5300. All the following proceedings shall be instituted before the
appeals board and not elsewhere, except as otherwise provided in
Division 4:
(a) For the recovery of compensation, or concerning any right or
liability arising out of or incidental thereto.
(b) For the enforcement against the employer or an insurer of any
liability for compensation imposed upon the employer by this division
in favor of the injured employee, his or her dependents, or any
third person.
(c) For the determination of any question as to the distribution
of compensation among dependents or other persons.
(d) For the determination of any question as to who are dependents
of any deceased employee, or what persons are entitled to any
benefit under the compensation provisions of this division.
(e) For obtaining any order which by Division 4 the appeals board
is authorized to make.
(f) For the determination of any other matter, jurisdiction over
which is vested by Division 4 in the Division of Workers'
Compensation, including the administrative director and the appeals
board.
5301. The appeals board is vested with full power, authority and
jurisdiction to try and determine finally all the matters specified
in Section 5300 subject only to the review by the courts as specified
in this division.
5302. All orders, rules, findings, decisions, and awards of the
appeals board shall be prima facie lawful and conclusively presumed
to be reasonable and lawful, until and unless they are modified or
set aside by the appeals board or upon a review by the courts within
the time and in the manner specified in this division.
5303. There is but one cause of action for each injury coming
within the provisions of this division. All claims brought for
medical expense, disability payments, death benefits, burial expense,
liens, or any other matter arising out of such injury may, in the
discretion of the appeals board, be joined in the same proceeding at
any time; provided, however, that no injury, whether specific or
cumulative, shall, for any purpose whatsoever, merge into or form a
part of another injury; nor shall any award based on a cumulative
injury include disability caused by any specific injury or by any
other cumulative injury causing or contributing to the existing
disability, need for medical treatment or death.
5304. The appeals board has jurisdiction over any controversy
relating to or arising out of Sections 4600 to 4605 inclusive, unless
an express agreement fixing the amounts to be paid for medical,
surgical or hospital treatment as such treatment is described in
those sections has been made between the persons or institutions
rendering such treatment and the employer or insurer.
5305. The Division of Workers' Compensation, including the
administrative director, and the appeals board have jurisdiction over
all controversies arising out of injuries suffered outside the
territorial limits of this state in those cases where the injured
employee is a resident of this state at the time of the injury and
the contract of hire was made in this state. Any employee described
by this section, or his or her dependents, shall be entitled to the
compensation or death benefits provided by this division.
5306. The death of an employer subsequent to the sustaining of an
injury by an employee shall not impair the right of the employee to
proceed before the appeals board against the estate of the employer,
and the failure of the employee or his dependents to cause the claim
to be presented to the executor or administrator of the estate shall
not in any way bar or suspend such right.
5307. (a) Except for those rules and regulations within the
authority of the court administrator regarding trial level
proceedings as defined in subdivision (c), the appeals board may by
an order signed by four members:
(1) Adopt reasonable and proper rules of practice and procedure.
(2) Regulate and provide the manner in which, and by whom, minors
and incompetent persons are to appear and be represented before it.
(3) Regulate and prescribe the kind and character of notices,
where not specifically prescribed by this division, and the service
thereof.
(4) Regulate and prescribe the nature and extent of the proofs and
evidence.
(b) No rule or regulation of the appeals board pursuant to this
section shall be adopted, amended, or rescinded without public
hearings. Any written request filed with the appeals board seeking a
change in its rules or regulations shall be deemed to be denied if
not set by the appeals board for public hearing to be held within six
months of the date on which the request is received by the appeals
board.
(c) The court administrator shall adopt reasonable, proper, and
uniform rules for district office procedure regarding trial level
proceedings of the workers' compensation appeals board. These rules
shall include, but not be limited to, all of the following:
(1) Rules regarding conferences, hearings, continuances, and other
matters deemed reasonable and necessary to expeditiously resolve
disputes.
(2) The kind and character of forms to be used at all trial level
proceedings.
All rules and regulations adopted by the court administrator
pursuant to this subdivision shall be subject to the requirements of
the rulemaking provisions of the Administrative Procedure Act
(Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3
of Title 2 of the Government Code).
5307.1. (a) The administrative director, after public hearings,
shall adopt and revise periodically an official medical fee schedule
that shall establish reasonable maximum fees paid for medical
services other than physician services, drugs and pharmacy services,
health care facility fees, home health care, and all other treatment,
care, services, and goods described in Section 4600 and provided
pursuant to this section. Except for physician services, all fees
shall be in accordance with the fee-related structure and rules of
the relevant Medicare and Medi-Cal payment systems, provided that
employer liability for medical treatment, including issues of
reasonableness, necessity, frequency, and duration, shall be
determined in accordance with Section 4600. Commencing January 1,
2004, and continuing until the time the administrative director has
adopted an official medical fee schedule in accordance with the
fee-related structure and rules of the relevant Medicare payment
systems, except for the components listed in subdivision (j), maximum
reasonable fees shall be 120 percent of the estimated aggregate fees
prescribed in the relevant Medicare payment system for the same
class of services before application of the inflation factors
provided in subdivision (g), except that for pharmacy services and
drugs that are not otherwise covered by a Medicare fee schedule
payment for facility services, the maximum reasonable fees shall be
100 percent of fees prescribed in the relevant Medi-Cal payment
system. Upon adoption by the administrative director of an official
medical fee schedule pursuant to this section, the maximum reasonable
fees paid shall not exceed 120 percent of estimated aggregate fees
prescribed in the Medicare payment system for the same class of
services before application of the inflation factors provided in
subdivision (g). Pharmacy services and drugs shall be subject to the
requirements of this section, whether furnished through a pharmacy or
dispensed directly by the practitioner pursuant to subdivision (b)
of Section 4024 of the Business and Professions Code.
(b) In order to comply with the standards specified in subdivision
(f), the administrative director may adopt different conversion
factors, diagnostic related group weights, and other factors
affecting payment amounts from those used in the Medicare payment
system, provided estimated aggregate fees do not exceed 120 percent
of the estimated aggregate fees paid for the same class of services
in the relevant Medicare payment system.
(c) Notwithstanding subdivisions (a) and (d), the maximum facility
fee for services performed in an ambulatory surgical center, or in a
hospital outpatient department, may not exceed 120 percent of the
fee paid by Medicare for the same services performed in a hospital
outpatient department.
(d) If the administrative director determines that a medical
treatment, facility use, product, or service is not covered by a
Medicare payment system, the administrative director shall establish
maximum fees for that item, provided that the maximum fee paid shall
not exceed 120 percent of the fees paid by Medicare for services that
require comparable resources. If the administrative director
determines that a pharmacy service or drug is not covered by a
Medi-Cal payment system, the administrative director shall establish
maximum fees for that item. However, the maximum fee paid shall not
exceed 100 percent of the fees paid by Medi-Cal for pharmacy services
or drugs that require comparable resources.
(e) Prior to the adoption by the administrative director of a
medical fee schedule pursuant to this section, for any treatment,
facility use, product, or service not covered by a Medicare payment
system, including acupuncture services, or, with regard to pharmacy
services and drugs, for a pharmacy service or drug that is not
covered by a Medi-Cal payment system, the maximum reasonable fee paid
shall not exceed the fee specified in the official medical fee
schedule in effect on December 31, 2003.
(f) Within the limits provided by this section, the rates or fees
established shall be adequate to ensure a reasonable standard of
services and care for injured employees.
(g) (1) (A) Notwithstanding any other provision of law, the
official medical fee schedule shall be adjusted to conform to any
relevant changes in the Medicare and Medi-Cal payment systems no
later than 60 days after the effective date of those changes,
provided that both of the following conditions are met:
(i) The annual inflation adjustment for facility fees for
inpatient hospital services provided by acute care hospitals and for
hospital outpatient services shall be determined solely by the
estimated increase in the hospital market basket for the 12 months
beginning October 1 of the preceding calendar year.
(ii) The annual update in the operating standardized amount and
capital standard rate for inpatient hospital services provided by
hospitals excluded from the Medicare prospective payment system for
acute care hospitals and the conversion factor for hospital
outpatient services shall be determined solely by the estimated
increase in the hospital market basket for excluded hospitals for the
12 months beginning October 1 of the preceding calendar year.
(B) The update factors contained in clauses (i) and (ii) of
subparagraph (A) shall be applied beginning with the first update in
the Medicare fee schedule payment amounts after December 31, 2003.
(2) The administrative director shall determine the effective date
of the changes, and shall issue an order, exempt from Sections
5307.3 and 5307.4 and the rulemaking provisions of the Administrative
Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1
of Division 3 of Title 2 of the Government Code), informing the
public of the changes and their effective date. All orders issued
pursuant to this paragraph shall be published on the Internet Web
site of the Division of Workers' Compensation.
(3) For the purposes of this subdivision, the following
definitions apply:
(A) "Medicare Economic Index" means the input price index used by
the federal Centers for Medicare and Medicaid Services to measure
changes in the costs of a providing physician and other services paid
under the resource-based relative value scale.
(B) "Hospital market basket" means the input price index used by
the federal Centers for Medicare and Medicaid Services to measure
changes in the costs of providing inpatient hospital services
provided by acute care hospitals that are included in the Medicare
prospective payment system.
(C) "Hospital market basket for excluded hospitals" means the
input price index used by the federal Centers for Medicare and
Medicaid Services to measure changes in the costs of providing
inpatient services by hospitals that are excluded from the Medicare
prospective payment system.
(h) Nothing in this section shall prohibit an employer or insurer
from contracting with a medical provider for reimbursement rates
different from those prescribed in the official medical fee schedule.
(i) Except as provided in Section 4626, the official medical fee
schedule shall not apply to medical-legal expenses, as that term is
defined by Section 4620.
(j) The following Medicare payment system components may not
become part of the official medical fee schedule until January 1,
2005:
(1) Inpatient skilled nursing facility care.
(2) Home health agency services.
(3) Inpatient services furnished by hospitals that are exempt from
the prospective payment system for general acute care hospitals.
(4) Outpatient renal dialysis services.
(k) Notwithstanding subdivision (a), for the calendar years 2004
and 2005, the existing official medical fee schedule rates for
physician services shall remain in effect, but these rates shall be
reduced by 5 percent. The administrative director may reduce fees of
individual procedures by different amounts, but in no event shall the
administrative director reduce the fee for a procedure that is
currently reimbursed at a rate at or below the Medicare rate for the
same procedure.
(l) Notwithstanding subdivision (a), the administrative director,
commencing January 1, 2006, shall have the authority, after public
hearings, to adopt and revise, no less frequently than biennially, an
official medical fee schedule for physician services. If the
administrative director fails to adopt an official medical fee
schedule for physician services by January 1, 2006, the existing
official medical fee schedule rates for physician services shall
remain in effect until a new schedule is adopted or the existing
schedule is revised.
(m) (1) Notwithstanding subdivisions (a), (b), (f), and (g),
commencing January 1, 2008, the administrative director, after public
hearings, may adopt and revise, no less frequently than biennially,
an official medical fee schedule for inpatient facility fees for burn
cases in accordance with this subdivision. Until the date that the
administrative director adopts a fee schedule pursuant to this
subdivision, the inpatient fee schedule adopted and revised in
accordance with subdivisions (a) and (g) shall continue to apply to
inpatient facility fees for burn cases.
(2) In order to establish inpatient facility fees for burn cases
that are adequate to ensure a reasonable standard of services and
care, the administrative director may do any of the following:
(A) Adopt a fee schedule in accordance with the Medicare payment
system, or adopt different conversion factors, diagnostic related
group weights, and other factors affecting payment amounts from those
used in the Medicare payment system.
(B) Adopt a fee schedule utilizing payment methodologies other
than those utilized by the Medicare payment system.
(C) Adopt a fee schedule that utilizes both Medicare and
non-Medicare methodologies.
(3) Inpatient facility fees for burn cases may exceed 120 percent,
but in no case shall exceed 180 percent, of the fees paid by
Medicare. Inpatient facility fees for burn cases shall be excluded
from the calculation of estimated aggregate fees for purposes of
other subdivisions of this section.
(4) The changes to this section made by this subdivision shall
remain in effect only until January 1, 2011.
5307.11. A health care provider or health facility licensed
pursuant to Section 1250 of the Health and Safety Code, and a
contracting agent, employer, or carrier may contract for
reimbursement rates different from those in the fee schedule adopted
and revised pursuant to Section 5307.1. When a health care provider
or health facility licensed pursuant to Section 1250 of the Health
and Safety Code, and a contracting agent, employer, or carrier
contract for reimbursement rates different from those in the fee
schedule, the medical fee schedule for that health care provider or
health facility licensed pursuant to Section 1250 of the Health and
Safety Code shall not apply to the contracted reimbursement rates.
Except as provided in subdivision (b) of Section 5307.1, the official
medical fee schedule shall establish maximum reimbursement rates for
all medical services for injuries subject to this division provided
by a health care provider or health care facility licensed pursuant
to Section 1250 of the Health and Safety Code other than those
specified in contracts subject to this section.
5307.2. The administrative director shall contract with an
independent consulting firm, to the extent permitted by state law, to
perform an annual study of access to medical treatment for injured
workers. The study shall analyze whether there is adequate access to
quality health care and products, including prescription drugs and
pharmacy services, for injured workers and make recommendations to
ensure continued access. If the administrative director determines,
based on this study, that there is insufficient access to quality
health care or products for injured workers, including access to
prescription drugs and pharmacy services, the administrative director
may make appropriate adjustments to medical, prescription drugs and
pharmacy services, and facilities' fees. When there has been a
determination that substantial access problems exist, the
administrative director may, in accordance with the notification and
hearing requirements of Section 5307.1, adopt fees in excess of 120
percent of the applicable Medicare payment system fee, or in excess
of 100 percent of the fees prescribed in the relevant Medi-Cal
payment system, for the applicable services or products.
5307.27. On or before December 1, 2004, the administrative
director, in consultation with the Commission on Health and Safety
and Workers' Compensation, shall adopt, after public hearings, a
medical treatment utilization schedule, that shall incorporate the
evidence-based, peer-reviewed, nationally recognized standards of
care recommended by the commission pursuant to Section 77.5, and that
shall address, at a minimum, the frequency, duration, intensity, and
appropriateness of all treatment procedures and modalities commonly
performed in workers' compensation cases.
5307.3. The administrative director may adopt, amend, or repeal any
rules and regulations that are reasonably necessary to enforce this
division, except where this power is specifically reserved to the
appeals board or the court administrator.
No rule or regulation of the administrative director pursuant to
this section shall be adopted, amended, or rescinded without public
hearings. Any written request filed with the administrative director
seeking a change in its rules or regulations shall be deemed to be
denied if not set by the administrative director for public hearing
to be held within six months of the date on which the request is
received by the administrative director.
5307.4. (a) Public hearings required under Sections 5307 and 5307.3
shall be subject to the provisions of this section except to the
extent that there is involved a matter relating to the management, or
to personnel, or to public property, loans, grants, benefits, or to
contracts, of the appeals board or the administrative director.
(b) Notice of the rule or regulation proposed to be adopted,
amended, or rescinded, shall be given to such business and labor
organizations and firms or individuals who have requested notice
thereof. The notice shall include all of the following:
(1) A statement of the time, place, and nature of the public
hearings.
(2) Reference to the legal authority under which the rule is
proposed.
(3) Either the terms or substance of the proposed rule, or a
description of the subjects and the issues involved.
(c) Except where the proposed rule or regulation has a significant
impact on the public, this section shall not apply to interpretive
rules, general statements of policy, or rules of agency organization.
(d) After notice required by this section, the appeals board or
the administrative director shall give interested persons the
opportunity to participate in the rulemaking through submission of
written data, views, or arguments, with opportunity for oral
presentation. If, after consideration of the relevant matter
presented, the appeals board or the administrative director adopts a
rule, it or he shall publish a concise, general statement of reasons
for the adoption of the rule. The rule and statement of reasons shall
be given to the same individuals and organizations who have
requested notice of hearings.
(e) The notice required under this section shall be made not less
than 30 days prior to the public hearing date.
5307.5. The appeals board or a workers' compensation judge may:
(a) Appoint a trustee or guardian ad litem to appear for and
represent any minor or incompetent upon the terms and conditions
which it deems proper. The guardian or trustee shall, if required by
the appeals board, give a bond in the form and of the character
required by law from a guardian appointed by a superior court and in
the amount which the appeals board determines. The bond shall be
approved by the appeals board, and the guardian or trustee shall not
be discharged from liability until he or she files an account with
the appeals board or with the superior court and the account is
approved. The trustee or guardian shall receive the compensation for
his or her services fixed and allowed by the appeals board or by the
superior court.
(b) Provide for the joinder in the same proceeding of all persons
interested therein, whether as employer, insurer, employee,
dependent, creditor, or otherwise.
5307.6. (a) The administrative director shall adopt and revise a
fee schedule for medical-legal expenses as defined by Section 4620,
which shall be prima facie evidence of the reasonableness of fees
charged for medical-legal expenses at the same time he or she adopts
and revises the medical fee schedule pursuant to Section 5307.1.
The schedule shall consist of a series of procedure codes,
relative values, and a conversion factor producing fees which provide
remuneration to physicians performing medical-legal evaluations at a
level equivalent to that provided to physicians for reasonably
comparable work, and which additionally recognizes the relative
complexity of various types of evaluations, the amount of time spent
by the physician in direct contact with the patient, and the need to
prepare a written report.
(b) A provider shall not be paid fees in excess of those set forth
in the fee schedule established under this section unless the
provider provides an itemization and explanation of the fee that
shows that it is both a reasonable fee and that extraordinary
circumstances relating to the medical condition being evaluated
justify a higher fee; provided, however, that in no event shall a
provider charge in excess of his or her usual fee. The employer and
employee shall have standing to contest fees in excess of those set
forth in the fee schedule.
(c) In the event of a dispute between the provider and the
employer, employee, or carrier concerning the fees charged, the
provider may be allowed a reasonable fee for testimony if the
provider testified pursuant to the employer's or carrier's subpoena
and the judge or referee determines that the fee charged was
reasonable and justified by extraordinary circumstances.
(d) (1) No provider may request nor accept any compensation,
including, but not limited to, any kind of remuneration, discount,
rebate, refund, dividend, distribution, subsidy, or other form of
direct or indirect payment, whether in money or otherwise, from any
source for medical-legal expenses if such compensation is in addition
to the fees authorized by this section. In addition to being subject
to discipline pursuant to the provisions of subdivision (k) of
Section 139.2, any provider violating this subdivision is subject to
disciplinary action by the appropriate licensing board.
(2) This subdivision does not apply to medical-legal expenses for
which the administrative director has not adopted a fee schedule.
5308. The appeals board has jurisdiction to determine controversies
arising out of insurance policies issued to self-employing persons,
conferring benefits identical with those prescribed by this division.
The appeals board may try and determine matters referred to it by
the parties under the provisions of Title 9 (commencing with Section
1280) of Part 3 of the Code of Civil Procedure, with respect to
controversies arising out of insurance issued to self-employing
persons under the provisions of this division. Such controversies may
be submitted to it by the signed agreement of the parties, or by the
application of one party and the submission of the other to its
jurisdiction, with or without an express request for arbitration.
The State Compensation Insurance Fund, when the consent of the
other party is obtained, shall submit to the appeals board all
controversies susceptible of being arbitrated under this section.
In acting as arbitrator under this section, the appeals board has
all the powers which it may lawfully exercise in compensation cases,
and its findings and award upon such arbitration have the same
conclusiveness and are subject to the same mode of reopening, review,
and enforcement as in compensation cases. No fee or cost shall be
charged by the appeals board for arbitrating the issues presented
under this section.
5309. The appeals board may, in accordance with rules of practice
and procedure which it shall adopt and upon the agreement of the
parties, on the application of either, or of its own motion, and with
or without notice, direct and order a workers' compensation judge:
(a) To try the issues in any proceeding before it, whether of fact
or of law, and make and file a finding, order, decision, or award
based thereon.
(b) To hold hearings and ascertain facts necessary to enable the
appeals board to determine any proceeding or to make any order,
decision, or award that the appeals board is authorized to make under
Divisions 4 or 5, or necessary for the information of the appeals
board.
(c) To issue writs or summons, warrants of attachment, warrants of
commitment, and all necessary process in proceedings for direct and
hybrid contempt in a like manner and to the same extent as courts of
record. For the purposes of this section, "hybrid contempt" means a
charge of contempt which arises from events occurring in the
immediate presence of the workers' compensation judge for reasons
which occur outside the presence of the workers' compensation judge.
5310. The appeals board may appoint one or more workers'
compensation administrative law judges in any proceeding, as it may
deem necessary or advisable, and may refer, remove to itself, or
transfer to a workers' compensation administrative law judge the
proceedings on any claim. The administrative director, after
consideration of the recommendation of the court administrator, may
appoint workers' compensation administrative law judges. Any workers'
compensation administrative law judge appointed by the
administrative director has the powers, jurisdiction, and authority
granted by law, by the order of appointment, and by the rules of the
appeals board.
5311. Any party to the proceeding may object to the reference of
the proceeding to a particular workers' compensation judge upon any
one or more of the grounds specified in Section 641 of the Code of
Civil Procedure and the objection shall be heard and disposed of by
the appeals board. Affidavits may be read and witnesses examined as
to the objections.
5311.5. The administrative director or the court administrator
shall require all workers' compensation administrative law judges to
participate in continuing education to further their abilities as
workers' compensation administrative law judges, including courses in
ethics and conflict of interest. The director may coordinate the
requirements with those imposed upon attorneys by the State Bar in
order that the requirements may be consistent.
5312. Before entering upon his or her duties, the workers'
compensation judge shall be sworn, before an officer authorized to
administer oaths, faithfully and fairly to hear and determine the
matters and issues referred to him or her, to make just findings and
to report according to his or her understanding.
5313. The appeals board or the workers' compensation judge shall,
within 30 days after the case is submitted, make and file findings
upon all facts involved in the controversy and an award, order, or
decision stating the determination as to the rights of the parties.
Together with the findings, decision, order or award there shall be
served upon all the parties to the proceedings a summary of the
evidence received and relied upon and the reasons or grounds upon
which the determination was made.
5315. Within 60 days after the filing of the findings, decision,
order or award, the appeals board may confirm, adopt, modify or set
aside the findings, order, decision, or award of a workers'
compensation judge and may, with or without further proceedings, and
with or without notice, enter its order, findings, decision, or award
based upon the record in the case.
5316. Any notice, order, or decision required by this division to
be served upon any person either before, during, or after the
institution of any proceeding before the appeals board, may be served
in the manner provided by Chapter 5, Title 14 of Part 2 of the Code
of Civil Procedure, unless otherwise directed by the appeals board.
In the latter event the document shall be served in accordance with
the order or direction of the appeals board. The appeals board may,
in the cases mentioned in the Code of Civil Procedure, order service
to be made by publication of notice of time and place of hearing.
Where service is ordered to be made by publication the date of the
hearing may be fixed at more than 30 days from the date of filing the
application.
5317. Any such notice, order or decision affecting the State or any
county, city, school district, or public corporation therein, shall
be served upon the person upon whom the service of similar notices,
orders, or decisions is authorized by law.
5318. (a) Implantable medical devices, hardware, and
instrumentation for Diagnostic Related Groups (DRGs) 004, 496, 497,
498, 519, and 520 shall be separately reimbursed at the provider's
documented paid cost, plus an additional 10 percent of the provider's
documented paid cost, not to exceed a maximum of two hundred fifty
dollars ($250), plus any sales tax and shipping and handling charges
actually paid.
(b) This section shall be operative only until the administrative
director adopts a regulation specifying separate reimbursement, if
any, for implantable medical hardware or instrumentation for complex
spinal surgeries.
5300. All the following proceedings shall be instituted before the
appeals board and not elsewhere, except as otherwise provided in
Division 4:
(a) For the recovery of compensation, or concerning any right or
liability arising out of or incidental thereto.
(b) For the enforcement against the employer or an insurer of any
liability for compensation imposed upon the employer by this division
in favor of the injured employee, his or her dependents, or any
third person.
(c) For the determination of any question as to the distribution
of compensation among dependents or other persons.
(d) For the determination of any question as to who are dependents
of any deceased employee, or what persons are entitled to any
benefit under the compensation provisions of this division.
(e) For obtaining any order which by Division 4 the appeals board
is authorized to make.
(f) For the determination of any other matter, jurisdiction over
which is vested by Division 4 in the Division of Workers'
Compensation, including the administrative director and the appeals
board.
5301. The appeals board is vested with full power, authority and
jurisdiction to try and determine finally all the matters specified
in Section 5300 subject only to the review by the courts as specified
in this division.
5302. All orders, rules, findings, decisions, and awards of the
appeals board shall be prima facie lawful and conclusively presumed
to be reasonable and lawful, until and unless they are modified or
set aside by the appeals board or upon a review by the courts within
the time and in the manner specified in this division.
5303. There is but one cause of action for each injury coming
within the provisions of this division. All claims brought for
medical expense, disability payments, death benefits, burial expense,
liens, or any other matter arising out of such injury may, in the
discretion of the appeals board, be joined in the same proceeding at
any time; provided, however, that no injury, whether specific or
cumulative, shall, for any purpose whatsoever, merge into or form a
part of another injury; nor shall any award based on a cumulative
injury include disability caused by any specific injury or by any
other cumulative injury causing or contributing to the existing
disability, need for medical treatment or death.
5304. The appeals board has jurisdiction over any controversy
relating to or arising out of Sections 4600 to 4605 inclusive, unless
an express agreement fixing the amounts to be paid for medical,
surgical or hospital treatment as such treatment is described in
those sections has been made between the persons or institutions
rendering such treatment and the employer or insurer.
5305. The Division of Workers' Compensation, including the
administrative director, and the appeals board have jurisdiction over
all controversies arising out of injuries suffered outside the
territorial limits of this state in those cases where the injured
employee is a resident of this state at the time of the injury and
the contract of hire was made in this state. Any employee described
by this section, or his or her dependents, shall be entitled to the
compensation or death benefits provided by this division.
5306. The death of an employer subsequent to the sustaining of an
injury by an employee shall not impair the right of the employee to
proceed before the appeals board against the estate of the employer,
and the failure of the employee or his dependents to cause the claim
to be presented to the executor or administrator of the estate shall
not in any way bar or suspend such right.
5307. (a) Except for those rules and regulations within the
authority of the court administrator regarding trial level
proceedings as defined in subdivision (c), the appeals board may by
an order signed by four members:
(1) Adopt reasonable and proper rules of practice and procedure.
(2) Regulate and provide the manner in which, and by whom, minors
and incompetent persons are to appear and be represented before it.
(3) Regulate and prescribe the kind and character of notices,
where not specifically prescribed by this division, and the service
thereof.
(4) Regulate and prescribe the nature and extent of the proofs and
evidence.
(b) No rule or regulation of the appeals board pursuant to this
section shall be adopted, amended, or rescinded without public
hearings. Any written request filed with the appeals board seeking a
change in its rules or regulations shall be deemed to be denied if
not set by the appeals board for public hearing to be held within six
months of the date on which the request is received by the appeals
board.
(c) The court administrator shall adopt reasonable, proper, and
uniform rules for district office procedure regarding trial level
proceedings of the workers' compensation appeals board. These rules
shall include, but not be limited to, all of the following:
(1) Rules regarding conferences, hearings, continuances, and other
matters deemed reasonable and necessary to expeditiously resolve
disputes.
(2) The kind and character of forms to be used at all trial level
proceedings.
All rules and regulations adopted by the court administrator
pursuant to this subdivision shall be subject to the requirements of
the rulemaking provisions of the Administrative Procedure Act
(Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3
of Title 2 of the Government Code).
5307.1. (a) The administrative director, after public hearings,
shall adopt and revise periodically an official medical fee schedule
that shall establish reasonable maximum fees paid for medical
services other than physician services, drugs and pharmacy services,
health care facility fees, home health care, and all other treatment,
care, services, and goods described in Section 4600 and provided
pursuant to this section. Except for physician services, all fees
shall be in accordance with the fee-related structure and rules of
the relevant Medicare and Medi-Cal payment systems, provided that
employer liability for medical treatment, including issues of
reasonableness, necessity, frequency, and duration, shall be
determined in accordance with Section 4600. Commencing January 1,
2004, and continuing until the time the administrative director has
adopted an official medical fee schedule in accordance with the
fee-related structure and rules of the relevant Medicare payment
systems, except for the components listed in subdivision (j), maximum
reasonable fees shall be 120 percent of the estimated aggregate fees
prescribed in the relevant Medicare payment system for the same
class of services before application of the inflation factors
provided in subdivision (g), except that for pharmacy services and
drugs that are not otherwise covered by a Medicare fee schedule
payment for facility services, the maximum reasonable fees shall be
100 percent of fees prescribed in the relevant Medi-Cal payment
system. Upon adoption by the administrative director of an official
medical fee schedule pursuant to this section, the maximum reasonable
fees paid shall not exceed 120 percent of estimated aggregate fees
prescribed in the Medicare payment system for the same class of
services before application of the inflation factors provided in
subdivision (g). Pharmacy services and drugs shall be subject to the
requirements of this section, whether furnished through a pharmacy or
dispensed directly by the practitioner pursuant to subdivision (b)
of Section 4024 of the Business and Professions Code.
(b) In order to comply with the standards specified in subdivision
(f), the administrative director may adopt different conversion
factors, diagnostic related group weights, and other factors
affecting payment amounts from those used in the Medicare payment
system, provided estimated aggregate fees do not exceed 120 percent
of the estimated aggregate fees paid for the same class of services
in the relevant Medicare payment system.
(c) Notwithstanding subdivisions (a) and (d), the maximum facility
fee for services performed in an ambulatory surgical center, or in a
hospital outpatient department, may not exceed 120 percent of the
fee paid by Medicare for the same services performed in a hospital
outpatient department.
(d) If the administrative director determines that a medical
treatment, facility use, product, or service is not covered by a
Medicare payment system, the administrative director shall establish
maximum fees for that item, provided that the maximum fee paid shall
not exceed 120 percent of the fees paid by Medicare for services that
require comparable resources. If the administrative director
determines that a pharmacy service or drug is not covered by a
Medi-Cal payment system, the administrative director shall establish
maximum fees for that item. However, the maximum fee paid shall not
exceed 100 percent of the fees paid by Medi-Cal for pharmacy services
or drugs that require comparable resources.
(e) Prior to the adoption by the administrative director of a
medical fee schedule pursuant to this section, for any treatment,
facility use, product, or service not covered by a Medicare payment
system, including acupuncture services, or, with regard to pharmacy
services and drugs, for a pharmacy service or drug that is not
covered by a Medi-Cal payment system, the maximum reasonable fee paid
shall not exceed the fee specified in the official medical fee
schedule in effect on December 31, 2003.
(f) Within the limits provided by this section, the rates or fees
established shall be adequate to ensure a reasonable standard of
services and care for injured employees.
(g) (1) (A) Notwithstanding any other provision of law, the
official medical fee schedule shall be adjusted to conform to any
relevant changes in the Medicare and Medi-Cal payment systems no
later than 60 days after the effective date of those changes,
provided that both of the following conditions are met:
(i) The annual inflation adjustment for facility fees for
inpatient hospital services provided by acute care hospitals and for
hospital outpatient services shall be determined solely by the
estimated increase in the hospital market basket for the 12 months
beginning October 1 of the preceding calendar year.
(ii) The annual update in the operating standardized amount and
capital standard rate for inpatient hospital services provided by
hospitals excluded from the Medicare prospective payment system for
acute care hospitals and the conversion factor for hospital
outpatient services shall be determined solely by the estimated
increase in the hospital market basket for excluded hospitals for the
12 months beginning October 1 of the preceding calendar year.
(B) The update factors contained in clauses (i) and (ii) of
subparagraph (A) shall be applied beginning with the first update in
the Medicare fee schedule payment amounts after December 31, 2003.
(2) The administrative director shall determine the effective date
of the changes, and shall issue an order, exempt from Sections
5307.3 and 5307.4 and the rulemaking provisions of the Administrative
Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1
of Division 3 of Title 2 of the Government Code), informing the
public of the changes and their effective date. All orders issued
pursuant to this paragraph shall be published on the Internet Web
site of the Division of Workers' Compensation.
(3) For the purposes of this subdivision, the following
definitions apply:
(A) "Medicare Economic Index" means the input price index used by
the federal Centers for Medicare and Medicaid Services to measure
changes in the costs of a providing physician and other services paid
under the resource-based relative value scale.
(B) "Hospital market basket" means the input price index used by
the federal Centers for Medicare and Medicaid Services to measure
changes in the costs of providing inpatient hospital services
provided by acute care hospitals that are included in the Medicare
prospective payment system.
(C) "Hospital market basket for excluded hospitals" means the
input price index used by the federal Centers for Medicare and
Medicaid Services to measure changes in the costs of providing
inpatient services by hospitals that are excluded from the Medicare
prospective payment system.
(h) Nothing in this section shall prohibit an employer or insurer
from contracting with a medical provider for reimbursement rates
different from those prescribed in the official medical fee schedule.
(i) Except as provided in Section 4626, the official medical fee
schedule shall not apply to medical-legal expenses, as that term is
defined by Section 4620.
(j) The following Medicare payment system components may not
become part of the official medical fee schedule until January 1,
2005:
(1) Inpatient skilled nursing facility care.
(2) Home health agency services.
(3) Inpatient services furnished by hospitals that are exempt from
the prospective payment system for general acute care hospitals.
(4) Outpatient renal dialysis services.
(k) Notwithstanding subdivision (a), for the calendar years 2004
and 2005, the existing official medical fee schedule rates for
physician services shall remain in effect, but these rates shall be
reduced by 5 percent. The administrative director may reduce fees of
individual procedures by different amounts, but in no event shall the
administrative director reduce the fee for a procedure that is
currently reimbursed at a rate at or below the Medicare rate for the
same procedure.
(l) Notwithstanding subdivision (a), the administrative director,
commencing January 1, 2006, shall have the authority, after public
hearings, to adopt and revise, no less frequently than biennially, an
official medical fee schedule for physician services. If the
administrative director fails to adopt an official medical fee
schedule for physician services by January 1, 2006, the existing
official medical fee schedule rates for physician services shall
remain in effect until a new schedule is adopted or the existing
schedule is revised.
(m) (1) Notwithstanding subdivisions (a), (b), (f), and (g),
commencing January 1, 2008, the administrative director, after public
hearings, may adopt and revise, no less frequently than biennially,
an official medical fee schedule for inpatient facility fees for burn
cases in accordance with this subdivision. Until the date that the
administrative director adopts a fee schedule pursuant to this
subdivision, the inpatient fee schedule adopted and revised in
accordance with subdivisions (a) and (g) shall continue to apply to
inpatient facility fees for burn cases.
(2) In order to establish inpatient facility fees for burn cases
that are adequate to ensure a reasonable standard of services and
care, the administrative director may do any of the following:
(A) Adopt a fee schedule in accordance with the Medicare payment
system, or adopt different conversion factors, diagnostic related
group weights, and other factors affecting payment amounts from those
used in the Medicare payment system.
(B) Adopt a fee schedule utilizing payment methodologies other
than those utilized by the Medicare payment system.
(C) Adopt a fee schedule that utilizes both Medicare and
non-Medicare methodologies.
(3) Inpatient facility fees for burn cases may exceed 120 percent,
but in no case shall exceed 180 percent, of the fees paid by
Medicare. Inpatient facility fees for burn cases shall be excluded
from the calculation of estimated aggregate fees for purposes of
other subdivisions of this section.
(4) The changes to this section made by this subdivision shall
remain in effect only until January 1, 2011.
5307.11. A health care provider or health facility licensed
pursuant to Section 1250 of the Health and Safety Code, and a
contracting agent, employer, or carrier may contract for
reimbursement rates different from those in the fee schedule adopted
and revised pursuant to Section 5307.1. When a health care provider
or health facility licensed pursuant to Section 1250 of the Health
and Safety Code, and a contracting agent, employer, or carrier
contract for reimbursement rates different from those in the fee
schedule, the medical fee schedule for that health care provider or
health facility licensed pursuant to Section 1250 of the Health and
Safety Code shall not apply to the contracted reimbursement rates.
Except as provided in subdivision (b) of Section 5307.1, the official
medical fee schedule shall establish maximum reimbursement rates for
all medical services for injuries subject to this division provided
by a health care provider or health care facility licensed pursuant
to Section 1250 of the Health and Safety Code other than those
specified in contracts subject to this section.
5307.2. The administrative director shall contract with an
independent consulting firm, to the extent permitted by state law, to
perform an annual study of access to medical treatment for injured
workers. The study shall analyze whether there is adequate access to
quality health care and products, including prescription drugs and
pharmacy services, for injured workers and make recommendations to
ensure continued access. If the administrative director determines,
based on this study, that there is insufficient access to quality
health care or products for injured workers, including access to
prescription drugs and pharmacy services, the administrative director
may make appropriate adjustments to medical, prescription drugs and
pharmacy services, and facilities' fees. When there has been a
determination that substantial access problems exist, the
administrative director may, in accordance with the notification and
hearing requirements of Section 5307.1, adopt fees in excess of 120
percent of the applicable Medicare payment system fee, or in excess
of 100 percent of the fees prescribed in the relevant Medi-Cal
payment system, for the applicable services or products.
5307.27. On or before December 1, 2004, the administrative
director, in consultation with the Commission on Health and Safety
and Workers' Compensation, shall adopt, after public hearings, a
medical treatment utilization schedule, that shall incorporate the
evidence-based, peer-reviewed, nationally recognized standards of
care recommended by the commission pursuant to Section 77.5, and that
shall address, at a minimum, the frequency, duration, intensity, and
appropriateness of all treatment procedures and modalities commonly
performed in workers' compensation cases.
5307.3. The administrative director may adopt, amend, or repeal any
rules and regulations that are reasonably necessary to enforce this
division, except where this power is specifically reserved to the
appeals board or the court administrator.
No rule or regulation of the administrative director pursuant to
this section shall be adopted, amended, or rescinded without public
hearings. Any written request filed with the administrative director
seeking a change in its rules or regulations shall be deemed to be
denied if not set by the administrative director for public hearing
to be held within six months of the date on which the request is
received by the administrative director.
5307.4. (a) Public hearings required under Sections 5307 and 5307.3
shall be subject to the provisions of this section except to the
extent that there is involved a matter relating to the management, or
to personnel, or to public property, loans, grants, benefits, or to
contracts, of the appeals board or the administrative director.
(b) Notice of the rule or regulation proposed to be adopted,
amended, or rescinded, shall be given to such business and labor
organizations and firms or individuals who have requested notice
thereof. The notice shall include all of the following:
(1) A statement of the time, place, and nature of the public
hearings.
(2) Reference to the legal authority under which the rule is
proposed.
(3) Either the terms or substance of the proposed rule, or a
description of the subjects and the issues involved.
(c) Except where the proposed rule or regulation has a significant
impact on the public, this section shall not apply to interpretive
rules, general statements of policy, or rules of agency organization.
(d) After notice required by this section, the appeals board or
the administrative director shall give interested persons the
opportunity to participate in the rulemaking through submission of
written data, views, or arguments, with opportunity for oral
presentation. If, after consideration of the relevant matter
presented, the appeals board or the administrative director adopts a
rule, it or he shall publish a concise, general statement of reasons
for the adoption of the rule. The rule and statement of reasons shall
be given to the same individuals and organizations who have
requested notice of hearings.
(e) The notice required under this section shall be made not less
than 30 days prior to the public hearing date.
5307.5. The appeals board or a workers' compensation judge may:
(a) Appoint a trustee or guardian ad litem to appear for and
represent any minor or incompetent upon the terms and conditions
which it deems proper. The guardian or trustee shall, if required by
the appeals board, give a bond in the form and of the character
required by law from a guardian appointed by a superior court and in
the amount which the appeals board determines. The bond shall be
approved by the appeals board, and the guardian or trustee shall not
be discharged from liability until he or she files an account with
the appeals board or with the superior court and the account is
approved. The trustee or guardian shall receive the compensation for
his or her services fixed and allowed by the appeals board or by the
superior court.
(b) Provide for the joinder in the same proceeding of all persons
interested therein, whether as employer, insurer, employee,
dependent, creditor, or otherwise.
5307.6. (a) The administrative director shall adopt and revise a
fee schedule for medical-legal expenses as defined by Section 4620,
which shall be prima facie evidence of the reasonableness of fees
charged for medical-legal expenses at the same time he or she adopts
and revises the medical fee schedule pursuant to Section 5307.1.
The schedule shall consist of a series of procedure codes,
relative values, and a conversion factor producing fees which provide
remuneration to physicians performing medical-legal evaluations at a
level equivalent to that provided to physicians for reasonably
comparable work, and which additionally recognizes the relative
complexity of various types of evaluations, the amount of time spent
by the physician in direct contact with the patient, and the need to
prepare a written report.
(b) A provider shall not be paid fees in excess of those set forth
in the fee schedule established under this section unless the
provider provides an itemization and explanation of the fee that
shows that it is both a reasonable fee and that extraordinary
circumstances relating to the medical condition being evaluated
justify a higher fee; provided, however, that in no event shall a
provider charge in excess of his or her usual fee. The employer and
employee shall have standing to contest fees in excess of those set
forth in the fee schedule.
(c) In the event of a dispute between the provider and the
employer, employee, or carrier concerning the fees charged, the
provider may be allowed a reasonable fee for testimony if the
provider testified pursuant to the employer's or carrier's subpoena
and the judge or referee determines that the fee charged was
reasonable and justified by extraordinary circumstances.
(d) (1) No provider may request nor accept any compensation,
including, but not limited to, any kind of remuneration, discount,
rebate, refund, dividend, distribution, subsidy, or other form of
direct or indirect payment, whether in money or otherwise, from any
source for medical-legal expenses if such compensation is in addition
to the fees authorized by this section. In addition to being subject
to discipline pursuant to the provisions of subdivision (k) of
Section 139.2, any provider violating this subdivision is subject to
disciplinary action by the appropriate licensing board.
(2) This subdivision does not apply to medical-legal expenses for
which the administrative director has not adopted a fee schedule.
5308. The appeals board has jurisdiction to determine controversies
arising out of insurance policies issued to self-employing persons,
conferring benefits identical with those prescribed by this division.
The appeals board may try and determine matters referred to it by
the parties under the provisions of Title 9 (commencing with Section
1280) of Part 3 of the Code of Civil Procedure, with respect to
controversies arising out of insurance issued to self-employing
persons under the provisions of this division. Such controversies may
be submitted to it by the signed agreement of the parties, or by the
application of one party and the submission of the other to its
jurisdiction, with or without an express request for arbitration.
The State Compensation Insurance Fund, when the consent of the
other party is obtained, shall submit to the appeals board all
controversies susceptible of being arbitrated under this section.
In acting as arbitrator under this section, the appeals board has
all the powers which it may lawfully exercise in compensation cases,
and its findings and award upon such arbitration have the same
conclusiveness and are subject to the same mode of reopening, review,
and enforcement as in compensation cases. No fee or cost shall be
charged by the appeals board for arbitrating the issues presented
under this section.
5309. The appeals board may, in accordance with rules of practice
and procedure which it shall adopt and upon the agreement of the
parties, on the application of either, or of its own motion, and with
or without notice, direct and order a workers' compensation judge:
(a) To try the issues in any proceeding before it, whether of fact
or of law, and make and file a finding, order, decision, or award
based thereon.
(b) To hold hearings and ascertain facts necessary to enable the
appeals board to determine any proceeding or to make any order,
decision, or award that the appeals board is authorized to make under
Divisions 4 or 5, or necessary for the information of the appeals
board.
(c) To issue writs or summons, warrants of attachment, warrants of
commitment, and all necessary process in proceedings for direct and
hybrid contempt in a like manner and to the same extent as courts of
record. For the purposes of this section, "hybrid contempt" means a
charge of contempt which arises from events occurring in the
immediate presence of the workers' compensation judge for reasons
which occur outside the presence of the workers' compensation judge.
5310. The appeals board may appoint one or more workers'
compensation administrative law judges in any proceeding, as it may
deem necessary or advisable, and may refer, remove to itself, or
transfer to a workers' compensation administrative law judge the
proceedings on any claim. The administrative director, after
consideration of the recommendation of the court administrator, may
appoint workers' compensation administrative law judges. Any workers'
compensation administrative law judge appointed by the
administrative director has the powers, jurisdiction, and authority
granted by law, by the order of appointment, and by the rules of the
appeals board.
5311. Any party to the proceeding may object to the reference of
the proceeding to a particular workers' compensation judge upon any
one or more of the grounds specified in Section 641 of the Code of
Civil Procedure and the objection shall be heard and disposed of by
the appeals board. Affidavits may be read and witnesses examined as
to the objections.
5311.5. The administrative director or the court administrator
shall require all workers' compensation administrative law judges to
participate in continuing education to further their abilities as
workers' compensation administrative law judges, including courses in
ethics and conflict of interest. The director may coordinate the
requirements with those imposed upon attorneys by the State Bar in
order that the requirements may be consistent.
5312. Before entering upon his or her duties, the workers'
compensation judge shall be sworn, before an officer authorized to
administer oaths, faithfully and fairly to hear and determine the
matters and issues referred to him or her, to make just findings and
to report according to his or her understanding.
5313. The appeals board or the workers' compensation judge shall,
within 30 days after the case is submitted, make and file findings
upon all facts involved in the controversy and an award, order, or
decision stating the determination as to the rights of the parties.
Together with the findings, decision, order or award there shall be
served upon all the parties to the proceedings a summary of the
evidence received and relied upon and the reasons or grounds upon
which the determination was made.
5315. Within 60 days after the filing of the findings, decision,
order or award, the appeals board may confirm, adopt, modify or set
aside the findings, order, decision, or award of a workers'
compensation judge and may, with or without further proceedings, and
with or without notice, enter its order, findings, decision, or award
based upon the record in the case.
5316. Any notice, order, or decision required by this division to
be served upon any person either before, during, or after the
institution of any proceeding before the appeals board, may be served
in the manner provided by Chapter 5, Title 14 of Part 2 of the Code
of Civil Procedure, unless otherwise directed by the appeals board.
In the latter event the document shall be served in accordance with
the order or direction of the appeals board. The appeals board may,
in the cases mentioned in the Code of Civil Procedure, order service
to be made by publication of notice of time and place of hearing.
Where service is ordered to be made by publication the date of the
hearing may be fixed at more than 30 days from the date of filing the
application.
5317. Any such notice, order or decision affecting the State or any
county, city, school district, or public corporation therein, shall
be served upon the person upon whom the service of similar notices,
orders, or decisions is authorized by law.
5318. (a) Implantable medical devices, hardware, and
instrumentation for Diagnostic Related Groups (DRGs) 004, 496, 497,
498, 519, and 520 shall be separately reimbursed at the provider's
documented paid cost, plus an additional 10 percent of the provider's
documented paid cost, not to exceed a maximum of two hundred fifty
dollars ($250), plus any sales tax and shipping and handling charges
actually paid.
(b) This section shall be operative only until the administrative
director adopts a regulation specifying separate reimbursement, if
any, for implantable medical hardware or instrumentation for complex
spinal surgeries.
5300. All the following proceedings shall be instituted before the
appeals board and not elsewhere, except as otherwise provided in
Division 4:
(a) For the recovery of compensation, or concerning any right or
liability arising out of or incidental thereto.
(b) For the enforcement against the employer or an insurer of any
liability for compensation imposed upon the employer by this division
in favor of the injured employee, his or her dependents, or any
third person.
(c) For the determination of any question as to the distribution
of compensation among dependents or other persons.
(d) For the determination of any question as to who are dependents
of any deceased employee, or what persons are entitled to any
benefit under the compensation provisions of this division.
(e) For obtaining any order which by Division 4 the appeals board
is authorized to make.
(f) For the determination of any other matter, jurisdiction over
which is vested by Division 4 in the Division of Workers'
Compensation, including the administrative director and the appeals
board.
5301. The appeals board is vested with full power, authority and
jurisdiction to try and determine finally all the matters specified
in Section 5300 subject only to the review by the courts as specified
in this division.
5302. All orders, rules, findings, decisions, and awards of the
appeals board shall be prima facie lawful and conclusively presumed
to be reasonable and lawful, until and unless they are modified or
set aside by the appeals board or upon a review by the courts within
the time and in the manner specified in this division.
5303. There is but one cause of action for each injury coming
within the provisions of this division. All claims brought for
medical expense, disability payments, death benefits, burial expense,
liens, or any other matter arising out of such injury may, in the
discretion of the appeals board, be joined in the same proceeding at
any time; provided, however, that no injury, whether specific or
cumulative, shall, for any purpose whatsoever, merge into or form a
part of another injury; nor shall any award based on a cumulative
injury include disability caused by any specific injury or by any
other cumulative injury causing or contributing to the existing
disability, need for medical treatment or death.
5304. The appeals board has jurisdiction over any controversy
relating to or arising out of Sections 4600 to 4605 inclusive, unless
an express agreement fixing the amounts to be paid for medical,
surgical or hospital treatment as such treatment is described in
those sections has been made between the persons or institutions
rendering such treatment and the employer or insurer.
5305. The Division of Workers' Compensation, including the
administrative director, and the appeals board have jurisdiction over
all controversies arising out of injuries suffered outside the
territorial limits of this state in those cases where the injured
employee is a resident of this state at the time of the injury and
the contract of hire was made in this state. Any employee described
by this section, or his or her dependents, shall be entitled to the
compensation or death benefits provided by this division.
5306. The death of an employer subsequent to the sustaining of an
injury by an employee shall not impair the right of the employee to
proceed before the appeals board against the estate of the employer,
and the failure of the employee or his dependents to cause the claim
to be presented to the executor or administrator of the estate shall
not in any way bar or suspend such right.
5307. (a) Except for those rules and regulations within the
authority of the court administrator regarding trial level
proceedings as defined in subdivision (c), the appeals board may by
an order signed by four members:
(1) Adopt reasonable and proper rules of practice and procedure.
(2) Regulate and provide the manner in which, and by whom, minors
and incompetent persons are to appear and be represented before it.
(3) Regulate and prescribe the kind and character of notices,
where not specifically prescribed by this division, and the service
thereof.
(4) Regulate and prescribe the nature and extent of the proofs and
evidence.
(b) No rule or regulation of the appeals board pursuant to this
section shall be adopted, amended, or rescinded without public
hearings. Any written request filed with the appeals board seeking a
change in its rules or regulations shall be deemed to be denied if
not set by the appeals board for public hearing to be held within six
months of the date on which the request is received by the appeals
board.
(c) The court administrator shall adopt reasonable, proper, and
uniform rules for district office procedure regarding trial level
proceedings of the workers' compensation appeals board. These rules
shall include, but not be limited to, all of the following:
(1) Rules regarding conferences, hearings, continuances, and other
matters deemed reasonable and necessary to expeditiously resolve
disputes.
(2) The kind and character of forms to be used at all trial level
proceedings.
All rules and regulations adopted by the court administrator
pursuant to this subdivision shall be subject to the requirements of
the rulemaking provisions of the Administrative Procedure Act
(Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3
of Title 2 of the Government Code).
5307.1. (a) The administrative director, after public hearings,
shall adopt and revise periodically an official medical fee schedule
that shall establish reasonable maximum fees paid for medical
services other than physician services, drugs and pharmacy services,
health care facility fees, home health care, and all other treatment,
care, services, and goods described in Section 4600 and provided
pursuant to this section. Except for physician services, all fees
shall be in accordance with the fee-related structure and rules of
the relevant Medicare and Medi-Cal payment systems, provided that
employer liability for medical treatment, including issues of
reasonableness, necessity, frequency, and duration, shall be
determined in accordance with Section 4600. Commencing January 1,
2004, and continuing until the time the administrative director has
adopted an official medical fee schedule in accordance with the
fee-related structure and rules of the relevant Medicare payment
systems, except for the components listed in subdivision (j), maximum
reasonable fees shall be 120 percent of the estimated aggregate fees
prescribed in the relevant Medicare payment system for the same
class of services before application of the inflation factors
provided in subdivision (g), except that for pharmacy services and
drugs that are not otherwise covered by a Medicare fee schedule
payment for facility services, the maximum reasonable fees shall be
100 percent of fees prescribed in the relevant Medi-Cal payment
system. Upon adoption by the administrative director of an official
medical fee schedule pursuant to this section, the maximum reasonable
fees paid shall not exceed 120 percent of estimated aggregate fees
prescribed in the Medicare payment system for the same class of
services before application of the inflation factors provided in
subdivision (g). Pharmacy services and drugs shall be subject to the
requirements of this section, whether furnished through a pharmacy or
dispensed directly by the practitioner pursuant to subdivision (b)
of Section 4024 of the Business and Professions Code.
(b) In order to comply with the standards specified in subdivision
(f), the administrative director may adopt different conversion
factors, diagnostic related group weights, and other factors
affecting payment amounts from those used in the Medicare payment
system, provided estimated aggregate fees do not exceed 120 percent
of the estimated aggregate fees paid for the same class of services
in the relevant Medicare payment system.
(c) Notwithstanding subdivisions (a) and (d), the maximum facility
fee for services performed in an ambulatory surgical center, or in a
hospital outpatient department, may not exceed 120 percent of the
fee paid by Medicare for the same services performed in a hospital
outpatient department.
(d) If the administrative director determines that a medical
treatment, facility use, product, or service is not covered by a
Medicare payment system, the administrative director shall establish
maximum fees for that item, provided that the maximum fee paid shall
not exceed 120 percent of the fees paid by Medicare for services that
require comparable resources. If the administrative director
determines that a pharmacy service or drug is not covered by a
Medi-Cal payment system, the administrative director shall establish
maximum fees for that item. However, the maximum fee paid shall not
exceed 100 percent of the fees paid by Medi-Cal for pharmacy services
or drugs that require comparable resources.
(e) Prior to the adoption by the administrative director of a
medical fee schedule pursuant to this section, for any treatment,
facility use, product, or service not covered by a Medicare payment
system, including acupuncture services, or, with regard to pharmacy
services and drugs, for a pharmacy service or drug that is not
covered by a Medi-Cal payment system, the maximum reasonable fee paid
shall not exceed the fee specified in the official medical fee
schedule in effect on December 31, 2003.
(f) Within the limits provided by this section, the rates or fees
established shall be adequate to ensure a reasonable standard of
services and care for injured employees.
(g) (1) (A) Notwithstanding any other provision of law, the
official medical fee schedule shall be adjusted to conform to any
relevant changes in the Medicare and Medi-Cal payment systems no
later than 60 days after the effective date of those changes,
provided that both of the following conditions are met:
(i) The annual inflation adjustment for facility fees for
inpatient hospital services provided by acute care hospitals and for
hospital outpatient services shall be determined solely by the
estimated increase in the hospital market basket for the 12 months
beginning October 1 of the preceding calendar year.
(ii) The annual update in the operating standardized amount and
capital standard rate for inpatient hospital services provided by
hospitals excluded from the Medicare prospective payment system for
acute care hospitals and the conversion factor for hospital
outpatient services shall be determined solely by the estimated
increase in the hospital market basket for excluded hospitals for the
12 months beginning October 1 of the preceding calendar year.
(B) The update factors contained in clauses (i) and (ii) of
subparagraph (A) shall be applied beginning with the first update in
the Medicare fee schedule payment amounts after December 31, 2003.
(2) The administrative director shall determine the effective date
of the changes, and shall issue an order, exempt from Sections
5307.3 and 5307.4 and the rulemaking provisions of the Administrative
Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1
of Division 3 of Title 2 of the Government Code), informing the
public of the changes and their effective date. All orders issued
pursuant to this paragraph shall be published on the Internet Web
site of the Division of Workers' Compensation.
(3) For the purposes of this subdivision, the following
definitions apply:
(A) "Medicare Economic Index" means the input price index used by
the federal Centers for Medicare and Medicaid Services to measure
changes in the costs of a providing physician and other services paid
under the resource-based relative value scale.
(B) "Hospital market basket" means the input price index used by
the federal Centers for Medicare and Medicaid Services to measure
changes in the costs of providing inpatient hospital services
provided by acute care hospitals that are included in the Medicare
prospective payment system.
(C) "Hospital market basket for excluded hospitals" means the
input price index used by the federal Centers for Medicare and
Medicaid Services to measure changes in the costs of providing
inpatient services by hospitals that are excluded from the Medicare
prospective payment system.
(h) Nothing in this section shall prohibit an employer or insurer
from contracting with a medical provider for reimbursement rates
different from those prescribed in the official medical fee schedule.
(i) Except as provided in Section 4626, the official medical fee
schedule shall not apply to medical-legal expenses, as that term is
defined by Section 4620.
(j) The following Medicare payment system components may not
become part of the official medical fee schedule until January 1,
2005:
(1) Inpatient skilled nursing facility care.
(2) Home health agency services.
(3) Inpatient services furnished by hospitals that are exempt from
the prospective payment system for general acute care hospitals.
(4) Outpatient renal dialysis services.
(k) Notwithstanding subdivision (a), for the calendar years 2004
and 2005, the existing official medical fee schedule rates for
physician services shall remain in effect, but these rates shall be
reduced by 5 percent. The administrative director may reduce fees of
individual procedures by different amounts, but in no event shall the
administrative director reduce the fee for a procedure that is
currently reimbursed at a rate at or below the Medicare rate for the
same procedure.
(l) Notwithstanding subdivision (a), the administrative director,
commencing January 1, 2006, shall have the authority, after public
hearings, to adopt and revise, no less frequently than biennially, an
official medical fee schedule for physician services. If the
administrative director fails to adopt an official medical fee
schedule for physician services by January 1, 2006, the existing
official medical fee schedule rates for physician services shall
remain in effect until a new schedule is adopted or the existing
schedule is revised.
(m) (1) Notwithstanding subdivisions (a), (b), (f), and (g),
commencing January 1, 2008, the administrative director, after public
hearings, may adopt and revise, no less frequently than biennially,
an official medical fee schedule for inpatient facility fees for burn
cases in accordance with this subdivision. Until the date that the
administrative director adopts a fee schedule pursuant to this
subdivision, the inpatient fee schedule adopted and revised in
accordance with subdivisions (a) and (g) shall continue to apply to
inpatient facility fees for burn cases.
(2) In order to establish inpatient facility fees for burn cases
that are adequate to ensure a reasonable standard of services and
care, the administrative director may do any of the following:
(A) Adopt a fee schedule in accordance with the Medicare payment
system, or adopt different conversion factors, diagnostic related
group weights, and other factors affecting payment amounts from those
used in the Medicare payment system.
(B) Adopt a fee schedule utilizing payment methodologies other
than those utilized by the Medicare payment system.
(C) Adopt a fee schedule that utilizes both Medicare and
non-Medicare methodologies.
(3) Inpatient facility fees for burn cases may exceed 120 percent,
but in no case shall exceed 180 percent, of the fees paid by
Medicare. Inpatient facility fees for burn cases shall be excluded
from the calculation of estimated aggregate fees for purposes of
other subdivisions of this section.
(4) The changes to this section made by this subdivision shall
remain in effect only until January 1, 2011.
5307.11. A health care provider or health facility licensed
pursuant to Section 1250 of the Health and Safety Code, and a
contracting agent, employer, or carrier may contract for
reimbursement rates different from those in the fee schedule adopted
and revised pursuant to Section 5307.1. When a health care provider
or health facility licensed pursuant to Section 1250 of the Health
and Safety Code, and a contracting agent, employer, or carrier
contract for reimbursement rates different from those in the fee
schedule, the medical fee schedule for that health care provider or
health facility licensed pursuant to Section 1250 of the Health and
Safety Code shall not apply to the contracted reimbursement rates.
Except as provided in subdivision (b) of Section 5307.1, the official
medical fee schedule shall establish maximum reimbursement rates for
all medical services for injuries subject to this division provided
by a health care provider or health care facility licensed pursuant
to Section 1250 of the Health and Safety Code other than those
specified in contracts subject to this section.
5307.2. The administrative director shall contract with an
independent consulting firm, to the extent permitted by state law, to
perform an annual study of access to medical treatment for injured
workers. The study shall analyze whether there is adequate access to
quality health care and products, including prescription drugs and
pharmacy services, for injured workers and make recommendations to
ensure continued access. If the administrative director determines,
based on this study, that there is insufficient access to quality
health care or products for injured workers, including access to
prescription drugs and pharmacy services, the administrative director
may make appropriate adjustments to medical, prescription drugs and
pharmacy services, and facilities' fees. When there has been a
determination that substantial access problems exist, the
administrative director may, in accordance with the notification and
hearing requirements of Section 5307.1, adopt fees in excess of 120
percent of the applicable Medicare payment system fee, or in excess
of 100 percent of the fees prescribed in the relevant Medi-Cal
payment system, for the applicable services or products.
5307.27. On or before December 1, 2004, the administrative
director, in consultation with the Commission on Health and Safety
and Workers' Compensation, shall adopt, after public hearings, a
medical treatment utilization schedule, that shall incorporate the
evidence-based, peer-reviewed, nationally recognized standards of
care recommended by the commission pursuant to Section 77.5, and that
shall address, at a minimum, the frequency, duration, intensity, and
appropriateness of all treatment procedures and modalities commonly
performed in workers' compensation cases.
5307.3. The administrative director may adopt, amend, or repeal any
rules and regulations that are reasonably necessary to enforce this
division, except where this power is specifically reserved to the
appeals board or the court administrator.
No rule or regulation of the administrative director pursuant to
this section shall be adopted, amended, or rescinded without public
hearings. Any written request filed with the administrative director
seeking a change in its rules or regulations shall be deemed to be
denied if not set by the administrative director for public hearing
to be held within six months of the date on which the request is
received by the administrative director.
5307.4. (a) Public hearings required under Sections 5307 and 5307.3
shall be subject to the provisions of this section except to the
extent that there is involved a matter relating to the management, or
to personnel, or to public property, loans, grants, benefits, or to
contracts, of the appeals board or the administrative director.
(b) Notice of the rule or regulation proposed to be adopted,
amended, or rescinded, shall be given to such business and labor
organizations and firms or individuals who have requested notice
thereof. The notice shall include all of the following:
(1) A statement of the time, place, and nature of the public
hearings.
(2) Reference to the legal authority under which the rule is
proposed.
(3) Either the terms or substance of the proposed rule, or a
description of the subjects and the issues involved.
(c) Except where the proposed rule or regulation has a significant
impact on the public, this section shall not apply to interpretive
rules, general statements of policy, or rules of agency organization.
(d) After notice required by this section, the appeals board or
the administrative director shall give interested persons the
opportunity to participate in the rulemaking through submission of
written data, views, or arguments, with opportunity for oral
presentation. If, after consideration of the relevant matter
presented, the appeals board or the administrative director adopts a
rule, it or he shall publish a concise, general statement of reasons
for the adoption of the rule. The rule and statement of reasons shall
be given to the same individuals and organizations who have
requested notice of hearings.
(e) The notice required under this section shall be made not less
than 30 days prior to the public hearing date.
5307.5. The appeals board or a workers' compensation judge may:
(a) Appoint a trustee or guardian ad litem to appear for and
represent any minor or incompetent upon the terms and conditions
which it deems proper. The guardian or trustee shall, if required by
the appeals board, give a bond in the form and of the character
required by law from a guardian appointed by a superior court and in
the amount which the appeals board determines. The bond shall be
approved by the appeals board, and the guardian or trustee shall not
be discharged from liability until he or she files an account with
the appeals board or with the superior court and the account is
approved. The trustee or guardian shall receive the compensation for
his or her services fixed and allowed by the appeals board or by the
superior court.
(b) Provide for the joinder in the same proceeding of all persons
interested therein, whether as employer, insurer, employee,
dependent, creditor, or otherwise.
5307.6. (a) The administrative director shall adopt and revise a
fee schedule for medical-legal expenses as defined by Section 4620,
which shall be prima facie evidence of the reasonableness of fees
charged for medical-legal expenses at the same time he or she adopts
and revises the medical fee schedule pursuant to Section 5307.1.
The schedule shall consist of a series of procedure codes,
relative values, and a conversion factor producing fees which provide
remuneration to physicians performing medical-legal evaluations at a
level equivalent to that provided to physicians for reasonably
comparable work, and which additionally recognizes the relative
complexity of various types of evaluations, the amount of time spent
by the physician in direct contact with the patient, and the need to
prepare a written report.
(b) A provider shall not be paid fees in excess of those set forth
in the fee schedule established under this section unless the
provider provides an itemization and explanation of the fee that
shows that it is both a reasonable fee and that extraordinary
circumstances relating to the medical condition being evaluated
justify a higher fee; provided, however, that in no event shall a
provider charge in excess of his or her usual fee. The employer and
employee shall have standing to contest fees in excess of those set
forth in the fee schedule.
(c) In the event of a dispute between the provider and the
employer, employee, or carrier concerning the fees charged, the
provider may be allowed a reasonable fee for testimony if the
provider testified pursuant to the employer's or carrier's subpoena
and the judge or referee determines that the fee charged was
reasonable and justified by extraordinary circumstances.
(d) (1) No provider may request nor accept any compensation,
including, but not limited to, any kind of remuneration, discount,
rebate, refund, dividend, distribution, subsidy, or other form of
direct or indirect payment, whether in money or otherwise, from any
source for medical-legal expenses if such compensation is in addition
to the fees authorized by this section. In addition to being subject
to discipline pursuant to the provisions of subdivision (k) of
Section 139.2, any provider violating this subdivision is subject to
disciplinary action by the appropriate licensing board.
(2) This subdivision does not apply to medical-legal expenses for
which the administrative director has not adopted a fee schedule.
5308. The appeals board has jurisdiction to determine controversies
arising out of insurance policies issued to self-employing persons,
conferring benefits identical with those prescribed by this division.
The appeals board may try and determine matters referred to it by
the parties under the provisions of Title 9 (commencing with Section
1280) of Part 3 of the Code of Civil Procedure, with respect to
controversies arising out of insurance issued to self-employing
persons under the provisions of this division. Such controversies may
be submitted to it by the signed agreement of the parties, or by the
application of one party and the submission of the other to its
jurisdiction, with or without an express request for arbitration.
The State Compensation Insurance Fund, when the consent of the
other party is obtained, shall submit to the appeals board all
controversies susceptible of being arbitrated under this section.
In acting as arbitrator under this section, the appeals board has
all the powers which it may lawfully exercise in compensation cases,
and its findings and award upon such arbitration have the same
conclusiveness and are subject to the same mode of reopening, review,
and enforcement as in compensation cases. No fee or cost shall be
charged by the appeals board for arbitrating the issues presented
under this section.
5309. The appeals board may, in accordance with rules of practice
and procedure which it shall adopt and upon the agreement of the
parties, on the application of either, or of its own motion, and with
or without notice, direct and order a workers' compensation judge:
(a) To try the issues in any proceeding before it, whether of fact
or of law, and make and file a finding, order, decision, or award
based thereon.
(b) To hold hearings and ascertain facts necessary to enable the
appeals board to determine any proceeding or to make any order,
decision, or award that the appeals board is authorized to make under
Divisions 4 or 5, or necessary for the information of the appeals
board.
(c) To issue writs or summons, warrants of attachment, warrants of
commitment, and all necessary process in proceedings for direct and
hybrid contempt in a like manner and to the same extent as courts of
record. For the purposes of this section, "hybrid contempt" means a
charge of contempt which arises from events occurring in the
immediate presence of the workers' compensation judge for reasons
which occur outside the presence of the workers' compensation judge.
5310. The appeals board may appoint one or more workers'
compensation administrative law judges in any proceeding, as it may
deem necessary or advisable, and may refer, remove to itself, or
transfer to a workers' compensation administrative law judge the
proceedings on any claim. The administrative director, after
consideration of the recommendation of the court administrator, may
appoint workers' compensation administrative law judges. Any workers'
compensation administrative law judge appointed by the
administrative director has the powers, jurisdiction, and authority
granted by law, by the order of appointment, and by the rules of the
appeals board.
5311. Any party to the proceeding may object to the reference of
the proceeding to a particular workers' compensation judge upon any
one or more of the grounds specified in Section 641 of the Code of
Civil Procedure and the objection shall be heard and disposed of by
the appeals board. Affidavits may be read and witnesses examined as
to the objections.
5311.5. The administrative director or the court administrator
shall require all workers' compensation administrative law judges to
participate in continuing education to further their abilities as
workers' compensation administrative law judges, including courses in
ethics and conflict of interest. The director may coordinate the
requirements with those imposed upon attorneys by the State Bar in
order that the requirements may be consistent.
5312. Before entering upon his or her duties, the workers'
compensation judge shall be sworn, before an officer authorized to
administer oaths, faithfully and fairly to hear and determine the
matters and issues referred to him or her, to make just findings and
to report according to his or her understanding.
5313. The appeals board or the workers' compensation judge shall,
within 30 days after the case is submitted, make and file findings
upon all facts involved in the controversy and an award, order, or
decision stating the determination as to the rights of the parties.
Together with the findings, decision, order or award there shall be
served upon all the parties to the proceedings a summary of the
evidence received and relied upon and the reasons or grounds upon
which the determination was made.
5315. Within 60 days after the filing of the findings, decision,
order or award, the appeals board may confirm, adopt, modify or set
aside the findings, order, decision, or award of a workers'
compensation judge and may, with or without further proceedings, and
with or without notice, enter its order, findings, decision, or award
based upon the record in the case.
5316. Any notice, order, or decision required by this division to
be served upon any person either before, during, or after the
institution of any proceeding before the appeals board, may be served
in the manner provided by Chapter 5, Title 14 of Part 2 of the Code
of Civil Procedure, unless otherwise directed by the appeals board.
In the latter event the document shall be served in accordance with
the order or direction of the appeals board. The appeals board may,
in the cases mentioned in the Code of Civil Procedure, order service
to be made by publication of notice of time and place of hearing.
Where service is ordered to be made by publication the date of the
hearing may be fixed at more than 30 days from the date of filing the
application.
5317. Any such notice, order or decision affecting the State or any
county, city, school district, or public corporation therein, shall
be served upon the person upon whom the service of similar notices,
orders, or decisions is authorized by law.
5318. (a) Implantable medical devices, hardware, and
instrumentation for Diagnostic Related Groups (DRGs) 004, 496, 497,
498, 519, and 520 shall be separately reimbursed at the provider's
documented paid cost, plus an additional 10 percent of the provider's
documented paid cost, not to exceed a maximum of two hundred fifty
dollars ($250), plus any sales tax and shipping and handling charges
actually paid.
(b) This section shall be operative only until the administrative
director adopts a regulation specifying separate reimbursement, if
any, for implantable medical hardware or instrumentation for complex
spinal surgeries.
