Bill Text: CA AB2169 | 2019-2020 | Regular Session | Introduced
Bill Title: Workers’ compensation.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2020-02-27 - Referred to Com. on INS. [AB2169 Detail]
Download: California-2019-AB2169-Introduced.html
CALIFORNIA LEGISLATURE—
2019–2020 REGULAR SESSION
Assembly Bill
No. 2169
| Introduced by Assembly Member Maienschein |
February 11, 2020 |
An act to amend Sections 3201.5, 3201.7, 3207, 3208.3, 3208.4, 3209.4, 3209.6, 3209.7, 3209.9, 3211.92, 3212, 3212.1, 3212.6, 3212.9, 3213, 3215, 3217, 3219, 3353, 3358, 3360, 3361.5, 3362, 3364, 3364.6, 3365, 3366, 3367, 3370, 3371, 3550, 3600, 3600.1, 3600.2, 3600.3, 3600.4, 3600.5, 3600.6, 3600.8, 3601, 3602, 3605, 3700, 3700.5, 3701, 3701.5, 3701.8, 3702, 3705, 3706, 3707, 3709, 3710, 3710.2, 3711, 3715, 3716, 3716.1, 3716.2, 3717, 3717.1, 3717.2, 3720, 3720.1, 3721, 3722, 3726, 3727, 3727.1, 3728, 3732, 3733, 3743, 3750, 3753, 3756, 3761, 3820, 3823, 3852, 3853, 3856, 3858, 3859, 3860, 3861, 4050, 4051, 4052, 4053, 4054, 4056, 4061, 4062.1, 4062.2, 4062.3, 4064, 4067, 4068, 4150, 4151, 4152, 4154, 4207, 4212, 4226, 4228, 4229, 4351, 4352, 4353, 4355, 4453, 4454, 4455, 4458, 4458.2, 4458.5, 4459, 4553, 4554, 4557, 4558, 4600, 4600.3, 4600.6, 4601, 4603, 4603.6, 4604.5, 4605, 4620, 4621, 4622, 4627, 4650, 4654, 4655, 4656, 4661,
4663, 4664, 4701, 4702, 4706.5, 4707, 4708, 4723, 4751, 4753, 4754, 4755, 4756, 4800, 4800.5, 4801, 4802, 4803, 4804, 4804.1, 4806, 4816, 4850, 4850.3, 4850.4, 4853, 4855, 4856, 4903, 4903.2, 4903.3, 4904, 4904.1, 4908, 4909, 5000, 5001, 5004, 5005, 5102, 5104, 5105, 5270.5, 5271, 5307.5, 5307.6, 5310, 5311.5, 5312, 5400, 5401, 5402, 5408, 5412, 5432, 5433, 5451, 5453, 5454, 5500.3, 5500.5, 5501, 5501.5, 5502, 5505, 5506, 5507, 5703.5, 5705, 5706, 5708, 5710, 5801, 5803, 5807, 5813, 5903, 5908, 6147, 6148, 6203, 6204, 6205, 6206, and 6207 of, to repeal Sections 3714, 4651.2, 4657, 5100.6, and 5503 of, and to repeal Chapter 11 (commencing with Section 4401) of Part 1 of Division 4 of, the Labor Code, relating to workers’ compensation.
LEGISLATIVE COUNSEL'S DIGEST
AB 2169, as introduced, Maienschein.
Workers’ compensation.
Existing law establishes a workers’ compensation system, administered by the Administrative Director of the Division of Workers’ Compensation, to compensate an employee for injuries sustained in the course of employment.
This bill would make these provisions gender neutral, correct or delete erroneous cross-references, update obsolete terms, delete obsolete and invalid provisions, correct technical errors, and make clarifying and conforming changes.
Digest Key
Vote: MAJORITY Appropriation: NO Fiscal Committee: NO Local Program: NOBill Text
The people of the State of California do enact as follows:
SECTION 1.
Section 3201.5 of the Labor Code is amended to read:3201.5.
(a) Except as provided in subdivisions (b) and (c), the Department of Industrial Relations and the courts of this state shall recognize as valid and binding any provision in a collective bargaining agreement between a private employer or groups of employers engaged in construction, construction maintenance, or activities limited to rock, sand, gravel, cement and asphalt operations, heavy-duty mechanics, surveying, and construction inspection and a union that is the recognized or certified exclusive bargaining representative that establishes any of the following:(1) An alternative dispute resolution system governing disputes between employees and employers or their insurers that supplements or replaces all or part of those dispute resolution processes contained in
this division, including, but not limited to, mediation and arbitration. Any system of arbitration shall provide that the decision of the arbiter or board of arbitration is subject to review by the appeals board in the same manner as provided for reconsideration of a final order, decision, or award made and filed by a workers’ compensation administrative law judge pursuant to the procedures set forth in Article 1 (commencing with Section 5900) of Chapter 7 of Part 4 of Division 4, and the court of appeals pursuant to the procedures set forth in Article 2 (commencing with Section 5950) of Chapter 7 of Part 4 of Division 4, governing orders, decisions, or awards of the appeals board. The findings of fact, award, order, or decision of the arbitrator shall have the same force and effect as an award, order, or decision of a workers’ compensation administrative law judge. Any
A provision for arbitration established pursuant to this section shall not be is not subject to Sections 5270, 5270.5, 5271, 5272, 5273, 5275, and 5277.
(2) The use of an agreed list of providers of medical treatment that may be the exclusive source of all medical treatment provided under this division.
(3) The use of an agreed, limited list of qualified medical evaluators and agreed medical evaluators that may be the exclusive source of qualified medical evaluators and agreed medical evaluators under this division.
(4) Joint labor management safety committees.
(5) A light-duty, modified job or return-to-work program.
(6)A vocational rehabilitation or retraining program utilizing an agreed list of providers of rehabilitation services that may be the exclusive source of providers of
rehabilitation services under this division.
(b) (1) Nothing in this section shall This section does not allow a collective bargaining agreement that diminishes the entitlement of an employee to compensation payments for total or partial disability, temporary disability, vocational rehabilitation, or medical treatment fully paid by the employer as otherwise provided in this division. The portion of any agreement that violates this paragraph shall be declared null and void.
(2) The parties may negotiate any aspect of the delivery of medical benefits and the delivery of
disability compensation to employees of the employer or group of employers that are eligible for group health benefits and nonoccupational disability benefits through their employer.
(c) Subdivision (a) shall apply applies only to the following:
(1) An employer developing or projecting an annual workers’ compensation insurance premium, in California, of two hundred fifty thousand dollars ($250,000) or more, or any employer that paid an annual workers’ compensation insurance premium, in California, of two hundred fifty thousand dollars ($250,000) in at least one of the previous three years.
(2) Groups of employers engaged in a
workers’ compensation safety group complying with Sections 11656.6 and 11656.7 of the Insurance Code, and established pursuant to a joint labor management safety committee or committees, that develops or projects annual workers’ compensation insurance premiums of two million dollars ($2,000,000) or more.
(3) Employers or groups of employers that are self-insured in compliance with Section 3700 that would have projected annual workers’ compensation costs that meet the requirements of, and that meet the other requirements of, paragraph (1) in the case of employers, or paragraph (2) in the case of groups of employers.
(4) Employers covered by an owner or general contractor provided wrap-up insurance policy applicable to a single construction site that develops workers’ compensation insurance premiums of two million dollars ($2,000,000) or more with respect to those employees covered
by that wrap-up insurance policy.
(d) Employers and labor representatives who meet the eligibility requirements of this section shall be issued a letter by the administrative director advising each employer and labor representative that, based upon the review of all documents and materials submitted as required by the administrative director, each has met the eligibility requirements of this section.
(e) The premium rate for a policy of insurance issued pursuant to this section shall not be subject to the requirements of Section 11732 or 11732.5 of the Insurance Code.
(f) No An employer may
shall not establish or continue a program established under this section until it has provided the administrative director with all of the following:
(1) Upon its original application and whenever it is renegotiated thereafter, a copy of the collective bargaining agreement and the approximate number of employees who will be covered thereby.
(2) Upon its original application and annually thereafter, a valid and active license where that license is required by law as a condition of doing business in the state within the industries set forth in subdivision (a) of Section 3201.5.
(3) Upon its original application and annually thereafter, a statement signed under penalty of perjury, that no action has been taken by any administrative agency or court of the United States to invalidate
the collective bargaining agreement.
(4) The name, address, and telephone number of the contact person of the employer.
(5) Any other information that the administrative director deems necessary to further the purposes of this section.
(g) No A collective bargaining representative may shall not establish or continue to participate in a program established under this section unless all of the following requirements are met:
(1) Upon its original application and annually thereafter, it has provided to the administrative director a copy of its most recent LM-2 or LM-3 filing with the United States Department of Labor, along with a statement, signed under penalty of perjury, that the document is a true and correct copy.
(2) It has provided to the administrative director the name, address, and telephone number of the contact person or persons of the collective bargaining representative or representatives.
(h) Commencing July 1, 1995, and annually thereafter, the The Division of Workers’ Compensation shall
annually report to the Director of Industrial Relations the number of collective bargaining agreements received and the number of employees covered by these agreements.
(i) The data obtained by the administrative director pursuant to this section shall be confidential and not subject to public disclosure under any law of this state. However, the Division of Workers’ Compensation shall create derivative works pursuant to subdivision (h) based on the collective bargaining agreements and data. Those derivative works shall not be confidential, but shall be public. On a monthly basis the administrative director shall make available an updated list of employers and unions entering into collective bargaining agreements containing provisions authorized by this section.
SEC. 2.
Section 3201.7 of the Labor Code is amended to read:3201.7.
(a) Except as provided in subdivision (b), the Department of Industrial Relations and the courts of this state shall recognize as valid and binding any labor-management agreement that meets all of the following requirements:(1) The labor-management agreement has been negotiated separate and apart from any a collective bargaining agreement covering affected employees.
(2) The labor-management agreement is restricted to the establishment of the terms and conditions necessary to implement this section.
(3) The labor-management agreement has been negotiated in accordance with the authorization of the administrative director pursuant to subdivision (d), between an employer or groups of employers and a union that is the recognized or certified exclusive bargaining representative that establishes any of the following:
(A) An alternative dispute resolution system governing disputes between employees and employers or their insurers that supplements or replaces all or part of those dispute resolution processes contained in this division, including, but not limited to, mediation and arbitration. Any system of arbitration shall provide that the decision of the arbiter or board of arbitration is subject to review by the appeals board in the same manner as provided for reconsideration of a final order, decision, or award made and filed by a workers’ compensation administrative law judge
pursuant to the procedures set forth in Article 1 (commencing with Section 5900) of Chapter 7 of Part 4 of Division 4, and the court of appeals pursuant to the procedures set forth in Article 2 (commencing with Section 5950) of Chapter 7 of Part 4 of Division 4, governing orders, decisions, or awards of the appeals board. The findings of fact, award, order, or decision of the arbitrator shall have the same force and effect as an award, order, or decision of a workers’ compensation administrative law judge. Any A provision for arbitration established pursuant to this section shall not be is not subject to Sections 5270, 5270.5,
5271, 5272, 5273, 5275, and 5277.
(B) The use of an agreed list of providers of medical treatment that may be the exclusive source of all medical treatment provided under this division.
(C) The use of an agreed, limited list of qualified medical evaluators and agreed medical evaluators that may be the exclusive source of qualified medical evaluators and agreed medical evaluators under this division.
(D) Joint labor management safety committees.
(E) A light-duty, modified job, or return-to-work program.
(F)A vocational rehabilitation or retraining program utilizing an agreed list of providers of rehabilitation services that may be the exclusive source of providers of rehabilitation services under this division.
(b) (1) Nothing in this section shall This section does not allow a labor-management agreement that diminishes the entitlement of an employee to compensation payments for total or partial disability, temporary disability, vocational rehabilitation, or medical treatment fully paid by the employer as otherwise provided in this division; nor shall any an agreement authorized by this section deny to any employee the right to representation by counsel at all stages during
the alternative dispute resolution process. The portion of any an agreement that violates this paragraph shall be declared is null and void.
(2) The parties may negotiate any aspect of the delivery of medical benefits and the delivery of disability compensation to employees of the employer or group of employers that are eligible for group health benefits and nonoccupational disability benefits through their employer.
(c) Subdivision (a) shall apply
applies only to the following:
(1) An employer developing or projecting an annual workers’ compensation insurance premium, in California, of fifty thousand dollars ($50,000) or more, and employing at least 50 employees, or any employer that paid an annual workers’ compensation insurance premium, in California, of fifty thousand dollars ($50,000), and employing at least 50 employees in at least one of the previous three years.
(2) Groups of employers engaged in a workers’ compensation safety group complying with Sections 11656.6 and 11656.7 of the Insurance Code, and established pursuant to a joint labor management safety committee or committees, that develops or projects annual workers’ compensation insurance premiums of five hundred thousand dollars ($500,000) or more.
(3) Employers or groups of employers, including cities and counties, that are self-insured in compliance with Section 3700 that would have projected annual workers’ compensation costs that meet the requirements of, and that meet the other requirements of, paragraph (1) in the case of employers, or paragraph (2) in the case of groups of employers.
(4) The State of California.
(d) Any A recognized or certified exclusive bargaining representative in an industry that is not covered by Section 3201.5, may file a petition with the administrative director seeking permission to
negotiate with an employer or group of employers to enter into a labor-management agreement pursuant to this section. The petition shall specify the bargaining unit or units to be included, the names of the employers or groups of employers, and shall be accompanied by proof of the labor union’s status as the exclusive bargaining representative. The current collective bargaining agreement or agreements shall be attached to the petition. The petition shall be in the form designated by the administrative director. Upon receipt of the petition, the administrative director shall promptly verify the petitioner’s status as the exclusive bargaining representative. If the petition satisfies the requirements set forth in this subdivision, the administrative director shall issue a letter advising each employer and labor representative of their eligibility to enter into negotiations, for a period not to exceed one year, for the purpose of reaching agreement on a labor-management agreement pursuant to this section. The
parties may jointly request, and shall be granted, by the administrative director, an additional one-year period to negotiate an agreement.
(e) No An employer may shall not establish or continue a program established under this section until it has provided the administrative director with all of the following:
(1) Upon its original application and whenever it is renegotiated thereafter, a copy of the labor-management agreement and the approximate number of employees who will be covered thereby.
(2) Upon its original application and annually thereafter, a statement signed under penalty of perjury, that no action has been taken by any administrative agency or court of the United States to invalidate the labor-management agreement.
(3) The name, address, and telephone number of the contact person of the employer.
(4) Any other information that the administrative director deems necessary to further the purposes of this section.
(f) No A collective bargaining representative may
shall not establish or continue to participate in a program established under this section unless all of the following requirements are met:
(1) Upon its original application and annually thereafter, it has provided to the administrative director a copy of its most recent LM-2 or LM-3 filing with the United States Department of Labor, where such filing is required by law, along with a statement, signed under penalty of perjury, that the document is a true and correct copy.
(2) It has provided to the administrative director the name, address, and telephone number of the contact person or persons of the collective bargaining representative or representatives.
(g) Commencing July 1, 2005, and annually thereafter, the Division of Workers’ Compensation shall report to the Director of
Industrial Relations the number of labor-management agreements received and the number of employees covered by these agreements.
(h) The data obtained by the administrative director pursuant to this section shall be confidential and not subject to public disclosure under any law of this state. However, the Division of Workers’ Compensation shall create derivative works pursuant to subdivision (g) based on the labor-management agreements and data. Those derivative works shall not be confidential, but shall be public. On a monthly basis, the administrative director shall make available an updated list of employers and unions entering into labor-management agreements authorized by this section.
SEC. 3.
Section 3207 of the Labor Code is amended to read:3207.
“Compensation” means compensation under this division and includes every benefit or payment conferred by this division upon an injured employee, or in the event ofSEC. 4.
Section 3208.3 of the Labor Code, as amended by Section 32 of Chapter 38 of the Statutes of 2019, is amended to read:3208.3.
(a) A psychiatric injury shall be compensable if it is a mental disorder which causes disability or need for medical treatment, and it is diagnosed pursuant to procedures promulgated under paragraph (4) of subdivision (j) of Section 139.2 or, until these procedures are promulgated, it is diagnosed using the terminology and criteria of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, Third Edition-Revised, or the terminology and diagnostic criteria of other psychiatric diagnostic manuals generally approved and accepted nationally by practitioners in the field of psychiatric medicine.(b) (1) In order to establish that a psychiatric injury is compensable, an employee shall demonstrate by a
preponderance of the evidence that actual events of employment were predominant as to all causes combined of the psychiatric injury.
(2) Notwithstanding paragraph (1), in the case of employees whose if an employee’s injuries resulted from being a victim of a violent act or from direct exposure to a significant violent act, the employee shall be required to demonstrate by a preponderance of the evidence that actual events of employment were a substantial cause of the injury.
(3) For the purposes of this section, “substantial cause” means at least 35 to 40 percent of the causation from all sources combined.
(c) It is the intent of
the Legislature in enacting this section to establish a new and higher threshold of compensability for psychiatric injury under this division.
(d) Notwithstanding any other provision of this division, no compensation shall compensation shall not be paid pursuant to this division for a psychiatric injury related to a claim against an employer unless the employee has been employed by that employer for at least six months. The six months of employment need not be continuous. This subdivision shall not apply if the psychiatric injury is caused by a sudden and extraordinary employment condition. Nothing in this subdivision shall be construed to
This section does not authorize an employee, or the employee’s dependents, to bring an action at law or equity for damages against the employer for a psychiatric injury, where those rights would not exist pursuant to the exclusive remedy doctrine set forth in Section 3602 in the absence of the amendment of this section by the act adding this subdivision. Chapter 115 of the Statutes of 1991.
(e) Where If the claim for compensation is filed after notice of termination of employment or layoff, including voluntary layoff, and the
claim is for an injury occurring prior to the time of notice of termination or layoff, no compensation shall compensation shall not be paid unless the employee demonstrates by a preponderance of the evidence that actual events of employment were predominant as to all causes combined of the psychiatric injury and one or more of the following conditions exist:
(1) Sudden and extraordinary events of employment were the cause of the injury.
(2) The employer has notice of the psychiatric injury under Chapter 2 (commencing with Section 5400) of Part 4 prior to the notice of termination or
layoff.
(3) The employee’s medical records existing prior to notice of termination or layoff contain evidence of treatment of the psychiatric injury.
(4) Upon a finding of sexual or racial harassment by any trier of fact, whether contractual, administrative, regulatory, or judicial.
(5) Evidence that the date of injury, as specified in Section 5411 or 5412, is subsequent to the date of the notice of termination or layoff, but prior to the effective date of the termination or layoff.
(f) For purposes of this section, an employee provided notice pursuant to Sections 44948.5, 44949, 44951, 44955, 44955.6, 72411, 87740, and 87743 of the Education Code shall be considered to
have been provided a notice of termination or layoff only upon a district’s final decision not to reemploy that person.
(g) A notice of termination or layoff that is not followed within 60 days by that termination or layoff shall not be is not subject to the provisions of this subdivision, and this subdivision shall
does not apply until receipt of a later notice of termination or layoff. The issuance of frequent notices of termination or layoff to an employee shall be considered is a bad faith personnel action and shall make makes this subdivision inapplicable to the employee.
(h) No compensation under this division shall Compensation shall not be paid
by an employer
pursuant to this division for a psychiatric injury if the injury was substantially caused by a lawful, nondiscriminatory, good faith personnel action. The burden of proof shall rest with the party asserting the issue.
(i) When If a psychiatric injury claim is filed against an employer, and an application for adjudication of claim is filed by an employer or employee, the division shall provide the employer with information concerning psychiatric injury prevention programs.
(j) An employee who is an inmate, as defined in subdivision (e) of Section 3351, or their
the inmate’s family on behalf of an inmate, shall not be is not entitled to compensation for a psychiatric injury except as provided in subdivision (d) of Section 3370.
(k) An employee who is a patient, as defined in subdivision (h) of Section 3351, or their family on behalf of a patient, shall not be entitled to compensation for a psychiatric injury except as provided in subdivision (d) of Section 3370.1.
SEC. 5.
Section 3208.4 of the Labor Code is amended to read:3208.4.
InThe procedures set forth in Section 783 of the Evidence Code shall be followed if evidence of sexual conduct of the applicant is offered to attack his or her
the applicant’s credibility. Opinion evidence, evidence of reputation, and evidence of specific instances of sexual conduct of the applicant with any a person other than the defendant, or any of such that evidence, is not admissible by the defendant to prove consent by or the absence of injury to the applicant, unless the injury alleged by the applicant is in the nature of loss of consortium.
SEC. 6.
Section 3209.4 of the Labor Code is amended to read:3209.4.
The inclusion of optometrists in Section 3209.3 does not implySEC. 7.
Section 3209.6 of the Labor Code is amended to read:3209.6.
The inclusion of chiropractors in Sections 3209.3 and 3209.5 does not implySEC. 8.
Section 3209.7 of the Labor Code is amended to read:3209.7.
Treatment of injuries at the expense of the employer may also include, either in addition to or in place of medical, surgical, and hospital services, as specified in Section 3209.5, any other form of therapy, treatment, or healing practice agreed upon voluntarily in writing, between the employee and(a) A description of the form of healing practice intended to be relied upon and designation of individuals and facilities qualified to administer it.
(b) The employee shall not by entering into such an that agreement or by selecting such that therapy, treatment
treatment, or healing practice, waive any rights conferred upon him
by law, or forfeit any benefits to which he the employee might otherwise be entitled.
(c) The employer and the employee shall each reserve the right to terminate such
that agreement upon seven days written notice to the other party.
No liability shall
Liability shall not be incurred by the employer under the provisions of pursuant to this section, except as provided for in Chapter 3 (commencing with Section 3600), of this part.
SEC. 9.
Section 3209.9 of the Labor Code is amended to read:3209.9.
The inclusion of acupuncturists in Section 3209.3 does not implySEC. 10.
Section 3211.92 of the Labor Code is amended to read:3211.92.
(a) “Disaster service worker” means(b) “Disaster service worker” includes public employees a public employee performing
disaster work that is outside the course and scope of their the employee’s regular employment without pay and also includes any an unregistered person impressed into service during a state of war emergency, a state of emergency, or a local emergency by a person having who has the authority to command the aid of citizens in the execution of his or her
disaster service duties.
(c) Persons A person who is registered with a disaster council at the time that council becomes accredited need not reregister in order to be entitled to the benefits provided by Chapter 10 (commencing with Section 4351).
(d) “Disaster service worker” does not include any a member registered as an active firefighting member of any
a regularly organized volunteer fire department, having who has official recognition, and full or partial support of the county, city, or district in which the fire department is located.
SEC. 11.
Section 3212 of the Labor Code is amended to read:3212.
In the case of members of a sheriff’s office or the California Highway Patrol, district attorney’s staff of inspectors and investigators or of police or fire departments of cities, counties, cities and counties, districts or other public or municipal corporations or political subdivisions, whether those members are volunteer, partly paid, or fully paid, and in the case of active firefighting members of the Department of Forestry and Fire Protection whose duties require firefighting or of any county forestry or firefighting department or unit, whether voluntary, fully paid, or partly paid, and in the case of members of the warden service of the Wildlife Protection Branch of the Department of Fish andThe hernia, heart trouble, or pneumonia so developing or manifesting itself in those cases shall be presumed to arise out of and in the course of the employment. This presumption is disputable and may be controverted by other evidence, but unless so controverted, the appeals board is bound to find in accordance with it. The presumption shall be extended to a member following termination of service for a period of three calendar months for each full year of the requisite service, but not to exceed 60 months in any circumstance, commencing with the last date actually worked in the specified capacity.
The hernia, heart trouble, or pneumonia so developing or manifesting itself in those cases shall in no case not be attributed to any disease
existing prior to that development or manifestation.
SEC. 12.
Section 3212.1 of the Labor Code is amended to read:3212.1.
(a) This section applies to all of the following:(1) Active firefighting members, whether volunteers, partly paid, or fully paid, of all of the following fire departments:
(A) A fire department of a city, county, city and county, district, or other public or municipal corporation or political subdivision.
(B) A fire department of the University of California and the California State University.
(C) The Department of Forestry and Fire Protection.
(D) A county forestry or firefighting department or unit.
(2) Active firefighting members of a fire department that serves a United States Department of Defense installation and who are certified by the Department of Defense as meeting its standards for firefighters.
(3) Active firefighting members of a fire department that serves a National Aeronautics and Space Administration installation and who adhere to training standards established in accordance with Article 4 (commencing with Section 13155) of Chapter 1 of Part 2 of Division 12 of the Health and Safety Code.
(4) Peace officers, as defined in Section 830.1, subdivision (a) of Section 830.2, and subdivisions (a) and (b) of Section 830.37, of the Penal Code, who are primarily engaged in active law enforcement activities.
(5) (A) Fire
and rescue services coordinators who work for the Office of Emergency Services.
(B) For purposes of this paragraph, “fire and rescue services coordinators” means coordinators with any of the following job classifications: coordinator, senior coordinator, or chief coordinator.
(b) The term “injury,” as used in this division, includes cancer, including leukemia, that develops or manifests itself during a period in which any member described in subdivision (a) is in the service of the department or unit, if the member demonstrates that he or she was exposed, exposure, while in the service of the department or unit, to a known carcinogen as defined by the International Agency for Research on
Cancer, or as defined by the director.
(c) The compensation that is awarded for cancer shall include full hospital, surgical, medical treatment, disability indemnity, and death benefits, as provided by this division.
(d) The cancer so developing or manifesting itself in these cases shall be presumed to arise out of and in the course of the employment. This presumption is disputable and may be controverted by evidence that the primary site of the cancer has been established and that the carcinogen to which the member has demonstrated exposure is not reasonably linked to the disabling cancer. Unless so controverted, the appeals board is bound to find in accordance with the presumption. This presumption shall be extended to a member following termination of service for a period of three calendar months for each full year of the requisite service, but not to exceed 120 months in any
circumstance, commencing with the last date actually worked in the specified capacity.
(e) The amendments to this section enacted during the 1999 portion of the 1999–2000 Regular Session shall be applied to claims for benefits filed or pending on or after January 1, 1997, including, but not limited to, claims for benefits filed on or after that date that have previously been denied, or that are being appealed following denial.
(f) This section shall be known, and may be cited, as the William Dallas Jones Cancer Presumption Act of 2010.
SEC. 13.
Section 3212.6 of the Labor Code is amended to read:3212.6.
In the case of a member of a police department of a city or county, or a member of the sheriff’s office of a county, or a member of the California Highway Patrol, or an inspector or investigator in a district attorney’s office of any county whose principal duties consist of active law enforcement service, or a prison or jail guard or correctional officer who is employed by a public agency, when that person is employed upon a regular, full-time salary, or in the case of members of fire departments of any city, county, or district, or other public or municipal corporations or political subdivisions, when those members are employed on a regular fully paid basis, and in the case of active firefighting members of the Department of Forestry and Fire Protection whose duties require firefighting and first-aid response services, or of any county forestry or firefighting department or unit,The tuberculosis so developing or manifesting itself shall be presumed to arise out of and in the course of the employment. This presumption is disputable and may be controverted by other evidence, but unless so controverted, the appeals board is bound to find in accordance with it. This presumption shall be extended to a member following termination of service for a period of three calendar months for each full year of the requisite service, but not to exceed 60 months in any circumstance, commencing with the last date actually worked in the specified capacity.
A public entity may require applicants for employment in firefighting positions who would be entitled to the benefits granted by this section to be tested for infection for tuberculosis.
SEC. 14.
Section 3212.9 of the Labor Code is amended to read:3212.9.
In the case of a member of a police department of a city, county, or city and county, or a member of the sheriff’s office of a county, or a member of the California Highway Patrol, or a county probation officer, or an inspector or investigator in a district attorney’s office of any county whose principal duties consist of active law enforcement service, when that person is employed on a regular, full-time salary, or in the case of a member of a fire department of any city, county, or district, or other public or municipal corporation or political subdivision, or any county forestry or firefighting department or unit, when those members are employed on a regular full-time salary, excepting those whose principal duties are clerical or otherwise do not clearly fall within the scope of active law enforcement or firefighting, such as stenographers, telephone operators, and otherThe meningitis so developing or manifesting itself shall be presumed to arise out of and in the course of the employment. This presumption is disputable and may be controverted by other evidence, but unless so controverted, the appeals board is
bound to find in accordance with it. This presumption shall be extended to a person following termination of service for a period of three calendar months for each full year of the requisite service, but not to exceed 60 months in any circumstance, commencing with the last date actually worked in the specified capacity.
SEC. 15.
Section 3213 of the Labor Code is amended to read:3213.
In the case of a member of the University of California Police Department who has graduated from an academy certified by the Commission on Peace Officer Standards and Training, when Such
The heart trouble or pneumonia so
developing or manifesting itself shall be presumed to arise out of and in the course of the employment; provided, however, that employment. However, the member of the University of California Police Department shall have served five years or more in such that capacity before the presumption shall arise as to the compensability of heart trouble so developing or manifesting itself. This presumption is disputable and may be controverted by other evidence, but unless so controverted, the appeals board is bound to find in accordance with
it. This presumption shall be extended to a member following termination of service for a period of three calendar months for each full year of the requisite service, but not to exceed 60 months in any circumstance, commencing with the last date actually worked in the specified capacity.
Such
The heart trouble or pneumonia so developing or manifesting itself in such those
cases shall in no case
not be attributed to any disease existing prior to such that development or manifestation.
As used in this section:
(a) “Members” shall be limited to those employees of the University of California Police Department who are defined as peace officers in Section 830.2 of the Penal Code.
(b) “Campus” shall include any campus or other installation maintained under the jurisdiction of the Regents of the University of California.
(c) “Campus department” means all members of the University of California Police Department who are assigned and serve on a
particular campus.
SEC. 16.
Section 3215 of the Labor Code is amended to read:3215.
Except as otherwise permitted by law,SEC. 17.
Section 3217 of the Labor Code is amended to read:3217.
(a) Section 3215(b) Section 3215 shall not be construed to
does not prohibit a public defender or assigned counsel from making known his or her that attorney’s availability as a criminal defense attorney to persons unable to afford legal counsel, whether or not those persons are in custody.
(c) Any A person who commits an act that violates both Section 3215 and either Section 650 of the Business and Professions Code or Section 750 of the Insurance Code shall, upon conviction, have judgment and sentence imposed for only one violation for any
an act.
(d) Section 3215 shall not be construed to does not prohibit the payment or receipt of consideration or services that is lawful pursuant to Section 650 of the Business and Professions Code.
(e) Notwithstanding Sections 3215 and 3219, and Section 750 of the Insurance Code, nothing shall prevent
an attorney at law or a law firm is not prohibited from providing any a person or entity with legal advice, information, or legal services, including the providing of printed, copied, or written documents, either without charge or for an otherwise lawfully agreed upon attorney fee.
(f) Section 3215 shall not be
construed to does not prohibit a workers’ compensation insurer from offering, and an employer from accepting, a workers’ compensation insurance policy with rates that reflect premium discounts based upon the employer securing coverage for occupational or nonoccupational illnesses or injuries from a health care service plan or disability insurer that is owned by, affiliated with, or has a contractual relationship with, the workers’ compensation insurer.
SEC. 18.
Section 3219 of the Labor Code is amended to read:3219.
(a) (1) Except as otherwise permitted by law,(2) Except as otherwise permitted by law, any adjuster of claims for compensation, as defined in Section 3207, who accepts or receives any rebate, refund, commission, preference, patronage, dividend, discount, or other consideration, as compensation, inducement, or reward for the referral or settlement of any claim, is guilty of a felony.
(b) Any A
contract for professional services secured by any medical clinic, laboratory, physician or other health care provider in this state in violation of Section 550 of the Penal Code, Section 1871.4 of the Insurance Code, Section 650 or 651 of the Business and Professions Code, or Section 3215 or subdivision (a) of Section 3219 of this code is void. In any an action against any a medical clinic, laboratory, physician, or other health care provider, or the owners or operators thereof, under Chapter 4 (commencing with Section 17000) or Chapter 5 (commencing with Section 17200) of Division 7 of the Business and
Professions Code, any a judgment shall include an order divesting the medical clinic, laboratory, physician, or other health care provider, and the owners and operators thereof, of any fees and other compensation received pursuant to any such the void contract. Those fees and compensation shall be recoverable as additional civil penalties under Chapter 4 (commencing with Section 17000) or Chapter 5 (commencing with Section 17200) of Division 7 of the Business and Professions Code. The judgment may also include an order prohibiting the person from further participating in any manner in the entity in which that person directly or
indirectly owned or operated for a time period that the court deems appropriate. For the purpose of this section, “operated” means participated in the management, direction, or control of the entity.
(c) Notwithstanding Section 17206 of the Business and Professions Code or any other provision of
law, any fees recovered pursuant to subdivision (b) in an action involving professional services related to the provision of workers’ compensation shall be allocated as follows: if the action is brought by the Attorney General, one-half of the penalty collected shall be paid to the State General Fund, and one-half of the penalty collected shall be paid to the Workers’ Compensation Fraud Account in the Insurance Fund; if the action is brought by a district attorney, one-half of the penalty collected shall be paid to the treasurer of the county in which the judgment was entered, and one-half of the penalty collected shall be paid to the Workers’ Compensation Fraud Account in the Insurance Fund; if the action is brought by a city attorney or city prosecutor, one-half of the penalty collected shall be paid to the treasurer of the
city in which the judgment was entered, and one-half of the penalty collected shall be paid to the Workers’ Compensation Fraud Account in the Insurance Fund. Moneys deposited into the Workers’ Compensation Fraud Account pursuant to this subdivision shall be used in the investigation and prosecution of workers’ compensation fraud, as appropriated by the Legislature.
SEC. 19.
Section 3353 of the Labor Code is amended to read:3353.
“Independent contractor” meansSEC. 20.
Section 3358 of the Labor Code is amended to read:3358.
SEC. 21.
Section 3360 of the Labor Code is amended to read:3360.
SEC. 22.
Section 3361.5 of the Labor Code is amended to read:3361.5.
Notwithstanding Section 3351, a volunteer, unsalaried person authorized by the governing board of a recreation and park district to perform volunteer services for the district shall, upon the adoption of a resolution of the governing board of the district so declaring, be deemed an employee of the district for the purposes of this division and shall be entitled to the workers’ compensation benefits provided by this division for any injury sustainedSEC. 23.
Section 3362 of the Labor Code is amended to read:3362.
EachSEC. 24.
Section 3364 of the Labor Code is amended to read:3364.
Notwithstanding paragraph (3) of subdivision (a) of Section 3352, a volunteer, unsalaried member of a sheriff’s reserve in any county who is not deemed an employee of the county under Section 3362.5, shall, upon the adoption of a resolution of the board of supervisors declaring that the member is deemed an employee of the county for the purposes of this division, be entitled to the workers’ compensation benefits provided by this division forSEC. 25.
Section 3364.6 of the Labor Code is amended to read:3364.6.
Notwithstanding Sections 3351 and 3352, juvenile traffic offenders pursuant to Section(a) That such
the traffic offender or probationer shall not be entitled to any temporary disability indemnity benefits.
(b) That in determining permanent disability benefits, average weekly earnings shall be taken at the minimum provided therefor in Section 4453.
SEC. 26.
Section 3365 of the Labor Code is amended to read:3365.
For the purposes of this division:(a) Except as provided in subdivisions (b) and (c), each person engaged in suppressing a fire pursuant to Section 4153 or 4436 of the Public Resources Code, and each person (other than an independent contractor or an employee of an independent contractor) engaged in suppressing a fire at the request of a public officer or employee charged with the duty of preventing or suppressing fires, is deemed, except when the entity is the United States or an agency thereof, to be an employee of the public entity that he the person is
serving or assisting in the suppression of the fire, and is entitled to receive compensation from such the public entity in accordance with the provisions of this division. When the entity being served is the United States or an agency thereof, the State Department of Corrections and Rehabilitation shall be deemed the employer and the cost of workers’ compensation may be considered in fixing the reimbursement paid by the United States for the service of prisoners. A person is engaged in suppressing a fire only during the period he
the person (1) is actually fighting the fire, (2) is being transported to or from the fire, or (3) is engaged in training exercises for fire suppression.
(b) A member of the armed forces of the United States while serving under military command in suppressing a fire is not an employee of a public entity.
(c) Neither a A person who contracts to furnish aircraft with pilots to a public entity for fire prevention or suppression service, nor his and that person’s
employees, shall
not be deemed to be employees of the public entity; but a entity. A person who contracts to furnish aircraft to a public entity for fire prevention or suppression service and to personally pilot the aircraft himself shall be deemed to be an employee of the public entity.
SEC. 27.
Section 3366 of the Labor Code is amended to read:3366.
(a) For the purposes of this division, each person engaged in the performance of active law enforcement service as part of the posse comitatus or power of the county, and each person (other than an independent contractor or an employee of an independent contractor) engaged in assisting(b) Nothing in this section shall be construed to This section does not provide workers’ compensation benefits to a person who is any either of the following:
(1) A law enforcement officer who is regularly
employed by a local or state law enforcement agency in an adjoining state and who is deputized to work under the supervision of a California peace officer pursuant to paragraph (4) of subdivision (a) of Section 832.6 of the Penal Code.
(2) A law enforcement officer who is regularly employed by the Oregon State Police, the Nevada Department of Motor Vehicles and Public Safety, or the Arizona Department of Public Safety and who is acting as a peace officer in this state pursuant to subdivision (a) of Section 830.32 of the Penal Code.
SEC. 28.
Section 3367 of the Labor Code is amended to read:3367.
(a) For purposes of this division(b) Nothing in this section shall be construed to This section does not provide workers’ compensation benefits to a person who is any either of the following:
(1) A law enforcement officer who is regularly employed by a local or state law enforcement agency in an adjoining state and who is deputized to work under the supervision of a California peace officer pursuant to paragraph (4) of subdivision (a) of Section 832.6 of the
Penal Code.
(2) A law enforcement officer who is regularly employed by the Oregon State Police, the Nevada Department of Motor Vehicles and Public Safety, or the Arizona Department of Public Safety and who is acting as a peace officer in this state pursuant to subdivision (a) of Section 830.32
830.39
of the Penal Code.
SEC. 29.
Section 3370 of the Labor Code is amended to read:3370.
(a) Each inmate of a state penal or correctional institution(1) The inmate was not injured as the result of an assault in which the inmate was the initial aggressor, or as the result of the intentional act of the inmate injuring himself or herself.
inmate.
(2) The inmate shall not be is not entitled to any temporary disability indemnity benefits while incarcerated in a the state prison.
(3) No benefits shall Benefits shall not be paid to an inmate while he or she is
incarcerated. The period of benefit payment shall instead commence upon release from incarceration. If an inmate who has been released from incarceration, and has been receiving benefits under this section, is reincarcerated in a city or county jail, or state penal or correctional institution, the benefits shall cease immediately upon the inmate’s reincarceration and shall not be paid for the duration of the reincarceration.
(4) This section shall not be construed to
does not provide for the payment to an inmate, upon release from incarceration, of temporary disability benefits which were not paid due to the prohibition of paragraph (2).
(5) In determining temporary and permanent disability indemnity benefits for the inmate, the average weekly earnings shall be taken at not more than the minimum amount set forth in Section 4453.
(6) Where If a dispute exists respecting an inmate’s rights to the workers’ compensation benefits provided herein,
benefits, the inmate may file an application with the appeals board to resolve the dispute. The application may be filed at any time during the inmate’s incarceration.
(7) After release or discharge from a correctional institution, the former inmate shall have one year in which to file an original application with the appeals board, unless the time of injury is such that it would allow more time is permitted under Section 5804 of the Labor Code.
(8) The percentage of disability to total disability shall be determined as for the occupation of a laborer of like age by applying the schedule for the determination of the percentages of permanent disabilities
prepared and adopted by the administrative director.
(9) This division shall be the exclusive remedy against the state for injuries occurring while engaged in assigned work or work under contract. Nothing in this division shall This division does not affect any a right or remedy of an injured inmate for injuries not compensated by this division.
(b) The Department of Corrections and Rehabilitation
shall present to each inmate of a state penal or correctional institution, prior to his or her the inmate’s first assignment to work at the institution, a printed statement of his or her the inmate’s rights under this division, and a description of procedures to be followed in filing for benefits under this section. The statement shall be approved by the administrative director and be posted in a conspicuous place at each place where an inmate works.
(c) Notwithstanding any other provision of this division, the Department of Corrections shall have
and Rehabilitation has medical control over treatment provided an injured inmate while incarcerated in a state prison, except, that in serious cases, the inmate is entitled, upon request, to the services of a consulting physician.
(d) Paragraphs (2), (3), and (4) of subdivision (a) shall also be applicable also apply to an inmate of a state penal or correctional institution who would otherwise be entitled to receive workers’ compensation benefits based on an injury sustained prior to his or her incarceration. However, temporary and permanent disability benefits which, except for this subdivision, would otherwise be payable to an inmate
during incarceration based on an injury sustained prior to incarceration shall be paid to the dependents of the inmate. If the inmate has no
does not have dependents, the temporary disability benefits which, that, except for this subdivision, would otherwise be payable during the inmate’s incarceration shall be paid to the State Treasury to the credit of the Uninsured Employers Benefits Trust Fund, and the permanent disability benefits which that would otherwise be payable during the inmate’s incarceration shall be held in trust for the inmate by the Department of Corrections
and Rehabilitation during the period of incarceration.
For purposes of this subdivision, “dependents” means the inmate’s spouse or children, including an inmate’s former spouse due to divorce and the inmate’s children from that marriage.
(e)Notwithstanding any other provision of this division, an employee who is an inmate, as defined in subdivision (e) of Section 3351 who is eligible for vocational rehabilitation services as defined in Section 4635 shall only be eligible for direct placement services.
SEC. 30.
Section 3371 of the Labor Code is amended to read:3371.
If the issues are complex or if the inmate applicant requests, the Department of Corrections and Rehabilitation shall furnish a list of qualified workers’ compensation attorneys to permit the inmate applicant to choose an attorneySEC. 31.
Section 3550 of the Labor Code is amended to read:3550.
(a) Every employer subject to the compensation provisions of this division shall post and keep posted in a conspicuous location frequented by employees, and where the notice may be easily read by employees during the hours of the workday, a notice that states the name of the current compensation insurance carrier of the employer, or when(b) Failure to keep any
a notice required by this section conspicuously posted shall constitute a misdemeanor, and shall be prima facie evidence of noninsurance.
(c) This section shall does not apply with respect to the employment of employees as defined in subdivision (d) of Section 3351.
(d) The form and content of the notice required by this section shall be prescribed by the administrative director, after consultation with the Commission on Health and Safety and Workers’ Compensation, and shall advise employees that all injuries should be reported to their employer. The notice shall be easily understandable. It shall be posted in both English and Spanish where there are
Spanish-speaking employees. The notice shall include the following information:
(1) How to get emergency medical treatment, if needed.
(2) The kinds of events, injuries, and illnesses covered by workers’ compensation.
(3) The injured employee’s right to receive medical care.
(4) The rights
right of the employee to select and change
the treating physician pursuant to the provisions of Section 4600. subdivision (c) of Section 4600 if the employer or the employer’s insurer has not established a medical provider network as provided in Section 4616.
(5) The right of the employee to be treated by a personal physician that has been predesignated prior to the injury pursuant to subdivision (d) of Section 4600.
(5)
(6) The rights of the employee to receive temporary disability indemnity, permanent disability indemnity, supplemental job displacement, return-to-work supplement program benefits, and death benefits, as appropriate.
(6)
(7) To whom injuries should be reported.
(7)
(8) The existence of time limits for the employer to be notified of an occupational injury.
(8)
(9) The protections against discrimination provided pursuant to Section 132a.
(9)
(10) The Internet Web site
internet website address and contact information that employees may use to obtain further information about the workers’ compensation claims process and an injured employee’s rights and obligations, including the location and telephone number of the nearest information and assistance officer.
(e) Failure of an employer to provide the notice required by this section shall automatically permit the employee to be treated by his or her the employee’s personal physician with respect to an injury occurring during that failure.
(f) The form and content of the notice required to be posted by this section shall be made available to self-insured employers and
insurers by the administrative director. Insurers shall provide this notice to each of their policyholders, with advice concerning the requirements of this section and the penalties for a failure to post this notice.
SEC. 32.
Section 3600 of the Labor Code is amended to read:3600.
(a) Liability for the compensation provided by this division, in lieu of(1) Where, If, at the time of the injury, both the employer and the employee are subject to the compensation provisions of this
division.
(2) Where, If, at the time of the injury, the employee is performing service growing out of and incidental to his or her the employment and is acting within the course of his or her the employment.
(3) Where If
the injury is proximately caused by the employment, either with or without negligence.
(4) Where If the injury is not caused by the intoxication, by alcohol or the unlawful use of a controlled substance, of the injured employee. As used in this paragraph, “controlled substance” shall have the same meaning as prescribed in Section 11007 of the Health and Safety Code.
(5) Where If the injury is not intentionally self-inflicted.
(6) Where If the employee has not willfully and deliberately caused his or her
the employee’s own death.
(7) Where If the injury does not arise out of an altercation in which the injured employee is the initial physical aggressor.
(8) Where If the injury is not caused by the commission of a felony, or a crime which is punishable as specified in subdivision (b) of Section 17 of the Penal Code, by the injured employee, for which he or she
the employee has been convicted.
(9) Where If the injury does not arise out of voluntary participation in any off-duty recreational, social, or athletic activity not constituting part of the employee’s work-related duties, except where unless these activities are a reasonable expectancy of, or are expressly or impliedly required by, the employment. The administrative director shall promulgate reasonable rules and regulations requiring employers to post and keep posted in a conspicuous place or places a notice advising employees
of the provisions of this subdivision. Failure of the employer to post the notice shall not constitute an expression of intent to waive the provisions of this subdivision.
(10) Except for psychiatric injuries governed by subdivision (e) of Section 3208.3, where if the claim for compensation is filed after notice of termination or layoff, including voluntary layoff, and the claim is for an injury occurring prior to the time of notice of termination or layoff, no compensation shall be paid unless the employee demonstrates by a preponderance of the evidence that one or more of the following conditions apply:
(A) The employer has notice of the injury, as provided under Chapter 2 (commencing with
Section 5400), prior to the notice of termination or layoff.
(B) The employee’s medical records, existing prior to the notice of termination or layoff, contain evidence of the injury.
(C) The date of injury, as specified in Section 5411, is subsequent to the date of the notice of termination or layoff, but prior to the effective date of the termination or layoff.
(D) The date of injury, as specified in Section 5412, is subsequent to the date of the notice of termination or layoff.
For purposes of this paragraph, an employee provided notice pursuant to Sections 44948.5, 44949, 44951, 44955, 72411, 87740, and 87743 of the Education Code shall be considered to have been provided a notice of termination or layoff only upon a district’s final decision not to reemploy that
person.
A notice of termination or layoff that is not followed within 60 days by that termination or layoff shall not be subject to the provisions of this paragraph, and this paragraph shall not apply until receipt of a later notice of termination or layoff. The issuance of frequent notices of termination or layoff to an employee shall be considered a bad faith personnel action and shall make this paragraph inapplicable to the employee.
(b) Where If an employee, or his or her
the employee’s dependents, receives the compensation provided by this division and secures a judgment for, or settlement of, civil damages pursuant to those specific exemptions to the employee’s exclusive remedy set forth in subdivision (b) of Section 3602 and Section 4558, the compensation paid under this division shall be credited against the judgment or settlement, and the employer shall be relieved from the obligation to pay further compensation to, or on behalf of, the employee or his or her
the employee’s dependents up to the net amount of the judgment or settlement received by the employee or his or her the employee’s heirs, or that portion of the judgment as has been satisfied.
(c) For purposes of determining whether to grant or deny a workers’ compensation claim, if an employee is injured or killed by a third party in the course of the employee’s employment, no personal relationship or personal connection shall be deemed to exist between the employee and the third party based only on a determination that the third party injured or killed the employee solely because of the third party’s personal beliefs relating to his or her
that person’s perception of the employee’s race, religious creed, color, national origin, age, disability, sex, gender, gender identity, gender expression, or sexual orientation.
SEC. 33.
Section 3600.1 of the Labor Code is amended to read:3600.1.
(a) Whenever any firefighter of the state, as defined in Section 19886 of the Government Code, is injured, dies, or is disabled from performing(b) Nothing in this section shall be deemed to This section does not do either of the following:
(1) Require the extension of any benefits to a firefighter who, at the time of his or her the injury, death, or disability, is acting for compensation from one other than the state.
(2) Require the extension of any benefits to a firefighter employed by the state where when, by departmental regulation, whether now in force or hereafter enacted or promulgated, the activity giving rise to the injury, disability, or death is expressly prohibited.
(c) If the provisions of this section are in conflict with the provisions of a memorandum of understanding reached pursuant to Section 3517.5 of the Government Code, the memorandum of understanding shall be controlling without further legislative action, except that if the provisions of a memorandum of understanding require the expenditure of funds, the provisions shall not become effective unless approved by the Legislature in the annual Budget Act.
SEC. 34.
Section 3600.2 of the Labor Code is amended to read:3600.2.
(a) Whenever any peace officer, as defined in Section 50920 of the Government Code, is injured, dies, or is disabled from performing(b) Nothing in this section shall be deemed to: This section does not do any of the following:
(1) Require the extension of any benefits to a peace officer who at the time of his or her
the injury, death, or disability is acting for compensation from one other than the city, county, city and county, judicial district, or town of his or her primary employment.
(2) Require the extension of any benefits to a peace officer employed by a city, county, city and county, judicial district, or town which that by charter, ordinance, or departmental regulation, whether now in force or hereafter enacted or promulgated, expressly prohibits the activity giving rise to the injury, disability, or death.
(3) Enlarge or extend the authority of any peace officer to make an arrest; provided, however, that
arrest. However, illegality of the arrest shall not affect the extension of benefits by reason of this act if the peace officer reasonably believed that the arrest was not illegal.
(4) Preclude an employer, at its discretion or in accordance with written policies adopted by resolution of the employer’s governing body, from accepting liability for compensation under this division for an injury sustained by a peace officer, as defined in Section 50920 of the Government Code, by reason of engaging in the apprehension or attempted apprehension of law violators or suspected law violators, or protection or preservation of life or property, or the preservation of the peace, outside the state of California, but who was not at the time acting under the immediate direction of his or her
the employer, including any claims for injuries sustained by peace officers during the October 1, 2017, mass shooting in Las Vegas, Nevada, if the employer determines that providing compensation serves the public purposes of the employer. For claims filed pursuant to this paragraph by peace officers for injuries sustained during the October 1, 2017, mass shooting in Las Vegas, Nevada, the date of injury for purposes of subdivision (a) of Section 5405 shall be deemed the operative date of the act adding this paragraph. is January 1, 2019. Acceptance of liability under this subdivision shall does
not affect the determination of whether or not
the peace officer acted within the scope of his or her the employment for any other purpose.
SEC. 35.
Section 3600.3 of the Labor Code is amended to read:3600.3.
(a) For the purposes of Section 3600, an off-duty peace officer, as defined in subdivision (b), who is performing, within the jurisdiction of(b) As used in subdivision (a), “peace officer” means those employees of the Department of Forestry and Fire Protection named as peace officers for purposes of subdivision (b) of Section 830.37 of the Penal Code.
(c) This section does not apply to any off-duty peace officer while he or she is engaged, either as an employee or as an independent contractor, in any capacity other than as a peace officer.
SEC. 36.
Section 3600.4 of the Labor Code is amended to read:3600.4.
(a) Whenever(b) Nothing in this section shall be deemed to: This
section does not do either of the following:
(1) Require the extension of any benefits to a firefighter who at the time of his or her the injury, death, or disability is acting for compensation from one other than the city, county, city and county, district, or other public or municipal corporation or political subdivision, or private entity, of his or her the firefighter’s primary employment or enrollment.
(2) Require the extension of any benefits to a firefighter employed by a city, county, city and county, district, or other public or municipal corporation or political subdivision, or private entity, which that by charter, ordinance, departmental regulation, or private employer policy, whether now in force or hereafter enacted or promulgated, expressly prohibits the activity giving rise to the injury, disability, or death. However, this paragraph shall does not apply to relieve the employer from liability for benefits for any
an injury, disability, or death of a firefighter when the firefighter is acting pursuant to Section 1799.107 of the Health and Safety Code.
SEC. 37.
Section 3600.5 of the Labor Code is amended to read:3600.5.
(a) If an employee who has been hired or is regularly working in the state receives personal injury by accident arising out of and in the course of employment outside of this state,(b) (1) An employee who has been hired outside of this state and his or her the employee’s employer shall be exempted from the provisions of this division while the employee is temporarily within this state doing work for his or her the employer if the employer has furnished workers’ compensation insurance coverage under the workers’ compensation insurance or similar laws of a state other than California, so as to cover the employee’s work while in this state if both of the following apply:
(A) The extraterritorial provisions of this division are recognized in the other state.
(B) The employers and employees who are covered in this state are likewise exempted from the application of the workers’ compensation insurance or similar laws of the other state.
(2) In any case in which When paragraph (1) is satisfied, the benefits under the workers’ compensation insurance or similar laws of the other state, and other remedies under those laws, shall be the exclusive remedy against the employer for any injury, whether resulting in death or not,
injury received by the employee while working for the employer in this state. state, without regard to whether the injury results in death,
(c) (1) With respect to an occupational disease or cumulative injury, a professional athlete who has been hired outside of this state and his or her
the athlete’s employer shall be exempted from the provisions of this division while the professional athlete is temporarily within this state doing work for his or her the employer if both of the following are satisfied:
(A) The employer has furnished workers’ compensation insurance coverage or its equivalent under the laws of a state other than California.
(B) The employer’s workers’ compensation insurance or its equivalent covers the professional athlete’s work while in this state.
(2) In any case in which When
paragraph (1) is satisfied, the benefits under the workers’ compensation insurance or similar laws of the other state, and other remedies under those laws, shall be the exclusive remedy against the employer for any occupational disease or cumulative injury, whether resulting in death or not, received by the employee while working for the employer in this state.
(3) A professional athlete shall be deemed, for purposes of this subdivision, to be temporarily within this state doing work for his or her the athlete’s employer if, during the 365 consecutive days immediately preceding the professional athlete’s last day of work for the employer within the state, the professional athlete performs less than 20 percent of his or her
the athlete’s duty days in California during that 365-day period in California.
(d) (1) With respect to an occupational disease or cumulative injury, a professional athlete and his or her the employer shall be exempt from this division when all of the professional athlete’s employers in his or her the athlete’s last year of work as a professional athlete are exempt from this division pursuant to subdivision (c) or any other law, unless both of the following conditions are satisfied:
(A) The professional athlete has, over the course of his or her the athlete’s professional athletic career, worked for two or more seasons for a California-based team or teams, or the professional athlete has, over the course of his or her the athlete’s professional athletic career, worked 20 percent or more of his or her the athlete’s duty days either in California or for a
California-based team. The percentage of a professional athletic career worked either within California or for a California-based team shall be determined solely by taking the number of duty days the professional athlete worked for a California-based team or teams, plus the number of duty days the professional athlete worked as a professional athlete in California for any team other than a California-based team, and dividing that number by the total number of duty days the professional athlete was employed anywhere as a professional athlete.
(B) The professional athlete has, over the course of his or her the athlete’s professional athletic career, worked for fewer than seven seasons for any team or teams other than a California-based team or teams as
defined in this section.
(2) When If subparagraphs (A) and (B) of paragraph (1) are both satisfied, liability for the professional athlete’s occupational disease or cumulative injury shall be determined in accordance with Section 5500.5.
(e) An employer of professional athletes, other than a California-based team, shall be exempt from Article 4 (commencing with Section 3550) of Chapter 2, and subdivisions (a) to (c), inclusive, of Section 5401.
(f) For purposes of this section, a certificate from the duly authorized officer of the appeals board or similar department of another state certifying that the employer of the other
state is insured in that state and has provided extraterritorial coverage insuring his or her
its employees while working within this state shall be prima facie evidence that the employer carries workers’ compensation insurance.
(g) For purposes of this section, the following definitions apply:
(1) The term “professional athlete” means an athlete who is employed at either a minor or major league level in the sport of baseball, basketball, football, ice hockey, or soccer.
(2) The term “California-based team” means a team that plays a majority of its home games in California.
(3) The term “duty day” means a day in which any services are performed by a professional athlete under the direction and control of his or her
the employer pursuant to a player contract.
(4) The term “season” means the period from the date of the first preseason team activity for that contract year, through the date of the last game the professional athlete’s team played during the same contract year.
(h) The amendments made to this section by the act adding this subdivision Chapter 653 of the Statutes of 2013 apply to all claims for benefits pursuant to this division filed on or after September 15, 2013. The amendments made to this section by the act adding this subdivision shall
Chapter 653 of the Statutes of 2013 do not constitute good cause to reopen any final decision, order, or award.
(i) If any provision of this section or the application thereof to any person or circumstances is held invalid, that invalidity shall does not affect other provisions or applications of this section that can be given effect without the invalid provision or application, and to this end the provisions of this section are severable.
SEC. 38.
Section 3600.6 of the Labor Code is amended to read:3600.6.
Disaster service workers registered by a disaster council while performing services under the general direction of the disaster council shall be entitled to all of the same benefits of this division as any other injured employee, except as provided by Chapter 10 (commencing with Section 4351) of Part 1. For purposes of this section, an unregistered person impressed into performing service as a disaster service worker during a state of war emergency, a state of emergency, or a local emergency by a person having authority to command the aid of citizens in the execution ofSEC. 39.
Section 3600.8 of the Labor Code is amended to read:3600.8.
(a)(b) Any alternative commute program provided, sponsored, or subsidized by an employee’s employer in order to comply with any trip reduction mandates of an air quality management district or local government shall be considered a program mandated by a governmental entity. An employer’s reimbursement of employee expenses or subsidization of costs related to an alternative commute program shall not be considered payment of a wage or salary in compensation for the period of travel. If an employer’s employee’s salary is not based on the hours the employee works, payment of his or her
the salary shall not be considered to be in compensation for the period of travel unless there is a specific written agreement between the employer and the employee to that effect. If an employer elects to provide workers’ compensation coverage for those employees who are passengers in a vehicle owned and operated by the employer or an agent thereof, those employees shall be considered to be within the course of their employment, provided the employer notifies employees in writing prior to participation of the employee or coverage becoming effective.
(c) As used in this section, “governmental entity” means a regional air district, air quality management district, congestion management agency, or other local jurisdiction having authority to enact air pollution or congestion management controls or impose them upon entities within its jurisdiction.
(d) Notwithstanding any other provision of law, vanpool programs may continue to provide workers’ compensation benefits to employees who participate in an alternative commute program by riding in a vanpool, in the case in which if the vanpool vehicle is owned or registered to the employer.
(e) Employees of the state who participate in an alternative commute program, while riding in a vanpool vehicle that is registered to or owned by the state, shall be deemed to be within the course and scope of employment for workers’ compensation purposes only.
SEC. 40.
Section 3601 of the Labor Code is amended to read:3601.
(a)(1) When If the injury or death is
proximately caused by the willful and unprovoked physical act of aggression of the other employee.
coemployee.
(2) When If the injury or death is proximately caused by the intoxication of the other employee. coemployee.
(b) In no event, either by legal action or by agreement whether entered into by the other employee or on his or her coemployee or on the coemployee’s behalf,
shall the employer be held liable, directly or indirectly, for damages awarded against, or for a liability incurred by the other employee
coemployee under paragraph (1) or (2) of subdivision (a).
(c) No An employee shall not be held liable, directly or indirectly, to his or her the employer, for injury or death of a coemployee except where coemployee, unless the injured
employee or his or her the deceased employee’s dependents obtain a recovery under subdivision (a).
SEC. 41.
Section 3602 of the Labor Code is amended to read:3602.
(a)(b) An employee, or his or her the employee’s dependents in the event of his or her the employee’s death, may bring an action at law for damages against the employer, as if this division did not apply, in the following instances:
(1) Where If the
employee’s injury or death is proximately caused by a willful physical assault by the employer.
(2) Where If the employee’s injury is aggravated by the employer’s fraudulent concealment of the existence of the injury and its connection with the employment, in which case the employer’s liability shall be limited to those damages proximately caused by the aggravation. The burden of proof respecting apportionment of damages between the injury and any subsequent aggravation thereof is upon the employer.
(3) Where If the
employee’s injury or death is proximately caused by a defective product manufactured by the employer and sold, leased, or otherwise transferred for valuable consideration to an independent third person, and that product is thereafter provided for the employee’s use by a third person.
(c) In all cases where If the conditions of compensation set forth in Section 3600 do not concur, the liability of the employer shall be the same as if this division had not been enacted.
(d) (1) For the purposes of this division, including Sections 3700 and 3706, an employer may secure the payment of compensation on employees provided to it by agreement by another employer by entering into
a valid and enforceable agreement with that other employer under which the other employer agrees to obtain, and has, in fact, obtained workers’ compensation coverage for those employees. In those cases, both employers shall be considered to have secured the payment of compensation within the meaning of this section and Sections 3700 and 3706 if there is a valid and enforceable agreement between the employers to obtain that coverage, and that coverage, as specified in subdivision (a) or (b) of Section 3700, has been in fact obtained, and the coverage remains in effect for the duration of the employment providing legally sufficient coverage to the employee or employees who form the subject matter of the coverage. That agreement shall not be made for the purpose of avoiding an employer’s appropriate experience rating as defined in subdivision (c) of Section 11730 of the Insurance Code.
(2) Employers who have complied with this subdivision shall
not be subject to civil, criminal, or other penalties for failure to provide workers’ compensation coverage or tort liability in the event of employee injury, but may, in the absence of compliance, be subject to all three.
(e) As provided in paragraph (12) of subdivision (f) of Section 1202.4 of the Penal Code, in cases where an employer is convicted of a crime against an employee, a payment to the employee or the employee’s dependent that is paid by the employer’s workers’ compensation insurance carrier shall not be used to offset the amount of the restitution order unless the court finds that the defendant substantially met the obligation to pay premiums for that insurance coverage.
SEC. 42.
Section 3605 of the Labor Code is amended to read:3605.
The compensation due an injured minor may be paid toCompensation paid to such
the injured minor prior to receipt of such
the written notice is in full release of the employer and insurance carrier for the amount so paid. The minor can not cannot disaffirm such that payment upon appointment of a guardian or coming of age.
SEC. 43.
Section 3700 of the Labor Code is amended to read:3700.
Every employer except the state shall secure the payment of compensation in one or more of the following ways:(a) By being insured against liability to pay compensation by one or more insurers duly authorized to write compensation insurance in this state.
(b) By securing from the Director of Industrial Relations a certificate of consent to self-insure either as an individual employer, or as one employer in a group of employers, which may be given upon furnishing proof satisfactory to the Director of Industrial Relations of ability to self-insure and to pay any compensation that may become due to his or her
the employer’s
employees.
(c) For any county, city, city and county, municipal corporation, public district, public agency, or any political subdivision of the state, including each member of a pooling arrangement under a joint exercise of powers agreement (but not the state itself), by securing from the Director of Industrial Relations a certificate of consent to self-insure against workers’ compensation claims, which certificate may be given upon furnishing proof satisfactory to the director of ability to administer workers’ compensation claims properly, and to pay workers’ compensation claims that may become due to its employees. On or before March 31, 1979, a political subdivision of the state which, on December 31, 1978, was uninsured for its liability to pay compensation, shall file a properly completed and executed application for a certificate of consent to self-insure against workers’ compensation claims. The certificate shall be issued
and be subject to the provisions of Section 3702.
For purposes of this section, “state” shall include the superior courts of California.
SEC. 44.
Section 3700.5 of the Labor Code is amended to read:3700.5.
(a) The failure to secure the payment of compensation as required by this article by one who knew, or because of(b) A second or subsequent
conviction shall be punished by imprisonment in the county jail for a period not to exceed one year, by a fine of triple the amount of premium, or by both that imprisonment and fine, as determined by the court, that would otherwise have been due to secure the payment of compensation during the time payment was not secured, but not less than fifty thousand dollars ($50,000).
(c) Upon a first conviction of a person under this section, the person may be charged the costs of investigation at the discretion of the court. Upon a subsequent conviction, the person shall be charged the costs of investigation in addition to any other penalties pursuant to subdivision (b). The costs of investigation shall be paid only after the payment of any benefits that may be owed to injured workers, any reimbursement that may be owed to the director for benefits provided to the injured worker pursuant to Section 3717, and any other penalty assessments that may be
owed.
SEC. 45.
Section 3701 of the Labor Code is amended to read:3701.
(a) Each year every private self-insuring employer shall secure incurred liabilities for the payment of compensation and the performance of the obligations of employers imposed under this chapter by renewing the prior year’s security deposit or by making a new deposit of security. If a new deposit is made, it shall be posted within 60 days of the filing of the self-insured employer’s annual report with the director, but in no event later than May 1.(b) The solvency risk and security deposit amount for each private and group self-insurer shall be acceptable to the Self-Insurers’ Security Fund.
(c) Unless otherwise permitted by regulation, the deposit shall be an amount equal to the self-insurer’s
projected losses, net of specific excess insurance coverage, if any, and inclusive of incurred but not reported (IBNR) liabilities, allocated loss adjustment expense, and unallocated loss adjustment expense, calculated as of December 31 of each year. The calculation of projected losses and expenses shall be reflected in a written actuarial report that projects ultimate liabilities of the private self-insured employer at the expected actuarial confidence level, to ensure that all claims and associated costs are recognized. The written actuarial report shall be prepared by an actuary meeting the qualifications prescribed by the director in regulation.
(d) In determining the amount of the deposit required to secure incurred liabilities for the payment of compensation and the performance of obligations of a self-insured employer imposed under this chapter, the director shall offset estimated future liabilities for the same claims covered by a
self-insured plan under the federal Longshore and Harbor Workers’ Compensation Act (33 U.S.C. Sec. 901 et seq.), but in no event shall the offset exceed the estimated future liabilities for the claims under this chapter.
(e) The director may only accept as security, and the employer shall deposit as security, cash, securities, surety bonds, or irrevocable letters of credit in any combination the director, in his or her the director’s discretion, deems adequate security. The current deposit shall include any amounts covered by terminated surety bonds or excess insurance policies, as shall be set forth in regulations adopted by the director pursuant to Section 3702.10.
(f) Surety bonds,
irrevocable letters of credit, and documents showing issuance of any irrevocable letter of credit shall be deposited with, and be in a form approved by, the director, shall be exonerated only according to its terms and, in no event, by the posting of additional security.
(g) The director may accept as security a joint security deposit that secures an employer’s obligation under this chapter and that also secures that employer’s obligations under the federal Longshore and Harbor Workers’ Compensation Act.
(h) The liability of the Self-Insurers’ Security Fund, with respect to any claims brought under both this chapter and under the federal Longshore and Harbor Workers’ Compensation Act, to pay for shortfalls in a security deposit shall be limited to the amount of claim liability owing the employee under this chapter offset by the amount of any claim liability owing under the federal
Longshore and Harbor Workers’ Compensation Act, but in no event shall the liability of the fund exceed the claim liability under this chapter. The employee shall be entitled to pursue recovery under either or both the state and federal programs.
(i) Securities shall be deposited on behalf of the director by the self-insured employer with the Treasurer. Securities shall be accepted by the Treasurer for deposit and shall be withdrawn only upon written order of the director.
(j) Cash shall be deposited in a financial institution approved by the director, and in the account assigned to the director. Cash shall be withdrawn only upon written order of the director.
(k) Upon the sending by the director of a request to renew, request to post, or request to increase or decrease a security deposit, a perfected security
interest is created in the private self-insured’s assets in favor of the director and the Self-Insurers’ Security Fund to the extent of any then unsecured portion of the self-insured’s incurred liabilities. That perfected security interest is transferred to any cash or securities thereafter posted by the private self-insured with the director and is released only upon either of the following:
(1) The acceptance by the director of a surety bond or irrevocable letter of credit for the full amount of the incurred liabilities for the payment of compensation.
(2) The return of cash or securities by the director.
The private self-insured employer loses all right, title, and interest in, and any right to control, all assets or obligations posted or left on deposit as security. The director may liquidate the deposit as provided in Section 3701.5
and apply it to the self-insured employer’s incurred liabilities either directly or through the Self-Insurers’ Security Fund.
SEC. 46.
Section 3701.5 of the Labor Code is amended to read:3701.5.
(a) If the director determines that a private self-insured employer has failed to pay workers’ compensation as required by this division, the security deposit shall be utilized to administer and pay the employer’s compensation obligations.(b) If the director determines the security deposit has not been immediately made available for the payment of compensation, the director shall determine the method of payment and claims administration as appropriate, which may include, but is not limited to, payment by a surety that issued the bond, or payment by an issuer of an irrevocable letter of credit, and administration by a surety or by an adjusting agency, or through the Self-Insurers’ Security Fund, or any combination thereof. If the director arranges for
administration and payment by any person other than the Self-Insurers’ Security Fund after a default is declared, the fund shall have no responsibility for claims administration or payment of the claims.
(c) If the director determines the payment of benefits and claims administration shall be made through the Self-Insurers’ Security Fund, the fund shall commence payment of the private self-insured employer’s obligations for which it is liable under Section 3743 within 30 days of notification. Payments shall be made to claimants whose entitlement to benefits can be ascertained by the fund, with or without proceedings before the appeals board. Upon the assumption of obligations by the fund pursuant to the director’s determination, the fund shall have a right to immediate possession of any posted security and the custodian, surety, or issuer of any irrevocable letter of credit shall turn over the security to the fund together with the interest
that has accrued since the date of the self-insured employer’s default or insolvency.
(d) The payment of benefits by the Self-Insurers’ Security Fund from security deposit proceeds shall release and discharge any custodian of the security deposit, surety, any issuer of a letter of credit, and the self-insured employer, from liability to fulfill obligations to provide those same benefits as compensation, but does not release any person from any liability to the fund for full reimbursement. Payment by a surety constitutes a full release of the surety’s liability under the bond to the extent of that payment, and entitles the surety to full reimbursement by the principal or his or her the principal’s estate. Full reimbursement includes necessary attorney fees
and other costs and expenses, without prior claim or proceedings on the part of the injured employee or other beneficiaries. Any decision or determination made, or any settlement approved, by the director or by the appeals board under subdivision (f) shall conclusively be presumed valid and binding as to any and all known claims arising out of the underlying dispute, unless an appeal is made within the time limit specified in Section 5950.
(e) The director shall advise the Self-Insurers’ Security Fund promptly after receipt of information indicating that a private self-insured employer may be unable to meet its compensation obligations. The director shall also advise the Self-Insurers’ Security Fund of all determinations and directives made or issued pursuant to this section. All financial, actuarial, or claims information received by the director from any self-insurer may be shared by the director with the Self-Insurers’ Security Fund.
(f) Disputes concerning the posting, renewal, termination, exoneration, or return of all or any portion of the security deposit, or any liability arising out of the posting or failure to post security, or adequacy of the security or reasonableness of administrative costs, including legal fees, and arising between or among a surety, the issuer of an agreement of assumption and guarantee of workers’ compensation liabilities, the issuer of a letter of credit, any custodian of the security deposit, a self-insured employer, or the Self-Insurers’ Security Fund shall be resolved by the director. An appeal from the director’s decision or determination may be taken to the appropriate superior court by petition for writ of mandate. Payment of claims from the security deposit or by the Self-Insurers’ Security Fund shall not be stayed pending the resolution of the disputes unless and until the superior court issues a determination staying a payment of claims
decision or determination of the director.
SEC. 47.
Section 3701.8 of the Labor Code is amended to read:3701.8.
(a) As an alternative to each private self-insuring employer securing its own incurred liabilities as provided in Section 3701, the director may provide by regulation for an alternative security system whereby all private self-insureds designated for full participation by the director shall collectively secure their aggregate incurred liabilities through the Self-Insurers’ Security Fund. The regulations shall provide for the director to set a total security requirement for these participating self-insured employers based on a review of their annual reports and any other self-insurer information as may be specified by the director. The Self-Insurers’ Security Fund shall propose to the director a combination of cash and securities, surety bonds, irrevocable letters of credit, insurance, or other financial instruments or guarantees satisfactory to the director sufficient to meet the security requirement set by the director. Upon approval by the director and posting by the Self-Insurers’ Security Fund on or before the date set by the director, that combination shall be the composite deposit. The noncash elements of the composite deposit may be one-year or multiple-year instruments. If the Self-Insurers’ Security Fund fails to post the required composite deposit by the date set by the director, then within 30 days after that date, each private self-insuring employer shall secure its incurred liabilities in the manner required by Section 3701. Self-insured employers not designated for full participation by the director shall meet all requirements as may be set by the director pursuant to subdivision (g).(b) In order to provide for the composite deposit approved by the director, the Self-Insurers’ Security Fund shall assess, in a manner approved by the director, each fully
participating private self-insuring employer a deposit assessment payable within 30 days of assessment. The amount of the deposit assessment charged each fully participating self-insured employer shall be set by the Self-Insurers’ Security Fund, based on its reasonable consideration of all the following factors:
(1) The total amount needed to provide the composite deposit.
(2) The self-insuring employer’s paid or incurred liabilities as reflected in its annual report.
(3) The financial strength and creditworthiness of the self-insured.
(4) Any other reasonable factors as may be authorized by regulation.
(5) In order to make a composite deposit proposal to the director and set the deposit
assessment to be charged each fully participating self-insured, the Self-Insurers’ Security Fund shall have access to the annual reports and other information submitted by all self-insuring employers to the director, under terms and conditions as may be set by the director, to preserve the confidentiality of the self-insured’s financial information.
(c) Upon payment of the deposit assessment and except as provided herein, the self-insuring employer loses all right, title, and interest in the deposit assessment. To the extent that in any one year the deposit assessment paid by self-insurers is not exhausted in the purchase of securities, surety bonds, irrevocable letters of credit, insurance, or other financial instruments to post with the director as part of the composite deposit, the surplus shall remain posted with the director, and the principal and interest earned on that surplus shall remain as part of the composite deposit in subsequent
years. In the event that in any one year the Self-Insurers’ Security Fund fails to post the required composite deposit by the date set the by the director, and the director requires each private self-insuring employer to secure its incurred liabilities in the manner required by Section 3701, then any deposit assessment paid in that year shall be refunded to the self-insuring employer that paid the deposit assessment.
(d) If any private self-insuring employer objects to the calculation, posting, or any other aspect of its deposit assessment, upon payment of the assessment in the time provided, the employer shall have the right to appeal the assessment to the director, who shall have exclusive jurisdiction over this dispute. If any private self-insuring employer fails to pay the deposit assessment in the time provided, the director shall order the self-insuring employer to pay a penalty of not less than 10 percent of its deposit assessment, plus
interest on any unpaid amount at the prejudgment rate, and to post a separate security deposit in the manner provided by Section 3701. The penalty and interest shall be paid directly to the Self-Insurers’ Security Fund. The director may also revoke the certificate of consent to self-insure of any self-insuring employer who fails to pay the deposit assessment in the time provided.
(e) Upon the posting by the Self-Insurers’ Security Fund of the composite deposit with the director, the deposit shall be held until the director determines that a private self-insured employer has failed to pay workers’ compensation as required by this division, and the director orders the Self-Insurers’ Security Fund to commence payment. Upon ordering the Self-Insurers’ Security Fund to commence payment, the director shall make available to the fund that portion of the composite deposit necessary to pay the workers’ compensation benefits of the defaulting
self-insuring employer. In the event additional funds are needed in subsequent years to pay the workers’ compensation benefits of any self-insuring employer who defaulted in earlier years, the director shall make available to the Self-Insurers’ Security Fund any portions of the composite deposit as may be needed to pay those benefits. In making the deposit available to the Self-Insurers’ Security Fund, the director shall also allow any amounts as may be reasonably necessary to pay for the administrative and other activities of the fund.
(f) The cash portion of the composite deposit shall be segregated from all other funds held by the director, and shall be invested by the director for the sole benefit of the Self-Insurers’ Security Fund and the injured workers of private self-insured employers, and may not be used for any other purpose by the state. Alternatively, the director, in his
the director’s discretion, may allow the Self-Insurers’ Security Fund to hold, invest, and draw upon the cash portion of the composite deposit as prescribed by regulation.
(g) Notwithstanding any other provision of this section, the director shall, by regulation, set minimum credit, financial, or other conditions that a private self-insured must meet in order to be a fully participating self-insurer in the alternative security system. In the event any private self-insuring employer is unable to meet the conditions set by the director, or upon application of the Self-Insurers’ Security Fund to exclude an employer for credit or financial reasons, the director shall exclude the self-insuring employer from full participation in the alternative security system. In the event a self-insuring employer is excluded from full participation, the nonfully participating private self-insuring employer shall post a
separate security deposit in the manner provided by Section 3701 and pay a deposit assessment set by the director. Alternatively, the director may order that the nonfully participating private self-insuring employer post a separate security deposit to secure a portion of its incurred liabilities and pay a deposit assessment set by the director.
(h) An employer who self-insures through group self-insurance and an employer whose certificate to self-insure has been revoked may fully participate in the alternative security system if both the director and the Self-Insurers’ Security Fund approve the participation of the self-insurer. If not approved for full participation, or if an employer is issued a certificate to self-insure after the composite deposit is posted, the employer shall satisfy the requirements of subdivision (g) for nonfully participating private self-insurers.
(i) At
all times, a self-insured employer shall have secured its incurred workers’ compensation liabilities either in the manner required by Section 3701 or through the alternative security system, and there shall not be any lapse in the security.
SEC. 48.
Section 3702 of the Labor Code is amended to read:3702.
(a) A certificate of consent to self-insure may be revoked by the director at any time for good cause after a hearing. Good cause includes, among other things, a recommendation by the Self-Insurers’ Security Fund to revoke the certificate of consent, the impairment of the solvency of the employer to the extent that there is a marked reduction of the employer’s financial strength, failure to maintain a security deposit as required by Section 3701, failure to pay assessments of the Self-Insurers’ Security Fund, frequent or flagrant violations of state safety and health orders, the failure or inability of the employer to fulfill(1) Habitually and as a matter of practice and custom inducing claimants for compensation to accept less than the compensation due or making it necessary for them to resort to proceedings against the employer to secure compensation due.
(2) Where If liability for temporary disability indemnity is not in dispute, intentionally
failing to pay temporary disability indemnity without good cause in order to influence the amount of permanent disability benefits due.
(3) Intentionally refusing to comply with known and legally indisputable compensation obligations.
(4) Discharging or administering his or her the employer’s compensation obligations in a dishonest manner.
(5) Discharging or administering his or her the employer’s
compensation obligations in such a manner as to cause injury to the public or those dealing with the employer.
(b) Where If revocation is in part based upon the director’s finding of a marked reduction of the employer’s financial strength or the failure or inability of the employer to fulfill his or her the employer’s obligations, or a practice of discharging obligations in a dishonest manner, it is a condition precedent to the employer’s challenge or appeal of the revocation that the employer have in effect insurance against liability to pay
compensation.
(c) The director may hold a hearing to determine whether good cause exists to revoke an employer’s certificate of consent to self-insure if the employer is cited for a willful, or repeat serious violation of the standard adopted pursuant to Section 6401.7 and the citation has become final.
SEC. 49.
Section 3705 of the Labor Code is amended to read:3705.
The Self-Insurers’ Security Fund or the surety making payment of compensation hereunder shall have the same preference over the other debts of the principal orSEC. 50.
Section 3706 of the Labor Code is amended to read:3706.
If any employer fails to secure the payment of compensation, any injured employee orSEC. 51.
Section 3707 of the Labor Code is amended to read:3707.
The injured employee orSEC. 52.
Section 3709 of the Labor Code is amended to read:3709.
If, as a result ofSuch judgment
Judgment shall include a reasonable attorney’s fee fixed by the court. The director, as administrator of the Uninsured Employers Benefits Trust Fund, shall have a first lien against any proceeds of settlement in such the action, before or after judgment, in the amount
of compensation paid by the director from the Uninsured Employers Benefits Trust Fund pursuant to Section 3716.
No satisfaction
Satisfaction
of a judgment in such that action, in whole or in part, shall be is not valid as against the director without giving the director notice and a reasonable opportunity to perfect and satisfy his
the director’s lien.
SEC. 53.
Section 3710 of the Labor Code is amended to read:3710.
(a) The Director of Industrial Relations shall enforce(b) The director, in accordance with the provisions of Chapter 4 (commencing at with Section 11370) of Part 1 of Division 3 of Title 2 of the Government Code, may adopt, amend amend, and repeal such
those rules and regulations as are reasonably necessary for the purpose of enforcing and administering this article and as are not inconsistent with law.
(c) As used in this article, “director” means the Director of Industrial Relations or the director’s designated agents.
SEC. 54.
Section 3710.2 of the Labor Code is amended to read:3710.2.
Failure of an employer, officer, or anyone having direction, management, or control of any place of employment or of employees to observe a stop order issued and served uponSEC. 55.
Section 3711 of the Labor Code is amended to read:3711.
The director, an investigator for the Department of Insurance Fraud Bureau or its successor, or a district attorney investigator assigned to investigate workers’ compensation fraud may, at any time, require an employer to furnish a written statement showing the name ofSEC. 56.
Section 3714 of the Labor Code is repealed.(a)All cases involving the Uninsured Employers Fund or the Subsequent Injuries Fund as a party or involving death without dependents shall only be heard for conference, mandatory settlement conference pursuant to subdivision (d) of Section 5502, standby conference, or rating calendar at the district Workers’ Compensation Appeals Board located in San Francisco, Los Angeles, Van Nuys, Anaheim, Sacramento, or San Diego, except for good cause shown and with the consent of the director. This subdivision shall not apply to trials or hearings pursuant to Section 5309 or to expedited hearings pursuant to subdivision (b) of Section 5502.
(b)For the cases specified in subdivision (a), the presiding judge of the Workers’ Compensation Appeals Board located in San Francisco, Los Angeles, Van Nuys, Anaheim, Sacramento, or San Diego shall have the authority, either by standing order or on a case-by-case basis, to order a conference, mandatory settlement conference pursuant to subdivision (d) of Section 5502, standby conference, or rating calendar in which no testimony will be taken to be conducted by telephone conference call among the parties and their attorneys of record who do not reside in the county in which that appeals board is located. The cost of the scheduling of the conference call shall be charged against the appropriate fund of the department.
(c)Any filings of documents necessary for the proceedings specified in subdivisions (a) and (b) may be served on the appeals board and the parties by facsimile machine, but if so served, within five workings days service shall be made on the appeals board and the parties as required by regulation.
(d)This section shall remain in effect for two years commencing on the date that the administrative director certifies and publishes that the rearrangement of judicial resources required by this section, and conference call facilities required for this section are in place. The certification shall be published in the California Notice Register, but shall be required to have been posted in the office of each appeals board at least 30 days prior to that publication. Notwithstanding this section, with the permission of the presiding judge and under standards set by the administrative director, parties may be permitted to conclude existing cases where they were filed. This section shall cease to be operative at the end of that two-year period, and shall be repealed on January 1 following that date.
SEC. 57.
Section 3715 of the Labor Code is amended to read:3715.
(a) Any employee, except an employee as defined in subdivision (d) of Section 3351, whose employer has failed to secure the payment of compensation as required by this division, or(b) Notwithstanding this section or any other provision of this chapter except Section 3708, any person described in subdivision (d)
of Section 3351 who is (1) engaged in household domestic service who is employed by one employer for over 52 hours per week, (2) engaged as a part-time gardener in connection with a private dwelling, if the number of hours devoted to the gardening work for any individual regularly exceeds 44 hours per month, or (3) engaged in casual employment where if the work contemplated is to be completed in not less than 10 working days, without regard to the number of persons employed, and where the total labor cost of the work is not less than one hundred dollars ($100) (which amount ($100), which shall not include charges other than for
personal services), services,
shall be entitled, in addition to proceeding against his or her the employer by civil action in the courts as provided in Section 3706, to file his or her
an application with the appeals board for compensation. The appeals board shall hear and determine the application for compensation in like manner as in other claims, and shall make the award to the claimant as he or she the claimant would be entitled to receive if the person’s employer had secured the payment of compensation as required, and the employer shall pay the award in the manner and amount fixed thereby, or shall furnish to the appeals board a bond, in any amount and with any sureties as the appeals board requires, to pay the employee the award in the manner and amount fixed thereby.
It is the intent of the Legislature that the amendments to this section by Chapter 17 of the Statutes of 1977, make no change in the law as it
applied to those types of employees covered by this subdivision prior to the effective date of Chapter 1263 of the 1975 Regular Session.
(c) In any claim in which it is alleged that the employer has failed to secure the payment of compensation, the director, only for purposes of this section and Section 3720, shall determine, on the basis of the evidence available to him or her, available evidence, whether the employer was prima facie illegally uninsured. A finding that the employer was prima facie illegally uninsured shall be made when the director determines that there is sufficient evidence to constitute a prima facie case that the employer employed an employee on the date of the alleged injury and had failed to secure the payment of compensation, and
that the employee was injured arising out of, and occurring in the course of, the employment.
Failure of the employer to furnish within 10 days the written statement in response to a written demand for a written statement prescribed in Section 3711, addressed to the employer at its address as shown on the official address record of the appeals board, shall constitute in itself sufficient evidence for a prima facie case that the employer failed to secure the payment of compensation.
A written denial by the insurer named in the statement furnished by the employer as prescribed in Section 3711, that the employer was so insured as claimed, or the nonexistence of a valid certificate of consent to self-insure for the time of the claimed injury, if the statement furnished by the employer claims the employer was self-insured, shall constitute in itself sufficient evidence for a prima facie case that the employer had failed to
secure the payment of compensation.
The nonexistence of a record of the employer’s insurance with the Workers’ Compensation Insurance Rating Bureau shall constitute in itself sufficient evidence for a prima facie case that the employer failed to secure the payment of compensation.
The unrebutted written declaration under penalty of perjury by the injured employee, or applicant other than the employee, that the employee was employed by the employer at the time of the injury, and that he or she the employee was injured in the course of his or her the
employment, shall constitute, in itself, sufficient evidence for a prima facie case that the employer employed the employee at the time of the injury, and that the employee was injured arising out of, and occurring in the course of, the employment.
(d) When the director determines that an employer was prima facie illegally uninsured, the director shall mail a written notice of the determination to the employer at his or her the employer’s address as shown on the official address record of the appeals board, and to any other more recent address the director may possess. The notice shall advise the employer of its right to appeal the finding, and that a lien may be placed against the employer’s and any parent corporation’s property, or the
property of substantial shareholders of a corporate employer as defined by Section 3717.
Any employer aggrieved by a finding of the director that it was prima facie illegally uninsured may appeal the finding by filing a petition before the appeals board. The petition shall be filed within 20 days after the finding is issued. The appeals board shall hold a hearing on the petition within 20 days after the petition is filed with the appeals board. The appeals board shall have exclusive jurisdiction to determine appeals of the findings by the director, and no court of this state has jurisdiction to review, annul, or suspend the findings or the liens created thereunder, except as provided by Article 2 (commencing with Section 5950) of Chapter 7 of Part 4 of Division 4.
(e) Any claim brought against an employer under this section may be resolved by the director by compromise and release or stipulated
findings and award as long as the appeals board has acquired jurisdiction over the employer and the employer has been given notice and an opportunity to object.
Notice may be given by service on the employer of an appeals board notice of intention to approve the compromise and release or stipulated findings and award. The employer shall have 20 days after service of the notice of intention to file an objection with the appeals board and show good cause therefor.
If the employer objects, the appeals board shall determine if there is good cause for the objection.
If the appeals board finds good cause for the objection, the director may proceed with the compromise and release or stipulated findings and award if doing so best serves the interest of the Uninsured Employers Benefits Trust
Fund, but shall have no cause of action against the employer under Section 3717 unless the appeals board case is tried to its conclusion and the employer is found liable.
If the appeals board does not find good cause for the objection, and the compromise and release or stipulated findings and award is approved, the Uninsured Employers Fund shall have a cause of action against the employer pursuant to Section 3717.
(f) The director may adopt regulations to implement and interpret the procedures provided for in this section.
SEC. 58.
Section 3716 of the Labor Code is amended to read:3716.
(a) If the employer fails to pay the compensation required by Section 3715 to the person entitled thereto, or fails to furnish the bond required by Section 3715 within a period of 10 days after notification of the award, the award, upon application by the person entitled thereto, shall be paid by the director from the Uninsured Employers Benefits Trust Fund. The expenses of the director in administering these provisions, directly or by contract pursuant to Section 3716.1, shall be paid from the Workers’ Compensation Administration Revolving Fund. Refunds may be paid from the Uninsured Employers Benefits Trust Fund for amounts remitted erroneously to the fund, or the director may authorize offsetting subsequent remittances to the fund.(b) It is the intent of the Legislature that the Uninsured Employers Benefits Trust Fund is created to ensure that workers who happen to be employed by illegally uninsured employers are not deprived of workers’ compensation benefits, and is not created as a source of contribution to insurance carriers, or self-insured, or legally insured employers. The Uninsured Employers Benefits Trust Fund has no liability for claims of occupational disease or cumulative injury unless no employer during the period of the occupational disease or cumulative injury during which liability is imposed under Section 5500.5 was insured for workers’ compensation, was permissibly self-insured, or was legally uninsured. No employer has a right of contribution against the Uninsured Employers Benefits Trust Fund for the liability of an illegally uninsured employer under an award of benefits for occupational disease or cumulative injury, nor may an employee in a claim of occupational disease or cumulative injury elect to
proceed against an illegally uninsured employer.
(c) The Uninsured Employers Benefits Trust Fund has no liability to pay for medical, surgical, chiropractic, hospital, or other treatment, the liability for which treatment is imposed upon the employer pursuant to Section 4600, and which treatment has been provided or paid for by the State Department of Health Services pursuant to the California Medical Assistance Program.
(d) The Uninsured Employers Benefits Trust Fund shall have no liability to pay compensation, nor shall it be joined in any appeals board proceeding, unless the employer alleged to be illegally uninsured shall first either have made a general appearance or have been served with the application specified in Section 3715 and with a special notice of lawsuit issued by the appeals board. The special notice of lawsuit shall be in a form to be prescribed by the appeals
board, and it shall contain at least the information and warnings required by the Code of Civil Procedure to be contained in the summons issued in a civil action. The special notice of lawsuit shall also contain a notice that if the appeals board makes an award against the defendant that his or her the defendant’s house or other dwelling and other property may be taken to satisfy the award in a nonjudicial sale, with no exemptions from execution. The special notice of lawsuit shall, in addition, contain a notice that a lien may be imposed upon the defendant’s property without further hearing and before the issuance of an award. The applicant shall identify a legal person or entity as the employer named in the special notice of lawsuit. The reasonable expense of serving the application and special notice of lawsuit, when
incurred by the employee, shall be awarded as a cost. Proof of service of the special notice of lawsuit and application shall be filed with the appeals board.
(1) The application and special notice of lawsuit may be served, within or without this state, in the manner provided for service of summons in the Code of Civil Procedure. Thereafter, an employer, alleged to be illegally uninsured, shall notify the appeals board of the address at which it may be served with official notices and papers, and shall notify the appeals board of any changes in the address. No It is not necessary to serve the findings, order, decision, award, or other notice or paper need be served in this
manner on an employer, alleged to be illegally uninsured, who has been served as provided in this section, and who has not filed an answer, otherwise made a general appearance, or furnished the appeals board with its address. The findings, orders, decisions, awards, or other notice or paper may be mailed to the employer as the board, by regulation, may provide.
(2) Notwithstanding paragraph (1), if the employer alleged to be illegally uninsured has not filed an answer, otherwise made a general appearance, or furnished the appeals board with its address, the appeals board shall serve any findings, order, decision, award, or other notice or paper on the employer by mail at the address the appeals board has for the employer. The failure of delivery at that address or the lack of personal service on an employer who has been served as provided in this section, of these findings, order, decision, award, or other notice or paper, shall not constitute
grounds for reopening or invalidating any appeals board action pursuant to Section 5506, or for contesting the validity of any judgment obtained under Section 3716 or 5806, a lien under Section 3720, or a settlement under subdivision (e) of Section 3715.
(3) The board, by regulation, may provide for service procedures in cases where a request for new and further benefits is made after the issuance of any findings and award and a substantial period of time has passed since the first service or attempted service.
(4) The director, on behalf of the Uninsured Employers Benefits Trust Fund, shall furnish information as to the identities, legal capacities, and addresses of uninsured employers known to the director upon request of the board or upon a showing of good cause by the employee or the employee’s representative. Good cause shall include a declaration by the employee’s
representative, filed under penalty of perjury, that the information is necessary to represent the employee in proceedings under this division.
SEC. 59.
Section 3716.1 of the Labor Code is amended to read:3716.1.
(a) In any hearing, investigation, or proceeding, the Attorney General, or attorneys of the Department of Industrial Relations, shall represent the director and the state. Expenses incident to representation of the director and the state, before the appeals board and in civil court, by the Attorney General or Department of Industrial Relations attorneys, shall be reimbursed from the Workers’ Compensation Administration Revolving Fund. Expenses incident to representation by the Attorney General or attorneys of the Department of Industrial Relations incurred in attempts to recover moneys pursuant to Section 3717 of the Labor Code shall not exceed the total amounts recovered by the director on behalf of the Uninsured Employers Benefits Trust Fund pursuant to this chapter.(b) The director shall assign investigative and claims’ adjustment services respecting matters concerning uninsured employers injury cases. The director or his or her the director’s representative may make these service assignments within the department, or he or she the director may contract for these services with the State Compensation Insurance Fund, except insofar as these matters might conflict with the interests of the State Compensation Insurance Fund. The administrative costs associated with these services shall be reimbursed from the Workers’ Compensation Administration Revolving Fund and the
nonadministrative costs from the Uninsured Employers Benefits Trust Fund, except when a budget impasse requires advances as described in subdivision (c) of Section 62.5. To the extent permitted by state law, the director may contract for audits or reports of services under this section.
SEC. 60.
Section 3716.2 of the Labor Code is amended to read:3716.2.
Notwithstanding the precise elements of an award of compensation benefits, and notwithstanding the claim and demand for payment being made therefor to the director, the director, as administrator of the Uninsured Employers Benefits Trust Fund, shall pay the claimant onlySEC. 61.
Section 3717 of the Labor Code is amended to read:3717.
(a) A findings and award that is the subject of a demand on the Uninsured Employers Fund or an approved compromise and release or stipulated findings and award entered into by the director pursuant to subdivision (e) of Section 3715, or a decision and order of the rehabilitation unit of the Division of Workers’ Compensation, that has become final, shall constitute a liquidated claim for damages against an employer in the amount so ascertained and fixed by the appeals board, and the appeals board shall certify the same to the director who may institute a civil action against the employer in the name of the director, as administrator of the Uninsured Employers Fund, for the collection of the award, or may obtain a judgment against the employer pursuant to Section 5806. In the event that the appeals board finds that a corporation is the employer of an injured employee, and that the corporation has not secured the payment of compensation as required by this chapter, the following persons shall be jointly and severally liable with the corporation to the director in the action:(1) All persons who are a parent, as defined in Section 175 of the Corporations Code, of the corporation.
(2) All persons who are substantial shareholders, as defined in subdivision (b), of the corporation or its parent. In the action it shall be sufficient for plaintiff to set forth a copy of the findings and award of the appeals board relative to the claims as certified by the appeals board to the director and to state that there is due to plaintiff on account of the finding and award of the appeals board a specified sum which
that plaintiff claims with interest. The director shall be further entitled to costs and reasonable attorney attorney’s fees, and to his or her
investigation and litigation expenses for the appeals board proceedings, and a reasonable attorney attorney’s fee for litigating the appeals board proceedings. A certified copy of the findings and award in the claim shall be attached to the complaint. The contents of the findings and award shall be deemed proved. The answer or demurrer to the complaint shall be filed within 10 days, the reply or demurrer to the answer within 20 days, and the demurrer to the reply within 30 days after the return day of the summons or service by publication. All motions and demurrers shall be submitted to the court within 10 days after they are filed. At the time
When the civil action filed pursuant to this section is at issue, it shall be placed at the head of the trial docket and shall be first in order for trial.
Nothing in this chapter shall be construed to preclude to
This chapter does not preclude informal adjustment by the director of a claim for compensation benefits before the issuance of findings and award wherever it appears to the director that the employer is uninsured and that informal adjustment will facilitate the expeditious delivery of compensation benefits to the injured employee.
(b) As used in this section, “substantial shareholder” means a shareholder who owns at least 15 percent of the total value of all classes of stock, or, if no stock has been issued, who owns at least 15 percent of the beneficial interests in the corporation.
(c) For purposes of this section, in determining the ownership of stock or beneficial interest in the corporation, in the determination of whether a person is a substantial shareholder of the corporation, the rules of attribution of ownership of Section 17384 of the Revenue and Taxation Code shall be applied.
(d) For purposes of this section, “corporation” shall not include:
(1) Any A
corporation which
that is the issuer of any
a security which that is exempted by Section 25101 of the Corporations Code from Section 25130 of the Corporations Code.
(2) Any A corporation which that is the issuer of any a
security that is exempted by subdivision (c), (d), or (i) of Section 25100 of the Corporations Code from Sections 25110, 25120, and 25130 of the Corporations Code.
(3) Any A corporation which that is the issuer of any a security which
that has qualified either by coordination, as provided by Section 25111 of the Corporations Code, or by notification, as provided by Section 25112 of the Corporations Code.
SEC. 62.
Section 3717.1 of the Labor Code is amended to read:3717.1.
InSEC. 63.
Section 3717.2 of the Labor Code is amended to read:3717.2.
Upon request of the director, the appeals board shall make findings of whether persons are substantial shareholders or parents, as defined in Section 3717. The director maySEC. 64.
Section 3720 of the Labor Code is amended to read:3720.
(a) When the appeals board or the director determines under Section 3715 or 3716 that an employer has not secured the payment of compensation as required by this division or when the director has determined that the employer is prima facie illegally uninsured, the director may file for record in the office of the county recorder in the counties where the employer’s property is possibly located, a certificate of lien showing the date that the employer was determined to be illegally uninsured or the date that the director has determined that the employer was prima facie illegally uninsured. The certificate shall show the name and address of the employer against whom it was filed, and the fact that the employer has not secured the payment of compensation as required by this division. Upon the recordation, the certificate shall constitute a valid lien in favor of the director, and shall have the same force, effect and priority as a judgment lien and shall continue for 10 years from the time of the recording of the certificate unless sooner released or otherwise discharged. A copy of the certificate shall be served upon the employer by mail, by the director. A facsimile signature of the director accompanied by the seal imprint of the department shall be sufficient for recording purposes of liens and releases or cancellations thereof considered herein. Certificates of liens may be filed in any or all counties of the state, depending upon the information the director obtains concerning the employer’s assets.(b) For purposes of this section, in the event the employer is a corporation, those persons whom either the appeals board finds are the parent or the substantial shareholders of the corporation or its parent, or whom the director
finds pursuant to Section 3720.1 to be prima facie the parent or the substantial shareholders of the corporation or its parent, as defined in Section 3717, shall be deemed to be the employer, and the director may file the certificates against those persons.
(c) A person who claims to be aggrieved by the filing of a lien against the property of an uninsured employer because he or she that person has the same or a similar name, may apply to the director to have filed an amended certificate of lien which that shows that the aggrieved applicant is not the uninsured
employer which that is the subject of the lien. If the director finds that the aggrieved applicant is not the same as the uninsured employer, the director shall file an amended certificate of lien with the county recorder of the county in which the aggrieved applicant has property, which shall show, by reasonably identifying information furnished by the aggrieved applicant, that the uninsured employer and the aggrieved applicant are not the same. If the director does not file the amended certificate of lien within 60 days of application therefor, the applicant may appeal the director’s failure to so find by filing a petition with the appeals board, which shall make a finding as to whether the applicant and the uninsured employer are the same.
(d) Liens
filed under this section have continued existence independent of, and may be foreclosed upon independently of, any right of action arising out of Section 3717 or 5806.
SEC. 65.
Section 3720.1 of the Labor Code is amended to read:3720.1.
(a) In(b) Any person aggrieved by a finding of the director that he or she the person was prima facie a parent or substantial shareholder may request a hearing on the finding by filing a written request for hearing with the director. The director shall hold a hearing on the matter within 20 days of the receipt of the request for hearing, and shall mail a notice of time and place of hearing to the person requesting hearing at least 10 days prior to the hearing. The hearing officer shall hear and receive evidence, and within 10 days of the hearing, file his or her
findings on whether there is sufficient evidence to constitute a prima facie case that the person was a substantial shareholder or parent. The hearing officer shall serve with his or her
the findings a summary of evidence received and relied upon, and the reasons for the findings. A party may at his or her the party’s own expense require that the hearing proceedings be recorded and transcribed.
(c) A party aggrieved by the findings of the hearing officer may within 20 days apply for a writ of mandate to the superior court. Venue shall lie in the county in which is located the office of the director which that
issued the findings after the hearing.
SEC. 66.
Section 3721 of the Labor Code is amended to read:3721.
The director shall provide the employer with a certificate of cancellation of lien after the employer has paid to the claimant or to the Uninsured Employers Benefits Trust Fund the amount of the compensation or benefitsSEC. 67.
Section 3722 of the Labor Code is amended to read:3722.
(a) At the time the stop order is issued and served pursuant to Section 3710.1, the director shall also issue and serve a penalty assessment order requiring the uninsured employer to pay to the director, for deposit in the State Treasury to the credit of the Uninsured Employers Benefits Trust Fund, the sum of one thousand five hundred dollars ($1,500) per employee employed at the time the order is issued and served, as an additional penalty for being uninsured at that time or issue and serve a penalty assessment order pursuant to subdivision (b).(b) At any time that the director determines that an employer has been uninsured for a period in excess of one week
during the calendar year preceding the determination, the director shall issue and serve a penalty assessment order requiring the uninsured employer to pay to the director, for deposit in the State Treasury to the credit of the Uninsured Employers Fund, the greater of (1) twice the amount the employer would have paid in workers’ compensation premiums during the period the employer was uninsured, determined according to subdivision (c), or (2) the sum of one thousand five hundred dollars ($1,500) per employee employed during the period the employer was uninsured. A penalty assessment issued and served by the director pursuant to this subdivision shall be in lieu of, and not in addition to, any other penalty issued and served by the director pursuant to subdivision (a).
(c) If the employer is currently insured, or becomes insured during the period during which the penalty under subdivision (b) is being determined, the amount an employer would
have paid in workers’ compensation premiums shall be calculated by prorating the current premium for the number of weeks the employer was uninsured within the three-year period immediately prior to the date the penalty assessment is issued. If the employer is uninsured at the time the penalty under subdivision (b) is being determined, the amount an employer would have paid in workers’ compensation premiums shall be the product of the employer’s payroll for all periods of time the employer was uninsured within the three-year period immediately prior to the date the penalty assessment is issued multiplied by a rate determined in accordance with regulations that may be adopted by the director or, if none has been adopted, the manual rate or rates of the State Compensation Insurance Fund for the employer’s governing classification pursuant to the standard classification system approved by the Insurance Commissioner. The classification shall be determined by the director or the director’s designee at the time the
penalty assessment is issued on the basis of any information available to the director regarding the employer’s operations. Unless the amount of the employer’s payroll for all periods during which the employer was uninsured within the three-year period is otherwise proven by a preponderance of evidence, the employer’s payroll for each week the employer was uninsured shall be presumed to be the state average weekly wage multiplied by the number of persons employed by the employer at the time the penalty assessment is issued. For purposes of this subdivision, “state average weekly wage” means the average weekly wage paid by employers to employees covered by unemployment insurance as reported by the United States Department of Labor for California for the 12-month period ending March 31 of the calendar year preceding the year in which the penalty assessment order is issued.
(d) If upon the filing of a claim for compensation under this division the
Workers’ Compensation Appeals Board finds that any employer has not secured the payment of compensation as required by this division and finds the claim either noncompensable or compensable, the appeals board shall mail a copy of their findings to the uninsured employer and the director, together with a direction to the uninsured employer to file a verified statement pursuant to subdivision (e).
After the time for any appeal has expired and the adjudication of the claim has become final, the uninsured employer shall be assessed and pay as a penalty either of the following:
(1) In noncompensable cases, two thousand dollars ($2,000) per each employee employed at the time of the claimed injury.
(2) In compensable cases, ten thousand dollars ($10,000) per each employee employed on the date of the injury.
(e) In order to establish the number of employees the uninsured employer had on the date of the claimed injury in noncompensable cases and on the date of injury in compensable cases, the employer shall submit to the director within 10 days after service of findings, awards, and orders of the Workers’ Compensation Appeals Board a verified statement of the number of employees in his or her
its employ on the date of injury. If the employer fails to submit to the director this verified statement or if the director disputes the accuracy of the number of employees reported by the employer, the director shall use any information regarding the number of employees as the director may have or otherwise obtains.
(f) Except for penalties assessed under subdivision (b), the maximum amount of penalties which may be assessed pursuant to this section is one hundred thousand dollars ($100,000). Payment shall be transmitted to the director for deposit in the State Treasury to the credit of the Uninsured Employers Benefits Trust Fund.
(g) (1) The Workers’ Compensation Appeals Board may provide for a summary hearing
on the sole issue of compensation coverage to effect the provisions of this section.
(2) In the event a claim is settled by the director pursuant to subdivision (e) of Section 3715 by means of a compromise and release or stipulations with request for award, the appeals board may also provide for a summary hearing on the issue of compensability.
SEC. 68.
Section 3726 of the Labor Code is amended to read:3726.
(a)(b) When findings are made affirming or modifying a penalty assessment order after hearing, a certified
copy of such the
order and a certified copy of such the findings may be filed by the director in the office of the clerk of the superior court in any county in which the employer has property or in which the employer has or had a place of business. The clerk, immediately upon such that filing, shall enter judgment for the state against the employer in the amount shown on the penalty assessment order or in the amount shown in the findings if the order has been modified.
(c) A judgment entered pursuant to the provisions of
this section may be filed by the clerk in a looseleaf book entitled “Special Judgments for State Uninsured Employers Fund.” Such The judgment shall bear the same rate of interest and shall have the same effect as other judgments and be given the same preference allowed by law on other judgments rendered for claims for taxes. The clerk shall make no charge for the service provided by this section to be performed by him. performed.
SEC. 69.
Section 3727 of the Labor Code is amended to read:3727.
If the director determines pursuant to Section 3722 that an employer has failed to secure the payment of compensation as required by this division, the director may file with the county recorder ofSEC. 70.
Section 3727.1 of the Labor Code is amended to read:3727.1.
The director may withdraw a stop order or a penalty assessment orderSEC. 71.
Section 3728 of the Labor Code is amended to read:3728.
(a) The director may draw from the State Treasury out of the Uninsured Employers Benefits Trust Fund for the purposes of Sections 3716 and 3716.1, without at the time presenting vouchers and itemized statements, a sum not to exceed in the aggregate the level provided for pursuant to Section 16400 of the Government Code, to be used as a cash revolving fund. The revolving fund shall be deposited in any banks and under any conditions as the Department of General Services determines. The Controller shall draw(b) Expenditures made from the revolving fund in payment of claims for compensation due from the Uninsured Employers Benefits Trust Fund and from the Workers’ Compensation Administration Revolving Fund for administrative and adjusting services rendered are exempted from the operation of Section 925.6 of the Government Code. Reimbursement of the revolving fund from the Uninsured Employers Benefits Trust Fund or the Workers’ Compensation Administration Revolving Fund for expenditures shall be made upon presentation to the Controller of an abstract or statement of the expenditures. The abstract or statement shall be in any form as the Controller requires.
SEC. 72.
Section 3732 of the Labor Code is amended to read:3732.
(a) If compensation is paid or becomes payable from the Uninsured Employers Benefits Trust Fund, whether as a result of a findings and award, award based upon stipulations, compromise and release executed on behalf of the director, or payments voluntarily furnished by the director pursuant to Section 4903.3, the director may recover damages from any person or entity, other than the employer, whose tortious act or omission proximately caused the injury or death of the employee. The damages shall include any compensation, including additional compensation by way of interest or penalty, paid or payable by the director, plus the expense incurred by the director in investigating and litigating the workers’ compensation claim and a reasonable attorney fee for litigating the workers’ compensation claim. The director may compromise, or settle and release any claim, and may waive any claim, including the lien allowed by this section, in whole or in part, for the convenience of the director.(b) Except as otherwise provided in this section, Chapter 5 (commencing with Section 3850) of Part 1 of Division 4 shall be applicable to these actions, the director being treated as an employer within the meaning of Chapter 5 to the extent not inconsistent with this section.
(c) Actions brought under this section shall be commenced within one year after the later of either the time the director pays or the time the director becomes obligated to pay any compensation from the Uninsured Employers
Benefits Trust Fund.
(d) In the trial of these actions, any negligence attributable to the employer shall not be imputed to the director or to the Uninsured Employers Benefits Trust Fund, and the damages recoverable by the director shall not be reduced by any percentage of fault or negligence attributable to the employer or to the employee.
(e) In determining the credit to the Uninsured Employers Benefits Trust Fund provided by Section 3861, the appeals board shall not take into consideration any negligence of the employer, but shall allow a credit for the entire amount of the employee’s recovery either by settlement or after
judgment, as has not theretofore been applied to the payment of expenses or attorney’s fees.
(f) When If an action or claim is brought by an employee, his or her the employee’s guardian, conservator, personal representative, estate, survivors, or heirs against a third party who may be liable for causing the injury or death of the employee, any settlement or judgment obtained is subject to the director’s claim for damages recoverable by the director pursuant to subdivision (a), and the director shall have a lien against any settlement in the amount of the damages.
(g) No A judgment or settlement in any action or claim by an employee, his or her or the employee’s guardian, conservator, personal representative, survivors, or heirs to recover damages for injuries, where
if the director has an interest, shall not be satisfied without first giving the director notice and a reasonable opportunity to perfect and satisfy his or her the director’s lien. The director shall be mailed a copy of the complaint in the third-party action as soon as reasonable after it is filed with the court.
(h) When If the director has perfected a lien upon a judgment or settlement in favor of an employee, his or her
or the employee’s
guardian, conservator, personal representative, survivors survivors, or heirs against any third party, the director shall be is entitled to a writ of execution as a lien claimant to enforce payment of the lien against the third party with interest and other accruing costs as in the case of other executions. In the event If the amount of the judgment or settlement so recovered has been paid to the employee, his or her
or the employee’s
guardian, conservator, personal representative, survivors, or heirs, the director shall be
is entitled to a writ of execution against the employee, his or her or the employee’s guardian, conservator, personal representative, survivors, or heirs to the extent of the director’s lien, with interest and other accruing costs as in the cost of other executions.
(i) Except as otherwise provided in this section, notwithstanding any other provision of law, the entire amount of any settlement of the action or claim of the employee, his or her or the employee’s
guardian, conservator, personal representative, survivors, or heirs, with or without suit, is subject to the director’s lien claim for the damages recoverable by the director pursuant to subdivision (a).
(j) Where If the action or claim is brought by the employee, his or her
or the employee’s guardian, conservator, personal representative, estate, survivors, or heirs, and the director has not joined in the action, and the employee, his or her or the employee’s guardian, conservator, personal representative, estate, survivors, or heirs incur a personal liability to pay attorney’s fees and costs of litigation, the director’s claim for damages shall be limited to the amount of the director’s claim for damages less that portion of the costs of litigation expenses determined by multiplying the total cost of litigation expenses by the ratio of the full amount of the director’s claim for damages to the full amount of the judgment, award, or settlement, and less 25 percent of the balance after subtracting the director’s share of litigation expenses, which
represents the director’s reasonable share of attorney’s fees incurred.
(k) In the trial of the director’s action for damages, and in the allowance of his or her the director’s lien in an action by the employee, guardian, executor, personal representative, survivors, or heirs, the compensation paid from the Uninsured Employers Benefits Trust Fund pursuant to an award as provided in Section 3716 is conclusively presumed to be reasonable in amount and to be proximately caused by the event or events which caused the employee’s injury or death.
(l) In If
the director prevails in the action for damages damages, the director shall be entitled to recover, if he or she prevails, recover the entire amount of the damages recoverable by the director pursuant to subdivision (a), regardless of whether the damages recoverable by the employee, guardian, conservator, personal representative, survivors, or heirs are of lesser amount.
SEC. 73.
Section 3733 of the Labor Code is amended to read:3733.
(a) The Legislature finds and declares that it is in the best interest of the State of California to provide a person, regardless of(b) A person shall not be prohibited from receiving compensation paid or payable from the Uninsured Employers Benefits Trust Fund solely because of his or her citizenship or immigration status.
(c) It is the
intent of the Legislature to override Section 15740 of Article 1 of Subchapter 2.1.1 of Chapter 8 of Division 1 of Title 8 of the California Code of Regulations.
(d) The provisions of this section are declaratory of existing law.
SEC. 74.
Section 3743 of the Labor Code is amended to read:3743.
(a) Upon order of the director pursuant to Section 3701.5, the fund shall assume the workers’ compensation obligations of an insolvent self-insurer.(b) Notwithstanding subdivision (a), the fund shall not be liable for the payment of any penalties assessed for any act or omission on the part of any person other than the fund, including, but not limited to, the penalties provided in Section 132a, 3706, 4553, 4554, 4556, 4557, 4558, 4601.5, 5814, or 5814.1.
(c) The fund shall be a party in interest in all proceedings involving compensation claims against an insolvent self-insurer
whose compensation obligations have been paid or assumed by the fund. The fund shall have has the same rights and defenses as the insolvent self-insurer, including, but not limited to, all of the following:
(1) To appear, defend, and appeal claims.
(2) To receive notice of, investigate, adjust, compromise, settle, and pay claims.
(3) To investigate, handle, and deny claims.
SEC. 75.
Section 3750 of the Labor Code is amended to read:3750.
(a) The organization of any mutual or other insurer.
(b) Any existing contract for insurance.
(c) The right of the employer to insure in mutual or other insurers, in whole or in part, against liability for the compensation provided by this division.
(d) The right to provide by mutual or other insurance,
or by arrangement with his between the employer and
employees, or otherwise, for the payment to such
those employees, their families, dependents or representatives, of sick, accident, or death benefits, in addition to the compensation provided for by this division.
(e) The right of the employer to waive the waiting period provided for herein by insurance coverage.
SEC. 76.
Section 3753 of the Labor Code is amended to read:3753.
The person entitled to compensation may, irrespective of any insurance or other contract, except as otherwise provided in this division, recoverSEC. 77.
Section 3756 of the Labor Code is amended to read:3756.
If at the time of the suffering of a compensable injury, the employer is insured against liability for the full amount of compensation payable,SEC. 78.
Section 3761 of the Labor Code is amended to read:3761.
(a) An insurer securing an employer’s liability under this division shall notify the employer, within 15 days, of each claim for indemnity filed against the employer directly with the insurer if the employer has not timely provided to the insurer a report of occupational injury or occupational illness pursuant to Section 6409.1. The insurer shall furnish an employer who has not filed this report with an opportunity to provide to the insurer, prior to the expiration of the 90-day period specified in Section 5402, all relevant information available to the employer concerning the claim.(b) An employer shall promptly notify its insurer in writing at any time during the pendency of a claim when the employer has actual knowledge of
any facts which would tend to disprove any aspect of the employee’s claim. When If an employer notifies its insurer in writing that, in the employer’s opinion, no compensation is not payable to an employee, at the employer’s written request, to the appeals board, the appeals board may approve a compromise and release agreement, or stipulation, that provides compensation to the employee only where if there is proof of service upon the employer
by the insurer, to the employer’s last known address, not less than 15 days prior to the appeals board action, of notice of the time and place of the hearing at which the compromise and release agreement or stipulation is to be approved. The insurer shall file proof of this service with the appeals board.
Failure by the insurer to provide the required notice shall does not prohibit the board from approving a compromise and release agreement, or stipulation; however, the board shall order the insurer to pay reasonable expenses as provided in Section 5813.
(c) In establishing a reserve pursuant to a claim that affects premiums against an employer, an insurer shall provide the employer, upon request, a written report
of the reserve amount established. The written report shall include, at a minimum, both of the following:
(1) Estimated medical-legal costs.
(2)Estimated vocational rehabilitation costs, if any.
(3)
(2) Itemization of all other estimated expenses to be paid from the reserve.
(d) When an employer properly provides
notification to its insurer pursuant to subdivision (b), and the appeals board thereafter determines that no compensation is not payable under this division, the insurer shall reimburse the employer for any premium paid solely due to the inclusion of the successfully challenged payments in the calculation of the employer’s experience modification. The employee shall not be required to refund the challenged payment.
SEC. 79.
Section 3820 of the Labor Code is amended to read:3820.
(a) In enacting this section, the Legislature declares that there exists a compelling interest in eliminating fraud in the workers’ compensation system. The Legislature recognizes that the conduct prohibited by this section is, for the most part, already subject to criminal penalties pursuant to other provisions of law. However, the Legislature finds and declares that the addition of civil money penalties will provide necessary enforcement flexibility. The Legislature, in exercising its plenary authority related to workers’ compensation, declares that these sections are both necessary and carefully tailored to combat the fraud and abuse that is rampant in the workers’ compensation system.(b) It is unlawful to do any of the
following:
(1) Willfully misrepresent any
a fact in order to obtain workers’ compensation insurance at less than the proper rate.
(2) Present or cause to be presented any knowingly false or fraudulent written or oral material statement in support of, or in opposition to, any claim for compensation for the purpose of obtaining or denying any compensation, as defined in Section 3207.
(3) Knowingly solicit, receive, offer, pay, or accept any rebate, refund, commission, preference, patronage, dividend, discount, or other consideration, whether in the form of money or otherwise, as compensation or inducement for soliciting or referring clients or patients to obtain services or benefits pursuant to Division 4 (commencing with Section 3200) unless the payment or receipt of consideration for services other than the referral of clients or patients is lawful pursuant to Section 650 of the
Business and Professions Code or expressly permitted by the Rules of Professional Conduct of the State Bar.
(4) Knowingly operate or participate in a service that, for profit, refers or recommends clients or patients to obtain medical or medical-legal services or benefits pursuant to Division 4 (commencing with Section 3200).
(5) Knowingly assist, abet, solicit, or conspire with any person who engages in an unlawful act under this section.
(c) For the purposes of this section, “statement” includes, but is not limited to, any notice, proof of injury, bill for services, payment for services, hospital or doctor records, X-ray, test results, medical-legal expenses as defined in Section 4620, or other evidence of loss, expense, or payment.
(d) Any A
person who violates any provision of this section shall be subject, in addition to any other penalties that may be prescribed by law, to a civil penalty of not less than four thousand dollars ($4,000) nor more than ten thousand dollars ($10,000), plus an assessment of not more than three times the amount of the medical treatment expenses paid pursuant to Article 2 (commencing with Section 4600) and medical-legal expenses paid pursuant to Article 2.5 (commencing with Section 4620) for each claim for compensation submitted in violation of this section.
(e) Any A person who violates subdivision (b) and who has a prior felony conviction of an offense
set forth in former
Section 1871.1 or Section 1871.4 of the Insurance Code, or in Section 549 of the Penal Code, shall be subject, in addition to the penalties set forth in subdivision (d), to a civil penalty of four thousand dollars ($4,000) for each item or service with respect to which a violation of subdivision (b) occurred.
(f) The penalties provided for in subdivisions (d) and (e) shall be assessed and recovered in a civil action brought in the name of the people of the State of California by any district attorney.
(g) In assessing the amount of the civil penalty the court shall consider any one or more of the relevant circumstances presented by any of the parties to the case, including, but not limited to, the following: the nature and seriousness of the misconduct, the
number of violations, the persistence of the misconduct, the length of time over which the misconduct occurred, the willfulness of the defendant’s misconduct, and the defendant’s assets, liabilities, and net worth.
(h) All penalties collected pursuant to this section shall be paid to the Workers’ Compensation Fraud Account in the Insurance Fund pursuant to Section 1872.83 of the Insurance Code. All costs incurred by district attorneys in carrying out this article shall be funded from the Workers’ Compensation Fraud Account. It is the intent of the Legislature that the program instituted by this article be supported entirely from funds produced by moneys deposited into the Workers’ Compensation Fraud Account from the imposition of civil money penalties for workers’ compensation fraud collected pursuant to this section. All moneys claimed by district attorneys as costs of carrying out this article shall be paid pursuant to a determination by the
Fraud Assessment Commission established by Section 1872.83 of the Insurance Code and on appropriation by the Legislature.
SEC. 80.
Section 3823 of the Labor Code is amended to read:3823.
(a) The administrative director shall, in coordination with the Bureau of Fraudulent Claims of the Department of Insurance, the Medi-Cal Fraud Task Force, and the Bureau of Medi-Cal Fraud and Elder Abuse of the Department of Justice, or their successor entities, adopt protocols, to the extent that these protocols are applicable to achieve the purpose of subdivision (b), similar to those adopted by the Department of Insurance concerning medical billing and provider fraud.(b) Any An insurer, self-insured employer, third-party
administrator, workers’ compensation administrative law
judge, audit unit, attorney, or other person that believes that a fraudulent claim has been made by any person or entity providing medical care, as described in Section 4600, shall report the apparent fraudulent claim in the manner prescribed by subdivision (a).
(c) No An insurer, self-insured employer, third-party administrator, workers’ compensation administrative law judge, audit unit, attorney, or other person that reports any apparent fraudulent claim under this section shall not
be subject to any civil liability in a cause of action of any kind when the insurer, self-insured employer, third-party administrator, workers’ compensation administrative law judge, audit unit, attorney, or other person acts in good faith, without malice, and reasonably believes that the action taken was warranted by the known facts, obtained by reasonable efforts. Nothing in this section is intended to, nor does This section does not in any manner, abrogate or lessen the existing common law or statutory privileges and immunities of any insurer, self-insured employer, third-party administrator, workers’ compensation administrative law judge, audit unit, attorney, or other person.
SEC. 81.
Section 3852 of the Labor Code is amended to read:3852.
The claim of an employee, including, but not limited to, any peace officer or firefighter, for compensation does not affectSEC. 82.
Section 3853 of the Labor Code is amended to read:3853.
If either the employee or the employer brings an action againstSEC. 83.
Section 3856 of the Labor Code is amended to read:3856.
In the event of suit against(a) If the action is prosecuted by the employer alone, the court shall first order paid from any judgment for damages recovered the reasonable litigation expenses incurred in preparation and prosecution of such that action, together with a reasonable attorney’s fee
fee, which shall be based solely upon the services rendered by the employer’s attorney in effecting recovery both for the benefit of the employer and the employee. After the payment of such those expenses and attorney’s fees, the court shall apply out of the amount of such that judgment an amount sufficient to reimburse the employer for the amount of his the employer’s expenditure for compensation
together with any amounts to which he
the employer may be entitled as special damages under Section 3852 and shall order any excess paid to the injured employee or other person entitled thereto.
(b) If the action is prosecuted by the employee alone, the court shall first order paid from any judgment for damages recovered the reasonable litigation expenses incurred in preparation and prosecution of such the action, together with a reasonable attorney’s fee fee, which shall be based solely upon the services rendered by the employee’s attorney in effecting recovery both
for the benefit of the employee and the employer. After the payment of such those expenses and attorney’s fee the court shall, on application of the employer, allow as a first lien against the amount of such that
judgment for damages, the amount of the employer’s expenditure for compensation together with any amounts to which he the employer may be entitled as special damages under Section 3852.
(c) If the action is prosecuted both by the employee and the employer, in a single action or in consolidated actions, and they are represented by the same agreed attorney or by separate attorneys, the court shall first order paid from any judgment for damages recovered, the reasonable litigation expenses incurred in preparation and prosecution of such the action or
actions, together with reasonable attorneys’ fees based solely on the services rendered for the benefit of both parties where if they are represented by the same attorney, and where if they are represented by separate attorneys, based solely upon the service rendered in each instance by the attorney in effecting recovery for the benefit of the party represented. After the payment of such those expenses and attorneys’ fees
attorney’s fees, the court shall apply out of the amount of such that judgment for damages an amount sufficient to reimburse the employer for the amount of his
the employer’s expenditures for compensation together with any other amounts to which he the employer
may be entitled as special damages under Section 3852.
(d) The amount of reasonable litigation expenses and the amount of attorneys’ attorney’s fees under subdivisions (a), (b), and (c) of this section shall be fixed by the court. Where If the employer and employee are represented by separate attorneys they may propose to the court, for its consideration and determination, the amount and division of such
those expenses and fees.
SEC. 84.
Section 3858 of the Labor Code is amended to read:3858.
After payment of litigation expenses andSEC. 85.
Section 3859 of the Labor Code is amended to read:3859.
(a)(b) Notwithstanding anything to the contrary contained in this chapter, an employee may settle and release any claim he the employee may have against a third party without the consent of the employer. Such
The settlement or release shall be subject to the employer’s right to proceed to recover compensation he the employer has paid in accordance with Section 3852.
SEC. 86.
Section 3860 of the Labor Code is amended to read:3860.
(a)(b) Except as provided in Section 3859, the entire amount of such the settlement, with or without suit, is subject to the employer’s full claim for reimbursement for compensation he
the employer has paid or become obligated to pay and any special damages to which he
the employer may be entitled under Section 3852, together with expenses and attorney attorney’s fees, if any, subject to the limitations in this section set forth.
(c) Where If settlement is effected, with or without suit, solely through the efforts of the employee’s attorney, then prior to the reimbursement of the employer, as provided in subdivision (b) hereof, there shall be deducted from the amount of the settlement the reasonable expenses incurred in effecting such
settlement, including costs of suit, if any, together with a reasonable attorney’s fee fees to be paid to the employee’s attorney, for his
services
rendered in securing and effecting settlement for the benefit of both the employer and the employee.
(d) Where If settlement is effected, with or without suit, solely through the efforts of the employer’s attorney, then, prior to the reimbursement of the employer as provided in subdivision (b) hereof, there shall be deducted from the amount of the settlement the reasonable expenses incurred in effecting such settlement, including costs of suit, if any, together with a reasonable attorney’s fee
fees to be paid to the employer’s attorney, for his services
rendered in securing and effecting settlement for the benefit of both the employer and the employee.
(e) Where If both the employer and the employee are represented by the same agreed attorney or by separate attorneys in effecting a settlement, with or without suit, prior to reimbursement of the employer, as provided in subdivision (b) hereof, there shall be deducted from the amount of the settlement the reasonable expenses incurred by both the employer and the employee or on behalf of either, including costs of suit, if any, together with reasonable attorneys’ fees to be paid to the respective attorneys for the employer and the employee, based upon the respective services rendered in securing and effecting settlement
for the benefit of the party represented. In the event
If both parties are represented by the same attorney, by agreement, the attorney’s fee fees shall be based on the services rendered for the benefit of both.
(f) The amount of expenses and attorneys’ attorney’s fees referred to in this section shall, on settlement of suit, or on any settlement requiring court approval, be set by the court. In all other cases these amounts shall be set by the appeals board. Where If
the employer and the employee are represented by separate attorneys they may propose to the court or the appeals board, for consideration and determination, the amount and division of such those expenses and fees.
SEC. 87.
Section 3861 of the Labor Code is amended to read:3861.
The appeals board is empowered to and shall allow, as a credit to the employer to be applied againstSEC. 88.
Section 4050 of the Labor Code is amended to read:4050.
Whenever the right to compensation under this division exists in favor of an employee,SEC. 89.
Section 4051 of the Labor Code is amended to read:4051.
The request or order for the medical examination shall fix a time and place therefor, due consideration being given to the convenience of the employee andSEC. 90.
Section 4052 of the Labor Code is amended to read:4052.
The employee may employ atSEC. 91.
Section 4053 of the Labor Code is amended to read:4053.
SEC. 92.
Section 4054 of the Labor Code is amended to read:4054.
If the employee fails or refuses to submit to examination after direction by the appeals board, or aSEC. 93.
Section 4056 of the Labor Code is amended to read:4056.
SEC. 94.
Section 4061 of the Labor Code is amended to read:4061.
This section(a) Together with the last payment of temporary disability indemnity, the employer shall, in a form prescribed by the administrative director pursuant to Section 138.4, provide the employee one of the following:
(1) Notice either
that no
permanent disability indemnity will
not be paid because the employer alleges the employee has no permanent impairment or limitations resulting from the injury or notice of the amount of permanent disability indemnity determined by the employer to be payable. If the employer determines permanent disability indemnity is payable, the employer shall advise the employee of the amount determined payable and the basis on which the determination was made, whether there is need for future medical care, and whether an indemnity payment will be deferred pursuant to paragraph (2) of subdivision (b) of Section 4650.
(2) Notice that permanent disability indemnity may be or is payable, but that the amount cannot be determined because the employee’s medical condition is not yet permanent and stationary. The notice shall advise the employee that his or her
the employee’s medical condition will be monitored until it is permanent and stationary, at which time the necessary evaluation will be performed to determine the existence and extent of permanent impairment and limitations for the purpose of rating permanent disability and to determine whether there will be the need for future medical care, or at which time the employer will advise the employee of the amount of permanent disability indemnity the employer has determined to be payable.
(b) If either the employee or employer objects to a medical determination made by the treating physician concerning the existence or extent of permanent impairment and limitations or the need for future medical care, and the employee is represented by an attorney, a medical evaluation to determine permanent disability shall be obtained as provided in Section 4062.2.
(c) If either the employee or employer objects to a medical determination made by the treating physician concerning the existence or extent of permanent impairment and limitations or the need for future medical care, and if the employee is not represented by an attorney, the employer shall immediately provide the employee with a form prescribed by the medical director with which to request assignment of a panel of three qualified medical evaluators. Either party may request a comprehensive medical evaluation to determine permanent disability or the need for future medical care, and the evaluation shall be obtained only by the procedure provided in Section 4062.1.
(d) (1) Within 30 days of receipt of a report from a qualified medical evaluator who has evaluated an unrepresented employee, the unrepresented employee or the employer may each request one supplemental report seeking correction of factual errors in
the report. Any of these
These requests shall be made in writing. A request made by the employer shall be provided to the employee, and a request made by the employee shall be provided to the employer, insurance carrier, or claims administrator at the time the request is sent to the evaluator. A request for correction that is made by the employer shall also inform the employee of the availability of information and assistance officers to assist him or her the employee in responding to the request, if necessary.
(2) The permanent disability rating procedure set forth in subdivision (e) shall not be invoked by the unrepresented employee or the employer when a request for correction pursuant to paragraph (1) is pending.
(e) The qualified medical evaluator who has evaluated an unrepresented employee shall serve the comprehensive medical evaluation and the summary form on the employee, employer, and the administrative director. The unrepresented employee or the employer may submit the treating physician’s evaluation for the calculation of a permanent disability rating. Within 20 days of receipt of the comprehensive medical evaluation, the administrative director shall calculate the permanent disability rating according to Section 4660 or 4660.1, as applicable, and serve the rating on the employee and employer.
(f) Any A comprehensive medical evaluation concerning an unrepresented employee which indicates that
part or all of an employee’s permanent impairment or limitations may be subject to apportionment pursuant to Sections 4663 and 4664 shall first be submitted by the administrative director to a workers’ compensation judge who may refer the report back to the qualified medical evaluator for correction or clarification if the judge determines the proposed apportionment is inconsistent with the law.
(g) Within 30 days of receipt of the rating, if the employee is unrepresented, the employee or employer may request that the administrative director reconsider the recommended rating or obtain additional information from the treating physician or medical evaluator to address issues not addressed or not completely addressed in the original comprehensive medical evaluation or not prepared in accord with the procedures promulgated under paragraph (2) or (3) of subdivision (j) of Section 139.2. This request shall be in writing, shall specify the reasons the
rating should be reconsidered, and shall be served on the other party. If the administrative director finds the comprehensive medical evaluation is not complete or not in compliance with the required procedures, the administrative director shall return the report to the treating physician or qualified medical evaluator for appropriate action as the administrative director instructs. Upon receipt of the treating physician’s or qualified medical evaluator’s final comprehensive medical evaluation and summary form, the administrative director shall recalculate the permanent disability rating according to Section 4660 or 4660.1, as applicable, and serve the rating, the comprehensive medical evaluation, and the summary form on the employee and employer.
(h) (1) If a comprehensive medical evaluation from the treating physician or an agreed medical evaluator or a qualified medical evaluator selected from a three-member panel
resolves any issue so as to require an employer to provide compensation, the employer shall commence the payment of compensation, except as provided pursuant to paragraph (2) of subdivision (b) of Section 4650, or promptly commence proceedings before the appeals board to resolve the dispute.
(2) If the employee and employer agree to a stipulated findings and award as provided under Section 5702 or to compromise and release the claim under Chapter 2 (commencing with Section 5000) of Part 3, or if the employee wishes to commute the award under Chapter 3 (commencing with Section 5100) of Part 3, the appeals board shall first determine whether the agreement or commutation is in the best interests of the employee and whether the proper procedures have been followed in determining the permanent disability rating. The administrative director shall promulgate a form to notify the employee, at the time of service of any
a rating under this section, of the options specified in this subdivision, the potential advantages and disadvantages of each option, and the procedure for disputing the rating.
(i) No An issue relating to a dispute over the existence or extent of permanent impairment and limitations resulting from the injury may shall not be the subject of a declaration of readiness to proceed unless there has first been a medical evaluation by a treating physician and by either an agreed or qualified medical evaluator. With the exception of an
evaluation or evaluations prepared by the treating physician or physicians, no
an evaluation of permanent impairment and limitations resulting from the injury shall not be obtained, except in accordance with Section 4062.1 or 4062.2. Evaluations obtained in violation of this prohibition shall not be are not admissible in any a proceeding before the appeals board.
SEC. 95.
Section 4062.1 of the Labor Code is amended to read:4062.1.
(a) If an employee is not represented by an attorney, the employer shall not seek agreement with the employee on an agreed medical evaluator, nor shall an agreed medical evaluator prepare the formal medical evaluation on any issues in dispute.(b) If either party requests a medical evaluation pursuant to Section 4060, 4061, or 4062, either party may submit the form prescribed by the administrative director requesting the medical director to assign a panel of three qualified medical evaluators in accordance with Section 139.2. However, the employer may not submit the form unless the employee has not submitted the form within 10 days after the employer has furnished the form to the employee and requested the employee to submit
the form. The party submitting the request form shall designate the specialty of the physicians that will be assigned to the panel.
(c) Within 10 days of the issuance of a panel of qualified medical evaluators, the employee shall select a physician from the panel to prepare a medical evaluation, the employee shall schedule the appointment, and the employee shall inform the employer of the selection and the appointment. If the employee does not inform the employer of the selection within 10 days of the assignment of a panel of qualified medical evaluators, then the employer may select the physician from the panel to prepare a medical evaluation. If the employee informs the employer of the selection within 10 days of the assignment of the panel but has not made the appointment, or if the employer selects the physician pursuant to this subdivision, then the employer shall arrange the appointment. Upon receipt of written notice of the appointment
arrangements from the employee, or upon giving the employee notice of an appointment arranged by the employer, the employer shall furnish payment of estimated travel expense.
(d) The evaluator shall give the employee, at the appointment, a brief opportunity to ask questions concerning the evaluation process and the evaluator’s background. The unrepresented employee shall then participate in the evaluation as requested by the evaluator unless the employee has good cause to discontinue the evaluation. For purposes of this subdivision, “good cause” shall include evidence that the evaluator is biased against the employee because of his or her the employee’s race, sex, national origin, religion, or sexual preference or evidence that the evaluator has requested
the employee to submit to an unnecessary medical examination or procedure. If the unrepresented employee declines to proceed with the evaluation, he or she shall have the employee has the right to a new panel of three qualified medical evaluators from which to select one to prepare a comprehensive medical evaluation. If the appeals board subsequently determines that the employee did not have good cause to not proceed with the evaluation, the cost of the evaluation shall be deducted from any award the employee obtains.
(e) If an employee has received a comprehensive medical-legal evaluation under this section, and he or she
the employee later becomes represented by an attorney, he or she shall not be the employee is not entitled to an additional evaluation.
SEC. 96.
Section 4062.2 of the Labor Code is amended to read:4062.2.
(a) Whenever a comprehensive medical evaluation is required to resolve any dispute arising out of an injury or a claimed injury occurring on or after January 1, 2005, and the employee is represented by an attorney, the evaluation shall be obtained only as provided in this section.(b) No earlier than the first working day that is at least 10 days after the date of mailing of a request for a medical evaluation pursuant to Section 4060 or the first working day that is at least 10 days after the date of mailing of an objection pursuant to Sections 4061 or 4062, either party may request the assignment of a three-member panel of qualified medical evaluators to conduct a comprehensive medical evaluation. The party submitting the request shall designate the specialty of
the medical evaluator, the specialty of the medical evaluator requested by the other party if it has been made known to the party submitting the request, and the specialty of the treating physician. The party submitting the request form shall serve a copy of the request form on the other party.
(c) Within 10 days of assignment of the panel by the administrative director, each party may strike one name from the panel. The remaining qualified medical evaluator shall serve as the medical evaluator. If a party fails to exercise the right to strike a name from the panel within 10 days of assignment of the panel by the administrative director, the other party may select any physician who remains on the panel to serve as the medical evaluator. The administrative director may prescribe the form, the manner, or both, by which the parties shall conduct the selection process.
(d) The
represented employee shall be responsible for arranging the appointment for the examination, but upon his or her
the employee’s failure to inform the employer of the appointment within 10 days after the medical evaluator has been selected, the employer may arrange the appointment and notify the employee of the arrangements. The employee shall not unreasonably refuse to participate in the evaluation.
(e) If an employee has received a comprehensive medical-legal evaluation under this section, and he or she later ceases to be represented, he or she shall the employee is not be entitled to an additional evaluation.
(f) The parties may agree to an agreed medical evaluator at any time, except as to issues subject to the independent medical review process established pursuant to Section 4610.5. A panel shall not be requested pursuant to subdivision (b) on any an issue that has been agreed to be submitted to or has been submitted to an agreed medical evaluator unless the agreement has been canceled by mutual written consent.
SEC. 97.
Section 4062.3 of the Labor Code is amended to read:4062.3.
(a) Any party may provide to the qualified medical evaluator selected from a panel any of the following information:(1) Records prepared or maintained by the employee’s treating physician or physicians.
(2) Medical and nonmedical records relevant to determination of the medical issue.
(b) Information that a party proposes to provide to the qualified medical evaluator selected from a panel shall be served on the opposing party 20 days before the information is provided to the evaluator. If the opposing party objects to consideration of nonmedical records within 10 days thereafter, the records shall not be provided to the evaluator.
Either party may use discovery to establish the accuracy or authenticity of nonmedical records prior to the evaluation.
(c) If an agreed medical evaluator is selected, as part of their agreement on an evaluator, the parties shall agree on what information is to be provided to the agreed medical evaluator.
(d) In any formal medical evaluation, the agreed or qualified medical evaluator shall identify the following:
(1) All information received from the parties.
(2) All information reviewed in preparation of the report.
(3) All information relied upon in the formulation of his or her
the medical evaluator’s opinion.
(e) All communications with a qualified medical evaluator selected from a panel before a medical evaluation shall be in writing and shall be served on the opposing party 20 days in advance of the evaluation. Any subsequent communication with the medical evaluator shall be in writing and shall be served on the opposing party when sent to the medical evaluator.
(f) Communications with an agreed medical evaluator shall be in writing, and shall be served on the opposing party when sent to the agreed medical evaluator. Oral or written communications with physician staff or, as applicable, with the agreed medical evaluator, relative to nonsubstantial matters such as the scheduling of appointments, missed appointments, the furnishing of records and reports, and the availability of the report, do not constitute ex
parte communication in violation of this section unless the appeals board has made a specific finding of an impermissible ex parte communication.
(g) Ex parte communication with an agreed medical evaluator or a qualified medical evaluator selected from a panel is prohibited. If a party communicates with the agreed medical evaluator or the qualified medical evaluator in violation of subdivision (e), the aggrieved party may elect to terminate the medical evaluation and seek a new evaluation from another qualified medical evaluator to be selected according to Section 4062.1 or 4062.2, as applicable, or proceed with the initial evaluation.
(h) The party making the communication prohibited by this section shall be is
subject to being charged with contempt before the appeals board and shall be is liable for the costs incurred by the aggrieved party as a result of the prohibited communication, including the cost of the medical evaluation, additional discovery costs, and attorney’s fees for related discovery.
(i) Subdivisions (e) and (g) shall do not apply to oral or written communications by the employee or, if the employee is deceased, the employee’s dependent, in the course of the examination or at the request of the evaluator in connection with the examination.
(j) Upon completing a determination of the disputed medical issue, the medical evaluator shall summarize the medical findings on a form prescribed by the administrative director and shall serve the formal medical evaluation and the summary form on the employee and the employer. The medical evaluation shall address all contested medical issues arising from all injuries reported on one or more claim forms prior to the date of the employee’s initial appointment with the medical evaluator.
(k) If, after a medical evaluation is prepared, the employer or the employee subsequently objects to any new medical issue, the parties, to the extent possible, shall utilize the same medical evaluator who prepared the previous evaluation to resolve the medical dispute.
(l) No A
disputed medical issue specified in subdivision (a) may shall not
be the subject of declaration of readiness to proceed unless there has first been an evaluation by the treating physician or an agreed or qualified medical evaluator.
SEC. 98.
Section 4064 of the Labor Code is amended to read:4064.
(a) The employer shall be liable for the cost of each reasonable and necessary comprehensive medical-legal evaluation obtained by the employee pursuant to Sections 4060, 4061, and 4062. Each comprehensive medical-legal evaluation shall address all contested medical issues arising from all injuries reported on one or more claim forms, except medical treatment recommendations, which are subject to utilization review as provided by Section 4610, and objections to utilization review determinations, which are subject to independent medical review as provided by Section 4610.5.(b) For injuries occurring on or after January 1, 2003, if an unrepresented employee obtains an attorney after the evaluation pursuant to subdivision (d)
(c) of Section 4061 or subdivision (b) (a) of Section 4062 has been completed, the employee shall be entitled to the same reports at employer expense as an employee who has been represented from the time the dispute arose and those reports shall be admissible in any proceeding before the appeals board.
(c) Subject to Section 4906, if an employer files a declaration of readiness to proceed and the employee is unrepresented at the time the declaration of readiness to proceed is filed, the employer shall be liable for any attorney’s fees incurred by the employee in connection with the declaration of readiness to proceed.
(d) The employer shall not be liable
for the cost of any comprehensive medical evaluations obtained by the employee other than those authorized pursuant to Sections 4060, 4061, and 4062. However, no party is prohibited from obtaining any medical evaluation or consultation at the party’s own expense. In no event shall an An employer or employee be is not liable for an evaluation obtained in violation of subdivision (b) of Section 4060. All comprehensive medical evaluations obtained by any party shall be admissible in any proceeding before the appeals board except as provided in Section 4060, 4061, 4062, 4062.1, or 4062.2.
SEC. 99.
Section 4067 of the Labor Code is amended to read:4067.
If the jurisdiction of the appeals board is invoked pursuant to Section 5803 upon the grounds that the effects of the injury have recurred, increased, diminished, or terminated, a formal medical evaluation shall be obtained pursuant to this article. When
If an agreed medical evaluator or a qualified medical evaluator selected by an unrepresented employee from a three-member panel has previously made a formal medical
evaluation of the same or similar issues, the subsequent or additional formal medical evaluation shall be conducted by the same agreed medical evaluator or qualified medical evaluator, unless the workers’ compensation judge has made a finding that he or she the workers’ compensation judge did not rely on the prior evaluator’s formal medical evaluation, any party contested the original medical evaluation by filing an application for adjudication, the unrepresented employee hired an attorney and selected a qualified medical evaluator to conduct another evaluation pursuant to subdivision (b) of Section 4064, or the prior evaluator is no longer qualified or readily available to prepare a formal medical evaluation, in which case Sections 4061 or 4062, as the case may be, shall apply as if there had been no prior formal
medical evaluation.
SEC. 100.
Section 4068 of the Labor Code is amended to read:4068.
(a) Upon determining that a treating physician’s report contains opinions that are the result of conjecture, are not supported by adequate evidence, or that indicate bias, the appeals board shall so notify the administrative director in writing in a manner(b) If the administrative director believes that any treating physician’s reports show a pattern of unsupported opinions, he or she
the director
shall notify in writing the physician’s applicable licensing body of his or her the director’s findings.
SEC. 101.
Section 4150 of the Labor Code is amended to read:4150.
When an employerSEC. 102.
Section 4151 of the Labor Code is amended to read:4151.
Election on the part of the employer shall be made in one of the following ways:(a) By insuring against liability for compensation, in which case he the employer is deemed, as to all persons employed by him the employer and covered by insurance, to have so elected during the period such
the insurance remains in force.
(b) By filing with the administrative director a statement to the effect that he the employer accepts the compensation provisions of this division.
SEC. 103.
Section 4152 of the Labor Code is amended to read:4152.
The statement, when filed, shall operate, within the meaning of Chapter 3 (commencing with Section 3600), to subjectSEC. 104.
Section 4154 of the Labor Code is amended to read:4154.
(a) Such The employer is subject to the compensation provisions of this division and; division.
(b) Such person in his service The person employed has not, either upon entering into the employment, or within five days after the filing of an
election by the employer, given to such the employer notice in writing that he the person elects not to be subject to the compensation provisions of this division.
In case of such that acceptance, the person employed becomes subject to the compensation provisions at the time of the filing of
the election or entry in the employment.
SEC. 105.
Section 4207 of the Labor Code is amended to read:4207.
Compensation shall be furnished an enrollee for injury or to dependents if injury causes death, suffered within or without the state occurring in the course of(a) Where, If, at the time of injury, the enrollee is performing services and is acting within the scope of his duties as a
recipient of aid within an economic opportunity program.
(b) Where If injury is proximately caused by his service as an enrollee within an economic opportunity program either with or without negligence.
(c) Where If injury is not caused by the intoxication of the injured enrollee.
(d) Where If
the injury is not intentionally self-inflicted.
SEC. 106.
Section 4212 of the Labor Code is amended to read:4212.
If an enrollee suffers injury or death in the performance ofSEC. 107.
Section 4226 of the Labor Code is amended to read:4226.
Should the United States government or any agent thereof, pursuant to federal statute, rule or regulations furnish benefits to enrollees or dependents of enrollees under an economic opportunity program, then the amount of indemnitySEC. 108.
Section 4228 of the Labor Code is amended to read:4228.
If the furnishing of medical treatment by the United States government or its agent takes the form of reimbursement of the enrollee,SEC. 109.
Section 4229 of the Labor Code is amended to read:4229.
If the furnishing of compensation benefits to an enrollee orSEC. 110.
Section 4351 of the Labor Code is amended to read:4351.
Compensation provided by this division is the exclusive remedy of a disaster service worker, orSEC. 111.
Section 4352 of the Labor Code is amended to read:4352.
(a)(b) Notwithstanding subdivision (a), when appropriated funds are temporarily
unavailable for disbursement, the State Compensation Insurance Fund may provide compensation to an eligible claimant under this section whose injuries have previously either been accepted or found to be compensable by the Workers’ Compensation Appeals Board.
(1) Compensation to, and benefits for, an eligible claimant provided for under this subdivision may include the issuance of checks by the State Compensation Insurance Fund.
(2) Within 30 days of the date funds that had been temporarily unavailable are appropriated, and therefore become available, the California Emergency Management Agency shall reimburse the State Compensation Insurance Fund for compensation paid to, or benefits paid for, a claimant pursuant to paragraph (1), in addition to any applicable interest, service fees, or charges.
(c) After all money
appropriated as described in subdivision (a) is expended or set aside in bookkeeping reserves for the payment or furnishing of compensation and reimbursing the State Compensation Insurance Fund for its services, the payment or furnishing of compensation for an injury to a disaster service worker or his or her dependents is dependent is contingent upon there having been a reserve set up for the payment or furnishing of compensation to that a disaster service worker or his or her dependents
the dependents of that disaster service worker and for that injury, and liability is limited to the amount of the reserve. The excess in a reserve for the payment or furnishing of compensation or for reimbursing the State Compensation Insurance Fund for its compensation payments and services may be transferred to reserves of other disaster service workers for the payment or furnishing of compensation and reimbursing the State Compensation Insurance Fund, or may be used to set up reserves for other disaster service workers.
SEC. 112.
Section 4353 of the Labor Code is amended to read:4353.
If a disaster service worker suffers injury or death while in the performance of duties as a disaster service worker, then, irrespective ofSEC. 113.
Section 4355 of the Labor Code is amended to read:4355.
(a) Should the United States Government or any agent thereof, in accordance with any federal statute, rule, or regulation, furnish monetary assistance, benefits, or other temporary or permanent relief to disaster service workers or to disaster service workers and their dependents for injuries arising out of and occurring in the course of their activities as disaster service workers, the amount of compensation that any disaster service worker or(b) If, in addition to monetary assistance, benefits, or other temporary or permanent relief, the United States Government or any agent thereof furnishes medical, surgical, or hospital treatment, or any combination thereof, to an injured disaster service worker, the disaster service worker has no right to receive similar medical, surgical, or hospital treatment under this division.
(c) If, in addition to monetary
assistance, benefits, or other temporary or permanent relief, the United States Government or any agent thereof will reimburse a disaster service worker or his or her dependents of the disaster service worker for medical, surgical, or hospital treatment, or any combination thereof, furnished to the injured disaster service worker, the disaster service worker has no right to receive similar medical, surgical, or hospital treatment under this division.
(d) If the furnishing of compensation under this division to a disaster service worker or his or her dependents of the disaster service worker
prevents the disaster service worker or his or her dependents of the disaster service worker from receiving assistance, benefits, or other temporary or permanent relief under a federal statute, rule, or regulation, the disaster service worker and his or her dependents shall have no dependents of the disaster service worker do not have a right to, and may not receive, any compensation from the State of California under this
division for any injury for which the United States Government or any agent thereof will furnish assistance, benefits, or other temporary or permanent relief in the absence of the furnishing of compensation by the State of California.
SEC. 114.
Chapter 11 (commencing with Section 4401) of Part 1 of Division 4 of the Labor Code is repealed.SEC. 115.
Section 4453 of the Labor Code is amended to read:4453.
(a) In computing average annual earnings for the purposes of temporary disability indemnity and permanent total disability indemnity only, the average weekly earnings shall be taken at:(1) Not less than one hundred twenty-six dollars ($126) nor more than two hundred ninety-four dollars ($294), for injuries occurring on or after January 1, 1983.
(2) Not less than one hundred sixty-eight dollars ($168) nor more than three hundred thirty-six dollars ($336), for injuries occurring on or after January 1, 1984.
(3) Not less than one hundred sixty-eight dollars ($168) for permanent total disability, and, for temporary disability, not less than
the lesser of one hundred sixty-eight dollars ($168) or 1.5 times the employee’s average weekly earnings from all employers, but in no event less than one hundred forty-seven dollars ($147), nor more than three hundred ninety-nine dollars ($399), for injuries occurring on or after January 1, 1990.
(4) Not less than one hundred sixty-eight dollars ($168) for permanent total disability, and for temporary disability, not less than the lesser of one hundred eighty-nine dollars ($189) or 1.5 times the employee’s average weekly earnings from all employers, nor more than five hundred four dollars ($504), for injuries occurring on or after January 1, 1991.
(5) Not less than one hundred sixty-eight dollars ($168) for permanent total disability, and for temporary disability, not less than the lesser of one hundred eighty-nine dollars ($189) or 1.5 times the employee’s average weekly
earnings from all employers, nor more than six hundred nine dollars ($609), for injuries occurring on or after July 1, 1994.
(6) Not less than one hundred sixty-eight dollars ($168) for permanent total disability, and for temporary disability, not less than the lesser of one hundred eighty-nine dollars ($189) or 1.5 times the employee’s average weekly earnings from all employers, nor more than six hundred seventy-two dollars ($672), for injuries occurring on or after July 1, 1995.
(7) Not less than one hundred sixty-eight dollars ($168) for permanent total disability, and for temporary disability, not less than the lesser of one hundred eighty-nine dollars ($189) or 1.5 times the employee’s average weekly earnings from all employers, nor more than seven hundred thirty-five dollars ($735), for injuries occurring on or after July 1, 1996.
(8) Not less than one hundred eighty-nine dollars ($189), nor more than nine hundred three dollars ($903), for injuries occurring on or after January 1, 2003.
(9) Not less than one hundred eighty-nine dollars ($189), nor more than one thousand ninety-two dollars ($1,092), for injuries occurring on or after January 1, 2004.
(10) Not less than one hundred eighty-nine dollars ($189), nor more than one thousand two hundred sixty dollars ($1,260), for injuries occurring on or after January 1, 2005. For injuries occurring on or after January 1, 2006, average weekly earnings shall be taken at not less than one hundred eighty-nine dollars ($189), nor more than one thousand two hundred sixty dollars ($1,260) or 1.5 times the state average weekly wage, whichever is greater. Commencing on January 1, 2007, and each January 1
thereafter, the limits specified in this paragraph shall be increased by an amount equal to the percentage increase in the state average weekly wage as compared to the prior year. For purposes of this paragraph, “state average weekly wage” means the average weekly wage paid by employers to employees covered by unemployment insurance as reported by the United States Department of Labor for California for the 12 months ending March 31 of the calendar year preceding the year in which the injury occurred.
(b) In computing average annual earnings for purposes of permanent partial disability indemnity, except as provided in Section 4659, the average weekly earnings shall be taken at:
(1) Not less than seventy-five dollars ($75), nor more than one hundred ninety-five dollars ($195), for injuries occurring on or after January 1, 1983.
(2) Not less than one hundred five dollars ($105), nor more than two hundred ten dollars ($210), for injuries occurring on or after January 1, 1984.
(3) When If the final adjusted permanent disability rating of the injured employee is 15 percent or greater, but not more than 24.75 percent: (A) not less than one hundred five dollars ($105), nor more than two hundred twenty-two dollars ($222), for injuries occurring on or after July 1, 1994; (B) not less than one hundred five dollars ($105), nor more than two hundred thirty-one dollars ($231), for injuries occurring on or after July 1, 1995; (C) not less than one hundred five dollars ($105), nor more than two hundred forty dollars ($240), for injuries occurring on or after July 1, 1996.
(4) When If the final adjusted permanent disability rating of the injured employee is 25 percent or greater, not less than one hundred five dollars ($105), nor more than two hundred twenty-two dollars ($222), for injuries occurring on or after January 1, 1991.
(5) When If the final adjusted permanent disability rating of the injured employee is 25 percent or greater but not more than 69.75 percent: (A) not less than one hundred five dollars ($105), nor more than two hundred thirty-seven dollars ($237), for
injuries occurring on or after July 1, 1994; (B) not less than one hundred five dollars ($105), nor more than two hundred forty-six dollars ($246), for injuries occurring on or after July 1, 1995; and (C) not less than one hundred five dollars ($105), nor more than two hundred fifty-five dollars ($255), for injuries occurring on or after July 1, 1996.
(6) When If the final adjusted permanent disability rating of the injured employee is less than 70 percent: (A) not less than one hundred fifty dollars ($150), nor more than two hundred seventy-seven dollars and fifty cents ($277.50), for injuries occurring on or after January 1, 2003; (B) not less than one hundred fifty-seven dollars and fifty cents ($157.50), nor more than three hundred dollars ($300), for
injuries occurring on or after January 1, 2004; (C) not less than one hundred fifty-seven dollars and fifty cents ($157.50), nor more than three hundred thirty dollars ($330), for injuries occurring on or after January 1, 2005; and (D) not less than one hundred ninety-five dollars ($195), nor more than three hundred forty-five dollars ($345), for injuries occurring on or after January 1, 2006.
(7) When If the final adjusted permanent disability rating of the injured employee is 70 percent or greater, but less than 100 percent: (A) not less than one hundred five dollars ($105), nor more than two hundred fifty-two dollars ($252), for injuries occurring on or after July 1, 1994; (B) not less than one hundred five dollars ($105), nor more than two hundred
ninety-seven dollars ($297), for injuries occurring on or after July 1, 1995; (C) not less than one hundred five dollars ($105), nor more than three hundred forty-five dollars ($345), for injuries occurring on or after July 1, 1996; (D) not less than one hundred fifty dollars ($150), nor more than three hundred forty-five dollars ($345), for injuries occurring on or after January 1, 2003; (E) not less than one hundred fifty-seven dollars and fifty cents ($157.50), nor more than three hundred seventy-five dollars ($375), for injuries occurring on or after January 1, 2004; (F) not less than one hundred fifty-seven dollars and fifty cents ($157.50), nor more than four hundred five dollars ($405), for injuries occurring on or after January 1, 2005; and (G) not less than one hundred ninety-five dollars ($195), nor more than four hundred five dollars ($405), for injuries occurring on or after January 1, 2006.
(8) For injuries occurring on or after
January 1, 2013:
(A) When If the final adjusted permanent disability rating is less than 55 percent, not less than two hundred forty dollars ($240) nor more than three hundred forty-five dollars ($345).
(B) When If the final adjusted permanent disability rating is 55 percent or greater but less than 70 percent, not less than two hundred forty dollars ($240) nor more than four hundred five dollars ($405).
(C) When If
the final adjusted permanent disability rating is 70 percent or greater but less than 100 percent, not less than two hundred forty dollars ($240) nor more than four hundred thirty-five dollars ($435).
(9) For injuries occurring on or after January 1, 2014, not less than two hundred forty dollars ($240) nor more than four hundred thirty-five dollars ($435).
(c) Between the limits specified in subdivisions (a) and (b), the average weekly earnings, except as provided in Sections 4456 to 4459, shall be arrived at as follows:
(1) Where If the employment is for 30 or more hours a week and for five or more
working days a week, the average weekly earnings shall be the number of working days a week times the daily earnings at the time of the injury.
(2) Where If the employee is working for two or more employers at or about the time of the injury, the average weekly earnings shall be taken as the aggregate of these earnings from all employments computed in terms of one week; but the earnings from employments other than the employment in which the injury occurred shall not be taken at a higher rate than the hourly rate paid at the time of the injury.
(3) If the earnings are at an irregular rate, such as piecework, or on a commission basis, or are specified to be by week, month, or other period,
then the average weekly earnings mentioned in subdivision (a) shall be taken as the actual weekly earnings averaged for this period of time, not exceeding one year, as may conveniently be taken to determine an average weekly rate of pay.
(4) Where If the employment is for less than 30 hours per week, or where if for any reason the foregoing methods of arriving at the average weekly earnings cannot reasonably and fairly be applied, the average weekly earnings shall be taken at 100 percent of the sum which reasonably represents the average weekly earning capacity of the
injured employee at the time of his or her
the
injury, due consideration being given to his or her actual earnings from all sources and employments.
(d) Every computation made pursuant to this section beginning January 1, 1990, shall be made only with reference to temporary disability or the permanent disability resulting from an original injury sustained after January 1, 1990. However, all rights existing under this section on January 1, 1990, shall be continued in force. Except as provided in Section 4661.5, disability indemnity benefits shall be calculated according to the limits in this section in effect on the date of injury and shall remain in effect for the duration of any disability resulting from the injury.
SEC. 116.
Section 4454 of the Labor Code is amended to read:4454.
In determining average weekly earnings within the limits fixed in Section 4453, there shall be included overtime and the market value of board, lodging, fuel, and other advantages received by the injured employee as part ofSEC. 117.
Section 4455 of the Labor Code is amended to read:4455.
If the injured employee is under 18 years of age, andSEC. 118.
Section 4458 of the Labor Code is amended to read:4458.
If a member registered as an active firefighting member of any regularly organized volunteer fire department as described in Section 3361 suffers injury or death while in the performance ofSEC. 119.
Section 4458.2 of the Labor Code is amended to read:4458.2.
If an active peace officer of any department as described in Section 3362 suffers injury or death while in the performance ofSEC. 120.
Section 4458.5 of the Labor Code is amended to read:4458.5.
If a member suffersSEC. 121.
Section 4459 of the Labor Code is amended to read:4459.
The fact that an employee has suffered a previous disability, or received compensation therefor, does not precludeSEC. 122.
Section 4553 of the Labor Code is amended to read:4553.
The amount of compensation otherwise recoverable shall be increased one-half, together with costs and expenses not to exceed two hundred fifty dollars ($250),(a) The employer, or his the employer’s managing representative.
(b) If the employer is a partnership, on the part of one of the partners or a managing representative or general superintendent thereof.
(c) If the employer is a corporation, on the part of an executive, managing officer, or general superintendent thereof.
SEC. 123.
Section 4554 of the Labor Code is amended to read:4554.
In case of the willful failure by an employer to secure the payment of compensation, the amount of compensation otherwise recoverable for injury or death as provided in this division shall be increased 10 percent. Failure of the employer to secure the payment of compensation as provided in Article 1 (commencingSEC. 124.
Section 4557 of the Labor Code is amended to read:4557.
An employer shall not be held liable for the
additional compensation provided by this section if such an
the employee is hired pursuant to a birth certificate, automobile driver’s license, or other reasonable evidence of the fact the employee is over the age of 15 years, 15 years of age, even though such the evidence of age were was falsely obtained by the employee. The additional compensation provided by this section shall not exceed the maximum sum specified by Section 4553 for additional compensation
payable for serious and willful misconduct on the part of an employer. This section shall
does not apply to the State state or any of its political subdivisions or districts.
SEC. 125.
Section 4558 of the Labor Code is amended to read:4558.
(a) As used in this section:(1) “Employer” means a named identifiable person who is, prior to the time of the employee’s injury or death, an owner or supervisor having managerial authority to direct and control the acts of employees.
(2) “Failure to install” means omitting to attach a point of operation guard either provided or required by the manufacturer, when if the attachment is required by the manufacturer and made known by him or her
the manufacturer to the employer at the time of acquisition, installation, or manufacturer-required modification of the power press.
(3) “Manufacturer” means the designer, fabricator, or assembler of a power press.
(4) “Power press” means any material-forming machine that utilizes a die which that is designed for use in the manufacture of other products.
(5) “Removal” means physical removal of a point of operation guard which
that is either installed by the manufacturer or installed by the employer pursuant to the requirements or instructions of the manufacturer.
(6) “Specifically authorized” means an affirmative instruction issued by the employer prior to the time of the employee’s physical injury or death, but shall does not mean any subsequent acquiescence in, or ratification of, removal of a point of operation safety guard.
(b) An employee, or his or her the employee’s dependents in
the event of the employee’s death, may bring an action at law for damages against the employer where
if the employee’s injury or death is proximately caused by the employer’s knowing removal of, or knowing failure to install, a point of operation guard on a power press, and this removal or failure to install is specifically authorized by the employer under conditions known by the employer to create a probability of serious injury or death.
(c) No liability shall arise under this section This section does not impose liability absent proof that the manufacturer designed, installed, required, or otherwise provided by specification for the attachment of the guards and conveyed knowledge of the same to the employer. Proof of conveyance of this information to the employer by the manufacturer may come from any source.
(d) No There is not a right of action for contribution or indemnity by any
a defendant shall exist against the employer; however, a defendant may seek contribution after the employee secures a judgment against the employer pursuant to the provisions of this section if the employer fails to discharge his or her the comparative share of the judgment.
SEC. 126.
Section 4600 of the Labor Code, as amended by Section 188 of Chapter 497 of the Statutes of 2019, is amended to read:4600.
(a) Medical, surgical, chiropractic, acupuncture, and hospital treatment, including nursing,(b) As used in this division and notwithstanding any other law, medical treatment that is reasonably required to cure or relieve the injured worker from the effects of the worker’s industrial injury means treatment that is based upon the guidelines adopted by the administrative director pursuant to Section 5307.27.
(c) Unless the employer or the employer’s insurer has established or contracted with a medical provider network as provided for in Section 4616, after 30 days from the date the injury is reported, the employee may be treated by a physician of the employee’s own choice or at a facility of the employee’s own choice
choose a physician or facility for medical treatment within a reasonable geographic area. A chiropractor shall not be a treating physician after the employee has received the maximum number of chiropractic visits allowed by subdivision (c) of Section 4604.5.
(d) (1) If an employee has notified the employee’s employer in writing prior to the date of injury that the employee has a personal physician, provided written notification of the designation of a personal physician prior to the date of injury, the employee shall have the right to be treated by that physician from the date of injury if the employee has health care coverage for nonoccupational injuries or illnesses on the date of injury in a
plan, policy, or fund as described in subdivisions (b), (c), and (d) of Section 4616.7.
(2) For purposes of paragraph (1), a personal physician shall meet all of the following conditions:
(A) Be the employee’s regular physician and surgeon, licensed pursuant to Chapter 5 (commencing with Section 2000) of Division 2 of the Business and Professions Code.
(B) Be the employee’s primary care physician and has physician, have previously directed the medical treatment of the employee, and who retains
retain the employee’s medical records, including the employee’s medical history. “Personal physician” includes a medical group, if the medical group is a single corporation or partnership composed of licensed doctors of medicine or osteopathy, which operates an integrated multispecialty medical group providing comprehensive medical services predominantly for nonoccupational illnesses and injuries.
(C) The physician agrees Agree to be predesignated.
(3) If the employee has health care coverage for nonoccupational injuries or illnesses on the date of injury in a health care service plan licensed pursuant to Chapter 2.2 (commencing with Section 1340) of
Division 2 of the Health and Safety Code, and the employer is notified pursuant to paragraph (1), all medical treatment, utilization review of medical treatment, access to medical treatment, and other medical treatment issues shall be governed by Chapter 2.2 (commencing with Section 1340) of Division 2 of the Health and Safety Code. Disputes regarding the provision of medical treatment shall be resolved pursuant to Article 5.55 (commencing with Section 1374.30) of Chapter 2.2 of Division 2 of the Health and Safety Code.
(4) If the employee has health care coverage for nonoccupational injuries or illnesses on the date of injury in a group health insurance policy as described in Section 4616.7, all medical treatment, utilization review of medical treatment, access to medical treatment, and other medical treatment issues shall be governed by the applicable provisions of the Insurance Code.
(5) The insurer may require prior authorization of any nonemergency treatment or diagnostic service and may conduct reasonably necessary utilization review pursuant to Section 4610.
(6) An employee is entitled to all medically appropriate referrals by the personal physician to other physicians or medical providers within the nonoccupational health care plan. An employee is entitled to treatment by physicians or other medical providers outside of the nonoccupational health care plan pursuant to standards established in Article 5 (commencing with Section 1367) of Chapter 2.2 of Division 2 of the Health and Safety Code.
(e) (1) When If at the request of the
employer, the employer’s insurer, the administrative director, the appeals board, or a workers’ compensation administrative law judge, the employee submits to examination by a physician, the employee is entitled to receive, in addition to all other benefits herein provided, all reasonable expenses of transportation, meals, and lodging incident to reporting for the examination, together with one day of temporary disability indemnity for each day of wages lost in submitting to the examination.
(2) Regardless of the date of injury, “reasonable expenses of transportation” includes mileage fees from the employee’s home to the place of the examination and back at the rate of twenty-one cents ($0.21) a mile or the mileage rate adopted by the Director of Human Resources pursuant to Section 19820 of the Government Code, whichever is higher,
plus any bridge tolls. The mileage and tolls shall be paid to the employee at the time the employee is given notification of the time and place of the examination.
(f) When at the request of the employer, the employer’s insurer, the administrative director, the appeals board, or a workers’ compensation administrative law judge, an employee submits to examination by a physician and the employee does not proficiently speak or understand the English language, the employee shall be is entitled to the services of a qualified interpreter who shall be provided
in accordance with conditions and a fee schedule prescribed by the administrative director. These services shall be provided by the employer. For purposes of this section, “qualified interpreter” means a language interpreter certified, or deemed certified, pursuant to Article 8 (commencing with Section 11435.05) of Chapter 4.5 of Part 1 of Division 3 of Title 2 of, or Section 68566 of, the Government Code.
(g) If the injured employee cannot effectively communicate with the employee’s treating physician because the employee cannot proficiently speak or understand the English language, the injured employee is entitled to the services of a qualified interpreter during medical treatment appointments. To be a qualified interpreter for purposes of medical treatment appointments, an interpreter is not required to meet the requirements of subdivision (f), but shall meet any requirements established by rule by the administrative director
that are substantially similar to the requirements set forth in Section 1367.04 of the Health and Safety Code. The administrative director shall adopt a fee schedule for qualified interpreter fees in accordance with this section. Upon request of the injured employee, the employer or insurance carrier shall pay for interpreter services. An employer shall not be is not required to pay for the services of an interpreter who is not certified or is provisionally certified by the person conducting the medical treatment or examination unless either the employer consents in advance to the selection of the individual who provides the interpreting service or the injured worker requires interpreting service in a language other than the languages designated pursuant to Section 11435.40 of the Government Code.
(h) Home health care services shall be provided as medical treatment only if reasonably required to cure or relieve the injured employee from the effects of the employee’s injury and prescribed by a physician and surgeon licensed pursuant to Chapter 5 (commencing with Section 2000) of Division 2 of the Business and Professions Code, and subject to Section 5307.1 or 5307.8. The employer is not liable for home health care services that are provided more than 14 days prior to the date of the employer’s receipt of the physician’s prescription.
SEC. 127.
Section 4600.3 of the Labor Code is amended to read:4600.3.
(a) (1) Notwithstanding Section 4600, when a self-insured employer, group of self-insured employers, or the insurer of an employer contracts with a health care organization certified pursuant to Section 4600.5 for health care services required by this article to be provided to injured employees, those employees who are subject to the contract shall receive medical services in the manner prescribed in the contract, providing that the employee may choose to be treated by a personal physician, personal chiropractor, or personal acupuncturist(2) Each contract described in paragraph (1) shall comply with the certification standards provided in Section 4600.5, and shall provide all medical, surgical, chiropractic, acupuncture, and hospital treatment, including nursing, medicines, medical and surgical supplies, crutches, and apparatus, including artificial members, that is reasonably required to cure or relieve the effects of the injury, as required by this division, without any payment by the employee of deductibles, copayments, or any share of the premium. However, an employee may receive immediate emergency medical treatment that is compensable from a medical service or health care provider who is not a member of the health care organization.
(3) Insured employers, a group of self-insured employers, or self-insured employers who contract with a health care organization for medical services shall give notice to employees of eligible medical service providers and any other information regarding the contract and manner of receiving medical services as the administrative director may prescribe. Employees shall be duly notified that if they choose to receive care from the health care organization they must receive treatment for all occupational injuries and illnesses as prescribed by this section.
(b) Notwithstanding subdivision (a), no employer which is required to bargain with an exclusive or certified bargaining agent which represents employees of the employer in accordance with state or federal employer-employee relations law shall contract with a health care organization for purposes of Section 4600.5 with regard to employees whom the bargaining agent is recognized or
certified to represent for collective bargaining purposes pursuant to state or federal employer-employee relations law unless authorized to do so by mutual agreement between the bargaining agent and the employer. If the collective bargaining agreement is subject to the National Labor Relations Act, the employer may contract with a health care organization for purposes of Section 4600.5 at any time when the employer and bargaining agent have bargained to impasse to the extent required by federal law.
(c) (1) When an employee is not receiving or is not eligible to receive health care coverage for nonoccupational injuries or illnesses provided by the employer, if 90 days from the date the injury is reported the employee who has been receiving treatment from a health care organization or his or her physician, chiropractor, acupuncturist, or
other agent notifies his or her
the employer in writing that he or she desires
the desire to stop treatment by the health care organization, he or she shall have the employee has the right to be treated by a physician, chiropractor, or acupuncturist or at a facility of his or her own choosing chosen by the employee within a reasonable geographic area.
(2) When If an employee is receiving or is eligible to receive
health care coverage for nonoccupational injuries or illnesses provided by the employer, and has agreed to receive care for occupational injuries and illnesses from a health care organization provided by the employer, the employee may be treated for occupational injuries and diseases by a physician, chiropractor, or acupuncturist of his or her own choice or at a facility of his or her own choice chosen by the employee within a reasonable geographic area if the employee or his or her physician, chiropractor, acupuncturist, or other agent notifies his or her
the employer in writing only after 180 days from the date the injury was reported, or upon the date of contract renewal or open enrollment of the health care organization, whichever occurs first, but in no case until 90 days from the date the injury was reported.
(3) For purposes of this subdivision, an employer shall be deemed to provide health care coverage for nonoccupational injuries and illnesses if the employer pays more than one-half the costs of the coverage, or if the plan is established pursuant to collective bargaining.
(d) An employee and employer may agree to other forms of therapy pursuant to Section 3209.7.
(e) An employee enrolled in a health care organization shall have the right to no less than one change of physician on request, and shall be given a choice of
physicians affiliated with the health care organization. The health care organization shall provide the employee a choice of participating physicians within five days of receiving a request. In addition, the employee shall have the right to a second opinion from a participating physician on a matter pertaining to diagnosis or treatment from a participating physician.
(f) Nothing in this section or Neither this section nor Section 4600.5 shall be construed to prohibit prohibits a self-insured employer, a group of self-insured employers, or insurer from engaging in any
activities permitted by Section 4600.
(g) Notwithstanding subdivision (c), in the event that the employer, group of employers, or the employer’s workers’ compensation insurer no longer contracts with the health care organization that has been treating an injured employee, the employee may continue treatment provided or arranged by the health care organization. If the employee does not choose to continue treatment by the health care organization, the employer may control the employee’s treatment for 30 days from the date the injury was reported. After that period, the employee may be treated by a physician of his or her own choice or at a facility of his or her the employee’s
own choice within a reasonable geographic area.
SEC. 128.
Section 4600.6 of the Labor Code is amended to read:4600.6.
Any workers’ compensation insurer, third-party administrator, or other entity seeking certification as a health care organization under subdivision (e) of Section 4600.5 shall be subject to the following rules and procedures:(a) Each application for authorization as an organization under subdivision (e) of Section 4600.5 shall be verified by an authorized representative of the applicant and shall be in a form prescribed by the administrative director. The application shall be accompanied by the prescribed fee and shall set forth or be accompanied by each and all of the following:
(1) The basic organizational documents of the applicant, such as the articles of incorporation,
articles of association, partnership agreement, trust agreement, or other applicable documents and all amendments thereto.
(2) A copy of the bylaws, rules, and regulations, or similar documents regulating the conduct of the internal affairs of the applicant.
(3) A list of the names, addresses, and official positions of the persons who are to be responsible for the conduct of the affairs of the applicant, which shall include, among others, all members of the board of directors, board of trustees, executive committee, or other governing board or committee, the principal officers, each shareholder with over 5 percent interest in the case of a corporation, and all partners or members in the case of a partnership or association, and each person who has loaned funds to the applicant for the operation of its business.
(4) A
copy of any contract made, or to be made, between the applicant and any provider of health care, or persons listed in paragraph (3), or any other person or organization agreeing to perform an administrative function or service for the plan. The administrative director by rule may identify contracts excluded from this requirement and make provision for the submission of form contracts. The payment rendered or to be rendered to the provider of health care services shall be deemed confidential information that shall not be divulged by the administrative director, except that the payment may be disclosed and become a public record in any legislative, administrative, or judicial proceeding or inquiry. The organization shall also submit the name and address of each provider employed by, or contracting with, the organization, together with his or her
the provider’s license number.
(5) A statement describing the organization, its method of providing for health services, and its physical facilities. If applicable, this statement shall include the health care delivery capabilities of the organization, including the number of full-time and part-time physicians under Section 3209.3, the numbers and types of licensed or state-certified health care support staff, the number of hospital beds contracted for, and the arrangements and the methods by which health care will be provided, as defined by the administrative director under Sections 4600.3 and 4600.5.
(6) A copy of the disclosure forms or materials that are to be issued to employees.
(7) A copy of the form of the contract that is to be issued to any employer, insurer of an
employer, or a group of self-insured employers.
(8) Financial statements accompanied by a report, certificate, or opinion of an independent certified public accountant. However, the financial statements from public entities or political subdivisions of the state need not include a report, certificate, or opinion by an independent certified public accountant if the financial statement complies with any requirements that may be established by regulation of the administrative director.
(9) A description of the proposed method of marketing the organization and a copy of any contract made with any person to solicit on behalf of the organization or a copy of the form of agreement used and a list of the contracting parties.
(10) A statement describing the service area or areas to be served, including the service location
for each provider rendering professional services on behalf of the organization and the location of any other organization facilities where required by the administrative director.
(11) A description of organization grievance procedures to be utilized as required by this part, and a copy of the form specified by paragraph (3) of subdivision (j).
(12) A description of the procedures and programs for internal review of the quality of health care pursuant to the requirements set forth in this part.
(13) Evidence of adequate insurance coverage or self-insurance to respond to claims for damages arising out of the furnishing of workers’ compensation health care.
(14) Evidence of adequate insurance coverage or self-insurance to protect against losses of
facilities where required by the administrative director.
(15) Evidence of adequate workers’ compensation coverage to protect against claims arising out of work-related injuries that might be brought by the employees and staff of an organization against the organization.
(16) Evidence of fidelity bonds in such the amount as
the administrative director prescribes by regulation.
(17) Other information that the administrative director may reasonably require.
(b) (1) An organization, solicitor, solicitor firm, or representative may not use or permit the use of any advertising or solicitation that is untrue or misleading, or any form of disclosure that is deceptive. For purposes of this chapter:
(A) A written or printed statement or item of information shall be deemed untrue if it does not conform to fact in any respect that is or may be significant to an employer or employee, or potential employer or employee.
(B) A written or printed statement or item of information shall be deemed misleading whether or not it may be literally true, if, in
the total context in which the statement is made or the item of information is communicated, the statement or item of information may be understood by a person not possessing special knowledge regarding health care coverage, as indicating any benefit or advantage, or the absence of any exclusion, limitation, or disadvantage of possible significance to an employer or employee, or potential employer or employee.
(C) A disclosure form shall be deemed to be deceptive if the disclosure form taken as a whole and with consideration given to typography and format, as well as language, shall be such as to cause causes a reasonable person, not possessing special knowledge of workers’ compensation health care, and the disclosure form therefor, to expect benefits,
service charges, or other advantages that the disclosure form does not provide or that the organization issuing that disclosure form does not regularly make available to employees.
(2) An organization, solicitor, or representative may not use or permit the use of any verbal statement that is untrue, misleading, or deceptive or make any representations about health care offered by the organization or its cost that does not conform to fact. All verbal statements are to be held to the same standards as those for printed matter provided in paragraph (1).
(c) It is unlawful for any a
person, including an organization, subject to this part, to represent or imply in any manner that the person or organization has been sponsored, recommended, or approved, or that the person’s or organization’s abilities or qualifications have in any respect been passed upon, by the administrative director.
(d) (1) An organization may not publish or distribute, or allow to be published or distributed on its behalf, any advertisement unless (A) a true copy thereof has first been filed with the administrative director, at least 30 days prior to any such use, or any shorter period as the administrative director by rule or order may allow, and (B) the administrative director by notice has not found the advertisement, wholly or in part, to be untrue, misleading, deceptive, or otherwise not in compliance with this part or the rules thereunder, and specified the deficiencies, within the 30 days or any shorter time as
the administrative director by rule or order may allow.
(2) If the administrative director finds that any advertisement of an organization has materially failed to comply with this part or the rules thereunder, the administrative director may, by order, require the organization to publish in the same or similar medium, an approved correction or retraction of any untrue, misleading, or deceptive statement contained in the advertising.
(3) The administrative director by rule or order may classify organizations and advertisements and exempt certain classes, wholly or in part, either unconditionally or upon specified terms and conditions or for specified periods, from the application of subdivision (a).
(e) (1) The administrative director shall require the use by each organization of disclosure
forms or materials containing any information regarding the health care and terms of the workers’ compensation health care contract that the administrative director may require, so as to afford the public, employers, and employees with a full and fair disclosure of the provisions of the contract in readily understood language and in a clearly organized manner. The administrative director may require that the materials be presented in a reasonably uniform manner so as to facilitate comparisons between contracts of the same or other types of organizations. The disclosure form shall describe the health care that is required by the administrative director under Sections 4600.3 and 4600.5, and shall provide that all information be in concise and specific terms, relative to the contract, together with any additional information as may be required by the administrative director, in connection with the organization or contract.
(2) All organizations,
solicitors, and representatives of a workers’ compensation health care provider organization shall, when presenting any contract for examination or sale to a prospective employee, provide the employee with a properly completed disclosure form, as prescribed by the administrative director pursuant to this section for each contract so examined or sold.
(3) In addition to the other disclosures required by this section, every organization and any agent or employee of the organization shall, when representing an organization for examination or sale to any individual purchaser or the representative of a group consisting of 25 or fewer individuals, disclose in writing the ratio of premium cost to health care paid for contracts with individuals and with groups of the same or similar size for the organization’s preceding fiscal year. An organization may report that information by geographic area, provided the organization identifies the geographic area
and reports information applicable to that geographic area.
(4) Where If the administrative director finds it necessary in the interest of full and fair disclosure, all advertising and other consumer information disseminated by an organization for the purpose of influencing persons to become members of an organization shall contain any supplemental disclosure information that the administrative director may require.
(f) When If the administrative director finds it necessary in the interest of full and
fair disclosure, all advertising and other consumer information disseminated by an organization for the purpose of influencing persons to become members of an organization shall contain any supplemental disclosure information that the administrative director may require.
(g) (1) An organization may
shall not refuse to enter into any contract, or may not a contract or cancel or decline to renew or reinstate any contract, a contract because of the age or any characteristic listed or defined in subdivision (b) or (e) of Section 51 of the Civil Code of any a contracting party, prospective contracting party, or person reasonably expected to benefit from that contract as an employee or otherwise.
(2) The terms of any a contract shall not be modified, and the benefits or coverage of any a contract shall not be subject to any limitations, exceptions, exclusions, reductions, copayments, coinsurance, deductibles, reservations, or premium, price, or charge differentials, or other modifications because of the age or any characteristic listed or defined in subdivision (b) or (e) of Section 51 of the Civil Code of any
a contracting party, potential contracting party, or person reasonably expected to benefit from that contract as an employee or otherwise; except that premium, price, or charge differentials because of the sex or age of any individual when based on objective, valid, and up-to-date statistical and actuarial data are not prohibited. Nothing in this section shall be construed to This section does not permit an organization to charge different rates to individual employees within the same group solely on the basis of the employee’s sex.
(3) It shall be deemed
is a violation of subdivision (a) for any organization to utilize marital status, living arrangements, occupation, gender, beneficiary designation, ZIP Codes or other territorial classification, or any combination thereof for the purpose of establishing sexual orientation. Nothing in this section shall be construed to This section does not alter in any manner the existing law prohibiting organizations from conducting tests for the presence of human immunodeficiency virus or evidence thereof.
(4) This section shall not be construed to does not
limit the authority of the administrative director to adopt or enforce regulations prohibiting discrimination because of sex, marital status, or sexual orientation.
(h) (1) An organization may shall not use in its name any of the words “insurance,” “casualty,” “health care service plan,” “health plan,” “surety,” “mutual,” or any other words descriptive of the health plan, insurance, casualty, or surety business or use any name similar to the name or description of any a
health care service plan, insurance, or surety corporation doing business in this state unless that organization controls or is controlled by an entity licensed as a health care service plan or insurer pursuant to the Health and Safety Code or the Insurance Code and the organization employs a name related to that of the controlled or controlling entity.
(2) Section 2415 of the Business and Professions Code, pertaining to fictitious names, does not apply to organizations certified under this section.
(3) An organization or solicitor firm may not adopt a name style that is deceptive, or one that could cause the public to believe the organization is affiliated with or recommended by any governmental or private entity unless this affiliation or endorsement exists.
(i) Each organization shall meet the
following requirements:
(1) All facilities located in this state, including, but not limited to, clinics, hospitals, and skilled nursing facilities, to be utilized by the organization shall be licensed by the State Department of Health Services, Public Health, if that licensure is required by law. Facilities not located in this state shall conform to all licensing and other requirements of the jurisdiction in which they are located.
(2) All personnel employed by or under contract to the organization shall be licensed or certified by their respective board or agency, where that licensure or certification is required by law.
(3) All equipment required to be licensed or registered by law shall be so licensed or registered and the operating personnel for that equipment shall be licensed or certified as required by law.
(4) The organization shall furnish services in a manner providing continuity of care and ready referral of patients to other providers at any time as may be appropriate and consistent with good professional practice.
(5) All health care shall be readily available at reasonable times to all employees. To the extent feasible, the organization shall make all health care readily accessible to all employees.
(6) The organization shall employ and utilize allied health manpower for the furnishing of health care to the extent permitted by law and consistent with good health care practice.
(7) The organization shall have the organizational and administrative capacity to provide services to employees. The organization shall be able to demonstrate to the department that health care decisions are rendered by qualified providers, unhindered by fiscal and administrative management.
(8) All contracts with employers, insurers of employers, and self-insured employers and all contracts with providers, and other persons furnishing services, equipment, or facilities to or in connection with the workers’ compensation health care organization, shall be fair, reasonable, and consistent with the objectives of this part.
(9) Each organization shall provide to employees all workers’ compensation health care required by this code. The administrative director shall not determine the scope of workers’ compensation health
care to be offered by an organization.
(j) (1) Every organization shall establish and maintain a grievance system approved by the administrative director under which employees may submit their grievances to the organization. Each system shall provide reasonable procedures in accordance with regulations adopted by the administrative director that shall ensure adequate consideration of employee grievances and rectification when appropriate.
(2) Every organization shall inform employees upon enrollment and annually thereafter of the procedures for processing and resolving grievances. The information shall include the location and telephone number where grievances may be submitted.
(3) Every organization shall provide forms for complaints to be given to employees who wish to register written
complaints. The forms used by organizations shall be approved by the administrative director in advance as to format.
(4) The organization shall keep in its files all copies of complaints, and the responses thereto, for a period of five years.
(k) (1) Every organization shall establish procedures in accordance with regulations of the administrative director for continuously reviewing the quality of care, performance of medical personnel, utilization of services and facilities, and costs. Notwithstanding any other provision of law, there shall be no
not be monetary liability on the part of, and no a cause of action for damages shall not arise against, any person who participates in quality of care or utilization reviews by peer review committees that are composed chiefly of physicians, as defined by Section 3209.3, for any act performed during the reviews if the person acts without malice, has made a reasonable effort to obtain the facts of the matter, and believes that the action taken is warranted by the facts, and neither the proceedings nor the records of the reviews shall be subject to discovery, nor shall any person in attendance at the reviews be required to testify as to what transpired thereat.
transpired. Disclosure of the proceedings or records to the governing body of an organization or to any person or entity designated by the organization to review activities of the committees shall does not alter the status of the records or of the proceedings as privileged communications.
The above prohibition
(2) The prohibition described in paragraph (1) relating to
discovery or testimony does not apply to the statements made by any person in attendance at a review who is a party to an action or proceeding the subject matter of which was reviewed, or to any person requesting hospital staff privileges, or in any action against an insurance carrier alleging bad faith by the carrier in refusing to accept a settlement offer within the policy limits, or to the administrative director in conducting surveys pursuant to subdivision (o).
This section shall not be construed to
(3) This section does not confer immunity from liability on any workers’ compensation health
care organization. In any case in which, but for the enactment of the preceding provisions of this section, a cause of action would arise against an organization, the cause of action shall exist notwithstanding the provisions of this section.
(l) Nothing in this chapter shall be construed to This chapter does not prevent an organization from utilizing subcommittees to participate in peer review activities, nor to prevent an organization from delegating the responsibilities required by subdivision (i) as it determines to be appropriate, to subcommittees including subcommittees composed of a majority of nonphysician health care providers licensed pursuant to the
Business and Professions Code, as long as the organization controls the scope of authority delegated and may revoke all or part of this authority at any time. Persons who participate in the subcommittees shall be entitled to the same immunity from monetary liability and actions for civil damages as persons who participate in organization or provider peer review committees pursuant to subdivision (i).
(m) Every organization shall have and shall demonstrate to the administrative director that it has all of the following:
(1) Adequate provision for continuity of care.
(2) A procedure for prompt payment and denial of provider claims.
(n) Every contract between an organization and an employer or insurer of an employer, and every contract between any
organization and a provider of health care, shall be in writing.
(o) (1) The administrative director shall conduct periodically an onsite medical survey of the health care delivery system of each organization. The survey shall include a review of the procedures for obtaining health care, the procedures for regulating utilization, peer review mechanisms, internal procedures for assuring quality of care, and the overall performance of the organization in providing health care and meeting the health needs of employees.
(2) The survey shall be conducted by a panel of qualified health professionals experienced in evaluating the delivery of workers’ compensation health care. The administrative director shall be authorized to contract with professional organizations or outside personnel to conduct medical surveys. These organizations or personnel shall have
demonstrated the ability to objectively evaluate the delivery of this health care.
(3) Surveys performed pursuant to this section shall be conducted as often as deemed necessary by the administrative director to assure the protection of employees, but not less frequently than once every three years. Nothing in this section shall be construed to This section does not require the survey team to visit each clinic, hospital, office, or facility of the organization.
(4) Nothing in this section shall be construed to This section does
not require the medical survey team to review peer review proceedings and records conducted and compiled under this section or in medical records. However, the administrative director shall be authorized to require onsite review of these peer review proceedings and records or medical records where necessary to determine that quality health care is being delivered to employees. Where
If medical record review is authorized, the survey team shall ensure that the confidentiality of the physician-patient relationship is safeguarded in accordance with existing law and neither the survey team nor the administrative director or the administrative director’s staff may be compelled to disclose this information except in accordance with the physician-patient relationship. The administrative director shall ensure that the confidentiality of the peer review proceedings and records is maintained. The disclosure of the peer review proceedings and records to the administrative director or the medical survey team shall not alter the status of the proceedings or records as privileged and confidential communications.
(5) The procedures and standards utilized by the survey team shall be made available to the organizations prior to the conducting of medical surveys.
(6) During the survey, the members of the survey team shall offer such advice and assistance to the organization as deemed appropriate.
(7) The administrative director shall notify the organization of deficiencies found by the survey team. The administrative director shall give the organization a reasonable time to correct the deficiencies, and failure on the part of the organization to comply to the administrative director’s satisfaction shall constitute cause for disciplinary action against the organization.
(8) Reports of all surveys, deficiencies, and correction plans shall be open to public inspection, except that no surveys, deficiencies or
correction plans shall not be made public unless the organization has had an opportunity to review the survey and file a statement of response within 30 days, to be attached to the report.
(p) (1) All records, books, and papers of an organization, management company, solicitor, solicitor firm, and any provider or subcontractor providing medical or other services to an organization, management company, solicitor, or solicitor firm shall be open to inspection during normal business hours by the administrative director.
(2) To the extent feasible, all the records, books, and papers described in paragraph (1) shall be located in this state. In examining those records outside this state, the administrative director shall consider the cost to the
organization, consistent with the effectiveness of the administrative director’s examination, and may upon reasonable notice require that these records, books, and papers, or a specified portion thereof, be made available for examination in this state, or that a true and accurate copy of these records, books, and papers, or a specified portion thereof, be furnished to the administrative director.
(q) (1) The administrative director shall conduct an examination of the administrative affairs of any organization, and each person with whom the organization has made arrangements for administrative, or management services, as often as deemed necessary to protect the interest of employees, but not less frequently than once every five years.
(2) The expense of conducting any additional or nonroutine examinations pursuant to this section, and the expense of conducting
any additional or nonroutine medical surveys pursuant to subdivision (o) shall be charged against the organization being examined or surveyed. The amount shall include the actual salaries or compensation paid to the persons making the examination or survey, the expenses incurred in the course thereof, and overhead costs in connection therewith as fixed by the administrative director. In determining the cost of examinations or surveys, the administrative director may use the estimated average hourly cost for all persons performing examinations or surveys of workers’ compensation health care organizations for the fiscal year. The amount charged shall be remitted by the organization to the administrative director.
(3) Reports of all examinations shall be open to public inspection, except that no examination shall be made public, unless the organization has had an opportunity to review the examination report and file a statement or response within
30 days, to be attached to the report.
SEC. 129.
Section 4601 of the Labor Code is amended to read:4601.
(a) If the employee so requests, the employer shall tender the employee one change of physician. The employee at any time may request that the employer tender this one-time change of physician. Upon request of the employee for a change of physician, the maximum amount of time permitted by law for the employer or insurance carrier to provide the employee an alternative physician or, if requested by the employee, a chiropractor, or an acupuncturist shall be five working days from the date of the request. Notwithstanding the 30-day time period specified in Section 4600, a request for a change of physician pursuant to this section may be made at any time. The employee is entitled, in any serious case, upon request, to the services of a consulting physician, chiropractor, or acupuncturist of(b) If an employee requesting a change of physician pursuant to subdivision (a) has notified his or her the employer in writing prior to the date of injury that he or she the employee has a personal chiropractor, the alternative physician tendered by the employer to the employee, if the employee so requests, shall be the employee’s personal chiropractor. For the purpose of this article, “personal chiropractor” means the
employee’s regular chiropractor licensed pursuant to Chapter 2 (commencing with Section 1000) of Division 2 of the Business and Professions Code, who has previously directed treatment of the employee, and who retains the employee’s chiropractic treatment records, including his or her chiropractic history.
(c) If an employee requesting a change of physician pursuant to subdivision (a) has notified his or her the employer in writing prior to the date of injury that he or she the employee
has a personal acupuncturist, the alternative physician tendered by the employer to the employee, if the employee so requests, shall be the employee’s personal acupuncturist. For the purpose of this article, “personal acupuncturist” means the employee’s regular acupuncturist licensed pursuant to Chapter 12 (commencing with Section 4935) of Division 2 of the Business and Professions Code, who has previously directed treatment of the employee, and who retains the employee’s acupuncture treatment records, including his or her acupuncture history.
SEC. 130.
Section 4603 of the Labor Code is amended to read:4603.
If the employer desires a change of physicians or chiropractor,SEC. 131.
Section 4603.6 of the Labor Code is amended to read:4603.6.
(a) If the only dispute is the amount of payment and the provider has received a second review that did not resolve the dispute, the provider may request an independent bill review within 30 calendar days of service of the second review pursuant to Section 4603.2 or 4622. If the provider fails to request an independent bill review within 30 days, the bill shall be deemed satisfied, and neither the employer nor the employee shall be liable for any further payment. If the employer has contested liability for any issue other than the reasonable amount payable for services, that issue shall be resolved prior to filing a request for independent bill review, and the time limit for requesting independent bill review shall not begin to run until the resolution of that issue becomes final, except as provided for in Section 4622.(b) A request for independent review shall be made on a form prescribed by the administrative director, and shall include copies of the original billing itemization, any supporting documents that were furnished with the original billing, the explanation of review, the request for second review together with any supporting documentation submitted with that request, and the final explanation of the second review. The administrative director may require that requests for independent bill review be submitted electronically. A copy of the request, together with all required documents, shall be served on the employer. Only the request form and the proof of payment of the fee required by subdivision (c) shall be filed with the administrative director. Upon notice of assignment of the independent bill reviewer, the requesting party shall submit the documents listed in this subdivision to the independent bill reviewer within 10 days.
(c) The provider shall pay to the administrative director a fee determined by the administrative director to cover no more than the reasonable estimated cost of independent bill review and administration of the independent bill review program. The administrative director may prescribe different fees depending on the number of items in the bill or other criteria determined by regulation adopted by the administrative director. If any additional payment is found owing from the employer to the medical provider, the employer shall reimburse the provider for the fee in addition to the amount found owing.
(d) Upon receipt of a request for independent bill review and the required fee, the administrative director or the administrative director’s designee shall assign the request to an independent bill reviewer within 30 days and notify the medical provider and employer of the independent
reviewer assigned.
(e) The independent bill reviewer shall review the materials submitted by the parties and make a written determination of any additional amounts to be paid to the medical provider and state the reasons for the determination. If the independent bill reviewer deems necessary, the independent bill reviewer may request additional documents from the medical provider or employer. The employer shall have no obligation is not obligated to serve medical reports on the provider unless the reports are requested by the independent bill reviewer. If additional documents are requested, the parties shall respond with the documents requested within 30 days and shall provide the other party with copies of any documents submitted to the independent
reviewer, and the independent reviewer shall make a written determination of any additional amounts to be paid to the medical provider and state the reasons for the determination within 60 days of the receipt of the administrative director’s assignment. The written determination of the independent bill reviewer shall be sent to the administrative director and provided to both the medical provider and the employer.
(f) The determination of the independent bill reviewer shall be deemed a determination and order of the administrative director. The determination is final and binding on all parties unless an aggrieved party files with the appeals board a verified appeal from the medical bill review determination of the administrative director within 20 days of the service of the determination. The medical bill review determination of the administrative director shall be presumed to be correct and shall be set aside only upon clear and convincing
evidence of one or more of the following grounds for appeal:
(1) The administrative director acted without or in excess of his or her
the director’s powers.
(2) The determination of the administrative director was procured by fraud.
(3) The independent bill reviewer was subject to a material conflict of interest that is in violation of Section 139.5.
(4) The determination was the result of bias on the basis of race, national origin, ethnic group identification, religion, age, sex, sexual orientation, color, or disability.
(5) The determination was the result of a plainly erroneous express or implied finding of fact, provided that the mistake of fact is a matter of ordinary knowledge based on the information submitted for review and not a matter that is subject to expert opinion.
(g) If the determination of the administrative director is reversed, the dispute shall be remanded to the administrative director to submit the dispute to independent bill review by a different independent review organization. In the event that a different independent bill review organization is not available after remand, the administrative director shall submit the dispute to the original bill review organization for review by a different reviewer within the organization. In no event shall the appeals board or any higher court make a determination of ultimate fact contrary to the determination of the bill review organization.
(h) Once the independent bill reviewer has made a determination regarding additional amounts to be paid to the medical provider, the employer shall pay the additional amounts per the timely payment requirements set forth in Sections 4603.2 and 4603.4.
SEC. 132.
Section 4604.5 of the Labor Code is amended to read:4604.5.
(a) The recommended guidelines set forth in the medical treatment utilization schedule adopted by the administrative director pursuant to Section 5307.27 shall be presumptively correct on the issue of extent and scope of medical treatment. The presumption is rebuttable and may be controverted by a preponderance of the scientific medical evidence establishing that a variance from the guidelines reasonably is required to cure or relieve the injured worker from the effects of(b) The recommended
guidelines set forth in the schedule adopted pursuant to subdivision (a) shall reflect practices that are evidence and scientifically based, nationally recognized, and peer reviewed. The guidelines shall be designed to assist providers by offering an analytical framework for the evaluation and treatment of injured workers, and shall constitute care in accordance with Section 4600 for all injured workers diagnosed with industrial conditions.
(c) (1) Notwithstanding the medical treatment utilization schedule, for injuries occurring on and after January 1, 2004, an employee shall be entitled to no more than 24 chiropractic, 24 occupational therapy, and 24 physical therapy visits per industrial injury.
(2) (A) Paragraph (1) shall
does not apply when an employer authorizes, in writing, additional visits to a health care practitioner for physical medicine services. Payment or authorization for treatment beyond the limits set forth in paragraph (1) shall not be deemed a waiver of the limits set forth by paragraph (1) with respect to future requests for authorization.
(B) The Legislature finds and declares that the amendments made to subparagraph (A) by the act adding this subparagraph are declaratory of existing law.
(3) Paragraph (1) shall does not apply to visits for postsurgical physical medicine and postsurgical rehabilitation services provided in compliance with a postsurgical
treatment utilization schedule established by the administrative director pursuant to Section 5307.27.
(d) For all injuries not covered by the official utilization schedule adopted pursuant to Section 5307.27, authorized treatment shall be in accordance with other evidence-based medical treatment guidelines that are recognized generally by the national medical community and scientifically based.
SEC. 133.
Section 4605 of the Labor Code is amended to read:4605.
SEC. 134.
Section 4620 of the Labor Code is amended to read:4620.
(a) For purposes of this article, a medical-legal expense means any costs and expenses incurred by or on behalf of any party, the administrative director, or the board, which expenses may include X-rays, laboratory fees, other diagnostic tests, medical reports, medical records, medical testimony, and, as needed, interpreter’s fees by a certified interpreter pursuant to Article 8 (commencing with Section 11435.05) of Chapter 4.5 of Part 1 of Division 3 of Title 2 of, or Section 68566 of, the Government Code, for the purpose of proving or disproving a contested claim.(b) A contested claim exists when the employer knows or reasonably should know that the employee is claiming entitlement to any benefit arising out of a claimed industrial injury and one of the following
conditions exists:
(1) The employer rejects liability for a claimed benefit.
(2) The employer fails to accept liability for benefits after the expiration of a reasonable period of time within which to decide if it will contest the claim.
(3) The employer fails to respond to a demand for payment of benefits after the expiration of any time period fixed by statute for the payment of indemnity.
(c) Costs of medical evaluations, diagnostic tests, and interpreters incidental to the production of a medical report do not constitute medical-legal expenses unless the medical report is capable of proving or disproving a disputed medical fact, the determination of which is essential to an adjudication of the employee’s claim for benefits. In determining whether a
report meets the requirements of this subdivision, a workers’ compensation judge shall give full consideration to the substance as well as the form of the report, as required by applicable statutes and regulations.
(d) If the injured employee cannot effectively communicate with an examining physician because he or she cannot of the inability to proficiently speak or understand the English language, the injured employee is entitled to the services of a qualified interpreter during the medical examination. Upon request of the injured employee,
the employer or insurance carrier shall pay the costs of the interpreter services, as set forth in the fee schedule adopted by the administrative director pursuant to Section 5811. An employer shall not be required to pay for the services of an interpreter who is provisionally certified unless either the employer consents in advance to the selection of the individual who provides the interpreting service or the injured worker requires interpreting service in a language other than the languages designated pursuant to Section 11435.40 of the Government Code.
SEC. 135.
Section 4621 of the Labor Code is amended to read:4621.
(a) In accordance with the rules of practice and procedure of the appeals board, the employee, or the dependents of a deceased employee, shall be reimbursed for(b) Except as provided in subdivision (c) and Sections 4061 and 4062, no comprehensive medical-legal evaluations, except those at the request of an employer, shall be performed during the first 60 days after the notice of claim has been filed pursuant to Section 5401, and neither the employer nor the employee shall be liable for any expenses incurred for comprehensive medical-legal evaluations performed within the first 60 days after the notice of claim has been filed pursuant to Section 5401.
(c) Comprehensive medical-legal evaluations may be performed at any time after the claim form has been filed pursuant to Section
5401 if the employer has rejected the claim.
(d) Where, If, at the request of the employer, the employer’s insurance carrier, the administrative director, the appeals board, or a referee, workers’ compensation judge, the employee submits to examination by a physician, he or she shall be the employee is entitled to receive, in addition to all other benefits herein provided, all
reasonable expenses of transportation, meals, and lodging incident to reporting for the examination to the same extent and manner as provided for in Section 4600.
SEC. 136.
Section 4622 of the Labor Code is amended to read:4622.
All medical-legal expenses for which the employer is liable shall, upon receipt by the employer of all reports and documents required by the administrative director incident to the services, be paid to whom the funds and expenses are due, as follows:(a) (1) Except as provided in subdivision (b), within 60 days after receipt by the employer of each separate, written billing and report, and if payment is not made within this period, that portion of the billed sum then unreasonably unpaid shall be increased by 10 percent, together with interest thereon at the rate of 7 percent per annum retroactive to the date of receipt of the bill and report by the employer. If the employer, within the 60-day period, contests the reasonableness and necessity for incurring the fees,
services, and expenses using the explanation of review required by Section 4603.3, payment shall be made within 20 days of the service of an order of the appeals board or the administrative director pursuant to Section 4603.6 directing payment.
(2) The penalty provided for in paragraph (1) shall not apply if both of the following occur:
(A) The employer pays the provider that portion of his or her the charges that do not exceed the amount deemed reasonable pursuant to subdivision (e) within 60 days of receipt of the report and itemized billing.
(B) The employer prevails.
(b) (1) If the provider contests the amount paid, the provider may request a second review within 90 days of the service of the explanation of review. The request for a second review shall be submitted to the employer on a form prescribed by the administrative director and shall include all of the following:
(A) The date of the explanation of review and the claim number or other unique identifying number provided on the explanation of review.
(B) The party or parties requesting the service.
(C) Any item and amount in dispute.
(D) The additional payment requested and the reason therefor.
(E) Any additional information requested in the original explanation
of review and any other information provided in support of the additional payment requested.
(2) If the provider does not request a second review within 90 days, the bill will be deemed satisfied and neither the employer nor the employee shall be liable for any further payment.
(3) Within 14 days of the request for second review, the employer shall respond with a final written determination on each of the items or amounts in dispute, including whether additional payment will be made.
(4) If the provider contests the amount paid, after receipt of the second review, the provider shall request an independent bill review as provided for in Section 4603.6.
(c) If the employer denies all or a portion of the amount billed for any reason other than the amount
to be paid pursuant to the fee schedules in effect on the date of service, the provider may object to the denial within 90 days of the service of the explanation of review. If the provider does not object to the denial within 90 days, neither the employer nor the employee shall be liable for the amount that was denied. If the provider objects to the denial within 90 days of the service of the explanation of review, the employer shall file a petition and a declaration of readiness to proceed with the appeals board within 60 days of service of the objection. If the employer prevails before the appeals board, the appeals board shall order the physician to reimburse the employer for the amount of the paid charges found to be unreasonable.
(d) If requested by the employee, or the dependents of a deceased employee, within 20 days from the filing of an order of the appeals board directing payment, and where payment is not made within that period, that
portion of the billed sum then unpaid shall be increased by 10 percent, together with interest thereon at the rate of 7 percent per annum retroactive to the date of the filing of the order of the board directing payment.
(e) (1) Using the explanation of review as described in Section 4603.3, the employer shall notify the provider of the services, the employee, or if represented, his or her
the employee’s attorney, if the employer contests the reasonableness or necessity of incurring these expenses, and shall indicate the reasons therefor.
(2) The appeals board shall promulgate all necessary and reasonable rules and regulations to insure compliance with this section, and shall take such further steps as may be necessary to guarantee that the rules and regulations are enforced.
(3) The provisions of Sections 5800 and 5814 shall do not apply to this section.
(f) Nothing contained in this
section shall be construed to This section does not create a rebuttable presumption of entitlement to payment of an expense upon receipt by the employer of the required reports and documents. This section is not applicable unless there has been compliance with Sections 4620 and 4621.
SEC. 137.
Section 4627 of the Labor Code is amended to read:4627.
The appeals board and the administrative director may promulgateSEC. 138.
Section 4650 of the Labor Code is amended to read:4650.
(a) If an injury causes temporary disability, the first payment of temporary disability indemnity shall be made not later than 14 days after knowledge of the injury and disability, on which date all indemnity then due shall be paid, unless liability for the injury is earlier denied.(b) (1) If the injury causes permanent disability, the first payment shall be made within 14 days after the date of last payment of temporary disability indemnity, except as provided in paragraph (2). When the last payment of temporary disability indemnity has been made pursuant to subdivision (c) of Section 4656, and regardless of whether the extent of permanent disability can be determined at that date, the employer nevertheless shall commence the timely payment
required by this subdivision and shall continue to make these payments until the employer’s reasonable estimate of permanent disability indemnity due has been paid, and if the amount of permanent disability indemnity due has been determined, until that amount has been paid.
(2) Prior to an award of permanent disability indemnity, a permanent disability indemnity payment shall not be required if the employer has offered the employee a position that pays at least 85 percent of the wages and compensation paid to the employee at the time of injury or if the employee is employed in a position that pays at least 100 percent of the wages and compensation paid to the employee at the time of injury, provided that when an award of permanent disability indemnity is made, the amount then due shall be calculated from the last date for which temporary disability indemnity was paid, or the date the employee’s disability became permanent and stationary,
whichever is earlier.
(c) Payment of temporary or permanent disability indemnity subsequent to the first payment shall be made as due every two weeks on the day designated with the first payment.
(d) If any indemnity payment is not made timely as when required by this section, the amount of the late payment shall be increased 10 percent and shall be paid, without application, to the employee, unless the employer continues the employee’s wages under a salary continuation plan, as defined in subdivision (g). No increase shall The
late payment increase does not apply to any payment due prior to or within 14 days after the date the claim form was submitted to the employer under Section 5401. No increase shall
The late payment increase does not apply when, within the 14-day period specified under subdivision (a), the employer is unable to determine whether temporary disability indemnity payments are owed and advises the employee, in the manner prescribed in rules and regulations adopted pursuant to Section 138.4, why payments cannot be made within the 14-day period, what additional information is required to make the decision whether temporary disability indemnity payments are owed, and when the employer expects to have the information required to make the decision.
(e) If the employer is insured for its obligation to provide compensation, the employer shall be obligated to reimburse the insurer for the amount of increase in indemnity payments, made pursuant to subdivision (d), if the late payment which gives rise to the increase in indemnity payments, is due less than seven days after the insurer receives the
completed claim form from the employer. Except as specified in this subdivision, an employer shall not be obligated to reimburse an insurer nor shall an insurer be permitted to seek reimbursement, directly or indirectly, for the amount of increase in indemnity payments specified in this section.
(f) If an employer is obligated under subdivision (e) to reimburse the insurer for the amount of increase in indemnity payments, the insurer shall notify the employer in writing, within 30 days of the payment, that the employer is obligated to reimburse the insurer and shall bill and collect the amount of the payment no later than at final audit. However, the insurer shall not be obligated to collect, and the employer shall not be obligated to reimburse, amounts paid pursuant to subdivision (d) unless the aggregate total paid in a policy year exceeds one hundred dollars ($100). The employer shall have 60 days, following notice of the obligation to
reimburse, to appeal the decision of the insurer to the Department of Insurance. The notice of the obligation to reimburse shall specify that the employer has the right to appeal the decision of the insurer as provided in this subdivision.
(g) For purposes of this section, “salary continuation plan” means a plan that meets both of the following requirements:
(1) The plan is paid for by the employer pursuant to statute, collective bargaining agreement, memorandum of understanding, or established employer policy.
(2) The plan provides the employee on his or her the employee’s regular payday with salary not less than the employee
is entitled to receive pursuant to statute, collective bargaining agreement, memorandum of understanding, or established employer policy and not less than the employee would otherwise receive in indemnity payments.
SEC. 139.
Section 4651.2 of the Labor Code is repealed.No petitions filed under Section 4651.1 shall be granted while the injured workman is pursuing a rehabilitation plan under Section 139.5 of this code.
SEC. 140.
Section 4654 of the Labor Code is amended to read:4654.
If the injury causes temporary partial disability, the disability payment is two-thirds of the weekly loss in wages during the period ofSEC. 141.
Section 4655 of the Labor Code is amended to read:4655.
If the injury causes temporary disabilitySEC. 142.
Section 4656 of the Labor Code is amended to read:(a)Aggregate disability payments for a single injury occurring prior to January 1, 1979, causing temporary disability shall not extend for more than 240 compensable weeks within a period of five years from the date of the injury.
(b)Aggregate disability payments for a single injury occurring on or after January 1, 1979, and prior to April 19, 2004, causing temporary partial disability shall not extend for more than 240 compensable weeks within a period of five years from the
date of the injury.
(c)(1)
4656.
(a) Aggregate disability payments for a single injury occurring on or after April 19, 2004, causing temporary disability shall not extend for more than 104 compensable weeks within a period of two years from the date of commencement of temporary disability payment.(2)
(b) Aggregate disability payments for a single injury occurring on or after January 1, 2008, causing temporary disability shall not extend for more than 104 compensable weeks within a period of five years from the date of injury.
(3)
(c) Notwithstanding paragraphs (1) and (2),
subdivisions (a) and (b), for an employee who suffers from the following injuries or conditions, aggregate disability payments for a single injury occurring on or after April 19, 2004, causing temporary disability shall not extend for more than 240 compensable weeks within a period of five years from the date of the injury:
(A)
(1) Acute and chronic hepatitis B.
(B)
(2) Acute and chronic hepatitis C.
(C)
(3) Amputations.
(D)
(4) Severe burns.
(E)
(5) Human immunodeficiency virus (HIV).
(F)
(6) High-velocity eye injuries.
(G)
(7) Chemical burns to the eyes.
(H)
(8) Pulmonary fibrosis.
(I)
(9) Chronic lung disease.
SEC. 143.
Section 4657 of the Labor Code is repealed.In case of temporary partial disability the weekly loss in wages shall consist of the difference between the average weekly earnings of the injured employee and the weekly amount which the injured employee will probably be able to earn during the disability, to be determined in view of the nature and extent of the injury. In computing such probable earnings, due regard shall be given to the ability of the injured employee to compete in an open labor market. If evidence of exact loss of earnings is lacking, such weekly loss in wages may be computed from the proportionate loss of physical ability or earning power caused by the injury.
SEC. 144.
Section 4661 of the Labor Code is amended to read:4661.
Every computation made pursuant to this section shall be
made only with reference to disability resulting from an original injury sustained after this section as amended during the 1949 Regular Session of the Legislature becomes effective; provided, however, that all rights presently existing under this section shall be continued in force.
SEC. 145.
Section 4663 of the Labor Code is amended to read:4663.
(a) Apportionment of permanent disability shall be based on causation.(b) A physician who prepares a report addressing the issue of permanent disability due to a claimed industrial injury shall address in that report the issue of causation of the permanent disability.
(c) In order for a physician’s report to be considered complete on the issue of permanent disability, the report must include an apportionment determination. A physician shall make an apportionment determination by finding what approximate percentage of the permanent disability was caused by the direct result of injury arising out of and occurring in the course of employment and what approximate percentage of the permanent disability was
caused by other factors both before and subsequent to the industrial injury, including prior industrial injuries. If the physician is unable to include an apportionment determination in his or her a report, the physician shall state the specific reasons why the physician could not make a determination of the effect of that prior condition on the permanent disability arising from the injury. The physician shall then consult with other physicians or refer the employee to another physician from whom the employee is authorized to seek treatment or evaluation in accordance with this division in order to make the final determination.
(d) An employee who claims an industrial injury shall, upon request, disclose all previous permanent disabilities or physical
impairments.
(e) Subdivisions (a), (b), and (c) do not apply to injuries or illnesses covered under Sections 3212, 3212.1, 3212.2, 3212.3, 3212.4, 3212.5, 3212.6, 3212.7, 3212.8, 3212.85, 3212.9, 3212.10, 3212.11, 3212.12, 3213, and 3213.2.
SEC. 146.
Section 4664 of the Labor Code is amended to read:4664.
(a) The employer shall only be liable for the percentage of permanent disability directly caused by the injury arising out of and occurring in the course of employment.(b) If the applicant employee has received a prior award of permanent disability, it shall be conclusively presumed that the prior permanent disability exists at the time of any subsequent industrial injury. This presumption is a presumption affecting the burden of proof.
(c) (1) The
accumulation of all permanent disability awards issued with respect to any one region of the body in favor of one individual employee shall not exceed 100 percent over the employee’s lifetime unless the employee’s injury or illness is conclusively presumed to be total in character pursuant to Section 4662. As used in this section, the regions of the body are the following:
(A) Hearing.
(B) Vision.
(C) Mental and behavioral disorders.
(D) The spine.
(E) The upper extremities, including the shoulders.
(F) The lower extremities, including the hip joints.
(G) The
head, face, cardiovascular system, respiratory system, and all other systems or regions of the body not listed in subparagraphs (A) to (F), inclusive.
(2) Nothing in this section shall be construed to This section does not permit the permanent disability rating for each individual injury sustained by an employee arising from the same industrial accident, when added together, from exceeding to exceed 100 percent.
SEC. 147.
Section 4701 of the Labor Code is amended to read:4701.
If an injury causes death, either with or without disability, the employer shall be liable, in addition to any other benefits provided by this division, for all of the following:(a) Reasonable expenses of the employee’s burial, in accordance with the following:
(1)Up to two thousand dollars ($2,000) for injuries occurring prior to January 1, 1991.
(2)
(1) Up to five thousand dollars ($5,000) for injuries occurring on or after January 1, 1991, and prior to January 1, 2013.
(3)
(2) Up to ten thousand dollars ($10,000) for injuries occurring on or after January 1, 2013.
(b) A death benefit, to be allowed to the dependents when the employee leaves any person dependent upon him or her for support.
SEC. 148.
Section 4702 of the Labor Code is amended to read:4702.
(a) Except as otherwise provided in this section and Sections 4553, 4554, 4557, and 4558, and notwithstanding any amount of compensation paid or otherwise owing to the surviving dependent, personal representative, heir, or other person entitled to a deceased employee’s accrued and unpaid compensation, the death benefit in cases of total dependency shall be as follows:(1) In the case of two total dependents and regardless of the number of partial dependents, for injuries occurring before January 1, 1991, ninety-five thousand dollars ($95,000), for injuries occurring on or after January 1, 1991, one hundred fifteen thousand dollars ($115,000),
for injuries occurring on or after July 1, 1994, one hundred thirty-five thousand dollars ($135,000), for injuries occurring on or after July 1, 1996, one hundred forty-five thousand dollars ($145,000), and for injuries occurring on or after January 1, 2006, two hundred ninety thousand dollars ($290,000).
(2) In the case of one total dependent and one or more partial dependents, for injuries occurring before January 1, 1991, seventy thousand dollars ($70,000), for injuries occurring on or after January 1, 1991, ninety-five thousand dollars ($95,000), for injuries occurring on or after July 1, 1994, one hundred fifteen thousand dollars ($115,000), for injuries occurring on or after July 1, 1996, one hundred twenty-five thousand dollars ($125,000), and for injuries occurring on or after January 1, 2006, two hundred fifty thousand dollars ($250,000), plus four
times the amount annually devoted to the support of the partial dependents, but not more than the following: for injuries occurring before January 1, 1991, a total of ninety-five thousand dollars ($95,000),
for injuries occurring on or after January 1, 1991, one hundred fifteen thousand dollars ($115,000), for injuries occurring on or after July 1, 1994, one hundred twenty-five thousand dollars ($125,000), for injuries occurring on or after July 1, 1996, one hundred forty-five thousand dollars ($145,000), and for injuries occurring on or after January 1, 2006, two hundred ninety thousand dollars ($290,000).
(3) In the case of one total dependent and no partial dependents, for injuries occurring before January 1, 1991, seventy thousand dollars ($70,000), for injuries occurring on or after January 1, 1991, ninety-five thousand dollars ($95,000), for injuries occurring on or after July 1, 1994, one hundred fifteen thousand dollars ($115,000), for injuries occurring on or after July 1, 1996, one hundred twenty-five thousand dollars ($125,000), and for
injuries occurring on or after January 1, 2006, two hundred fifty thousand dollars ($250,000).
(4) (A) In the case of no total dependents and one or more partial dependents, for injuries occurring before January 1, 1991, four times the amount annually devoted to the support of the partial dependents, but not more than seventy thousand dollars ($70,000), for injuries occurring on or after January 1, 1991, a total of ninety-five thousand dollars ($95,000), for injuries occurring on or after July 1, 1994, one hundred fifteen thousand dollars ($115,000), and for injuries occurring on or after July 1, 1996, but before January 1, 2006, one hundred twenty-five thousand dollars ($125,000).
(B) In the case of no total dependents and one or more partial dependents, eight times the
amount annually devoted to the support of the partial dependents, for injuries occurring on or after January 1, 2006, but not more than two hundred fifty thousand dollars ($250,000).
(5) In the case of three or more total dependents and regardless of the number of partial dependents, one hundred fifty thousand dollars ($150,000), for injuries occurring on or after July 1, 1994, one hundred sixty thousand dollars ($160,000), for injuries occurring on or after July 1, 1996, and three hundred twenty thousand dollars ($320,000), for injuries occurring on or after January 1, 2006.
(6)(A)In the case of a police officer who has no total dependents and no partial dependents, for injuries occurring on or after January 1, 2003, and prior to January 1, 2004, two hundred fifty thousand dollars ($250,000) to the estate of the deceased police officer.
(B)For injuries occurring on or after January 1, 2004, in the case of no total dependents and no partial dependents, two hundred fifty thousand dollars ($250,000) to the estate of the deceased employee.
(b) A death benefit in all cases shall be paid in installments in the same manner and amounts as temporary total disability indemnity would have to be made to the employee, unless the appeals board otherwise orders. However, no payment shall be made at a weekly rate of less than two hundred twenty-four dollars ($224).
(c) Disability indemnity shall not be deducted from the death benefit and shall be paid in addition to the death benefit when the injury resulting in death occurs after September 30, 1949. benefit.
(d) All rights under this section existing prior to January 1, 1990, shall be continued
continue in force.
SEC. 149.
Section 4706.5 of the Labor Code is amended to read:4706.5.
(a) Whenever any fatal injury is suffered by an employee under circumstances that would entitle the employee to compensation benefits, but for(b) When If
the deceased employee leaves no does not leave a surviving dependent, personal representative, heir, or other person entitled to the accrued and unpaid compensation referred to in Section 4700, the accrued and unpaid compensation shall be paid by the employer to the Department of Industrial Relations.
(c) The payments to be made to the Department of Industrial Relations, as required by subdivisions (a) and (b), shall be deposited in the General Fund and shall be credited, as a reimbursement, to any appropriation to the Department of Industrial Relations for payment of the additional compensation for subsequent injury provided in Article 5 (commencing with Section 4751), in the fiscal year in which the Controller’s receipt is
issued.
(d) The payments to be made to the Department of Industrial Relations, as required by subdivision (a), shall be paid to the department in a lump sum in the manner provided in subdivision (b) of Section 5101.
(e) The Department of Industrial Relations shall keep a record of all payments due the state under this section, and shall take any steps as may be necessary to collect those amounts.
(f) Each employer, or the employer’s insurance carrier, shall notify the administrative director, in any form as the administrative director may prescribe, of each employee death, except when the employer has actual knowledge or notice that the deceased employee left a surviving dependent.
(g) When, If,
after a reasonable search, the employer concludes that the deceased employee left no one surviving did not leave a survivor who is entitled to a dependency death benefit, and concludes that the death was under circumstances that would entitle the employee to compensation benefits, the employer may voluntarily make the payment referred to in subdivision (a). Payments so made shall be construed as payments The payment shall be deemed to be made pursuant to an appeals board findings and award. Thereafter, if the appeals board finds that the deceased employee did in fact leave a person surviving who is
entitled to a dependency death benefit, upon that finding, all payments referred to in subdivision (a) that have been made shall be forthwith returned to the employer, or if insured, to the employer’s workers’ compensation carrier that indemnified the employer for the loss.
(h) This section does not apply where if
there is no not a surviving person entitled to a dependency death benefit or accrued and unpaid compensation if a death benefit is paid to any a person under paragraph (6) of subdivision (a) of Section 4702.
SEC. 150.
Section 4707 of the Labor Code is amended to read:4707.
(a) Except as provided in subdivision (b), no benefits, except reasonable expenses of burial not exceeding one thousand dollars ($1,000), shall be awarded under this division on account of the death of an employee who is an active member of the Public Employees’ Retirement System unless it is determined that a special death benefit, as defined in the Public Employees’ Retirement Law, or the benefit provided in lieu of the special death benefit in Sections 21547 and 21548 of the Government Code, will not be paid by the Public Employees’ Retirement System to the surviving spouse or children under 18 years of age, of the deceased, on account of the death, but if the total death allowance paid to the surviving spouse and children is less than the benefit otherwise payable under this division the surviving spouse and children are entitled, under this division, to the difference.The amendments to this section during the 1977–78 Regular Session shall be applied retroactively to July 1, 1976.
(b) The limitation prescribed by subdivision (a) shall does not apply to local safety members, or patrol members, as defined in Section 20390 of the Government Code, of the Public Employees’ Retirement System. This subdivision shall be applied
applies retroactively.
SEC. 151.
Section 4708 of the Labor Code is amended to read:4708.
Upon application of any party in interest for a death benefit provided by this division on the death of an employee member of the Public Employees’ Retirement System, the latter shall be joined as a defendant, and the appeals board shall determine whether the employee’s death resulted from injury or illness arising out of and in the course ofSEC. 152.
Section 4723 of the Labor Code is amended to read:4723.
The person or persons to whom the special death benefit is payable pursuant to Section 4722 shall, within one year of the date of death of the elected public official, choose either of the following benefits:(a) An annual benefit equal to one-half of the average annual salary paid to the elected public official in his or her the public official’s elected capacity, less credit for any other death benefit provided for under existing law or by public funds, except benefits payable pursuant to this division or Division 4.5 (commencing with Section 6100). Payments
shall be paid not less frequently than monthly, and shall be paid from the date of death until the spouse dies or remarries, or until the youngest minor dependent child reaches the age of 18 years, whichever occurs last. If payments are being made to a dependent parent or parents they shall continue during dependency.
(b) A lump-sum benefit of one hundred fifty thousand dollars ($150,000), less any other death benefit provided for under existing law or by public funds, except benefits payable pursuant to this division or Division 4.5 (commencing with Section 6100).
SEC. 153.
Section 4751 of the Labor Code is amended to read:4751.
If an employee who is permanently partially disabled receives a subsequent compensable injury resulting in additional permanent partial disability so that the degree of disability caused by the combination of both disabilities is greater than that which would have resulted from the subsequent injury alone, and the combined effect of the last injury and the previous disability or impairment is a permanent disability equal to 70 percent or more of total,SEC. 154.
Section 4753 of the Labor Code is amended to read:4753.
All cases under this section and under Section 4751 shall be governed by the terms of this section and Section 4751 as in effect on the date of the particular subsequent injury.
SEC. 155.
Section 4754 of the Labor Code is amended to read:4754.
The appeals board shall fix and award the amounts of special additional compensation to be paid under this article, and shall direct the State Compensation Insurance Fund to pay the additional compensation so awarded.SEC. 156.
Section 4755 of the Labor Code is amended to read:4755.
(a) The State Compensation Insurance Fund may draw from the State Treasury out of the Subsequent Injuries Benefits Trust Fund for the purposes specified in Section 4751, without at the time presenting vouchers and itemized statements, a sum not to exceed in the aggregate fifty thousand dollars ($50,000), to be used as a cash revolving fund. The revolving fund shall be deposited in any banks and under(b) Expenditures made from the revolving fund in payments on claims for any additional compensation and for adjusting services are exempted from the operation of Section 16003 925.6 of the Government Code. Reimbursement of the revolving fund for these expenditures shall be made upon presentation to the Controller of an abstract or statement of the expenditures. The abstract or statement shall be in any form as the Controller requires.
(c) The administrative director shall assign claims adjustment services and legal representation services
respecting matters concerning subsequent injuries. The
administrative director or his or her the administrative director’s representative may make these service assignments within the department, or he or she may contract for these services with the State Compensation Insurance Fund, for a fee in addition to that authorized by Section 4754, except insofar as these matters might conflict with the interests of the State Compensation Insurance Fund. The administrative costs associated with these services shall be reimbursed from the Workers’ Compensation Administration Revolving Fund, except when a budget impasse requires advances as provided in subdivision (d) of Section 62.5. To the extent permitted by state law, the
administrative director may contract for audits or reports of services under this section.
SEC. 157.
Section 4756 of the Labor Code is amended to read:4756.
(a) The Legislature finds and declares that it is in the best interest of the State of California to provide a person, regardless of(b) A person shall not be prohibited from receiving compensation paid or payable from the Subsequent Injuries Benefits Trust Fund solely because of his or her citizenship or immigration status.
(c) It is the
intent of the Legislature to override Section 15740 of Article 1 of Subchapter 2.1.1 of Chapter 8 of Division 1 of Title 8 of the California Code of Regulations.
(d) The provisions of this section are declaratory of existing law.
SEC. 158.
Section 4800 of the Labor Code is amended to read:4800.
(a)(b) This section applies to law enforcement officers employed by the Department of Fish and Wildlife who are described in subdivision (e) of Section 830.2 of the Penal Code.
(c) This section applies to harbor police officers employed by the San Francisco Port Commission who are described in Section 20402 of the Government Code.
(d) This section shall does not apply to periods of disability that occur subsequent to termination of employment by resignation, retirement, or dismissal. When If this section does not apply, the employee shall be is eligible for those benefits that would apply if this
section had not been enacted.
SEC. 159.
Section 4800.5 of the Labor Code is amended to read:4800.5.
(a) Whenever any sworn member of the Department of the California Highway Patrol is disabled by a single injury, excluding disabilities that are the result of cumulative trauma or cumulative injuries, arising out of and in the course of(b) Benefits payable for eligible sworn members of the Department of the California Highway Patrol whose disability is solely the result of cumulative trauma or injury shall be limited to the actual period of temporary disability or entitlement to maintenance allowance, or for one year, whichever is less.
(c) This section shall does not apply to periods of disability that occur subsequent to termination of employment by resignation, retirement, or dismissal. When If this section does not apply, the employee shall be
is eligible for those benefits that would apply had this section not been enacted.
(d) The appeals board may determine, upon request of any party, whether or not a party, without regard to whether the disability referred to in this section arose out of and in the course of duty. In any an action in which a dispute exists regarding the nature of the injury or the period of temporary disability or entitlement to maintenance allowance, or both,
disability, and upon the request of any party thereto, the appeals board shall determine when the disability commenced and ceased, and the amount of benefits provided by this division to which the employee is entitled during the period of this disability. The appeals board shall have the has jurisdiction to award and enforce payment of these benefits, subject to subdivision (a) or (b), pursuant to Part 4 (commencing with Section 5300). A decision issued by the appeals board under this section is final and binding upon the parties subject to the rights of appeal contained in Chapter 7 (commencing with Section 5900) of Part 4.
(e) Except as provided in subdivision (g), this section shall apply for
applies to periods of disability commencing on or after January 1, 1995.
(f) This section does not apply to peace officers a peace officer designated under subdivision (a) of Section 2250.1 of the Vehicle Code.
(g) Peace officers of the California State Police Division who become sworn members of the Department of the California Highway Patrol as a result of the Governor’s Reorganization Plan No. 1 of 1995, other than those officers described in subdivision (f), shall be are
eligible for injury benefits accruing to sworn members of the Department of the California Highway Patrol under this division only for injuries occurring on or after July 12, 1995.
SEC. 160.
Section 4801 of the Labor Code is amended to read:4801.
ItSEC. 161.
Section 4802 of the Labor Code is amended to read:4802.
SEC. 162.
Section 4803 of the Labor Code is amended to read:4803.
WheneverSEC. 163.
Section 4804 of the Labor Code is amended to read:4804.
SEC. 164.
Section 4804.1 of the Labor Code is amended to read:4804.1.
Whenever any member of a University of California fire department specified in Section 3212.4 falling within the active “firefighting and prevention service” class is disabled by injury arising out of and in the course ofSEC. 165.
Section 4806 of the Labor Code is amended to read:4806.
Whenever any member of the University of California Police Department falling within the “law enforcement” class is disabled by injury arising out of and in the course ofThis section shall apply applies only to those members of the University of California Police Department specified in Section 3213.
SEC. 166.
Section 4816 of the Labor Code is amended to read:4816.
Pursuant to a collective bargaining agreement applicable to members of the California State University Police Department, wheneverThis section shall apply applies only to members of the California State University Police Department whose principal duties consist of active law enforcement, and shall does not apply to persons employed in the California State University Police Department whose principal duties are those of telephone operator, clerk, stenographer, machinist, mechanic, or otherwise clearly not falling within the scope of active law enforcement service, even though the person is subject to occasional call or is
occasionally called upon to perform duties within the scope of active law enforcement service.
SEC. 167.
Section 4850 of the Labor Code is amended to read:4850.
(a)(b) The persons eligible under subdivision (a) include all of the following:
(1) City police officers.
(2) City, county, or district firefighters.
(3) Sheriffs.
(4) Officers or employees of any sheriff’s offices.
(5) Inspectors, investigators, detectives, or personnel with comparable titles in any district attorney’s office.
(6) County probation officers, group counselors, or juvenile services officers.
(7) Officers or employees of a probation office.
(8) Peace officers under Section 830.31 of the Penal Code employed on a regular, full-time basis by a county of the first class.
(9) Lifeguards employed year round on a regular, full-time basis by a county of the first class or by the City of San Diego.
(10) Airport law enforcement officers under subdivision (d) of Section 830.33 of the Penal Code.
(11) Harbor or port police officers, wardens, or special officers of a harbor or port district or city or county harbor department under subdivision (a) of Section 830.1 or subdivision (b) of Section 830.33 of the Penal Code.
(12) Police officers of the Los Angeles Unified School District.
(c) This section shall apply
applies only to persons listed in subdivision (b) who meet the requirements of subdivision (a), and shall not include any of the following:
(1) Employees of a police department whose principal duties are those of a telephone operator, clerk, stenographer, machinist, mechanic, or otherwise, and whose functions do not clearly fall within the scope of active law enforcement service.
(2) Employees of a county sheriff’s office whose principal duties are those of a telephone operator, clerk, stenographer, machinist, mechanic, or otherwise, and whose functions do not clearly come within the scope of active law enforcement service.
(3) Employees of a county probation office whose principal duties are those of a telephone operator, clerk, stenographer, machinist, mechanic, or otherwise,
and whose functions do not clearly come within the scope of active law enforcement service.
(4) Employees of a city fire department, county fire department, or fire district whose principal duties are those of a telephone operator, clerk, stenographer, machinist, mechanic, or otherwise, and whose functions do not clearly fall within the scope of active firefighting and prevention service.
(d) If the employer is insured, the payments that, except for this section, the insurer would be obligated to make as disability indemnity to the injured, the insurer may pay to the insured.
(e) No A leave of absence taken pursuant to this
section by a peace officer, as defined by Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2 of the Penal Code, or by a city, county, or district firefighter, shall be deemed to
does not constitute family care and medical leave, as defined in Section 12945.2 of the Government Code, or to reduce the time authorized for family care and medical leave by Section 12945.2 of the Government Code.
(f) This section shall does not apply to any persons a person described in paragraph (1) or (2) of subdivision (b) who are employees of the City and County of San Francisco.
(g) Amendments to subdivision (f) made by the act adding this subdivision shall be applied
apply retroactively to January 1, 2010.
SEC. 168.
Section 4850.3 of the Labor Code is amended to read:4850.3.
A city, county, special district, or harbor district that is a member of the Public Employees’ Retirement System, is subject to the County Employees Retirement Law of 1937, or is subject to the Los Angeles City Employees’ Retirement System, may make advanced disability pension payments to any local safety officer who has qualified for benefits under Section 4850 and is approved for a disability allowance. The payments shall be no less than 50 percent of the estimated highest average annual compensation earnable by the local safety officer during the three consecutive years of employment immediately preceding the effective date ofSEC. 169.
Section 4850.4 of the Labor Code is amended to read:4850.4.
(a) A city, county, special district, or harbor district that is a member of the Public Employees’ Retirement System, is subject to the County Employees Retirement Law of 1937, or is subject to the Los Angeles City Employees’ Retirement Systems, shall make advanced disability pension payments in accordance with Section 4850.3 unless any of the following is applicable:(1) After an examination of the employee by a physician, the physician determines that there is no discernable injury to, or illness of, the employee.
(2) The employee was incontrovertibly outside the course of his or her
employment duties when the injury occurred.
(3) There is proof of fraud associated with the filing of the employee’s claim.
(b) Any An employer described in subdivision (a) who is required to make advanced disability pension payments, payments shall make the payments commencing no later than 30 days from the date of issuance of the last disbursed of the following:
(1) The employee’s last regular payment of wages or salary.
(2) The employee’s last payment of benefits under Section 4850.
(3) The employee’s last payment for sick leave.
(c) The advanced disability payments shall continue until the claimant is approved or disapproved for a disability allowance pursuant to final adjudication as provided by law.
(d) An employer described in subdivision (a) shall be required to make advanced disability pension payments only if the employee does all of the following:
(1) Files an application for disability retirement at least 60 days prior to the payment of benefits pursuant to subdivision (a).
(2) Fully cooperates in providing the employer with medical
information and in attending all statutorily required medical examinations and evaluations set by the employer.
(3) Fully cooperates with the evaluation process established by the retirement plan.
(e) The 30-day period for the commencement of payments pursuant to subdivision (b) shall be tolled by whatever period of time is directly related to the employee’s failure to comply with the provisions of subdivision (d).
(f) After final adjudication, if an employee’s disability application is denied, the local agency and the employee shall arrange for the employee to repay any advanced disability pension payments received by the employee pursuant to this subdivision. The repayment plan shall take into account the employee’s ability to repay the advanced disability payments received. Absent an agreement on repayment, the
matter shall be submitted for a local agency administrative appeals remedy that includes an independent level of resolution to determine a reasonable repayment plan. If repayment is not made according to the repayment plan, the local agency may take reasonable steps, including litigation, to recover the payments advanced.
SEC. 170.
Section 4853 of the Labor Code is amended to read:4853.
WheneverSEC. 171.
Section 4855 of the Labor Code is amended to read:4855.
This articleSEC. 172.
Section 4856 of the Labor Code is amended to read:4856.
(a) Whenever any local employee who is a firefighter, or peace officer as described in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2 of the Penal Code, or a Sheriff’s Special Officer of the County of Orange, is killed in the performance of(b) Subdivision (a) also applies to the employer of any local employee who is a firefighter, or peace officer as described in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2 of the Penal Code, who was killed in the performance of his or her duty or who died as a result of an accident or injury caused by external violence or physical force incurred in the performance of his or her
duty prior to September 30, 1996.
SEC. 173.
Section 4903 of the Labor Code is amended to read:4903.
The appeals board may determine, and allow as liens against any sum to be paid as compensation, any amount determined as hereinafter set forth in subdivisions (a) through (i). If more than one lien is allowed, the appeals board may determine the priorities, if any,(a) A reasonable attorney’s fee for legal services pertaining to any claim for compensation either before the appeals board or before any of the appellate courts, and the reasonable disbursements in connection therewith. No
A fee for legal services shall not be awarded to any a representative who is not an attorney, except with respect to those claims for compensation for which an
application, pursuant to Section 5501, has been filed with the appeals board on or before December 31, 1991, or for which a disclosure form, pursuant to Section 4906, has been sent to the employer, or insurer or third-party administrator, if either is known, on or before December 31, 1991. attorney.
(b) The reasonable expense incurred by or on behalf of the injured employee, as provided by Article 2 (commencing with Section 4600), and to the extent the employee is entitled to reimbursement under Section 4621, medical-legal expenses as provided by Article 2.5 (commencing with Section 4620) of Chapter 2 of Part 2, except those disputes subject to independent medical review or independent bill review.
(c) The reasonable value of the living expenses of an injured
employee or of his or her
the employee’s dependents, subsequent to the injury.
(d) The reasonable burial expenses of the deceased employee, not to exceed the amount provided for by Section 4701.
(e) The reasonable living expenses of the spouse or minor children of the injured employee, or both, subsequent to the date of the injury, where the employee has deserted or is neglecting his or her the family. These expenses shall be allowed in the proportion that the appeals board deems proper, under application of the spouse, guardian of the minor children, or the assignee, pursuant to subdivision (a) of Section 11477 of the Welfare and Institutions Code, of the spouse, a former
spouse, or minor children. A collection received as a result of a lien against a workers’ compensation award imposed pursuant to this subdivision for payment of child support ordered by a court shall be credited as provided in Section 695.221 of the Code of Civil Procedure.
(f) The amount of unemployment compensation disability benefits that have been paid under or pursuant to the Unemployment Insurance Code in those cases where, pending a determination under this division there was uncertainty whether the benefits were payable under the Unemployment Insurance Code or payable hereunder; provided, however, that any lien under this subdivision shall be allowed and paid as provided in Section 4904.
(g) The amount of unemployment compensation benefits and extended duration benefits paid to the injured employee for the same day or days for which he or she
the employee receives, or is entitled to receive, temporary total disability indemnity payments under this division; provided, however, that any lien under this subdivision shall be allowed and paid as provided in Section 4904.
(h) The amount of family temporary disability insurance benefits that have been paid to the injured employee pursuant to the Unemployment Insurance Code for the same day or days for which that employee receives, or is entitled to receive, temporary total disability indemnity payments under this division, provided, however, that any lien under this subdivision shall be allowed and paid as provided in Section 4904.
(i) The amount of indemnification granted by the California Victims of Crime Program pursuant to Article 1 (commencing with Section 13959)
13950) of Chapter 5 of Part 4 of Division 3 of Title 2 of the Government Code.
SEC. 174.
Section 4903.2 of the Labor Code is amended to read:4903.2.
(b) The amount of the attorney’s fee out of the lien claimant’s recovery shall be based on the extent of applicant’s attorney’s efforts on behalf of the lien claimant. The ratio of the amount of the attorney’s fee awarded against the lien claimant’s recovery to that recovery
shall not exceed the ratio of the amount of the attorney’s fee awarded against the applicant’s award to that award.
SEC. 175.
Section 4903.3 of the Labor Code is amended to read:4903.3.
The director, as administrator of the Uninsured Employers Benefits Trust Fund, may, inThe appeals board shall determine and allow as a first lien against any sum to be paid as compensation the amount of compensation, including the cost of medical treatment, provided by the director pursuant to this section.
SEC. 176.
Section 4904 of the Labor Code is amended to read:4904.
(a) If notice is given in writing to the insurer, or to the employer if uninsured, setting forth the nature and extent of any claim that is allowable as a lien in favor of the Employment Development Department, the claim is a lien against any amount thereafter payable as temporary or permanent disability compensation, subject to the determination of the amount and approval of the lien by the appeals board. When the Employment Development Department has served an insurer or employer with a lien claim, the insurer or employer shall notify the Employment Development Department, in writing, as soon as possible, but in no event later than 15 working days after commencing disability indemnity payments. When a lien has been served on an insurer or an employer by the Employment Development Department, the insurer or employer shall notify the Employment Development Department, in writing, within 10 working days of filing an application for adjudication, a stipulated award, or a compromise and release with the appeals board.(b) (1) In determining the amount of lien to be allowed for unemployment compensation disability benefits under subdivision (f) of Section 4903, the appeals board shall allow the lien in the amount of benefits which it finds were paid for the same day or days of disability for which an award of compensation for any permanent disability indemnity resulting solely from the same injury or illness or temporary disability indemnity, or both, is made and for which the employer has not reimbursed the Employment Development Department pursuant to Section 2629.1 of the Unemployment Insurance Code.
(2) In determining the amount of lien to be allowed for unemployment compensation
benefits and extended duration benefits under subdivision (g) of Section 4903, the appeals board shall allow the lien in the amount of benefits which it finds were paid for the same day or days for which an award of compensation for temporary total disability is made.
(3) In determining the amount of lien to be allowed for family temporary disability insurance benefits under subdivision (h) of Section 4903, the appeals board shall allow the lien in the amount of benefits that it finds were paid for the same day or days for which an award of compensation for temporary total disability is made and for which the employer has not reimbursed the Employment Development Department pursuant to Section 2629.1 of the Unemployment Insurance Code.
(c) In the case of agreements for the compromise and release of a disputed claim for compensation, the applicant and defendant may propose to the
appeals board, as part of the compromise and release agreement, an amount out of the settlement to be paid to any lien claimant claiming under subdivision (f), (g), or (h) of Section 4903. If the lien claimant objects to the amount proposed for payment of its lien under a compromise and release settlement or stipulation, the appeals board shall determine the extent of the lien claimant’s entitlement to reimbursement on its lien and make and file findings on all facts involved in the controversy over this issue in accordance with Section 5313. The appeals board may approve a compromise and release agreement or stipulation which proposes the disallowance of a lien, in whole or in part, only where there is proof of service upon the lien claimant by the defendant, not less than 15 days prior to the appeals board action, of all medical and rehabilitation documents and a copy of the proposed compromise and release agreement or
stipulation. The determination of the appeals board, subject to petition for reconsideration and to the right of judicial review, as to the amount of lien allowed under subdivision (f), (g), or (h) of Section 4903, whether in connection with an award of compensation or the approval of a compromise and release agreement, shall be binding on the lien claimant, the applicant, and the defendant, insofar as the right to benefits paid under the Unemployment Insurance Code for which the lien was claimed. The appeals board may order the amount of any lien claim, as determined and allowed by it, to be paid directly to the person entitled, either in a lump sum or in installments.
(d) Where If unemployment compensation disability benefits, including family temporary
disability insurance benefits, have been paid pursuant to the Unemployment Insurance Code while reconsideration of an order, decision, or award is pending, or has been granted, the appeals board shall determine and allow a final amount on the lien as of the date the board is ready to issue its decision denying a petition for reconsideration or affirming, rescinding, altering or amending the original findings, order, decision, or award.
(e) The appeals board shall not be prohibited from approving may approve a compromise and release agreement on all other issues and deferring defer
to subsequent proceedings the determination of a lien claimant’s entitlement to reimbursement if the defendant in any of these proceedings agrees to pay the amount subsequently determined to be due under the lien claim.
(f) The amendments made to this section by the act adding this subdivision Chapter 363 of the Statues of 2012 are declaratory of existing law, and shall do not constitute good cause to reopen, rescind, or amend any final order, decision, or award of the appeals board.
SEC. 177.
Section 4904.1 of the Labor Code is amended to read:4904.1.
The payment of liens as provided in SectionSEC. 178.
Section 4908 of the Labor Code is amended to read:4908.
A claim for compensation for the injury or death ofSEC. 179.
Section 4909 of the Labor Code is amended to read:4909.
SEC. 180.
Section 5000 of the Labor Code is amended to read:5000.
(a) Impair the right of the parties interested to compromise, subject to the provisions herein contained, any liability which that is claimed to exist under this division on account of injury or death.
(b) Confer upon the dependents of any an injured employee any interest which an interest that the employee may not
release by compromise or for which he, or his
the employee or the employee’s
estate is in the event of such that compromise by him the employee accountable to dependents.
SEC. 181.
Section 5001 of the Labor Code is amended to read:5001.
Compensation is the measure of the responsibilitySEC. 182.
Section 5004 of the Labor Code is amended to read:5004.
In case of(a) The date of death.
(b) The name of the widow.
surviving spouse.
(c) The names and ages of all children.
(d) The names of all other dependents.
(e) Whether the dependents are total or partial.
(f) The amount paid or to be paid as a death benefit and to whom payment is to be made.
SEC. 183.
Section 5005 of the Labor Code is amended to read:5005.
In any case where
(b) If a compromise and release agreement of a portion of a claim has been made and approved, the employee may elect to proceed as provided in Section 5500.5 against any one or more of the remaining employers, or against an employer for that portion of his the employer’s exposure not so released; in any such that
proceeding after election following compromise and release, that portion of liability attributable to the portion or portions of the exposure so released shall be assessed and deducted from the liability of the remaining defendant or defendants, but any such that defendant shall receive no not receive credit for any moneys paid by way of compromise and release in excess of the liability actually assessed against the released employments and the employee
shall not receive any further benefits from the released employments for any
liability assessed to them above what was paid by way of compromise and release.
In
(c) In approving a compromise and release agreement under this section, the appeals board or referee workers’ compensation judge shall determine the adequacy of the compromise and release agreement as it shall then reflect the potential liability of the released exposure after apportionment, but need not make a
final actual determination of the potential liability of the employer or employers for that portion of the exposure being released.
SEC. 184.
Section 5100.6 of the Labor Code is repealed.Notwithstanding the provisions of Section 5100, the appeals board shall not permit the commutation or settlement of prospective compensation or indemnity payments or other benefits to which the employee is entitled under vocational rehabilitation.
SEC. 185.
Section 5102 of the Labor Code is amended to read:5102.
The appeals board may order the lump sum paid directly to the injured employee orSEC. 186.
Section 5104 of the Labor Code is amended to read:5104.
In the appointment of the trustee, preference may be given to the choice of the injured employee orSEC. 187.
Section 5105 of the Labor Code is amended to read:5105.
Upon the payment of a lump sum, the employer shall present to the appeals board a proper receipt evidencing the same, executed either by the injured employee orSEC. 188.
Section 5270.5 of the Labor Code is amended to read:5270.5.
(a) The(1) A certified specialist in workers’ compensation, or eligible to become
certified.
(2) A retired workers’ compensation judge.
(3) A retired appeals board member.
(4) An attorney who has been certified to serve as a judge pro tempore.
(b) No An attorney shall not be included in a panel of arbitrators, if he or she that attorney has served as
a judge in any
or judge pro tempore in a proceeding involving the same case, or has represented, or whose firm has represented, any
a party in the same case.
SEC. 189.
Section 5271 of the Labor Code is amended to read:5271.
(a) The parties to a dispute submitted for arbitration may select(b) If the parties cannot select an arbitrator by agreement, either party may request the presiding workers’ compensation judge to assign a panel of five arbitrators selected at random from the list of eligible attorneys. No more than three arbitrators on a five-member panel may be defense attorneys, no more than three may be applicant’s attorneys, and no more than two may be retired workers’ compensation judges or appeals board commissioners.
(c) For each party in excess of one party in the capacity of employer and one party in the capacity of injured employee or lien claimant, the presiding judge shall randomly select two additional arbitrators to add to the panel. For each additional party in the capacity of employer, the presiding judge shall assign a retired workers’ compensation judge or retired appeals
board commissioner and an applicant’s attorney. For each additional party in the capacity of injured employee or lien claimant, the presiding judge shall assign a retired workers’ compensation judge or retired appeals board commissioner and a defense attorney. For each additional other party, the presiding judge shall assign two arbitrators to the panel, in order of rotation from case to case, as follows: a retired workers’ compensation judge or retired appeals board commissioner, an applicant’s attorney, a defense attorney.
(d) A party may petition the presiding workers’ compensation judge to remove a member from the panel pursuant to Section 170.1 of the Code of Civil Procedure. The presiding workers’ compensation judge shall assign another eligible attorney to replace any member removed under this subdivision.
(e) Each party or lien claimant shall strike two members from the
panel, and the remaining attorney shall serve as arbitrator.
SEC. 190.
Section 5307.5 of the Labor Code is amended to read:5307.5.
The appeals board or a workers’ compensation judge(a) Appoint a trustee or guardian ad litem to appear for and represent any a minor or incompetent upon the terms and conditions which it deems
deemed proper. The guardian or trustee shall, if required by the appeals board, board or a workers’ compensation judge, 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 that the appeals board determines. or workers’ compensation judge determines. The bond shall be approved by the appeals board,
board or workers’ compensation judge,
and the guardian or trustee shall not be discharged from liability until he or she the guardian or trustee files an account with the appeals board board or workers’ compensation judge, 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
board, workers’ compensation judge, or 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.
SEC. 191.
Section 5307.6 of the Labor Code is amended to read: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 timeThe schedule shall consist of a series of procedure codes, relative values, and a conversion factor producing fees which
that provide remuneration to physicians performing medical-legal evaluations at a level equivalent to that provided to physicians for reasonably comparable work, and which that 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 shall not charge in excess of his or her
the provider’s 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 If there is 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 workers’
compensation judge determines that the fee charged was reasonable and justified by extraordinary circumstances.
(d) (1) No provider may A provider shall not 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 that
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 a provider who violates 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.
SEC. 192.
Section 5310 of the Labor Code is amended to read:5310.
The appeals board may appoint one or more workers’ compensationSEC. 193.
Section 5311.5 of the Labor Code is amended to read:5311.5.
The administrative director shall require all workers’ compensationSEC. 194.
Section 5312 of the Labor Code is amended to read:5312.
Before entering uponSEC. 195.
Section 5400 of the Labor Code is amended to read:5400.
Except as provided bySEC. 196.
Section 5401 of the Labor Code is amended to read:5401.
(a) Within one working day of receiving notice or knowledge of injury under Section 5400 or 5402, which injury results in lost time beyond the employee’s work shift at the time of injury or which results in medical treatment beyond first aid, the employer shall provide, personally or by first-class mail, a claim form and a notice of potential eligibility for benefits under this division to the injured employee, or in the case of death, to(b) Insofar as practicable, the notice of potential eligibility for benefits required by this section and the claim form shall be a single document and shall instruct the injured
employee to fully read the notice of potential eligibility. The form and content of the notice and claim form shall be prescribed by the administrative director after consultation with the Commission on Health and Safety and Workers’ Compensation. The notice shall be easily understandable and available in both English and Spanish. The content shall include, but not be limited to, the following:
(1) The procedure to be used to commence proceedings for the collection of compensation for the purposes of this chapter.
(2) A description of the different types of workers’ compensation benefits.
(3) What happens to the claim form after it is filed.
(4) From whom the employee can obtain medical care for the injury.
(5) The role and function of the primary treating physician.
(6) The rights of an employee to select and change the treating physician pursuant to subdivision (e) of Section 3550 and Section 4600.
(7) How to get medical care while the claim is pending.
(8) The protections against discrimination provided pursuant to Section 132a.
(9) The following written statements:
(A) You have a right to disagree with decisions affecting your claim.
(B) To obtain important information about the workers’ compensation claims process and your rights and obligations, go to [applicable Internet Web site(s)],
internet website(s)], or contact an information and assistance (I&A) officer of the state Division of Workers’ Compensation. You can also hear recorded information and a list of local I&A offices by calling [applicable information and assistance telephone number(s)].
(C) You can consult an attorney. Most attorneys offer one free consultation. If you decide to hire an attorney, his or her the attorney’s fee will be taken out of some of your benefits. For names of workers’ compensation attorneys, call the State Bar of California at [telephone number of the State Bar of California’s legal specialization
program, or its equivalent].
(c) The completed claim form shall be filed with the employer by the injured employee, or, in the case of death, by a dependent of the injured employee, or by an agent of the employee or dependent. Except as provided in subdivision (d), a claim form is deemed filed when it is personally delivered to the employer or received by the employer by first-class or certified mail. A dated copy of the completed form shall be provided by the employer to the employer’s insurer and to the employee, dependent, or agent who filed the claim form.
(d) The claim form shall be filed with the employer prior to the injured employee’s entitlement to late payment supplements under subdivision (d) of Section 4650, or prior to the injured employee’s request for a medical evaluation under Section 4060, 4061, or 4062. Filing of the claim form with the employer shall toll, for
injuries occurring on or after January 1, 1994, the time limitations set forth in Sections 5405 and 5406 until the claim is denied by the employer or the injury becomes presumptively compensable pursuant to Section 5402. For purposes of this subdivision, a claim form is deemed filed when it is personally delivered to the employer or mailed to the employer by first-class or certified mail.
SEC. 197.
Section 5402 of the Labor Code is amended to read:5402.
(a) Knowledge of an injury, obtained from any source, on the part of an employer,(b) If liability is not rejected within 90 days after the date the claim form is filed under Section 5401, the injury shall be presumed compensable under this division. The presumption of this subdivision is rebuttable
only by evidence discovered subsequent to the 90-day period.
(c) Within one working day after an employee files a claim form under Section 5401, the employer shall authorize the provision of all treatment, consistent with Section 5307.27, for the alleged injury and shall continue to provide the treatment until the date that liability for the claim is accepted or rejected. Until the date the claim is accepted or rejected, liability for medical treatment shall be limited to ten thousand dollars ($10,000).
(d) Treatment provided under subdivision (c) shall does not give rise to a presumption of liability on the part of the employer.
SEC. 198.
Section 5408 of the Labor Code is amended to read:5408.
If an injured employee or, in the case of the employee’s death, any of the employee’s dependents, is under 18 years of age or incompetent at any time whenNo limitation of time provided by this division shall run against any person under 18 years of age or any an incompetent unless and until a guardian or conservator of the estate or trustee is appointed. The appeals board may determine the fact of the minority or
incompetency of any
an injured employee and may appoint a trustee to receive and disburse compensation payments for the benefit of such minor or incompetent and his family. the employee and the employee’s family.
SEC. 199.
Section 5412 of the Labor Code is amended to read:5412.
The date of injury in cases of occupational diseases or cumulative injuries is that date upon which the employee first suffered disability therefrom and either knew, or in the exercise of reasonable diligence should have known, thatSEC. 200.
Section 5432 of the Labor Code is amended to read:5432.
(a)NOTICE
Making a false or fraudulent workers’ compensation claim is a felony subject to up to 5 years in prison or a fine of up to $50,000 or double the value of the fraud, whichever is greater, or by both imprisonment and fine.
(b)
“Making a false or fraudulent workers’ compensation claim is a felony subject to up to 5 years in prison or a fine of up to $50,000 or double the value of the fraud, whichever is greater, or by both imprisonment and fine.”
(c) This chapter does not supersede or repeal
(d) For purposes of subdivisions (a) and (b), the notice or statement shall be written or spoken in English. In those cases where
If the preponderance of the listening or reading public receives information other than in the English language, the written notice or spoken statement shall be in those other languages.
SEC. 201.
Section 5433 of the Labor Code is amended to read:5433.
(a)(b) No person shall A
person shall not solicit persons to file a workers’ compensation claim or to engage or consult counsel or a medical care provider or clinic to consider a workers’ compensation claim through the use of a true or fictitious name which that is deceptive or misleading with regard to the status, character, or proprietary or representative capacity of the entity or person, or to the true purpose of the advertisement.
(c) For purposes of this section, an advertisement includes a solicitation in any newspaper, magazine, circular, form letter, or open publication, published, distributed, or circulated in this state, or on any billboard, card, label, transit advertisement, or other written
or electronic advertising medium, and includes envelopes, stationery, business cards, or other material designed to encourage the filing of a workers’ compensation claim.
(d) Advertisements shall not employ words, initials, letters, symbols, or other devices which are so similar to those used by governmental agencies, a nonprofit or charitable institution, or other entity that they could have the capacity or tendency to mislead the public. Examples of misleading materials include, but are not limited to, those that imply any of the following:
(1) The advertisement is in some way provided by or is endorsed by a governmental agency or charitable institution.
(2) The advertiser is the same as, is connected with, or is endorsed by a governmental agency or charitable institution.
(e) Advertisements may
shall not use the name of a state or political subdivision thereof in an advertising solicitation.
(f) Advertisements may not use any
a name, service mark, slogan, symbol, or any device in any a manner which that implies that the advertiser, or any a person or entity associated with the advertiser, or that any agency who may call upon the person in response to the advertisement, is connected with a governmental agency.
(g) Advertisements may not imply that the reader,
listener, or viewer may lose a right or privilege or benefits under federal, state, or local law if he or she that reader, listener, or viewer fails to respond to the advertisement.
SEC. 202.
Section 5451 of the Labor Code is amended to read:5451.
Any party may consult with, or seek the advice of, an information and assistance officer within the Division of Workers’ Compensation as designated by the administrative director. IfSEC. 203.
Section 5453 of the Labor Code is amended to read:5453.
After consideration of the information submitted, including the reports ofSEC. 204.
Section 5454 of the Labor Code is amended to read:5454.
Submission of any matter to an information and assistance officer of the Division of Workers’ CompensationSEC. 205.
Section 5500.3 of the Labor Code is amended to read:5500.3.
(a) The appeals board shall establish uniform district office procedures, uniform forms, and uniform time of court settings for all district offices of the appeals board.(b) The appeals board shall establish uniform court procedures and uniform forms for all other proceedings of the appeals board.
SEC. 206.
Section 5500.5 of the Labor Code is amended to read:5500.5.
(a) Except as otherwise provided in Section 5500.6, liability for occupational disease or cumulative injury claims filed or asserted on or after January 1,For claims filed or | The period shall be: |
January 1, 1979 | three years |
January 1, 1980 | two years |
January 1, 1981 and thereafter | one year |
In the
event that
If none of the employers during the above referenced periods period of occupational disease or cumulative injury are insured for workers’ compensation coverage or an approved alternative thereof, liability shall be imposed upon the last year of employment exposing the employee to the hazards of the occupational disease or cumulative injury for which an employer is insured for workers’ compensation coverage or an approved alternative thereof.
Any
An employer held liable for workers’ compensation benefits as a result of another employer’s failure to secure the payment of compensation as required by this division shall be entitled to reimbursement from the employers who were unlawfully uninsured during the last year of the employee’s employment, and shall be subrogated to the rights granted to the employee against the unlawfully uninsured employers under the provisions of Article 1 (commencing with Section 3700) of Chapter 4 of Part 1 of Division 4.
If, based upon all the evidence presented, the appeals board or workers’ compensation judge finds the existence of cumulative injury or occupational disease, liability for the cumulative injury or occupational disease shall not be apportioned to prior or subsequent years; however, in determining the liability, evidence
of disability due to specific injury, disability due to nonindustrial causes, or disability previously compensated for by way of a findings and award or order approving compromise and release, or a voluntary payment of disability, may be admissible for purposes of apportionment.
(b) Where If a claim for compensation benefits is made on account of an occupational disease or cumulative injury which may have arisen out of more than one employment, the application shall state the names and addresses of all employers liable under subdivision (a), the places of employment, and the approximate periods of employment where the employee was exposed to the hazards of the occupational disease or cumulative injury. If the application is not so prepared or omits
necessary and proper employers, any interested party, at or prior to the first hearing, may request the appeals board to join as defendant any necessary or proper party. If the request is made prior to the first hearing on the application, the appeals board shall forthwith join the employer as a party defendant and cause a copy of the application together with a notice of the time and place of hearing to be served upon the omitted employer; provided, the notice can be given within the time specified in this division. If the notice cannot be timely given or if the motion for joinder is made at the time of the first hearing, then the appeals board or the workers’ compensation judge before whom the hearing is held, if it is found that the omitted employer named is a necessary or proper party, may order a joinder of the party and continue the hearing so that proper notice may be given to the party or parties so joined. Only one continuance shall be allowed for the purpose of joining additional parties.
Subsequent to the first hearing the appeals board shall join as a party defendant any additional employer when it appears that the employer is a proper party, but the liability of the employer shall not be determined until supplemental proceedings are instituted.
(c) In any a case involving a claim of occupational disease or cumulative injury occurring as a result of more than one employment within the appropriate time period set forth in subdivision (a), the employee making the claim, or his or her the
employee’s dependents, may elect to proceed against any one or more of the employers. Where such an
If that election is made, the employee must successfully prove his or her
the employee’s
claim against any one of the employers named, and any award which that the appeals board shall issue awarding compensation benefits shall be a joint and several award as against any two or more employers who may be held liable for compensation benefits. If, during the pendency of any a claim wherein the employee or his or her the employee’s dependents has made an election to proceed against one or more employers, it should appear
that there is another proper party not yet joined, the additional party shall be joined as a defendant by the appeals board on the motion of any
a party in interest, but the liability of the employer shall not be determined until supplemental proceedings are instituted. Any An employer joined as a defendant subsequent to the first hearing or subsequent to the election provided herein shall not be is not entitled to participate in any of the proceedings prior to the appeal board’s final decision, nor to any a continuance or further proceedings, but
may be permitted to ascertain from the employee or his or her dependents such information as the employee’s dependents information that will enable the employer to determine the time, place, and duration of the alleged employment. On supplemental proceedings, however, the right of the employer to full and complete examination or cross-examination shall not be restricted.
(d)(1)In the event a self-insured employer which owns and operates a work location in the State of California, sells or has sold the ownership and operation of the work location pursuant to a sale of a business or all or part of the assets of a business to another self-insured person or entity after January 1, 1974, but before January 1, 1978, and all the requirements of subparagraphs (A) to (D), inclusive, exist, then the liability of the employer-seller and employer-buyer, respectively, for cumulative injuries suffered by employees employed at the work location immediately before the sale shall, until January 1, 1986, be governed by the provisions of this section which were in effect on the date of that sale.
(A)The sale
constitutes a material change in ownership of such work location.
(B)The person or entity making the purchase continues the operation of the work location.
(C)The person or entity becomes the employer of substantially all of the employees of the employer-seller.
(D)The agreement of sale makes no special provision for the allocation of liabilities for workers’ compensation between the buyer and the seller.
(2)For purposes of this subdivision:
(A)“Work location” shall mean any fixed place of business, office, or plant where employees regularly work in the trade or business of the employer.
(B)A “material change in
ownership” shall mean a change in ownership whereby the employer-seller does not retain, directly or indirectly, through one or more corporate entities, associations, trusts, partnerships, joint ventures, or family members, a controlling interest in the work location.
(3)This subdivision shall have no force or effect on or after January 1, 1986, unless otherwise extended by the Legislature prior to that date, and it shall not have any force or effect as respects an employee who, subsequent to the sale described in paragraph (1) and prior to the date of his or her application for compensation benefits has been filed, is transferred to a different work location by the employer-buyer.
(4)If any provision of this subdivision or the application thereof to any person or circumstances is held invalid, that invalidity shall not affect other provisions or applications of this subdivision
which can be given effect without the invalid provision or application, and to this end the provisions of this subdivision are severable.
(e)
(d) At any time within one year after the appeals board has made an award for compensation benefits in connection with an occupational disease or cumulative injury, any an employer held liable under the award may institute proceedings before the appeals board for the purpose of determining an apportionment of liability or right of contribution. The proceeding shall not diminish, restrict, or alter in any way
the recovery previously allowed the employee or his or her
the employee’s dependents, but shall be limited to a determination of the respective contribution rights, interest or liabilities of all the employers joined in the proceeding, either initially or supplementally; provided, however, if the appeals board finds on supplemental proceedings for the purpose of determining an apportionment of liability or of a right of contribution that an employer previously held liable in fact has no liability, it may dismiss the employer and amend its original award in such the manner as may be required.
(f)
(e) If any a proceeding before the appeals board for the purpose of determining an apportionment of liability or of a right of contribution where any if an employee incurred a disability or death resulting from silicosis in underground metal mining operations, the determination of the respective rights and interests of all of the employers joined in the proceedings either initially or supplementally shall be
are as follows:
(1) All employers whose underground metal mining operations resulted in a silicotic exposure during the period of the employee’s employment in those operations shall be jointly and severally liable for the payment of compensation and of medical, surgical, legal and hospital expense which that may be awarded to the employee or his or her the employee’s estate or dependents as the result of disability or death resulting from or aggravated by the exposure.
(2) In making its determination in the supplemental proceeding for the purpose of determining an apportionment of liability or of a right of contribution of percentage liabilities of the various employers engaged in underground metal mining operations the appeals board shall consider as a rebuttal presumption that employment in underground work in any mine for a continuous period of more than three calendar months will result in a silicotic exposure for the employee so employed during the period of employment if the underground metal mine was driven or sunk in rock having a composition which that will result in dissemination of silica or silicotic dust particles when drilled, blasted, or transported.
(g)Any employer shall be
(f) An employer is
entitled to rebut the presumption by showing to the satisfaction of the appeals board, or the workers’ compensation judge, that the mining methods used by the employer in the employee’s place of employment did not result during his or her the employment in the creation of silica dust in sufficient amount or concentration to constitute a silicotic hazard. Dust counts, competently made, at intervals and in locations as meet the requirements of the Division of Occupational Safety and Health for safe working conditions may be received as evidence of the amount and concentration of silica dust in the workings where the counts have been made at the time when they were made. The appeals board may from time to time, as its experience may indicate proper, promulgate orders as to the frequency with which dust counts
shall be taken in different types of workings in order to justify their acceptance as evidence of the existence or nonexistence of a silicotic hazard in the property where they have been taken.
(h)
(g) The amendments to this section adopted at the 1959 Regular Session of the Legislature shall operate retroactively, and shall apply retrospectively to any cases pending before the appeals board or courts. From and after the date this section becomes effective no payment shall be made out of the fund used for payment of the additional compensation provided for in Section 4751, or out of any other state funds, in satisfaction of any liability heretofore incurred or hereafter
incurred, except awards which have become final without regard to the continuing jurisdiction of the appeals board on that effective date, and the state and its funds shall be without liability therefor. This subdivision shall does not in any way effect a reduction in any benefit conferred or which that may be conferred upon any injured employee or his the employee’s dependents.
(i)
(h) The amendments to this section adopted at the 1977 Regular Session of the Legislature shall apply to any
claims for benefits under this division which that are filed or asserted on or after January 1, 1978, unless otherwise specified in this section.
SEC. 207.
Section 5501 of the Labor Code is amended to read:5501.
The application may be filed with the appeals board bySEC. 208.
Section 5501.5 of the Labor Code is amended to read:5501.5.
(a) The application for adjudication of claim shall be filed in any of the following locations:(1) In the county where the injured employee or dependent of a deceased employee resides on the date of filing.
(2) In the county where the injury allegedly occurred, or, in cumulative trauma and industrial disease claims, where the last alleged injurious exposure occurred.
(3) In the county where of the employee’s attorney maintains his or her
attorney’s
principal place of business, if the employee is represented by an attorney.
(b) If the county selected for filing has more than one office of the appeals board, the application shall be filed at any location of the appeals board within that county that meets the criteria specified in subdivision (a). The written consent of the employee, or dependent of a deceased employee, to the selected venue site shall be filed with the application.
(c) If the venue site where the application is to be filed is the county where of the employee’s attorney maintains his or her
attorney’s
principal place of business, the attorney for the employee shall indicate that venue site when forwarding the information request form required by Section 5401.5. check the appropriate venue box on the application for adjudication, note the appropriate district office, and provide the ZIP Code of the attorney’s office. The employer shall have has 30 days from receipt of the information request form to object to the selected venue site. Where initial
application for adjudication to file an objection to a venue selection based on the employee’s attorney’s principal place of business pursuant to paragraph (3) of subdivision (a). If
there is an employer objection to a venue site under paragraph (3) of subdivision (a), then the application shall be filed pursuant to either paragraph (1) or (2) of subdivision (a).
(d) If there is no not an appeals board office in the county where venue is permitted under subdivision (a), the application shall be filed at the appeals board office nearest the residence on the date of filing of the injured employee or dependent of a deceased employee, or the nearest place where the injury allegedly occurred, or, in cumulative trauma and industrial disease claims, where the last injurious exposure occurred, or nearest the location where the attorney of the employee maintains his or her
a principal place of business, unless the employer objects under subdivision (c).
SEC. 209.
Section 5502 of the Labor Code is amended to read:5502.
(a) Except as provided in subdivisions (b) and (d), the hearing shall be held not less than 10 days, and not more than 60 days, after the date a declaration of readiness to proceed, on a form prescribed by the appeals board, is filed. If a claim form has been filed for an injury occurring on or after January 1, 1990, and before January 1, 1994, an application for adjudication shall accompany the declaration of readiness to proceed.(b) The administrative director shall establish a priority calendar for issues requiring an expedited hearing and decision. A hearing shall be held and a determination as to the rights of the parties shall be made and filed within 30 days after the declaration of readiness to proceed is filed if the issues in dispute are any of the
following, provided that if an expedited hearing is requested, no other issue may be heard until the medical provider network dispute is resolved:
(1) The employee’s entitlement to medical treatment pursuant to Section 4600, except for treatment issues determined pursuant to Sections 4610 and 4610.5.
(2) Whether the injured employee is required to obtain treatment within a medical provider network.
(3) A medical treatment appointment or medical-legal examination.
(4) The employee’s entitlement to, or the amount of, temporary disability indemnity payments.
(5) The employee’s entitlement to compensation from one or more responsible employers when two or more employers dispute liability as
among themselves.
(6) Any other issues requiring an expedited hearing and determination as prescribed in rules and regulations of the administrative director.
(c) The administrative director shall establish a priority conference calendar for cases in which the employee is represented by an attorney or is or was employed by an illegally uninsured employer and the issues in dispute are employment or injury arising out of employment or in the course of employment. The conference shall be conducted by a workers’ compensation administrative law judge within 30 days after the declaration of readiness to proceed. If the dispute cannot be resolved at the conference, a trial shall be set as expeditiously as possible, unless good cause is shown why discovery is not complete, in which case status conferences
shall be held at regular intervals. The case shall be set for trial when discovery is complete, or when the workers’ compensation administrative law judge determines that the parties have had sufficient time in which to complete reasonable discovery. A determination as to the rights of the parties shall be made and filed within 30 days after the trial.
(d) (1) In all cases, a mandatory settlement conference, except a lien conference or a mandatory settlement lien conference, shall be conducted not less than 10 days, and not more than 30 days, after the filing of a declaration of readiness to proceed. If the dispute is not resolved, the regular hearing, except a lien trial, shall be held within 75 days after the declaration of readiness to proceed is filed.
(2) The settlement
conference shall be conducted by a workers’ compensation administrative law judge or by a referee pro tem judge who is eligible to be a workers’ compensation administrative law judge or eligible to be an arbitrator under Section 5270.5. At the mandatory settlement conference, the referee or workers’ compensation administrative law judge shall have the authority to resolve the dispute, including the authority to approve a compromise and release or issue a stipulated finding and award,
and if the dispute cannot be resolved, to frame the issues and stipulations for trial. The appeals board shall adopt any
regulations needed to implement this subdivision. The presiding workers’ compensation administrative law judge shall supervise settlement conference referees in the performance of their judicial functions under this subdivision.
(3) If the claim is not resolved at the mandatory settlement conference, the parties shall file a pretrial conference statement noting the specific issues in dispute, each party’s proposed permanent disability rating, and listing the exhibits, and disclosing witnesses. Discovery shall close on the date of the mandatory settlement conference. Evidence not disclosed or obtained thereafter shall not be admissible unless the proponent of the evidence can demonstrate that it was not available or could not have been discovered by the exercise of due diligence prior to the settlement conference.
(e) In cases involving the Director of Industrial Relations in his or her the capacity as administrator of the Uninsured Employers Benefits Trust Fund, this section shall does not apply unless proof of service, as specified in paragraph (1) of subdivision (d) of Section 3716, has been filed with the appeals board and provided to the Director of Industrial Relations, valid jurisdiction has been established over the employer, and the fund has been joined.
(f) Except as provided in subdivision (a), this section shall apply irrespective of the date of injury.
SEC. 210.
Section 5503 of the Labor Code is repealed.The person so applying shall be known as the applicant and the adverse party shall be known as the defendant.
SEC. 211.
Section 5505 of the Labor Code is amended to read:5505.
IfSEC. 212.
Section 5506 of the Labor Code is amended to read:5506.
If the defendant fails to appear or answer,SEC. 213.
Section 5507 of the Labor Code is amended to read:5507.
If an application shows upon its face that the applicant is not entitled to compensation, the appeals board may, after opportunity to the applicant to be heard orally or to submitSEC. 214.
Section 5703.5 of the Labor Code is amended to read:5703.5.
(a) The appeals board, at any time after an application is filed and prior to the expiration of its(b) The administrative director or his or her designees,
a designee, upon the submission of a matter to an information and assistance officer, may, upon the agreement of a party to pay the cost, and with the consent of an unrepresented employee employee, direct the injured employee to be examined by a qualified medical evaluator selected by the medical director, within the scope of the qualified medical evaluator’s professional training, upon any clinical question, other than those issues specified in Section 4061, then pertinent to the investigation of the information and assistance officer.
(c) The 1989 and 1990 amendments to this section shall become operative for
apply to injuries occurring on and after January 1, 1991.
SEC. 215.
Section 5705 of the Labor Code is amended to read:5705.
The burden of proof rests upon the party or lien claimant holding the affirmative of the issue. The following are affirmative defenses, and the burden of proof rests upon the employer to establish them:(a) That an injured person claiming to be an employee was an independent contractor or otherwise excluded from the protection of this division where if there is proof that the injured person was at the time of his or her
the injury actually performing service for the alleged employer.
(b) Intoxication of an the employee causing his or her the injury.
(c) Willful misconduct of an the employee causing his or her
the injury.
(d) Aggravation of disability by unreasonable conduct of the employee.
(e) Prejudice to the employer by failure of the employee to give notice, as required by Sections 5400 and 5401.
SEC. 216.
Section 5706 of the Labor Code is amended to read:5706.
SEC. 217.
Section 5708 of the Labor Code is amended to read:5708.
All hearings and investigations before the appeals board or a workers’ compensation judge are governed by this division and by the rules of practice and procedures adopted by the appeals board. In the conduct thereof they shall not be bound by the common law or statutory rules of evidence and procedure, but may make inquiry in the manner, through oral testimony and records,SEC. 218.
Section 5710 of the Labor Code is amended to read:5710.
(a) The appeals board, a workers’ compensation judge, or any party to the action or proceeding, may, in any investigation or hearing before the appeals board, cause the deposition of witnesses residing within or(b) If the employer or insurance carrier requests a deposition to be taken of an injured employee, or any person claiming benefits as a dependent of an injured employee, the deponent is entitled to receive in addition to all other benefits:
(1) All reasonable expenses of transportation, meals, and lodging incident to the deposition.
(2) Reimbursement for any loss of wages incurred during attendance at the deposition.
(3) One copy of the transcript of the deposition, without cost.
(4) A reasonable allowance for attorney’s fees for the deponent, if represented by an attorney licensed by the State Bar of this state. The fee shall be discretionary with, and, if allowed, shall be set by, the appeals board, board or workers’ compensation judge, but shall be paid by the employer or his or her
the employer’s insurer. The administrative director shall, on or before July 1, 2018, determine the range of reasonable fees to be paid.
(5) If interpretation services are required because the injured employee or deponent does not proficiently speak or understand the English language, upon a request from either, the employer shall pay for the services of a language interpreter certified or deemed certified pursuant to Article 8 (commencing with Section 11435.05) of Chapter 4.5 of Part 1 of Division 3 of Title 2 of, or Section 68566 of, the Government Code. The fee to be paid by the employer shall be in accordance with the fee schedule adopted by the administrative director and shall include any other deposition-related events as permitted by the administrative director.
SEC. 219.
Section 5801 of the Labor Code is amended to read:5801.
The appeals board in its award may fix and determine the total amount of compensation to be paid and specify the manner of payment, or may fix and determine the weekly disability payment to be made and order payment thereof during the continuance of disability.In the event
If the injured employee or the dependent of a deceased employee prevails in any
a petition by the employer for a writ of review from an award of the appeals board and the reviewing court finds that there is no
not a reasonable basis for the petition, it shall remand the cause to the appeals board for the purpose of making a supplemental award awarding to the injured employee or his
the applicant’s attorney, or the dependent of a deceased employee or his the applicant’s attorney a reasonable attorney’s fee for services rendered in connection with the petition for writ of review. Any such That fee shall be in addition to the amount of compensation otherwise recoverable and shall be paid as part of the award by the party liable to pay such that
award.
SEC. 220.
Section 5803 of the Labor Code is amended to read:5803.
The appeals board has continuing jurisdiction over all its orders, decisions, and awards made and entered underThis power includes the right to review, grant or regrant, diminish, increase, or terminate, within the limits prescribed by this
division, any compensation awarded, upon the grounds that the disability of the person in whose favor the award was made has either recurred, increased, diminished, or terminated.
SEC. 221.
Section 5807 of the Labor Code is amended to read:5807.
The certified copy of the findings and order, decision, or award of the appeals board and a copy of the judgment constitute the judgment-roll. The pleadings, all orders of the appeals board, its original findings and order, decision, or award, and all other papers and documents filed in the cause shall remain on fileSEC. 222.
Section 5813 of the Labor Code is amended to read:5813.
(a) The workers’ compensation(b) The determination of sanctions shall be made after written application by the party seeking sanctions or upon the appeal board’s own motion.
(c) This section shall apply applies to all applications for adjudication that are filed on or after January 1, 1994.
SEC. 223.
Section 5903 of the Labor Code is amended to read:5903.
At any time within 20 days after the service of any final order, decision, or award made and filed by the appeals board or a workers’ compensation judge granting or denying compensation, or arising out of or incidental thereto, any person aggrieved thereby may petition for reconsideration upon one or more of the following grounds and no other:(a) That by the order, decision, or award made and filed by the appeals board or the workers’ compensation judge, the appeals board acted without or in excess of its powers.
(b) That the order, decision, or award was procured by fraud.
(c) That the evidence does not justify the
findings of fact.
(d) That the petitioner has discovered new evidence material to him or her, which he or she
the petitioner that could not, with reasonable diligence, have been discovered and produced at the hearing.
(e) That the findings of fact do not support the order, decision, or award.
Nothing contained in this section shall
(f) This section does not limit the grant of continuing jurisdiction contained in Sections 5803 to 5805, inclusive.
SEC. 224.
Section 5908 of the Labor Code is amended to read:5908.
(a) After(b) In any case where If the appeals board rescinds or reduces an order, decision, or award on the grounds specified in paragraph (b) of Section 5903, the appeals board shall refer the case to the Bureau of Fraudulent Claims pursuant to Article 4 (commencing with Section 12990) of Chapter 2 of Division 3 of the Insurance Code, if the employer is insured, or to the district attorney of the county in which the fraud occurred if the employer is
self-insured.
