
and active license where that license is required by law as a
condition of doing business in the state within the industries set
forth in subdivision (a) of Section 3201.5.
(3) Upon its original application and annually thereafter, a
statement signed under penalty of perjury, that no action has been
taken by any administrative agency or court of the United States to
invalidate the collective bargaining agreement.
(4) The name, address, and telephone number of the contact person
of the employer.
(5) Any other information that the administrative director deems
necessary to further the purposes of this section.
(g) No collective bargaining representative may establish or
continue to participate in a program established under this section
unless all of the following requirements are met:
(1) Upon its original application and annually thereafter, it has
provided to the administrative director a copy of its most recent
LM-2 or LM-3 filing with the United States Department of Labor, along
with a statement, signed under penalty of perjury, that the document
is a true and correct copy.
(2) It has provided to the administrative director the name,
address, and telephone number of the contact person or persons of the
collective bargaining representative or representatives.
(h) Commencing July 1, 1995, and annually thereafter, the Division
of Workers' Compensation shall report to the Director of the
Department of Industrial Relations the number of collective
bargaining agreements received and the number of employees covered by
these agreements.
(i) By June 30, 1996, and annually thereafter, the Administrative
Director of the Division of Workers' Compensation shall prepare and
notify Members of the Legislature that a report authorized by this
section is available upon request. The report based upon aggregate
data shall include the following:
(1) Person hours and payroll covered by agreements filed.
(2) The number of claims filed.
(3) The average cost per claim shall be reported by cost
components whenever practicable.
(4) The number of litigated claims, including the number of claims
submitted to mediation, the appeals board, or the court of appeal.
(5) The number of contested claims resolved prior to arbitration.
(6) The projected incurred costs and actual costs of claims.
(7) Safety history.
(8) The number of workers participating in vocational
rehabilitation.
(9) The number of workers participating in light-duty programs.
The division shall have the authority to require those employers
and groups of employers listed in subdivision (c) to provide the data
listed above.
(j) The data obtained by the administrative director pursuant to
this section shall be confidential and not subject to public
disclosure under any law of this state. However, the Division of
Workers' Compensation shall create derivative works pursuant to
subdivisions (h) and (i) based on the collective bargaining
agreements and data. Those derivative works shall not be
confidential, but shall be public. On a monthly basis the
administrative director shall make available an updated list of
employers and unions entering into collective bargaining agreements
containing provisions authorized by this section.
3201.7. (a) Except as provided in subdivision (b), the Department
of Industrial Relations and the courts of this state shall recognize
as valid and binding any labor-management agreement that meets all of
the following requirements:
(1) The labor-management agreement has been negotiated separate
and apart from any collective bargaining agreement covering affected
employees.
(2) The labor-management agreement is restricted to the
establishment of the terms and conditions necessary to implement this
section.
(3) The labor-management agreement has been negotiated in
accordance with the authorization of the administrative director
pursuant to subdivision (d), between an employer or groups of
employers and a union that is the recognized or certified exclusive
bargaining representative that establishes any of the following:
(A) An alternative dispute resolution system governing disputes
between employees and employers or their insurers that supplements or
replaces all or part of those dispute resolution processes contained
in this division, including, but not limited to, mediation and
arbitration. Any system of arbitration shall provide that the
decision of the arbiter or board of arbitration is subject to review
by the appeals board in the same manner as provided for
reconsideration of a final order, decision, or award made and filed
by a workers' compensation administrative law judge pursuant to the
procedures set forth in Article 1 (commencing with Section 5900) of
Chapter 7 of Part 4 of Division 4, and the court of appeals pursuant
to the procedures set forth in Article 2 (commencing with Section
5950) of Chapter 7 of Part 4 of Division 4, governing orders,
decisions, or awards of the appeals board. The findings of fact,
award, order, or decision of the arbitrator shall have the same force
and effect as an award, order, or decision of a workers'
compensation administrative law judge. Any provision for arbitration
established pursuant to this section shall not be subject to Sections
5270, 5270.5, 5271, 5272, 5273, 5275, and 5277.
(B) The use of an agreed list of providers of medical treatment
that may be the exclusive source of all medical treatment provided
under this division.
(C) The use of an agreed, limited list of qualified medical
evaluators and agreed medical evaluators that may be the exclusive
source of qualified medical evaluators and agreed medical evaluators
under this division.
(D) Joint labor management safety committees.
(E) A light-duty, modified job, or return-to-work program.
(F) A vocational rehabilitation or retraining program utilizing an
agreed list of providers of rehabilitation services that may be the
exclusive source of providers of rehabilitation services under this
division.
(b) (1) Nothing in this section shall allow a labor-management
agreement that diminishes the entitlement of an employee to
compensation payments for total or partial disability, temporary
disability, vocational rehabilitation, or medical treatment fully
paid by the employer as otherwise provided in this division; nor
shall any agreement authorized by this section deny to any employee
the right to representation by counsel at all stages during the
alternative dispute resolution process. The portion of any agreement
that violates this paragraph shall be declared null and void.
(2) The parties may negotiate any aspect of the delivery of
medical benefits and the delivery of disability compensation to
employees of the employer or group of employers that are eligible for
group health benefits and nonoccupational disability benefits
through their employer.
(c) Subdivision (a) shall apply only to the following:
(1) An employer developing or projecting an annual workers'
compensation insurance premium, in California, of fifty thousand
dollars ($50,000) or more, and employing at least 50 employees, or
any employer that paid an annual workers' compensation insurance
premium, in California, of fifty thousand dollars ($50,000), and
employing at least 50 employees in at least one of the previous three
years.
(2) Groups of employers engaged in a workers' compensation safety
group complying with Sections 11656.6 and 11656.7 of the Insurance
Code, and established pursuant to a joint labor management safety
committee or committees, that develops or projects annual workers'
compensation insurance premiums of five hundred thousand dollars
($500,000) or more.
(3) Employers or groups of employers, including cities and
counties, that are self-insured in compliance with Section 3700 that
would have projected annual workers' compensation costs that meet the
requirements of, and that meet the other requirements of, paragraph
(1) in the case of employers, or paragraph (2) in the case of groups
of employers.
(d) Any recognized or certified exclusive bargaining
representative in an industry not covered by Section 3201.5, may file
a petition with the administrative director seeking permission to
negotiate with an employer or group of employers to enter into a
labor-management agreement pursuant to this section. The petition
shall specify the bargaining unit or units to be included, the names
of the employers or groups of employers, and shall be accompanied by
proof of the labor union's status as the exclusive bargaining
representative. The current collective bargaining agreement or
agreements shall be attached to the petition. The petition shall be
in the form designated by the administrative director. Upon receipt
of the petition, the administrative director shall promptly verify
the petitioner's status as the exclusive bargaining representative.
If the petition satisfies the requirements set forth in this
subdivision, the administrative director shall issue a letter
advising each employer and labor representative of their eligibility
to enter into negotiations, for a period not to exceed one year, for
the purpose of reaching agreement on a labor-management agreement
pursuant to this section. The parties may jointly request, and shall
be granted, by the administrative director, an additional one-year
period to negotiate an agreement.
(e) No employer may establish or continue a program established
under this section until it has provided the administrative director
with all of the following:
(1) Upon its original application and whenever it is renegotiated
thereafter, a copy of the labor-management agreement and the
approximate number of employees who will be covered thereby.
(2) Upon its original application and annually thereafter, a
statement signed under penalty of perjury, that no action has been
taken by any administrative agency or court of the United States to
invalidate the labor-management agreement.
(3) The name, address, and telephone number of the contact person
of the employer.
(4) Any other information that the administrative director deems
necessary to further the purposes of this section.
(f) No collective bargaining representative may establish or
continue to participate in a program established under this section
unless all of the following requirements are met:
(1) Upon its original application and annually thereafter, it has
provided to the administrative director a copy of its most recent
LM-2 or LM-3 filing with the United States Department of Labor, where
such filing is required by law, along with a statement, signed under
penalty of perjury, that the document is a true and correct copy.
(2) It has provided to the administrative director the name,
address, and telephone number of the contact person or persons of the
collective bargaining representative or representatives.
(g) Commencing July 1, 2005, and annually thereafter, the Division
of Workers' Compensation shall report to the Director of Industrial
Relations the number of labor-management agreements received and the
number of employees covered by these agreements.
(h) By June 30, 2006, and annually thereafter, the administrative
director shall prepare and notify Members of the Legislature that a
report authorized by this section is available upon request. The
report based upon aggregate data shall include the following:
(1) Person hours and payroll covered by agreements filed.
(2) The number of claims filed.
(3) The average cost per claim shall be reported by cost
components whenever practicable.
(4) The number of litigated claims, including the number of claims
submitted to mediation, the appeals board, or the court of appeal.
(5) The number of contested claims resolved prior to arbitration.
(6) The projected incurred costs and actual costs of claims.
(7) Safety history.
(8) The number of workers participating in vocational
rehabilitation.
(9) The number of workers participating in light-duty programs.
(10) Overall worker satisfaction.
The division shall have the authority to require employers and
groups of employers participating in labor-management agreements
pursuant to this section to provide the data listed above.
(i) The data obtained by the administrative director pursuant to
this section shall be confidential and not subject to public
disclosure under any law of this state. However, the Division of
Workers' Compensation shall create derivative works pursuant to
subdivisions (f) and (g) based on the labor-management agreements and
data. Those derivative works shall not be confidential, but shall be
public. On a monthly basis, the administrative director shall make
available an updated list of employers and unions entering into
labor-management agreements authorized by this section.
3201.81. In the horse racing industry, the organization certified
by the California Horse Racing Board to represent the majority of
licensed jockeys pursuant to subdivision (b) of Section 19612.9 of
the Business and Professions Code is the labor organization
authorized to negotiate the collective bargaining agreement
establishing an alternative dispute resolution system for licensed
jockeys pursuant to Section 3201.7.
3201.9. (a) On or before June 30, 2004, and biannually thereafter,
the report required in subdivision (i) of Section 3201.5 and
subdivision (h) of Section 3201.7 shall include updated loss
experience for all employers and groups of employers participating in
a program established under those sections. The report shall include
updated data on each item set forth in subdivision (i) of Section
3201.5 and subdivision (h) of Section 3201.7 for the previous year
for injuries in 2003 and beyond. Updates for each program shall be
done for the original program year and for subsequent years. The
insurers, the Department of Insurance, and the rating organization
designated by the Insurance Commissioner pursuant to Article 3
(commencing with Section 11750) of Chapter 3 of Part 3 of Division 2
of the Insurance Code, shall provide the administrative director with
any information that the administrative director determines is
reasonably necessary to conduct the study.
(b) Commencing on and after June 30, 2004, the Insurance
Commissioner, or the commissioner's designee, shall prepare for
inclusion in the report required in subdivision (i) of Section 3201.5
and subdivision (h) of Section 3201.7 a review of both of the
following:
(1) The adequacy of rates charged for these programs, including
the impact of scheduled credits and debits.
(2) The comparative results for these programs with other programs
not subject to Section 3201.5 or Section 3201.7.
(c) Upon completion of the report, the administrative director
shall report the findings to the Legislature, the Department of
Insurance, the designated rating organization, and the programs and
insurers participating in the study.
(d) The data obtained by the administrative director pursuant to
this section shall be confidential and not subject to public
disclosure under any law of this state.
3202. This division and Division 5 (commencing with Section 6300)
shall be liberally construed by the courts with the purpose of
extending their benefits for the protection of persons injured in the
course of their employment.
3202.5. All parties and lien claimants shall meet the evidentiary
burden of proof on all issues by a preponderance of the evidence in
order that all parties are considered equal before the law.
"Preponderance of the evidence" means that evidence that, when
weighed with that opposed to it, has more convincing force and the
greater probability of truth. When weighing the evidence, the test is
not the relative number of witnesses, but the relative convincing
force of the evidence.
3203. This division and Division 5 (commencing with Section 6300)
do not apply to employers or employments which, according to law, are
so engaged in interstate commerce as not to be subject to the
legislative power of the state, nor to employees injured while they
are so engaged, except in so far as these divisions are permitted to
apply under the Constitution or laws of the United States.
3204. Unless the context otherwise requires, the definitions
hereinafter set forth in this chapter shall govern the construction
and meaning of the terms and phrases used in this division.
3205. "Division" means the Division of Workers' Compensation.
3205.5. "Appeals board" means the Workers' Compensation Appeals
Board of the Division of Workers' Compensation.
3206. "Administrative director" means the Director of the Division
of Workers' Compensation.
3207. "Compensation" means compensation under this division and
includes every benefit or payment conferred by this division upon an
injured employee, or in the event of his or her death, upon his or
her dependents, without regard to negligence.
3208. "Injury" includes any injury or disease arising out of the
employment, including injuries to artificial members, dentures,
hearing aids, eyeglasses and medical braces of all types; provided,
however, that eyeglasses and hearing aids will not be replaced,
repaired, or otherwise compensated for, unless injury to them is
incident to an injury causing disability.
3208.05. (a) "Injury" includes a reaction to or a side effect
arising from health care provided by an employer to a health care
worker, which health care is intended to prevent the development or
manifestation of any bloodborne disease, illness, syndrome, or
condition recognized as occupationally incurred by Cal-OSHA, the
Federal Centers for Disease Control, or other appropriate
governmental entities. This section shall apply only to preventive
health care that the employer provided to a health care worker under
the following circumstances: (1) prior to an exposure because of risk
of occupational exposure to such a disease, illness, syndrome, or
condition, or (2) where the preventive care is provided as a
consequence of a documented exposure to blood or bodily fluid
containing blood that arose out of and in the course of employment.
Such a disease, illness, syndrome, or condition includes, but is not
limited to, hepatitis, and the human immunodeficiency virus. Such
preventive health care, and any disability indemnity or other
benefits required as a result of the preventive health care provided
by the employer, shall be compensable under the workers' compensation
system. The employer may require the health care worker to document
that the employer provided the preventive health care and that the
reaction or side effects arising from the preventive health care
resulted in lost work time, health care costs, or other costs
normally compensable under workers' compensation.
(b) The benefits of this section shall not be provided to a health
care worker for a reaction to or side effect from health care
intended to prevent the development of the human immunodeficiency
virus if the worker claims a work-related exposure and if the worker
tests positive within 48 hours of that exposure to a test to
determine the presence of the human immunodeficiency virus.
(c) For purposes of this section, "health care worker" includes
any person who is an employee of a provider of health care as defined
in subdivision (d) of Section 56.05 of the Civil Code, and who is
exposed to human blood or other bodily fluids contaminated with blood
in the course of employment, including, but not limited to, a
registered nurse, a licensed vocational nurse, a certified nurse
aide, clinical laboratory technologist, dental hygienist, physician,
janitor, and housekeeping worker. "Health care worker" does not
include an employee who provides employee health services for an
employer primarily engaged in a business other than providing health
care.
3208.1. An injury may be either: (a) "specific," occurring as the
result of one incident or exposure which causes disability or need
for medical treatment; or (b) "cumulative," occurring as repetitive
mentally or physically traumatic activities extending over a period
of time, the combined effect of which causes any disability or need
for medical treatment. The date of a cumulative injury shall be the
date determined under Section 5412.
3208.2. When disability, need for medical treatment, or death
results from the combined effects of two or more injuries, either
specific, cumulative, or both, all questions of fact and law shall be
separately determined with respect to each such injury, including,
but not limited to, the apportionment between such injuries of
liability for disability benefits, the cost of medical treatment, and
any death benefit.
3208.3. (a) A psychiatric injury shall be compensable if it is a
mental disorder which causes disability or need for medical
treatment, and it is diagnosed pursuant to procedures promulgated
under paragraph (4) of subdivision (j) of Section 139.2 or, until
these procedures are promulgated, it is diagnosed using the
terminology and criteria of the American Psychiatric Association's
Diagnostic and Statistical Manual of Mental Disorders, Third
Edition-Revised, or the terminology and diagnostic criteria of other
psychiatric diagnostic manuals generally approved and accepted
nationally by practitioners in the field of psychiatric medicine.
(b) (1) In order to establish that a psychiatric injury is
compensable, an employee shall demonstrate by a preponderance of the
evidence that actual events of employment were predominant as to all
causes combined of the psychiatric injury.
(2) Notwithstanding paragraph (1), in the case of employees whose
injuries resulted from being a victim of a violent act or from direct
exposure to a significant violent act, the employee shall be
required to demonstrate by a preponderance of the evidence that
actual events of employment were a substantial cause of the injury.
(3) For the purposes of this section, "substantial cause" means at
least 35 to 40 percent of the causation from all sources combined.
(c) It is the intent of the Legislature in enacting this section
to establish a new and higher threshold of compensability for
psychiatric injury under this division.
(d) Notwithstanding any other provision of this division, no
compensation shall be paid pursuant to this division for a
psychiatric injury related to a claim against an employer unless the
employee has been employed by that employer for at least six months.
The six months of employment need not be continuous. This subdivision
shall not apply if the psychiatric injury is caused by a sudden and
extraordinary employment condition. Nothing in this subdivision shall
be construed to authorize an employee, or his or her dependents, to
bring an action at law or equity for damages against the employer for
a psychiatric injury, where those rights would not exist pursuant to
the exclusive remedy doctrine set forth in Section 3602 in the
absence of the amendment of this section by the act adding this
subdivision.
(e) Where the claim for compensation is filed after notice of
termination of employment or layoff, including voluntary layoff, and
the claim is for an injury occurring prior to the time of notice of
termination or layoff, no compensation shall be paid unless the
employee demonstrates by a preponderance of the evidence that actual
events of employment were predominant as to all causes combined of
the psychiatric injury and one or more of the following conditions
exist:
(1) Sudden and extraordinary events of employment were the cause
of the injury.
(2) The employer has notice of the psychiatric injury under
Chapter 2 (commencing with Section 5400) prior to the notice of
termination or layoff.
(3) The employee's medical records existing prior to notice of
termination or layoff contain evidence of treatment of the
psychiatric injury.
(4) Upon a finding of sexual or racial harassment by any trier of
fact, whether contractual, administrative, regulatory, or judicial.
(5) Evidence that the date of injury, as specified in Section 5411
or 5412, is subsequent to the date of the notice of termination or
layoff, but prior to the effective date of the termination or layoff.
(f) For purposes of this section, an employee provided notice
pursuant to Sections 44948.5, 44949, 44951, 44955, 44955.6, 72411,
87740, and 87743 of the Education Code shall be considered to have
been provided a notice of termination or layoff only upon a district'
s final decision not to reemploy that person.
(g) A notice of termination or layoff that is not followed within
60 days by that termination or layoff shall not be subject to the
provisions of this subdivision, and this subdivision shall not apply
until receipt of a later notice of termination or layoff. The
issuance of frequent notices of termination or layoff to an employee
shall be considered a bad faith personnel action and shall make this
subdivision inapplicable to the employee.
(h) No compensation under this division shall be paid by an
employer for a psychiatric injury if the injury was substantially
caused by a lawful, nondiscriminatory, good faith personnel action.
The burden of proof shall rest with the party asserting the issue.
(i) When a psychiatric injury claim is filed against an employer,
and an application for adjudication of claim is filed by an employer
or employee, the division shall provide the employer with information
concerning psychiatric injury prevention programs.
(j) An employee who is an inmate, as defined in subdivision (e) of
Section 3351, or his or her family on behalf of an inmate, shall not
be entitled to compensation for a psychiatric injury except as
provided in subdivision (d) of Section 3370.
3208.4. In any proceeding under this division involving an injury
arising out of alleged conduct that constitutes sexual harassment,
sexual assault, or sexual battery, any party seeking discovery
concerning sexual conduct of the applicant with any person other than
the defendant, whether consensual or nonconsensual or prior or
subsequent to the alleged act complained of, shall establish specific
facts showing good cause for that discovery on a noticed motion to
the appeals board. The motion shall not be made or considered at an
ex parte hearing.
The procedures set forth in Section 783 of the Evidence Code shall
be followed if evidence of sexual conduct of the applicant is
offered to attack his or her credibility. Opinion evidence, evidence
of reputation, and evidence of specific instances of sexual conduct
of the applicant with any person other than the defendant, or any of
such evidence, is not admissible by the defendant to prove consent by
or the absence of injury to the applicant, unless the injury alleged
by the applicant is in the nature of loss of consortium.
3209. "Damages" means the recovery allowed in an action at law as
contrasted with compensation.
3209.3. (a) "Physician" includes physicians and surgeons holding an
M.D. or D.O. degree, psychologists, acupuncturists, optometrists,
dentists, podiatrists, and chiropractic practitioners licensed by
California state law and within the scope of their practice as
defined by California state law.
(b) "Psychologist" means a licensed psychologist with a doctoral
degree in psychology, or a doctoral degree deemed equivalent for
licensure by the Board of Psychology pursuant to Section 2914 of the
Business and Professions Code, and who either has at least two years
of clinical experience in a recognized health setting or has met the
standards of the National Register of the Health Service Providers in
Psychology.
(c) When treatment or evaluation for an injury is provided by a
psychologist, provision shall be made for appropriate medical
collaboration when requested by the employer or the insurer.
(d) "Acupuncturist" means a person who holds an acupuncturist's
certificate issued pursuant to Chapter 12 (commencing with Section
4925) of Division 2 of the Business and Professions Code.
(e) Nothing in this section shall be construed to authorize
acupuncturists to determine disability for the purposes of Article 3
(commencing with Section 4650) of Chapter 2 of Part 2, or under
Section 2708 of the Unemployment Insurance Code.
3209.4. The inclusion of optometrists in Section 3209.3 does not
imply any right or entitle any optometrist to represent, advertise,
or hold himself out as a physician.
3209.5. Medical, surgical, and hospital treatment, including
nursing, medicines, medical and surgical supplies, crutches, and
apparatus, includes but is not limited to services and supplies by
physical therapists, chiropractic practitioners, and acupuncturists,
as licensed by California state law and within the scope of their
practice as defined by law.
3209.6. The inclusion of chiropractors in Sections 3209.3 and
3209.5 does not imply any right or entitle any chiropractor to
represent, advertise, or hold himself out as a physician.
3209.7. Treatment of injuries at the expense of the employer may
also include, either in addition to or in place of medical, surgical,
and hospital services, as specified in Section 3209.5, any other
form of therapy, treatment, or healing practice agreed upon
voluntarily in writing, between the employee and his employer. Such
agreement may be entered into at any time after employment and shall
be in a form approved by the Department of Industrial Relations, and
shall include at least the following items:
(a) A description of the form of healing practice intended to be
relied upon and designation of individuals and facilities qualified
to administer it.
(b) The employee shall not by entering into such an agreement or
by selecting such therapy, treatment or healing practice, waive any
rights conferred upon him by law, or forfeit any benefits to which he
might otherwise be entitled.
(c) The employer and the employee shall each reserve the right to
terminate such agreement upon seven days written notice to the other
party.
No liability shall be incurred by the employer under the
provisions of this section, except as provided for in Chapter 3
(commencing with Section 3600), of this part.
3209.8. Treatment reasonably required to cure or relieve from the
effects of an injury shall include the services of marriage and
family therapists and clinical social workers licensed by California
state law and within the scope of their practice as defined by
California state law if the injured person is referred to the
marriage and family therapist or the clinical social worker by a
licensed physician and surgeon, with the approval of the employer,
for treatment of a condition arising out of the injury. Nothing in
this section shall be construed to authorize marriage and family
therapists or clinical social workers to determine disability for the
purposes of Article 3 (commencing with Section 4650) of Chapter 2 of
Part 2. The requirement of this section that the employer approve
the referral by a licensed physician or surgeon shall not be
construed to preclude reimbursement for self-procured treatment,
found by the appeals board to be otherwise compensable pursuant to
this division, where the employer has refused to authorize any
treatment for the condition arising from the injury treated by the
marriage and family therapist or clinical social worker.
3209.9. The inclusion of acupuncturists in Section 3209.3 does not
imply any right or entitle any acupuncturist to represent, advertise,
or hold himself or herself out as a physician or surgeon holding an
M.D. or D.O. degree.
3209.10. (a) Medical treatment of a work-related injury required to
cure or relieve the effects of the injury may be provided by a state
licensed physician assistant or nurse practitioner, acting under the
review or supervision of a physician and surgeon pursuant to
standardized procedures or protocols within their lawfully authorized
scope of practice. The reviewing or supervising physician and
surgeon of the physician assistant or nurse practitioner shall be
deemed to be the treating physician. For the purposes of this
section, "medical treatment" includes the authority of the nurse
practitioner or physician assistant to authorize the patient to
receive time off from work for a period not to exceed three calendar
days if that authority is included in a standardized procedure or
protocol approved by the supervising physician. The nurse
practitioner or physician assistant may cosign the Doctor's First
Report of Occupational Injury or Illness. The treating physician
shall make any determination of temporary disability and shall sign
the report.
(b) The provision of subdivision (a) that requires the cosignature
of the treating physician applies to this section only and it is not
the intent of the Legislature that the requirement apply to any
other section of law or to any other statute or regulation. Nothing
in this section implies that a nurse practitioner or physician
assistant is a physician as defined in Section 3209.3.
3210. "Person" includes an individual, firm, voluntary association,
or a public, quasi public, or private corporation.
3211. "Insurer" includes the State Compensation Insurance Fund and
any private company, corporation, mutual association, reciprocal or
interinsurance exchange authorized under the laws of this State to
insure employers against liability for compensation and any employer
to whom a certificate of consent to self-insure has been issued.
3211.5. For purposes of this division, whenever the term
"firefighter," "firefighting member," and "member of a fire
department" is used, the term shall include, but shall not be limited
to, unless the context expressly provides otherwise, a person
engaged in providing firefighting services who is an apprentice,
volunteer, or employee on a partly paid or fully paid basis.
3211.9. "Disaster council" means a public agency established by
ordinance which is empowered to register and direct the activities of
disaster service workers within the area of the county, city, city
and county, or any part thereof, and is thus, because of such
registration and direction, acting as an instrumentality of the state
in aid of the carrying out of the general governmental functions and
policy of the state.
3211.91. "Accredited disaster council" means a disaster council
that is certified by the California Emergency Management Agency as
conforming with the rules and regulations established by the office
pursuant to Article 10 (commencing with Section 8610) of Chapter 7 of
Division 1 of Title 2 of the Government Code. A disaster council
remains accredited only while the certification of the California
Emergency Management Agency is in effect and is not revoked.
3211.92. (a) "Disaster service worker" means any natural person who
is registered with an accredited disaster council or a state agency
for the purpose of engaging in disaster service pursuant to the
California Emergency Services Act without pay or other consideration.
(b) "Disaster service worker" includes public employees performing
disaster work that is outside the course and scope of their regular
employment without pay and also includes any unregistered person
impressed into service during a state of war emergency, a state of
emergency, or a local emergency by a person having authority to
command the aid of citizens in the execution of his or her duties.
(c) Persons registered with a disaster council at the time that
council becomes accredited need not reregister in order to be
entitled to the benefits provided by Chapter 10 (commencing with
Section 4351).
(d) "Disaster service worker" does not include any member
registered as an active firefighting member of any regularly
organized volunteer fire department, having official recognition, and
full or partial support of the county, city, or district in which
the fire department is located.
3211.93. "Disaster service" means all activities authorized by and
carried on pursuant to the California Emergency Services Act,
including training necessary or proper to engage in such activities.
3211.93a. "Disaster service" does not include any activities or
functions performed by a person if the accredited disaster council
with which that person is registered receives a fee or other
compensation for the performance of those activities or functions by
that person.
3212. In the case of members of a sheriff's office or the
California Highway Patrol, district attorney's staff of inspectors
and investigators or of police or fire departments of cities,
counties, cities and counties, districts or other public or municipal
corporations or political subdivisions, whether those members are
volunteer, partly paid, or fully paid, and in the case of active
firefighting members of the Department of Forestry and Fire
Protection whose duties require firefighting or of any county
forestry or firefighting department or unit, whether voluntary, fully
paid, or partly paid, and in the case of members of the warden
service of the Wildlife Protection Branch of the Department of Fish
and Game whose principal duties consist of active law enforcement
service, excepting those whose principal duties are clerical or
otherwise do not clearly fall within the scope of active law
enforcement service such as stenographers, telephone operators, and
other officeworkers, the term "injury" as used in this act includes
hernia when any part of the hernia develops or manifests itself
during a period while the member is in the service in the office,
staff, division, department, or unit, and in the case of members of
fire departments, except those whose principal duties are clerical,
such as stenographers, telephone operators, and other officeworkers,
and in the case of county forestry or firefighting departments,
except those whose principal duties are clerical, such as
stenographers, telephone operators, and other officeworkers, and in
the case of active firefighting members of the Department of Forestry
and Fire Protection whose duties require firefighting, and in the
case of members of the warden service of the Wildlife Protection
Branch of the Department of Fish and Game whose principal duties
consist of active law enforcement service, excepting those whose
principal duties are clerical or otherwise do not clearly fall within
the scope of active law enforcement service such as stenographers,
telephone operators, and other officeworkers, the term "injury"
includes pneumonia and heart trouble that develops or manifests
itself during a period while the member is in the service of the
office, staff, department, or unit. In the case of regular salaried
county or city and county peace officers, the term "injury" also
includes any hernia that manifests itself or develops during a period
while the officer is in the service. The compensation that is
awarded for the hernia, heart trouble, or pneumonia shall include
full hospital, surgical, medical treatment, disability indemnity, and
death benefits, as provided by the workers' compensation laws of
this state.
The hernia, heart trouble, or pneumonia so developing or
manifesting itself in those cases shall be presumed to arise out of
and in the course of the employment. This presumption is disputable
and may be controverted by other evidence, but unless so
controverted, the appeals board is bound to find in accordance with
it. The presumption shall be extended to a member following
termination of service for a period of three calendar months for each
full year of the requisite service, but not to exceed 60 months in
any circumstance, commencing with the last date actually worked in
the specified capacity.
The hernia, heart trouble, or pneumonia so developing or
manifesting itself in those cases shall in no case be attributed to
any disease existing prior to that development or manifestation.
3212.1. (a) This section applies to all of the following:
(1) Active firefighting members, whether volunteers, partly paid,
or fully paid, of all of the following fire departments:
(A) A fire department of a city, county, city and county,
district, or other public or municipal corporation or political
subdivision.
(B) A fire department of the University of California and the
California State University.
(C) The Department of Forestry and Fire Protection.
(D) A county forestry or firefighting department or unit.
(2) Active firefighting members of a fire department that serves a
United States Department of Defense installation and who are
certified by the Department of Defense as meeting its standards for
firefighters.
(3) Peace officers, as defined in Section 830.1, subdivision (a)
of Section 830.2, and subdivisions (a) and (b) of Section 830.37, of
the Penal Code, who are primarily engaged in active law enforcement
activities.
(4) (A) Fire and rescue services coordinators who work for the
Office of Emergency Services.
(B) For purposes of this paragraph, "fire and rescue services
coordinator" means a coordinator with any of the following job
classifications: coordinator, senior coordinator, or chief
coordinator.
(b) The term "injury," as used in this division, includes cancer,
including leukemia, that develops or manifests itself during a period
in which any member described in subdivision (a) is in the service
of the department or unit, if the member demonstrates that he or she
was exposed, while in the service of the department or unit, to a
known carcinogen as defined by the International Agency for Research
on Cancer, or as defined by the director.
(c) The compensation that is awarded for cancer shall include full
hospital, surgical, medical treatment, disability indemnity, and
death benefits, as provided by this division.
(d) The cancer so developing or manifesting itself in these cases
shall be presumed to arise out of and in the course of the
employment. This presumption is disputable and may be controverted by
evidence that the primary site of the cancer has been established
and that the carcinogen to which the member has demonstrated exposure
is not reasonably linked to the disabling cancer. Unless so
controverted, the appeals board is bound to find in accordance with
the presumption. This presumption shall be extended to a member
following termination of service for a period of three calendar
months for each full year of the requisite service, but not to exceed
120 months in any circumstance, commencing with the last date
actually worked in the specified capacity.
(e) The amendments to this section enacted during the 1999 portion
of the 1999-2000 Regular Session shall be applied to claims for
benefits filed or pending on or after January 1, 1997, including, but
not limited to, claims for benefits filed on or after that date that
have previously been denied, or that are being appealed following
denial.
(f) This section shall be known, and may be cited, as the William
Dallas Jones Cancer Presumption Act of 2010.
3212.2. In the case of officers and employees in the Department of
Corrections having custodial duties, each officer and employee in the
Department of Youth Authority having group supervisory duties, and
each security officer employed at the Atascadero State Hospital, the
term "injury" includes heart trouble which develops or manifests
itself during a period while such officer or employee is in the
service of such department or hospital.
The compensation which is awarded for such heart trouble shall
include full hospital, surgical, medical treatment, disability
indemnity, and death benefits, as provided by the workmen's
compensation laws of this state.
Such heart trouble so developing or manifesting itself in such
cases shall be presumed to arise out of and in the course of the
employment. This presumption is disputable and may be controverted by
other evidence, but unless so controverted, the appeals board is
bound to find in accordance with it. This presumption shall be
extended to a member following termination of service for a period of
three calendar months for each full year of the requisite service,
but not to exceed 60 months in any circumstance, commencing with the
last date actually worked in the specified capacity.
3212.3. In the case of a peace officer who is designated under
subdivision (a) of Section 2250.1 of the Vehicle Code and who has
graduated from an academy certified by the Commission on Peace
Officer Standards and Training, when that officer is employed upon a
regular, full-time salary, the term "injury," as used in this
division, includes heart trouble and pneumonia which develops or
manifests itself during a period while that officer is in the service
of the Department of the California Highway Patrol. The compensation
which is awarded for the heart trouble or pneumonia shall include
full hospital, surgical, medical treatment, disability indemnity, and
death benefits as provided by this division.
The heart trouble or pneumonia so developing or manifesting itself
shall be presumed to arise out of and in the course of the
employment. However, a peace officer of the Department of the
California Highway Patrol, as designated under subdivision (a) of
Section 2250.1 of the Vehicle Code, shall have served five years or
more in that capacity or as a peace officer with the former
California State Police Division, or in both capacities, before the
presumption shall arise as to the compensability of heart trouble so
developing or manifesting itself. This presumption is disputable and
may be controverted by other evidence, but unless so controverted,
the appeals board is bound to find in accordance with it. This
presumption shall be extended to a member following termination of
service for a period of three calendar months for each full year of
the requisite service, but not to exceed 60 months in any
circumstance, commencing with the last date actually worked in the
specified capacity.
The heart trouble or pneumonia so developing or manifesting itself
in these cases shall in no case be attributed to any disease
existing prior to that development or manifestation.
The term "peace officers" as used herein shall be limited to those
employees of the Department of the California Highway Patrol who are
designated as peace officers under subdivision (a) of Section 2250.1
of the Vehicle Code.
3212.4. In the case of a member of a University of California fire
department located at a campus or other facility administered by the
Regents of University of California, when any such member is employed
by such a department upon a regular, full-time salary, on a
nonprobationary basis, the term "injury" as used in this division
includes heart trouble, hernia, or pneumonia which develops or
manifests itself during a period while such member is in the service
of such a University of California fire department. The compensation
which is awarded for such heart trouble, hernia, or pneumonia shall
include full hospital, surgical, medical treatment, disability
indemnity, and death benefits as provided by the provisions of this
division.
Such heart trouble, hernia, or pneumonia so developing or
manifesting itself shall be presumed to arise out of and in the
course of the employment. This presumption is disputable and may be
controverted by other evidence, but unless so controverted, the
appeals board is bound to find in accordance with it. This
presumption shall be extended to a member following termination of
service for a period of three calendar months for each full year of
the requisite service, but not to exceed 60 months in any
circumstance, commencing with the last date actually worked in the
specified capacity.
Such heart trouble, hernia, or pneumonia so developing or
manifesting itself in such cases shall in no case be attributed to
any disease existing prior to such development or manifestation.
The term "member" as used herein shall exclude those employees of
a University of California fire department whose principal duties are
those of a telephone operator, clerk, stenographer, machinist,
mechanic, or otherwise, and whose functions do not clearly fall
within the scope of active firefighting and prevention service.
3212.5. In the case of a member of a police department of a city or
municipality, or a member of the State Highway Patrol, when any such
member is employed upon a regular, full-time salary, and in the case
of a sheriff or deputy sheriff, or an inspector or investigator in a
district attorney's office of any county, employed upon a regular,
full-time salary, the term "injury" as used in this division includes
heart trouble and pneumonia which develops or manifests itself
during a period while such member, sheriff, or deputy sheriff,
inspector or investigator is in the service of the police department,
the State Highway Patrol, the sheriff's office or the district
attorney's office, as the case may be. The compensation which is
awarded for such heart trouble or pneumonia shall include full
hospital, surgical, medical treatment, disability indemnity, and
death benefits as provided by the provisions of this division.
Such heart trouble or pneumonia so developing or manifesting
itself shall be presumed to arise out of and in the course of the
employment; provided, however, that the member of the police
department, State Highway Patrol, the sheriff or deputy sheriff, or
an inspector or investigator in a district attorney's office of any
county shall have served five years or more in such capacity before
the presumption shall arise as to the compensability of heart trouble
so developing or manifesting itself. This presumption is disputable
and may be controverted by other evidence, but unless so
controverted, the appeals board is bound to find in accordance with
it. This presumption shall be extended to a member following
termination of service for a period of three calendar months for each
full year of the requisite service, but not to exceed 60 months in
any circumstance, commencing with the last date actually worked in
the specified capacity.
Such heart trouble or pneumonia so developing or manifesting
itself in such cases shall in no case be attributed to any disease
existing prior to such development or manifestation.
The term "members" as used herein shall be limited to those
employees of police departments, the California Highway Patrol and
sheriffs' departments and inspectors and investigators of a district
attorney's office who are defined as peace officers in Section 830.1,
830.2, or 830.3 of the Penal Code.
3212.6. In the case of a member of a police department of a city or
county, or a member of the sheriff's office of a county, or a member
of the California Highway Patrol, or an inspector or investigator in
a district attorney's office of any county whose principal duties
consist of active law enforcement service, or a prison or jail guard
or correctional officer who is employed by a public agency, when that
person is employed upon a regular, full-time salary, or in the case
of members of fire departments of any city, county, or district, or
other public or municipal corporations or political subdivisions,
when those members are employed on a regular fully paid basis, and in
the case of active firefighting members of the Department of
Forestry and Fire Protection whose duties require firefighting and
first-aid response services, or of any county forestry or
firefighting department or unit, where those members are employed on
a regular fully paid basis, excepting those whose principal duties
are clerical or otherwise do not clearly fall within the scope of
active law enforcement, firefighting, or emergency first-aid response
service such as stenographers, telephone operators, and other
officeworkers, the term "injury" includes tuberculosis that develops
or manifests itself during a period while that member is in the
service of that department or office. The compensation that is
awarded for the tuberculosis shall include full hospital, surgical,
medical treatment, disability indemnity, and death benefits as
provided by the provisions of this division.
The tuberculosis so developing or manifesting itself shall be
presumed to arise out of and in the course of the employment. This
presumption is disputable and may be controverted by other evidence,
but unless so controverted, the appeals board is bound to find in
accordance with it. This presumption shall be extended to a member
following termination of service for a period of three calendar
months for each full year of the requisite service, but not to exceed
60 months in any circumstance, commencing with the last date
actually worked in the specified capacity.
A public entity may require applicants for employment in
firefighting positions who would be entitled to the benefits granted
by this section to be tested for infection for tuberculosis.
3212.7. In the case of an employee in the Department of Justice
falling within the "state safety" class, when any such individual is
employed under civil service upon a regular, full-time salary, the
term "injury," as used in this division, includes heart trouble or
hernia or pneumonia or tuberculosis which develops or manifests
itself during the period while such individual is in the service of
the Department of Justice. The compensation which is awarded for any
such injury shall include full hospital, surgical, medical treatment,
disability indemnity, and death benefits as provided by the
provisions of this division.
Such heart trouble, hernia, pneumonia, or tuberculosis so
developing or manifesting itself shall be presumed to arise out of
and in the course of the employment. This presumption is disputable
and may be controverted by other evidence but unless so controverted,
the appeals board is bound to find in accordance with it. This
presumption shall be extended to a member following termination of
service for a period of three calendar months for each full year of
the requisite service, but not to exceed 60 months in any
circumstance, commencing with the last date actually worked in the
specified capacity.
Such heart trouble, hernia, pneumonia, or tuberculosis developing
or manifesting itself in such cases shall in no case be attributed to
any disease existing prior to such development or manifestation.
3212.8. (a) In the case of members of a sheriff's office, of police
or fire departments of cities, counties, cities and counties,
districts, or other public or municipal corporations or political
subdivisions, or individuals described in Chapter 4.5 (commencing
with Section 830) of Title 3 of Part 2 of the Penal Code, whether
those persons are volunteer, partly paid, or fully paid, and in the
case of active firefighting members of the Department of Forestry and
Fire Protection, or of any county forestry or firefighting
department or unit, whether voluntary, fully paid, or partly paid,
excepting those whose principal duties are clerical or otherwise do
not clearly fall within the scope of active law enforcement service
or active firefighting services, such as stenographers, telephone
operators, and other office workers, the term "injury" as used in
this division, includes a blood-borne infectious disease or
methicillin-resistant Staphylococcus aureus skin infection when any
part of the blood-borne infectious disease or methicillin-resistant
Staphylococcus aureus skin infection develops or manifests itself
during a period while that person is in the service of that office,
staff, division, department, or unit. The compensation that is
awarded for a blood-borne infectious disease or methicillin-resistant
Staphylococcus aureus skin infection shall include, but not be
limited to, full hospital, surgical, medical treatment, disability
indemnity, and death benefits, as provided by the workers'
compensation laws of this state.
(b) (1) The blood-borne infectious disease or
methicillin-resistant Staphylococcus aureus skin infection so
developing or manifesting itself in those cases shall be presumed to
arise out of and in the course of the employment or service. This
presumption is disputable and may be controverted by other evidence,
but unless so controverted, the appeals board is bound to find in
accordance with it.
(2) The blood-borne infectious disease presumption shall be
extended to a person covered by subdivision (a) following termination
of service for a period of three calendar months for each full year
of service, but not to exceed 60 months in any circumstance,
commencing with the last date actually worked in the specified
capacity.
(3) Notwithstanding paragraph (2), the methicillin-resistant
Staphylococcus aureus skin infection presumption shall be extended to
a person covered by subdivision (a) following termination of service
for a period of 90 days, commencing with the last day actually
worked in the specified capacity.
(c) The blood-borne infectious disease or methicillin-resistant
Staphylococcus aureus skin infection so developing or manifesting
itself in those cases shall in no case be attributed to any disease
or skin infection existing prior to that development or
manifestation.
(d) For the purposes of this section, "blood-borne infectious
disease" means a disease caused by exposure to pathogenic
microorganisms that are present in human blood that can cause disease
in humans, including those pathogenic microorganisms defined as
blood-borne pathogens by the Department of Industrial Relations.
3212.85. (a) This section applies to peace officers described in
Sections 830.1 to 830.5, inclusive, of the Penal Code, and members of
a fire department.
(b) The term "injury," as used in this division, includes illness
or resulting death due to exposure to a biochemical substance that
develops or occurs during a period in which any member described in
subdivision (a) is in the service of the department or unit.
(c) The compensation that is awarded for injury pursuant to this
section shall include full hospital, surgical, medical treatment,
disability indemnity, and death benefits, as provided by this
division.
(d) The injury that develops or manifests itself in these cases
shall be presumed to arise out of, and in the course of, the
employment. This presumption is disputable and may be controverted by
other evidence. U
3200. The Legislature hereby declares its intent that the term
"workmen's compensation" shall hereafter also be known as "workers'
compensation, " and that the "Workmen's Compensation Appeals Board"
shall hereafter be known as the "Workers' Compensation Appeals Board."
In furtherance of this policy it is the desire of the Legislature
that references to the terms "workmen's compensation" and "Workmen's
Compensation Appeals Board" in this code or elsewhere be changed to
"workers' compensation" and "Workers' Compensation Appeals Board"
when such laws are being amended for any purpose. This act is
declaratory and not amendatory of existing law.
3201. This division and Division 5 (commencing with Section 6300)
are an expression of the police power and are intended to make
effective and apply to a complete system of workers' compensation the
provisions of Section 4 of Article XIV of the California
Constitution.
3201.5. (a) Except as provided in subdivisions (b) and (c), the
Department of Industrial Relations and the courts of this state shall
recognize as valid and binding any provision in a collective
bargaining agreement between a private employer or groups of
employers engaged in construction, construction maintenance, or
activities limited to rock, sand, gravel, cement and asphalt
operations, heavy-duty mechanics, surveying, and construction
inspection and a union that is the recognized or certified exclusive
bargaining representative that establishes any of the following:
(1) An alternative dispute resolution system governing disputes
between employees and employers or their insurers that supplements or
replaces all or part of those dispute resolution processes contained
in this division, including, but not limited to, mediation and
arbitration. Any system of arbitration shall provide that the
decision of the arbiter or board of arbitration is subject to review
by the appeals board in the same manner as provided for
reconsideration of a final order, decision, or award made and filed
by a workers' compensation administrative law judge pursuant to the
procedures set forth in Article 1 (commencing with Section 5900) of
Chapter 7 of Part 4 of Division 4, and the court of appeals pursuant
to the procedures set forth in Article 2 (commencing with Section
5950) of Chapter 7 of Part 4 of Division 4, governing orders,
decisions, or awards of the appeals board. The findings of fact,
award, order, or decision of the arbitrator shall have the same force
and effect as an award, order, or decision of a workers'
compensation administrative law judge. Any provision for arbitration
established pursuant to this section shall not be subject to Sections
5270, 5270.5, 5271, 5272, 5273, 5275, and 5277.
(2) The use of an agreed list of providers of medical treatment
that may be the exclusive source of all medical treatment provided
under this division.
(3) The use of an agreed, limited list of qualified medical
evaluators and agreed medical evaluators that may be the exclusive
source of qualified medical evaluators and agreed medical evaluators
under this division.
(4) Joint labor management safety committees.
(5) A light-duty, modified job or return-to-work program.
(6) A vocational rehabilitation or retraining program utilizing an
agreed list of providers of rehabilitation services that may be the
exclusive source of providers of rehabilitation services under this
division.
(b) (1) Nothing in this section shall allow a collective
bargaining agreement that diminishes the entitlement of an employee
to compensation payments for total or partial disability, temporary
disability, vocational rehabilitation, or medical treatment fully
paid by the employer as otherwise provided in this division. The
portion of any agreement that violates this paragraph shall be
declared null and void.
(2) The parties may negotiate any aspect of the delivery of
medical benefits and the delivery of disability compensation to
employees of the employer or group of employers that are eligible for
group health benefits and nonoccupational disability benefits
through their employer.
(c) Subdivision (a) shall apply only to the following:
(1) An employer developing or projecting an annual workers'
compensation insurance premium, in California, of two hundred fifty
thousand dollars ($250,000) or more, or any employer that paid an
annual workers' compensation insurance premium, in California, of two
hundred fifty thousand dollars ($250,000) in at least one of the
previous three years.
(2) Groups of employers engaged in a workers' compensation safety
group complying with Sections 11656.6 and 11656.7 of the Insurance
Code, and established pursuant to a joint labor management safety
committee or committees, that develops or projects annual workers'
compensation insurance premiums of two million dollars ($2,000,000)
or more.
(3) Employers or groups of employers that are self-insured in
compliance with Section 3700 that would have projected annual workers'
compensation costs that meet the requirements of, and that meet the
other requirements of, paragraph (1) in the case of employers, or
paragraph (2) in the case of groups of employers.
(4) Employers covered by an owner or general contractor provided
wrap-up insurance policy applicable to a single construction site
that develops workers' compensation insurance premiums of two million
dollars ($2,000,000) or more with respect to those employees covered
by that wrap-up insurance policy.
(d) Employers and labor representatives who meet the eligibility
requirements of this section shall be issued a letter by the
administrative director advising each employer and labor
representative that, based upon the review of all documents and
materials submitted as required by the administrative director, each
has met the eligibility requirements of this section.
(e) The premium rate for a policy of insurance issued pursuant to
this section shall not be subject to the requirements of Section
11732 or 11732.5 of the Insurance Code.
(f) No employer may establish or continue a program established
under this section until it has provided the administrative director
with all of the following:
(1) Upon its original application and whenever it is renegotiated
thereafter, a copy of the collective bargaining agreement and the
approximate number of employees who will be covered thereby.
(2) Upon its original application and annually thereafter, a valid
and active license where that license is required by law as a
condition of doing business in the state within the industries set
forth in subdivision (a) of Section 3201.5.
(3) Upon its original application and annually thereafter, a
statement signed under penalty of perjury, that no action has been
taken by any administrative agency or court of the United States to
invalidate the collective bargaining agreement.
(4) The name, address, and telephone number of the contact person
of the employer.
(5) Any other information that the administrative director deems
necessary to further the purposes of this section.
(g) No collective bargaining representative may establish or
continue to participate in a program established under this section
unless all of the following requirements are met:
(1) Upon its original application and annually thereafter, it has
provided to the administrative director a copy of its most recent
LM-2 or LM-3 filing with the United States Department of Labor, along
with a statement, signed under penalty of perjury, that the document
is a true and correct copy.
(2) It has provided to the administrative director the name,
address, and telephone number of the contact person or persons of the
collective bargaining representative or representatives.
(h) Commencing July 1, 1995, and annually thereafter, the Division
of Workers' Compensation shall report to the Director of the
Department of Industrial Relations the number of collective
bargaining agreements received and the number of employees covered by
these agreements.
(i) By June 30, 1996, and annually thereafter, the Administrative
Director of the Division of Workers' Compensation shall prepare and
notify Members of the Legislature that a report authorized by this
section is available upon request. The report based upon aggregate
data shall include the following:
(1) Person hours and payroll covered by agreements filed.
(2) The number of claims filed.
(3) The average cost per claim shall be reported by cost
components whenever practicable.
(4) The number of litigated claims, including the number of claims
submitted to mediation, the appeals board, or the court of appeal.
(5) The number of contested claims resolved prior to arbitration.
(6) The projected incurred costs and actual costs of claims.
(7) Safety history.
(8) The number of workers participating in vocational
rehabilitation.
(9) The number of workers participating in light-duty programs.
The division shall have the authority to require those employers
and groups of employers listed in subdivision (c) to provide the data
listed above.
(j) The data obtained by the administrative director pursuant to
this section shall be confidential and not subject to public
disclosure under any law of this state. However, the Division of
Workers' Compensation shall create derivative works pursuant to
subdivisions (h) and (i) based on the collective bargaining
agreements and data. Those derivative works shall not be
confidential, but shall be public. On a monthly basis the
administrative director shall make available an updated list of
employers and unions entering into collective bargaining agreements
containing provisions authorized by this section.
3201.7. (a) Except as provided in subdivision (b), the Department
of Industrial Relations and the courts of this state shall recognize
as valid and binding any labor-management agreement that meets all of
the following requirements:
(1) The labor-management agreement has been negotiated separate
and apart from any collective bargaining agreement covering affected
employees.
(2) The labor-management agreement is restricted to the
establishment of the terms and conditions necessary to implement this
section.
(3) The labor-management agreement has been negotiated in
accordance with the authorization of the administrative director
pursuant to subdivision (d), between an employer or groups of
employers and a union that is the recognized or certified exclusive
bargaining representative that establishes any of the following:
(A) An alternative dispute resolution system governing disputes
between employees and employers or their insurers that supplements or
replaces all or part of those dispute resolution processes contained
in this division, including, but not limited to, mediation and
arbitration. Any system of arbitration shall provide that the
decision of the arbiter or board of arbitration is subject to review
by the appeals board in the same manner as provided for
reconsideration of a final order, decision, or award made and filed
by a workers' compensation administrative law judge pursuant to the
procedures set forth in Article 1 (commencing with Section 5900) of
Chapter 7 of Part 4 of Division 4, and the court of appeals pursuant
to the procedures set forth in Article 2 (commencing with Section
5950) of Chapter 7 of Part 4 of Division 4, governing orders,
decisions, or awards of the appeals board. The findings of fact,
award, order, or decision of the arbitrator shall have the same force
and effect as an award, order, or decision of a workers'
compensation administrative law judge. Any provision for arbitration
established pursuant to this section shall not be subject to Sections
5270, 5270.5, 5271, 5272, 5273, 5275, and 5277.
(B) The use of an agreed list of providers of medical treatment
that may be the exclusive source of all medical treatment provided
under this division.
(C) The use of an agreed, limited list of qualified medical
evaluators and agreed medical evaluators that may be the exclusive
source of qualified medical evaluators and agreed medical evaluators
under this division.
(D) Joint labor management safety committees.
(E) A light-duty, modified job, or return-to-work program.
(F) A vocational rehabilitation or retraining program utilizing an
agreed list of providers of rehabilitation services that may be the
exclusive source of providers of rehabilitation services under this
division.
(b) (1) Nothing in this section shall allow a labor-management
agreement that diminishes the entitlement of an employee to
compensation payments for total or partial disability, temporary
disability, vocational rehabilitation, or medical treatment fully
paid by the employer as otherwise provided in this division; nor
shall any agreement authorized by this section deny to any employee
the right to representation by counsel at all stages during the
alternative dispute resolution process. The portion of any agreement
that violates this paragraph shall be declared null and void.
(2) The parties may negotiate any aspect of the delivery of
medical benefits and the delivery of disability compensation to
employees of the employer or group of employers that are eligible for
group health benefits and nonoccupational disability benefits
through their employer.
(c) Subdivision (a) shall apply only to the following:
(1) An employer developing or projecting an annual workers'
compensation insurance premium, in California, of fifty thousand
dollars ($50,000) or more, and employing at least 50 employees, or
any employer that paid an annual workers' compensation insurance
premium, in California, of fifty thousand dollars ($50,000), and
employing at least 50 employees in at least one of the previous three
years.
(2) Groups of employers engaged in a workers' compensation safety
group complying with Sections 11656.6 and 11656.7 of the Insurance
Code, and established pursuant to a joint labor management safety
committee or committees, that develops or projects annual workers'
compensation insurance premiums of five hundred thousand dollars
($500,000) or more.
(3) Employers or groups of employers, including cities and
counties, that are self-insured in compliance with Section 3700 that
would have projected annual workers' compensation costs that meet the
requirements of, and that meet the other requirements of, paragraph
(1) in the case of employers, or paragraph (2) in the case of groups
of employers.
(d) Any recognized or certified exclusive bargaining
representative in an industry not covered by Section 3201.5, may file
a petition with the administrative director seeking permission to
negotiate with an employer or group of employers to enter into a
labor-management agreement pursuant to this section. The petition
shall specify the bargaining unit or units to be included, the names
of the employers or groups of employers, and shall be accompanied by
proof of the labor union's status as the exclusive bargaining
representative. The current collective bargaining agreement or
agreements shall be attached to the petition. The petition shall be
in the form designated by the administrative director. Upon receipt
of the petition, the administrative director shall promptly verify
the petitioner's status as the exclusive bargaining representative.
If the petition satisfies the requirements set forth in this
subdivision, the administrative director shall issue a letter
advising each employer and labor representative of their eligibility
to enter into negotiations, for a period not to exceed one year, for
the purpose of reaching agreement on a labor-management agreement
pursuant to this section. The parties may jointly request, and shall
be granted, by the administrative director, an additional one-year
period to negotiate an agreement.
(e) No employer may establish or continue a program established
under this section until it has provided the administrative director
with all of the following:
(1) Upon its original application and whenever it is renegotiated
thereafter, a copy of the labor-management agreement and the
approximate number of employees who will be covered thereby.
(2) Upon its original application and annually thereafter, a
statement signed under penalty of perjury, that no action has been
taken by any administrative agency or court of the United States to
invalidate the labor-management agreement.
(3) The name, address, and telephone number of the contact person
of the employer.
(4) Any other information that the administrative director deems
necessary to further the purposes of this section.
(f) No collective bargaining representative may establish or
continue to participate in a program established under this section
unless all of the following requirements are met:
(1) Upon its original application and annually thereafter, it has
provided to the administrative director a copy of its most recent
LM-2 or LM-3 filing with the United States Department of Labor, where
such filing is required by law, along with a statement, signed under
penalty of perjury, that the document is a true and correct copy.
(2) It has provided to the administrative director the name,
address, and telephone number of the contact person or persons of the
collective bargaining representative or representatives.
(g) Commencing July 1, 2005, and annually thereafter, the Division
of Workers' Compensation shall report to the Director of Industrial
Relations the number of labor-management agreements received and the
number of employees covered by these agreements.
(h) By June 30, 2006, and annually thereafter, the administrative
director shall prepare and notify Members of the Legislature that a
report authorized by this section is available upon request. The
report based upon aggregate data shall include the following:
(1) Person hours and payroll covered by agreements filed.
(2) The number of claims filed.
(3) The average cost per claim shall be reported by cost
components whenever practicable.
(4) The number of litigated claims, including the number of claims
submitted to mediation, the appeals board, or the court of appeal.
(5) The number of contested claims resolved prior to arbitration.
(6) The projected incurred costs and actual costs of claims.
(7) Safety history.
(8) The number of workers participating in vocational
rehabilitation.
(9) The number of workers participating in light-duty programs.
(10) Overall worker satisfaction.
The division shall have the authority to require employers and
groups of employers participating in labor-management agreements
pursuant to this section to provide the data listed above.
(i) The data obtained by the administrative director pursuant to
this section shall be confidential and not subject to public
disclosure under any law of this state. However, the Division of
Workers' Compensation shall create derivative works pursuant to
subdivisions (f) and (g) based on the labor-management agreements and
data. Those derivative works shall not be confidential, but shall be
public. On a monthly basis, the administrative director shall make
available an updated list of employers and unions entering into
labor-management agreements authorized by this section.
3201.81. In the horse racing industry, the organization certified
by the California Horse Racing Board to represent the majority of
licensed jockeys pursuant to subdivision (b) of Section 19612.9 of
the Business and Professions Code is the labor organization
authorized to negotiate the collective bargaining agreement
establishing an alternative dispute resolution system for licensed
jockeys pursuant to Section 3201.7.
3201.9. (a) On or before June 30, 2004, and biannually thereafter,
the report required in subdivision (i) of Section 3201.5 and
subdivision (h) of Section 3201.7 shall include updated loss
experience for all employers and groups of employers participating in
a program established under those sections. The report shall include
updated data on each item set forth in subdivision (i) of Section
3201.5 and subdivision (h) of Section 3201.7 for the previous year
for injuries in 2003 and beyond. Updates for each program shall be
done for the original program year and for subsequent years. The
insurers, the Department of Insurance, and the rating organization
designated by the Insurance Commissioner pursuant to Article 3
(commencing with Section 11750) of Chapter 3 of Part 3 of Division 2
of the Insurance Code, shall provide the administrative director with
any information that the administrative director determines is
reasonably necessary to conduct the study.
(b) Commencing on and after June 30, 2004, the Insurance
Commissioner, or the commissioner's designee, shall prepare for
inclusion in the report required in subdivision (i) of Section 3201.5
and subdivision (h) of Section 3201.7 a review of both of the
following:
(1) The adequacy of rates charged for these programs, including
the impact of scheduled credits and debits.
(2) The comparative results for these programs with other programs
not subject to Section 3201.5 or Section 3201.7.
(c) Upon completion of the report, the administrative director
shall report the findings to the Legislature, the Department of
Insurance, the designated rating organization, and the programs and
insurers participating in the study.
(d) The data obtained by the administrative director pursuant to
this section shall be confidential and not subject to public
disclosure under any law of this state.
3202. This division and Division 5 (commencing with Section 6300)
shall be liberally construed by the courts with the purpose of
extending their benefits for the protection of persons injured in the
course of their employment.
3202.5. All parties and lien claimants shall meet the evidentiary
burden of proof on all issues by a preponderance of the evidence in
order that all parties are considered equal before the law.
"Preponderance of the evidence" means that evidence that, when
weighed with that opposed to it, has more convincing force and the
greater probability of truth. When weighing the evidence, the test is
not the relative number of witnesses, but the relative convincing
force of the evidence.
3203. This division and Division 5 (commencing with Section 6300)
do not apply to employers or employments which, according to law, are
so engaged in interstate commerce as not to be subject to the
legislative power of the state, nor to employees injured while they
are so engaged, except in so far as these divisions are permitted to
apply under the Constitution or laws of the United States.
3204. Unless the context otherwise requires, the definitions
hereinafter set forth in this chapter shall govern the construction
and meaning of the terms and phrases used in this division.
3205. "Division" means the Division of Workers' Compensation.
3205.5. "Appeals board" means the Workers' Compensation Appeals
Board of the Division of Workers' Compensation.
3206. "Administrative director" means the Director of the Division
of Workers' Compensation.
3207. "Compensation" means compensation under this division and
includes every benefit or payment conferred by this division upon an
injured employee, or in the event of his or her death, upon his or
her dependents, without regard to negligence.
3208. "Injury" includes any injury or disease arising out of the
employment, including injuries to artificial members, dentures,
hearing aids, eyeglasses and medical braces of all types; provided,
however, that eyeglasses and hearing aids will not be replaced,
repaired, or otherwise compensated for, unless injury to them is
incident to an injury causing disability.
3208.05. (a) "Injury" includes a reaction to or a side effect
arising from health care provided by an employer to a health care
worker, which health care is intended to prevent the development or
manifestation of any bloodborne disease, illness, syndrome, or
condition recognized as occupationally incurred by Cal-OSHA, the
Federal Centers for Disease Control, or other appropriate
governmental entities. This section shall apply only to preventive
health care that the employer provided to a health care worker under
the following circumstances: (1) prior to an exposure because of risk
of occupational exposure to such a disease, illness, syndrome, or
condition, or (2) where the preventive care is provided as a
consequence of a documented exposure to blood or bodily fluid
containing blood that arose out of and in the course of employment.
Such a disease, illness, syndrome, or condition includes, but is not
limited to, hepatitis, and the human immunodeficiency virus. Such
preventive health care, and any disability indemnity or other
benefits required as a result of the preventive health care provided
by the employer, shall be compensable under the workers' compensation
system. The employer may require the health care worker to document
that the employer provided the preventive health care and that the
reaction or side effects arising from the preventive health care
resulted in lost work time, health care costs, or other costs
normally compensable under workers' compensation.
(b) The benefits of this section shall not be provided to a health
care worker for a reaction to or side effect from health care
intended to prevent the development of the human immunodeficiency
virus if the worker claims a work-related exposure and if the worker
tests positive within 48 hours of that exposure to a test to
determine the presence of the human immunodeficiency virus.
(c) For purposes of this section, "health care worker" includes
any person who is an employee of a provider of health care as defined
in subdivision (d) of Section 56.05 of the Civil Code, and who is
exposed to human blood or other bodily fluids contaminated with blood
in the course of employment, including, but not limited to, a
registered nurse, a licensed vocational nurse, a certified nurse
aide, clinical laboratory technologist, dental hygienist, physician,
janitor, and housekeeping worker. "Health care worker" does not
include an employee who provides employee health services for an
employer primarily engaged in a business other than providing health
care.
3208.1. An injury may be either: (a) "specific," occurring as the
result of one incident or exposure which causes disability or need
for medical treatment; or (b) "cumulative," occurring as repetitive
mentally or physically traumatic activities extending over a period
of time, the combined effect of which causes any disability or need
for medical treatment. The date of a cumulative injury shall be the
date determined under Section 5412.
3208.2. When disability, need for medical treatment, or death
results from the combined effects of two or more injuries, either
specific, cumulative, or both, all questions of fact and law shall be
separately determined with respect to each such injury, including,
but not limited to, the apportionment between such injuries of
liability for disability benefits, the cost of medical treatment, and
any death benefit.
3208.3. (a) A psychiatric injury shall be compensable if it is a
mental disorder which causes disability or need for medical
treatment, and it is diagnosed pursuant to procedures promulgated
under paragraph (4) of subdivision (j) of Section 139.2 or, until
these procedures are promulgated, it is diagnosed using the
terminology and criteria of the American Psychiatric Association's
Diagnostic and Statistical Manual of Mental Disorders, Third
Edition-Revised, or the terminology and diagnostic criteria of other
psychiatric diagnostic manuals generally approved and accepted
nationally by practitioners in the field of psychiatric medicine.
(b) (1) In order to establish that a psychiatric injury is
compensable, an employee shall demonstrate by a preponderance of the
evidence that actual events of employment were predominant as to all
causes combined of the psychiatric injury.
(2) Notwithstanding paragraph (1), in the case of employees whose
injuries resulted from being a victim of a violent act or from direct
exposure to a significant violent act, the employee shall be
required to demonstrate by a preponderance of the evidence that
actual events of employment were a substantial cause of the injury.
(3) For the purposes of this section, "substantial cause" means at
least 35 to 40 percent of the causation from all sources combined.
(c) It is the intent of the Legislature in enacting this section
to establish a new and higher threshold of compensability for
psychiatric injury under this division.
(d) Notwithstanding any other provision of this division, no
compensation shall be paid pursuant to this division for a
psychiatric injury related to a claim against an employer unless the
employee has been employed by that employer for at least six months.
The six months of employment need not be continuous. This subdivision
shall not apply if the psychiatric injury is caused by a sudden and
extraordinary employment condition. Nothing in this subdivision shall
be construed to authorize an employee, or his or her dependents, to
bring an action at law or equity for damages against the employer for
a psychiatric injury, where those rights would not exist pursuant to
the exclusive remedy doctrine set forth in Section 3602 in the
absence of the amendment of this section by the act adding this
subdivision.
(e) Where the claim for compensation is filed after notice of
termination of employment or layoff, including voluntary layoff, and
the claim is for an injury occurring prior to the time of notice of
termination or layoff, no compensation shall be paid unless the
employee demonstrates by a preponderance of the evidence that actual
events of employment were predominant as to all causes combined of
the psychiatric injury and one or more of the following conditions
exist:
(1) Sudden and extraordinary events of employment were the cause
of the injury.
(2) The employer has notice of the psychiatric injury under
Chapter 2 (commencing with Section 5400) prior to the notice of
termination or layoff.
(3) The employee's medical records existing prior to notice of
termination or layoff contain evidence of treatment of the
psychiatric injury.
(4) Upon a finding of sexual or racial harassment by any trier of
fact, whether contractual, administrative, regulatory, or judicial.
(5) Evidence that the date of injury, as specified in Section 5411
or 5412, is subsequent to the date of the notice of termination or
layoff, but prior to the effective date of the termination or layoff.
(f) For purposes of this section, an employee provided notice
pursuant to Sections 44948.5, 44949, 44951, 44955, 44955.6, 72411,
87740, and 87743 of the Education Code shall be considered to have
been provided a notice of termination or layoff only upon a district'
s final decision not to reemploy that person.
(g) A notice of termination or layoff that is not followed within
60 days by that termination or layoff shall not be subject to the
provisions of this subdivision, and this subdivision shall not apply
until receipt of a later notice of termination or layoff. The
issuance of frequent notices of termination or layoff to an employee
shall be considered a bad faith personnel action and shall make this
subdivision inapplicable to the employee.
(h) No compensation under this division shall be paid by an
employer for a psychiatric injury if the injury was substantially
caused by a lawful, nondiscriminatory, good faith personnel action.
The burden of proof shall rest with the party asserting the issue.
(i) When a psychiatric injury claim is filed against an employer,
and an application for adjudication of claim is filed by an employer
or employee, the division shall provide the employer with information
concerning psychiatric injury prevention programs.
(j) An employee who is an inmate, as defined in subdivision (e) of
Section 3351, or his or her family on behalf of an inmate, shall not
be entitled to compensation for a psychiatric injury except as
provided in subdivision (d) of Section 3370.
3208.4. In any proceeding under this division involving an injury
arising out of alleged conduct that constitutes sexual harassment,
sexual assault, or sexual battery, any party seeking discovery
concerning sexual conduct of the applicant with any person other than
the defendant, whether consensual or nonconsensual or prior or
subsequent to the alleged act complained of, shall establish specific
facts showing good cause for that discovery on a noticed motion to
the appeals board. The motion shall not be made or considered at an
ex parte hearing.
The procedures set forth in Section 783 of the Evidence Code shall
be followed if evidence of sexual conduct of the applicant is
offered to attack his or her credibility. Opinion evidence, evidence
of reputation, and evidence of specific instances of sexual conduct
of the applicant with any person other than the defendant, or any of
such evidence, is not admissible by the defendant to prove consent by
or the absence of injury to the applicant, unless the injury alleged
by the applicant is in the nature of loss of consortium.
3209. "Damages" means the recovery allowed in an action at law as
contrasted with compensation.
3209.3. (a) "Physician" includes physicians and surgeons holding an
M.D. or D.O. degree, psychologists, acupuncturists, optometrists,
dentists, podiatrists, and chiropractic practitioners licensed by
California state law and within the scope of their practice as
defined by California state law.
(b) "Psychologist" means a licensed psychologist with a doctoral
degree in psychology, or a doctoral degree deemed equivalent for
licensure by the Board of Psychology pursuant to Section 2914 of the
Business and Professions Code, and who either has at least two years
of clinical experience in a recognized health setting or has met the
standards of the National Register of the Health Service Providers in
Psychology.
(c) When treatment or evaluation for an injury is provided by a
psychologist, provision shall be made for appropriate medical
collaboration when requested by the employer or the insurer.
(d) "Acupuncturist" means a person who holds an acupuncturist's
certificate issued pursuant to Chapter 12 (commencing with Section
4925) of Division 2 of the Business and Professions Code.
(e) Nothing in this section shall be construed to authorize
acupuncturists to determine disability for the purposes of Article 3
(commencing with Section 4650) of Chapter 2 of Part 2, or under
Section 2708 of the Unemployment Insurance Code.
3209.4. The inclusion of optometrists in Section 3209.3 does not
imply any right or entitle any optometrist to represent, advertise,
or hold himself out as a physician.
3209.5. Medical, surgical, and hospital treatment, including
nursing, medicines, medical and surgical supplies, crutches, and
apparatus, includes but is not limited to services and supplies by
physical therapists, chiropractic practitioners, and acupuncturists,
as licensed by California state law and within the scope of their
practice as defined by law.
3209.6. The inclusion of chiropractors in Sections 3209.3 and
3209.5 does not imply any right or entitle any chiropractor to
represent, advertise, or hold himself out as a physician.
3209.7. Treatment of injuries at the expense of the employer may
also include, either in addition to or in place of medical, surgical,
and hospital services, as specified in Section 3209.5, any other
form of therapy, treatment, or healing practice agreed upon
voluntarily in writing, between the employee and his employer. Such
agreement may be entered into at any time after employment and shall
be in a form approved by the Department of Industrial Relations, and
shall include at least the following items:
(a) A description of the form of healing practice intended to be
relied upon and designation of individuals and facilities qualified
to administer it.
(b) The employee shall not by entering into such an agreement or
by selecting such therapy, treatment or healing practice, waive any
rights conferred upon him by law, or forfeit any benefits to which he
might otherwise be entitled.
(c) The employer and the employee shall each reserve the right to
terminate such agreement upon seven days written notice to the other
party.
No liability shall be incurred by the employer under the
provisions of this section, except as provided for in Chapter 3
(commencing with Section 3600), of this part.
3209.8. Treatment reasonably required to cure or relieve from the
effects of an injury shall include the services of marriage and
family therapists and clinical social workers licensed by California
state law and within the scope of their practice as defined by
California state law if the injured person is referred to the
marriage and family therapist or the clinical social worker by a
licensed physician and surgeon, with the approval of the employer,
for treatment of a condition arising out of the injury. Nothing in
this section shall be construed to authorize marriage and family
therapists or clinical social workers to determine disability for the
purposes of Article 3 (commencing with Section 4650) of Chapter 2 of
Part 2. The requirement of this section that the employer approve
the referral by a licensed physician or surgeon shall not be
construed to preclude reimbursement for self-procured treatment,
found by the appeals board to be otherwise compensable pursuant to
this division, where the employer has refused to authorize any
treatment for the condition arising from the injury treated by the
marriage and family therapist or clinical social worker.
3209.9. The inclusion of acupuncturists in Section 3209.3 does not
imply any right or entitle any acupuncturist to represent, advertise,
or hold himself or herself out as a physician or surgeon holding an
M.D. or D.O. degree.
3209.10. (a) Medical treatment of a work-related injury required to
cure or relieve the effects of the injury may be provided by a state
licensed physician assistant or nurse practitioner, acting under the
review or supervision of a physician and surgeon pursuant to
standardized procedures or protocols within their lawfully authorized
scope of practice. The reviewing or supervising physician and
surgeon of the physician assistant or nurse practitioner shall be
deemed to be the treating physician. For the purposes of this
section, "medical treatment" includes the authority of the nurse
practitioner or physician assistant to authorize the patient to
receive time off from work for a period not to exceed three calendar
days if that authority is included in a standardized procedure or
protocol approved by the supervising physician. The nurse
practitioner or physician assistant may cosign the Doctor's First
Report of Occupational Injury or Illness. The treating physician
shall make any determination of temporary disability and shall sign
the report.
(b) The provision of subdivision (a) that requires the cosignature
of the treating physician applies to this section only and it is not
the intent of the Legislature that the requirement apply to any
other section of law or to any other statute or regulation. Nothing
in this section implies that a nurse practitioner or physician
assistant is a physician as defined in Section 3209.3.
3210. "Person" includes an individual, firm, voluntary association,
or a public, quasi public, or private corporation.
3211. "Insurer" includes the State Compensation Insurance Fund and
any private company, corporation, mutual association, reciprocal or
interinsurance exchange authorized under the laws of this State to
insure employers against liability for compensation and any employer
to whom a certificate of consent to self-insure has been issued.
3211.5. For purposes of this division, whenever the term
"firefighter," "firefighting member," and "member of a fire
department" is used, the term shall include, but shall not be limited
to, unless the context expressly provides otherwise, a person
engaged in providing firefighting services who is an apprentice,
volunteer, or employee on a partly paid or fully paid basis.
3211.9. "Disaster council" means a public agency established by
ordinance which is empowered to register and direct the activities of
disaster service workers within the area of the county, city, city
and county, or any part thereof, and is thus, because of such
registration and direction, acting as an instrumentality of the state
in aid of the carrying out of the general governmental functions and
policy of the state.
3211.91. "Accredited disaster council" means a disaster council
that is certified by the California Emergency Management Agency as
conforming with the rules and regulations established by the office
pursuant to Article 10 (commencing with Section 8610) of Chapter 7 of
Division 1 of Title 2 of the Government Code. A disaster council
remains accredited only while the certification of the California
Emergency Management Agency is in effect and is not revoked.
3211.92. (a) "Disaster service worker" means any natural person who
is registered with an accredited disaster council or a state agency
for the purpose of engaging in disaster service pursuant to the
California Emergency Services Act without pay or other consideration.
(b) "Disaster service worker" includes public employees performing
disaster work that is outside the course and scope of their regular
employment without pay and also includes any unregistered person
impressed into service during a state of war emergency, a state of
emergency, or a local emergency by a person having authority to
command the aid of citizens in the execution of his or her duties.
(c) Persons registered with a disaster council at the time that
council becomes accredited need not reregister in order to be
entitled to the benefits provided by Chapter 10 (commencing with
Section 4351).
(d) "Disaster service worker" does not include any member
registered as an active firefighting member of any regularly
organized volunteer fire department, having official recognition, and
full or partial support of the county, city, or district in which
the fire department is located.
3211.93. "Disaster service" means all activities authorized by and
carried on pursuant to the California Emergency Services Act,
including training necessary or proper to engage in such activities.
3211.93a. "Disaster service" does not include any activities or
functions performed by a person if the accredited disaster council
with which that person is registered receives a fee or other
compensation for the performance of those activities or functions by
that person.
3212. In the case of members of a sheriff's office or the
California Highway Patrol, district attorney's staff of inspectors
and investigators or of police or fire departments of cities,
counties, cities and counties, districts or other public or municipal
corporations or political subdivisions, whether those members are
volunteer, partly paid, or fully paid, and in the case of active
firefighting members of the Department of Forestry and Fire
Protection whose duties require firefighting or of any county
forestry or firefighting department or unit, whether voluntary, fully
paid, or partly paid, and in the case of members of the warden
service of the Wildlife Protection Branch of the Department of Fish
and Game whose principal duties consist of active law enforcement
service, excepting those whose principal duties are clerical or
otherwise do not clearly fall within the scope of active law
enforcement service such as stenographers, telephone operators, and
other officeworkers, the term "injury" as used in this act includes
hernia when any part of the hernia develops or manifests itself
during a period while the member is in the service in the office,
staff, division, department, or unit, and in the case of members of
fire departments, except those whose principal duties are clerical,
such as stenographers, telephone operators, and other officeworkers,
and in the case of county forestry or firefighting departments,
except those whose principal duties are clerical, such as
stenographers, telephone operators, and other officeworkers, and in
the case of active firefighting members of the Department of Forestry
and Fire Protection whose duties require firefighting, and in the
case of members of the warden service of the Wildlife Protection
Branch of the Department of Fish and Game whose principal duties
consist of active law enforcement service, excepting those whose
principal duties are clerical or otherwise do not clearly fall within
the scope of active law enforcement service such as stenographers,
telephone operators, and other officeworkers, the term "injury"
includes pneumonia and heart trouble that develops or manifests
itself during a period while the member is in the service of the
office, staff, department, or unit. In the case of regular salaried
county or city and county peace officers, the term "injury" also
includes any hernia that manifests itself or develops during a period
while the officer is in the service. The compensation that is
awarded for the hernia, heart trouble, or pneumonia shall include
full hospital, surgical, medical treatment, disability indemnity, and
death benefits, as provided by the workers' compensation laws of
this state.
The hernia, heart trouble, or pneumonia so developing or
manifesting itself in those cases shall be presumed to arise out of
and in the course of the employment. This presumption is disputable
and may be controverted by other evidence, but unless so
controverted, the appeals board is bound to find in accordance with
it. The presumption shall be extended to a member following
termination of service for a period of three calendar months for each
full year of the requisite service, but not to exceed 60 months in
any circumstance, commencing with the last date actually worked in
the specified capacity.
The hernia, heart trouble, or pneumonia so developing or
manifesting itself in those cases shall in no case be attributed to
any disease existing prior to that development or manifestation.
3212.1. (a) This section applies to all of the following:
(1) Active firefighting members, whether volunteers, partly paid,
or fully paid, of all of the following fire departments:
(A) A fire department of a city, county, city and county,
district, or other public or municipal corporation or political
subdivision.
(B) A fire department of the University of California and the
California State University.
(C) The Department of Forestry and Fire Protection.
(D) A county forestry or firefighting department or unit.
(2) Active firefighting members of a fire department that serves a
United States Department of Defense installation and who are
certified by the Department of Defense as meeting its standards for
firefighters.
(3) Peace officers, as defined in Section 830.1, subdivision (a)
of Section 830.2, and subdivisions (a) and (b) of Section 830.37, of
the Penal Code, who are primarily engaged in active law enforcement
activities.
(4) (A) Fire and rescue services coordinators who work for the
Office of Emergency Services.
(B) For purposes of this paragraph, "fire and rescue services
coordinator" means a coordinator with any of the following job
classifications: coordinator, senior coordinator, or chief
coordinator.
(b) The term "injury," as used in this division, includes cancer,
including leukemia, that develops or manifests itself during a period
in which any member described in subdivision (a) is in the service
of the department or unit, if the member demonstrates that he or she
was exposed, while in the service of the department or unit, to a
known carcinogen as defined by the International Agency for Research
on Cancer, or as defined by the director.
(c) The compensation that is awarded for cancer shall include full
hospital, surgical, medical treatment, disability indemnity, and
death benefits, as provided by this division.
(d) The cancer so developing or manifesting itself in these cases
shall be presumed to arise out of and in the course of the
employment. This presumption is disputable and may be controverted by
evidence that the primary site of the cancer has been established
and that the carcinogen to which the member has demonstrated exposure
is not reasonably linked to the disabling cancer. Unless so
controverted, the appeals board is bound to find in accordance with
the presumption. This presumption shall be extended to a member
following termination of service for a period of three calendar
months for each full year of the requisite service, but not to exceed
120 months in any circumstance, commencing with the last date
actually worked in the specified capacity.
(e) The amendments to this section enacted during the 1999 portion
of the 1999-2000 Regular Session shall be applied to claims for
benefits filed or pending on or after January 1, 1997, including, but
not limited to, claims for benefits filed on or after that date that
have previously been denied, or that are being appealed following
denial.
(f) This section shall be known, and may be cited, as the William
Dallas Jones Cancer Presumption Act of 2010.
3212.2. In the case of officers and employees in the Department of
Corrections having custodial duties, each officer and employee in the
Department of Youth Authority having group supervisory duties, and
each security officer employed at the Atascadero State Hospital, the
term "injury" includes heart trouble which develops or manifests
itself during a period while such officer or employee is in the
service of such department or hospital.
The compensation which is awarded for such heart trouble shall
include full hospital, surgical, medical treatment, disability
indemnity, and death benefits, as provided by the workmen's
compensation laws of this state.
Such heart trouble so developing or manifesting itself in such
cases shall be presumed to arise out of and in the course of the
employment. This presumption is disputable and may be controverted by
other evidence, but unless so controverted, the appeals board is
bound to find in accordance with it. This presumption shall be
extended to a member following termination of service for a period of
three calendar months for each full year of the requisite service,
but not to exceed 60 months in any circumstance, commencing with the
last date actually worked in the specified capacity.
3212.3. In the case of a peace officer who is designated under
subdivision (a) of Section 2250.1 of the Vehicle Code and who has
graduated from an academy certified by the Commission on Peace
Officer Standards and Training, when that officer is employed upon a
regular, full-time salary, the term "injury," as used in this
division, includes heart trouble and pneumonia which develops or
manifests itself during a period while that officer is in the service
of the Department of the California Highway Patrol. The compensation
which is awarded for the heart trouble or pneumonia shall include
full hospital, surgical, medical treatment, disability indemnity, and
death benefits as provided by this division.
The heart trouble or pneumonia so developing or manifesting itself
shall be presumed to arise out of and in the course of the
employment. However, a peace officer of the Department of the
California Highway Patrol, as designated under subdivision (a) of
Section 2250.1 of the Vehicle Code, shall have served five years or
more in that capacity or as a peace officer with the former
California State Police Division, or in both capacities, before the
presumption shall arise as to the compensability of heart trouble so
developing or manifesting itself. This presumption is disputable and
may be controverted by other evidence, but unless so controverted,
the appeals board is bound to find in accordance with it. This
presumption shall be extended to a member following termination of
service for a period of three calendar months for each full year of
the requisite service, but not to exceed 60 months in any
circumstance, commencing with the last date actually worked in the
specified capacity.
The heart trouble or pneumonia so developing or manifesting itself
in these cases shall in no case be attributed to any disease
existing prior to that development or manifestation.
The term "peace officers" as used herein shall be limited to those
employees of the Department of the California Highway Patrol who are
designated as peace officers under subdivision (a) of Section 2250.1
of the Vehicle Code.
3212.4. In the case of a member of a University of California fire
department located at a campus or other facility administered by the
Regents of University of California, when any such member is employed
by such a department upon a regular, full-time salary, on a
nonprobationary basis, the term "injury" as used in this division
includes heart trouble, hernia, or pneumonia which develops or
manifests itself during a period while such member is in the service
of such a University of California fire department. The compensation
which is awarded for such heart trouble, hernia, or pneumonia shall
include full hospital, surgical, medical treatment, disability
indemnity, and death benefits as provided by the provisions of this
division.
Such heart trouble, hernia, or pneumonia so developing or
manifesting itself shall be presumed to arise out of and in the
course of the employment. This presumption is disputable and may be
controverted by other evidence, but unless so controverted, the
appeals board is bound to find in accordance with it. This
presumption shall be extended to a member following termination of
service for a period of three calendar months for each full year of
the requisite service, but not to exceed 60 months in any
circumstance, commencing with the last date actually worked in the
specified capacity.
Such heart trouble, hernia, or pneumonia so developing or
manifesting itself in such cases shall in no case be attributed to
any disease existing prior to such development or manifestation.
The term "member" as used herein shall exclude those employees of
a University of California fire department whose principal duties are
those of a telephone operator, clerk, stenographer, machinist,
mechanic, or otherwise, and whose functions do not clearly fall
within the scope of active firefighting and prevention service.
3212.5. In the case of a member of a police department of a city or
municipality, or a member of the State Highway Patrol, when any such
member is employed upon a regular, full-time salary, and in the case
of a sheriff or deputy sheriff, or an inspector or investigator in a
district attorney's office of any county, employed upon a regular,
full-time salary, the term "injury" as used in this division includes
heart trouble and pneumonia which develops or manifests itself
during a period while such member, sheriff, or deputy sheriff,
inspector or investigator is in the service of the police department,
the State Highway Patrol, the sheriff's office or the district
attorney's office, as the case may be. The compensation which is
awarded for such heart trouble or pneumonia shall include full
hospital, surgical, medical treatment, disability indemnity, and
death benefits as provided by the provisions of this division.
Such heart trouble or pneumonia so developing or manifesting
itself shall be presumed to arise out of and in the course of the
employment; provided, however, that the member of the police
department, State Highway Patrol, the sheriff or deputy sheriff, or
an inspector or investigator in a district attorney's office of any
county shall have served five years or more in such capacity before
the presumption shall arise as to the compensability of heart trouble
so developing or manifesting itself. This presumption is disputable
and may be controverted by other evidence, but unless so
controverted, the appeals board is bound to find in accordance with
it. This presumption shall be extended to a member following
termination of service for a period of three calendar months for each
full year of the requisite service, but not to exceed 60 months in
any circumstance, commencing with the last date actually worked in
the specified capacity.
Such heart trouble or pneumonia so developing or manifesting
itself in such cases shall in no case be attributed to any disease
existing prior to such development or manifestation.
The term "members" as used herein shall be limited to those
employees of police departments, the California Highway Patrol and
sheriffs' departments and inspectors and investigators of a district
attorney's office who are defined as peace officers in Section 830.1,
830.2, or 830.3 of the Penal Code.
3212.6. In the case of a member of a police department of a city or
county, or a member of the sheriff's office of a county, or a member
of the California Highway Patrol, or an inspector or investigator in
a district attorney's office of any county whose principal duties
consist of active law enforcement service, or a prison or jail guard
or correctional officer who is employed by a public agency, when that
person is employed upon a regular, full-time salary, or in the case
of members of fire departments of any city, county, or district, or
other public or municipal corporations or political subdivisions,
when those members are employed on a regular fully paid basis, and in
the case of active firefighting members of the Department of
Forestry and Fire Protection whose duties require firefighting and
first-aid response services, or of any county forestry or
firefighting department or unit, where those members are employed on
a regular fully paid basis, excepting those whose principal duties
are clerical or otherwise do not clearly fall within the scope of
active law enforcement, firefighting, or emergency first-aid response
service such as stenographers, telephone operators, and other
officeworkers, the term "injury" includes tuberculosis that develops
or manifests itself during a period while that member is in the
service of that department or office. The compensation that is
awarded for the tuberculosis shall include full hospital, surgical,
medical treatment, disability indemnity, and death benefits as
provided by the provisions of this division.
The tuberculosis so developing or manifesting itself shall be
presumed to arise out of and in the course of the employment. This
presumption is disputable and may be controverted by other evidence,
but unless so controverted, the appeals board is bound to find in
accordance with it. This presumption shall be extended to a member
following termination of service for a period of three calendar
months for each full year of the requisite service, but not to exceed
60 months in any circumstance, commencing with the last date
actually worked in the specified capacity.
A public entity may require applicants for employment in
firefighting positions who would be entitled to the benefits granted
by this section to be tested for infection for tuberculosis.
3212.7. In the case of an employee in the Department of Justice
falling within the "state safety" class, when any such individual is
employed under civil service upon a regular, full-time salary, the
term "injury," as used in this division, includes heart trouble or
hernia or pneumonia or tuberculosis which develops or manifests
itself during the period while such individual is in the service of
the Department of Justice. The compensation which is awarded for any
such injury shall include full hospital, surgical, medical treatment,
disability indemnity, and death benefits as provided by the
provisions of this division.
Such heart trouble, hernia, pneumonia, or tuberculosis so
developing or manifesting itself shall be presumed to arise out of
and in the course of the employment. This presumption is disputable
and may be controverted by other evidence but unless so controverted,
the appeals board is bound to find in accordance with it. This
presumption shall be extended to a member following termination of
service for a period of three calendar months for each full year of
the requisite service, but not to exceed 60 months in any
circumstance, commencing with the last date actually worked in the
specified capacity.
Such heart trouble, hernia, pneumonia, or tuberculosis developing
or manifesting itself in such cases shall in no case be attributed to
any disease existing prior to such development or manifestation.
3212.8. (a) In the case of members of a sheriff's office, of police
or fire departments of cities, counties, cities and counties,
districts, or other public or municipal corporations or political
subdivisions, or individuals described in Chapter 4.5 (commencing
with Section 830) of Title 3 of Part 2 of the Penal Code, whether
those persons are volunteer, partly paid, or fully paid, and in the
case of active firefighting members of the Department of Forestry and
Fire Protection, or of any county forestry or firefighting
department or unit, whether voluntary, fully paid, or partly paid,
excepting those whose principal duties are clerical or otherwise do
not clearly fall within the scope of active law enforcement service
or active firefighting services, such as stenographers, telephone
operators, and other office workers, the term "injury" as used in
this division, includes a blood-borne infectious disease or
methicillin-resistant Staphylococcus aureus skin infection when any
part of the blood-borne infectious disease or methicillin-resistant
Staphylococcus aureus skin infection develops or manifests itself
during a period while that person is in the service of that office,
staff, division, department, or unit. The compensation that is
awarded for a blood-borne infectious disease or methicillin-resistant
Staphylococcus aureus skin infection shall include, but not be
limited to, full hospital, surgical, medical treatment, disability
indemnity, and death benefits, as provided by the workers'
compensation laws of this state.
(b) (1) The blood-borne infectious disease or
methicillin-resistant Staphylococcus aureus skin infection so
developing or manifesting itself in those cases shall be presumed to
arise out of and in the course of the employment or service. This
presumption is disputable and may be controverted by other evidence,
but unless so controverted, the appeals board is bound to find in
accordance with it.
(2) The blood-borne infectious disease presumption shall be
extended to a person covered by subdivision (a) following termination
of service for a period of three calendar months for each full year
of service, but not to exceed 60 months in any circumstance,
commencing with the last date actually worked in the specified
capacity.
(3) Notwithstanding paragraph (2), the methicillin-resistant
Staphylococcus aureus skin infection presumption shall be extended to
a person covered by subdivision (a) following termination of service
for a period of 90 days, commencing with the last day actually
worked in the specified capacity.
(c) The blood-borne infectious disease or methicillin-resistant
Staphylococcus aureus skin infection so developing or manifesting
itself in those cases shall in no case be attributed to any disease
or skin infection existing prior to that development or
manifestation.
(d) For the purposes of this section, "blood-borne infectious
disease" means a disease caused by exposure to pathogenic
microorganisms that are present in human blood that can cause disease
in humans, including those pathogenic microorganisms defined as
blood-borne pathogens by the Department of Industrial Relations.
3212.85. (a) This section applies to peace officers described in
Sections 830.1 to 830.5, inclusive, of the Penal Code, and members of
a fire department.
(b) The term "injury," as used in this division, includes illness
or resulting death due to exposure to a biochemical substance that
develops or occurs during a period in which any member described in
subdivision (a) is in the service of the department or unit.
(c) The compensation that is awarded for injury pursuant to this
section shall include full hospital, surgical, medical treatment,
disability indemnity, and death benefits, as provided by this
division.
(d) The injury that develops or manifests itself in these cases
shall be presumed to arise out of, and in the course of, the
employment. This presumption is disputable and may be controverted by
other evidence. U
