Law Offices Of Edward J. Singer

THE FOLLOWING IS A HIGHLIGHT OF SOME OF THE NEW CHANGES IN CALIFORNIA WORKERS' COMPENSATION LAWS FOR 2003

PREPARED BY
Edward J. Singer, Esq.

from the

LAW OFFICES OF
EDWARD J. SINGER

A Professional Law Corporation

NEW LAWS CONCERNING PERMANENT DISABILITY RATES:

NOTE THE UNDERLINED SECTIONS:

4659. (a) If the permanent disability is at least 70 percent, but
less than 100 percent, 1.5 percent of the average weekly earnings for
each 1 percent of disability in excess of 60 percent is to be paid
during the remainder of life, after payment for the maximum number of
weeks specified in Section 4658 has been made. For the purposes of
this subdivision only, average weekly earnings shall be taken at not
more than one hundred seven dollars and sixty-nine cents ($107.69).
For injuries occurring on or after July 1, 1994, average weekly wages
shall not be taken at more than one hundred fifty-seven dollars and
sixty-nine cents ($157.69). For injuries occurring on or after July
1, 1995, average weekly wages shall not be taken at more than two
hundred seven dollars and sixty-nine cents ($207.69). For injuries
occurring on or after July 1, 1996, average weekly wages shall not be
taken at more than two hundred fifty-seven dollars and sixty-nine
cents ($257.69). For injuries occurring on or after January 1, 2006,
average weekly wages shall not be taken at more than five hundred
fifteen dollars and thirty-eight cents ($515.38).
(b) If the permanent disability is total, the indemnity based upon
the average weekly earnings determined under Section 4453 shall be
paid during the remainder of life.
(c) For injuries occurring on or after January 1, 2003, an
employee who becomes entitled to receive a life pension or total
permanent disability indemnity as set forth in subdivisions (a) and
(b) shall have that payment increased annually commencing on January
1, 2004, and each January 1 thereafter, by an amount equal to the
percentage increase in the "state average weekly wage" as compared to
the prior year. 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 months ending
March 31 of the calendar year preceding the year in which the injury
occurred.

DEATH BENEFIT CHANGES:

INCREASED RATES AND SPECIAL BENEFITS FOR PHYSICALLY AND/OR MENTALLY INCAPACITATED CHILDREN AND DEATH BENEFITS IF THERE IS ONLY AN ESTATE AND NO DEPENDANTS

4702. (a) Except as otherwise provided in this section and Sections
4553, 4554, 4557, and 4558, 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) 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) The 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.
   (d) All rights under this section existing prior to January 1,
1990, shall be continued in force.

4703.5. In the case of one or more totally dependent minor
children, as defined in Section 3501, after payment of the amount
specified in Section 4702, and notwithstanding the maximum
limitations specified in Sections 4702 and 4703, payment of death
benefits shall continue until the youngest child attains age 18, or
until the death of a child physically or mentally incapacitated from
earning, in the same manner and amount as temporary total disability
indemnity would have been paid to the employee, except that no
payment shall be made at a weekly rate of less than two hundred
twenty-four dollars ($224).

NEW DEFINITION OF FIRST AID: NOW INCLUDES ONE-TIME TREATMENT WITH RETURN APPOINTMENT FOR OBSERVATION

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 his or her dependents.
As used in this subdivision, "first aid" means any one-time
treatment, and any followup visit for the purpose of observation of
minor scratches, cuts, burns, splinters, or other minor industrial
injury, which do not ordinarily require medical care. This one-time
treatment, and followup visit for the purpose of observation, is
considered first aid even though provided by a physician or
registered professional personnel. "Minor industrial injury" shall
not include serious exposure to a hazardous substance as defined in
subdivision (i) of Section 6302. The claim form shall request the
injured employee's name and address, social security number, the time
and address where the injury occurred, and the nature of and part of
the body affected by the injury. Claim forms shall be available at
district offices of the Employment Development Department and the
division. Claim forms may be made available to the employee from any
other source.
   (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) You can obtain free information from an information and
assistance officer of the state Division of Workers' Compensation, or
you can hear recorded information and a list of local 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 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.

CARVE OUT PROVISIONS FOR TIMBER AND AEROSPACE

3201.7. (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 the aerospace or timber industries 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 filled
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 appeal pursuant
to the procedures set forth in Article 2 (commencing with Section
5950) of Chapter 7 of Part 4 of Division 4, governing orders,
decisions, or awards of the appeals board. The findings of fact,
award, order, or decision of the arbitrator shall have the same force
and effect as an award, order, or decision of a workers'
compensation administrative law judge. Any provision for arbitration
established pursuant to this section shall not be subject to
Sections 5270, 5270.5, 5271, 5272, 5273, 5275, and 5277.
   (2) The use of an agreed list of providers of medical treatment
that may be the exclusive source of all medical treatment provided
under this division.
   (3) The use of an agreed, limited list of qualified medical
evaluators and agreed medical evaluators that may be the exclusive
source of qualified medical evaluators and agreed medical evaluators
under this division.
   (4) Joint labor management safety committees.
   (5) A light-duty, modified job or return-to-work program.
   (6) A vocational rehabilitation or retraining program utilizing an
agreed list of providers of rehabilitation services that may be the
exclusive source of providers of rehabilitation services under this
division.
   (b) Nothing in this section shall allow a collective bargaining
agreement that diminishes the entitlement of an employee to
compensation payments for total or partial disability, temporary
disability, vocational rehabilitation, or medical treatment fully
paid by the employer as otherwise provided in this division; nor
shall any agreement authorized by this section deny to any employee
the right to representation by counsel at all stages of the
alternative dispute resolution process. The portion of any agreement
that violates this subdivision shall be declared null and void.
   (c) Subdivision (a) shall apply only to the following:
   (1) An employer developing or projecting an annual workers'
compensation insurance premium, in California, of two hundred fifty
thousand dollars ($250,000) or more, or any employer that paid an
annual workers' compensation insurance premium, in California, of two
hundred fifty thousand dollars ($250,000), in at least one of the
previous three years.
   (2) Groups of employers engaged in a workers' compensation safety
group complying with Sections 11656.6 and 11656.7 of the Insurance
Code, and established pursuant to a joint labor management safety
committee or committees, which develops or projects annual workers'
compensation insurance premiums of two million dollars ($2,000,000)
or more.
   (3) Employer 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 paragraph (1) in
the case of employers, or paragraph (2) in the case of groups of
employers.
   (4) In the aerospace and timber industry, this section shall apply
only to an affiliate of a national or international labor
organization that has one or more affiliate local unions that
negotiated an agreement or agreements pursuant to Section 3201.5
prior to January 1, 2003.
   (d) Employers and labor representatives who meet the eligibility
requirements of this section shall be issued a letter by the
administrative director advising each employer and labor
representative that, based upon the review of all documents and
materials submitted as required by the administrative director, each
has met the eligibility requirements of this section.
   (e) The premium rate for a policy of insurance issued pursuant to
this section shall not be subject to the requirements of Section
11732 or 11732.5 of the Insurance Code.
   (f) No employer may establish or continue a program established
under this section until it has provided the administrative director
with all of the following:
   (1) Upon its original application and whenever it is renegotiated
thereafter, a copy of the collective bargaining agreement and the
approximate number of employees who will be covered thereby.
   (2) Upon its original application and annually thereafter, a valid
and active license where that license is required by law as a
condition of doing business in the state within the industries set
forth in subdivision (a).
   (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) Upon its original application, a plan agreed to between an
employer and any affected union prior to the commencement of
collective bargaining, that establishes a framework for the
implementation of the system to be developed pursuant to paragraph
(1) of subdivision (a).
   (6) Any other information that the administrative director deems
necessary to further the purposes of this section.
   (g) No collective bargaining representative may establish or
continue to participate in a program established under this section
unless all of the following requirements are met:
   (1) Upon its original application and annually thereafter, it has
provided to the administrative director a copy of its most recent
LM-2 or LM-3 filing with the United States Department of Labor, along
with a statement, signed under penalty of perjury, that the document
is a true and correct copy.
   (2) It has provided to the administrative director the name,
address, and telephone number of the contact person or persons of the
collective bargaining representative or representatives.
   (h) Commencing July 1, 2004, and annually thereafter, the Division
of Workers' Compensation shall report to the Director of Industrial
Relations the number of collective bargaining agreements received and
the number of employees covered by these agreements.
   (i) By June 30, 2004, and annually thereafter, the Administrative
Director of the Division of Workers' Compensation shall prepare and
notify members of the Legislature that a report authorized by this
section is available upon request. The report based upon aggregate
data shall include the following:
   (1) Person hours and payroll covered by agreements filed.
   (2) The number of claims filed.
   (3) The average cost per claim shall be reported by cost
components whenever practicable.
   (4) The number of litigated claims, including the number of claims
submitted to mediation, the appeals board, or the court of appeals.

   (5) The number of contested claims resolved prior to arbitration.

   (6) The projected incurred costs and actual costs of claims.
   (7) Safety history.
   (8) The number of workers participating in vocational
rehabilitation.
   (9) The number of workers participating in light-duty programs.
   (10) Overall worker satisfaction.
   The division shall have the authority to require those employers
and groups of employers listed in subdivision (c) to provide the data
listed above.
   (j) The data obtained by the administrative director pursuant to
this section shall be confidential and not subject to public
disclosure under any law of this state. However, the Division of
Workers' Compensation shall create derivative works pursuant to
subdivisions (h) and (i) based on the collective bargaining
agreements and data. Those derivative works shall not be
confidential, but shall be public. On a monthly basis, the
administrative director shall make available an updated list of
employers and unions entering into collective bargaining agreements
containing provisions authorized by this section.

MEDICAL PRIVACY CHANGES: DISCLOSURE LIMITATIONS

3762. (a) Except as provided in subdivisions (b) and (c), the
insurer shall discuss all elements of the claim file that affect the
employer's premium with the employer, and shall supply copies of the
documents that affect the premium at the employer's expense during
reasonable business hours.
   (b) The right provided by this section shall not extend to any
document that the insurer is prohibited from disclosing to the
employer under the attorney-client privilege, any other applicable
privilege, or statutory prohibition upon disclosure, or under Section
1877.4 of the Insurance Code.
   (c) An insurer, third-party administrator retained by a
self-insured employer pursuant to Section 3702.1 to administer the
employer's workers' compensation claims, and those employees and
agents specified by a self-insured employer to administer the
employer's workers' compensation claims, are prohibited from
disclosing or causing to be disclosed to an employer, any medical
information, as defined in subdivision (b) of Section 56.05 of the
Civil Code, about an employee who has filed a workers' compensation
claim, except as follows:
   (1) Medical information limited to the diagnosis of the mental or
physical condition for which workers' compensation is claimed and the
treatment provided for this condition.
   (2) Medical information regarding the injury for which workers'
compensation is claimed that is necessary for the employer to have in
order for the employer to modify the employee's work duties.

TREATING DOCTOR PRESUMPTION OF INJURY: NOW ONLY APPLIES IF PRESIGNATE

4062.9. (a) For injuries occurring on or after January 1, 2003, in
cases where an additional comprehensive medical evaluation is
obtained under Section 4061 or 4062, if the employee has been treated
by his or her personal physician, or by his or her personal
chiropractor, as defined in Section 4601, who was predesignated prior
to the date of injury as provided under Section 4600, the findings
of the personal physician or personal chiropractor are presumed to be
correct. This presumption is rebuttable and may be controverted by
a preponderance of medical opinion indicating a different level of
disability. However, the presumption shall not apply where both
parties select qualified medical examiners.
(b) The administrative director, in consultation with the
Industrial Medical Council, shall develop, not later than January 1,
2004, and periodically revise as necessary thereafter, educational
materials to be used to provide treating physicians and chiropractors
with information and training in basic concepts of workers'
compensation, the role of the treating physician, the conduct of
permanent and stationary evaluations, and report writing.

MEDICAL TREATMENT: MEDICATIONS: GENERIC DRUGS VERSUS NAME BRAND, ALLOWANCE FOR PHARMACY NETWORKS

4600.1. Any pharmacy providing medicines and medical supplies
required by Section 4600 shall provide the generic drug equivalent,
if a generic drug equivalent is available, unless the prescribing
physician specifically provides otherwise in writing.

4600.2. (a) Notwithstanding Section 4600, when a self-insured
employer, group of self-insured employers, insurer of an employer, or
group of insurers contracts with a pharmacy, group of pharmacies, or
pharmacy benefit network to provide medicines and medical supplies
required by this article to be provided to injured employees, those
injured employees that are subject to the contract shall be provided
medicines and medical supplies in the manner prescribed in the
contract for as long as medicines or medical supplies are reasonably
required to cure or relieve the injured employee from the effects of
the injury.
   (b) Nothing in this section shall affect the ability of
employee-selected physicians to continue to prescribe and have the
employer provide medicines and medical supplies that the physicians
deem reasonably required to cure or relieve the injured employee from
the effects of the injury.
   (c) Each contract described in subdivision (a) shall comply with
standards adopted by the administrative director. In adopting those
standards, the administrative director shall seek to reduce
pharmaceutical costs and may consult any relevant studies or
practices in other states. The standards shall provide for access to
a pharmacy within a reasonable geographic distance from an injured
employee's residence.

EXPEDITED HEARINGS NOW FOR ISSUES OF EMPLOYMENT AND INJURY ARISING OUT OF AND IN THE COURSE AND SCOPE OF EMPLOYMENT

5502. (a) Except as provided in subdivisions (b) and (d), the
hearing shall be held not less than 10 days, and not more than 60
days, after the date a declaration of readiness to proceed, on a form
prescribed by the court administrator, is filed. If a claim form
has been filed for an injury occurring on or after January 1, 1990,
and before January 1, 1994, an application for adjudication shall
accompany the declaration of readiness to proceed.
   (b) The court administrator shall establish a priority calendar
for issues requiring an expedited hearing and decision. A hearing
shall be held and a determination as to the rights of the parties
shall be made and filed within 30 days after the declaration of
readiness to proceed is filed if the issues in dispute are any of the
following:
   (1) The employee's entitlement to medical treatment pursuant to
Section 4600.
   (2) The employee's entitlement to, or the amount of, temporary
disability indemnity payments.
   (3) The employee's entitlement to vocational rehabilitation
services, or the termination of an employer's liability to provide
these services to an employee.
   (4) The employee's entitlement to compensation from one or more
responsible employers when two or more employers dispute liability as
among themselves.
   (5) Any other issues requiring an expedited hearing and
determination as prescribed in rules and regulations of the
administrative director.
   (c) The court administrator shall establish a priority conference
calendar for cases in which the employee is represented by an
attorney and the issues in dispute are employment or injury arising
out of employment or in the course of employment. The conference
shall be conducted by a workers' compensation administrative law
judge within 30 days after the declaration of readiness to proceed.
If the dispute cannot be resolved at the conference, a trial shall be
set as expeditiously as possible, unless good cause is shown why
discovery is not complete, in which case status conferences shall be
held at regular intervals. The case shall be set for trial when
discovery is complete, or when the workers' compensation
administrative law judge determines that the parties have had
sufficient time in which to complete reasonable discovery. A
determination as to the rights of the parties shall be made and filed
within 30 days after the trial.
   (d) The court administrator shall report quarterly to the Governor
and to the Legislature concerning the frequency and types of issues
which are not heard and decided within the period prescribed in this
section and the reasons therefor.
   (e) (1) In all cases, a mandatory settlement conference shall be
conducted not less than 10 days, and not more than 30 days, after the
filing of a declaration of readiness to proceed. If the dispute is
not resolved, the regular hearing shall be held within 75 days after
the declaration of readiness to proceed is filed.
   (2) The settlement conference shall be conducted by a workers'
compensation administrative law judge or by a referee who is eligible
to be a workers' compensation administrative law judge or 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.
   (f) In cases involving the Director of the Department of
Industrial Relations in his or her capacity as administrator of the
Uninsured Employers Fund, this section shall not apply unless proof
of service, as specified in paragraph (1) of subdivision (d) of
Section 3716 has been filed with the appeals board and provided to
the Director of Industrial Relations, valid jurisdiction has been
established over the employer, and the fund has been joined.
   (g) Except as provided in subdivision (a) and in Section 4065, the
provisions of this section shall apply irrespective of the date of
injury.

EMPLOYEE ALLOWED MEDICAL EVALUATION AFTER BECOMING REPRESENTED

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.
   (b) For injuries occurring on or after January 1, 2003, if an
unrepresented employee obtains an attorney after the evaluation
pursuant to subdivision (d) of Section 4061 or subdivision (b) 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 an application
for adjudication and the employee is unrepresented at the time the
application is filed, the employer shall be liable for any attorney's
fees incurred by the employee in connection with the application for
adjudication.
   (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
employer or employee be 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
subdivisions (d) and (m) of Section 4061 and subdivisions (b) and (e)
of Section 4062.

NEW INCREASED TOTAL TEMPORARY DISABILITY RATES AND PERMANENT PARTIAL DISABILITY RATES

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 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 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 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 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 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.
   (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 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 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 the employment is for less than 30 hours per week, or
where 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 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.

ELECTRONIC DEPOSITS ARE NOW AVAILABLE UNDER CERTAIN CIRCUMSTANCES

4651. (a) No disability indemnity payment shall be made by any
written instrument unless it is immediately negotiable and payable in
cash, on demand, without discount at some established place of
business in the state.
   Nothing in this section shall prohibit an employer from depositing
the disability indemnity payment in an account in any bank, savings
and loan association or credit union of the employee's choice in this
state, provided the employee has voluntarily authorized the deposit,
nor shall it prohibit an employer from electronically depositing the
disability indemnity payment in an account in any bank, savings and
loan association, or credit union, that the employee has previously
authorized to receive electronic deposits of payroll, unless the
employee has requested, in writing, that disability indemnity
benefits not be electronically deposited in the account.
   (b) It is not a violation of this section if a delay in the
negotiation of a written instrument is caused solely by the
application of state or federal banking laws or regulations.
   (c) On or before July 1, 2004, the administrative director shall
present to the Governor recommendations on how to provide better
access to funds paid to injured workers in light of the requirements
of federal and state laws and regulations governing the negotiability
of disability indemnity payments. The administrative director shall
make specific recommendations regarding payments to migratory and
seasonal farmworkers. The Commission on Health and Safety and
Workers' Compensation and the Employment Development Department shall
assist the administrative director in the completion of this report.

VOCATIONAL REHABILITATION: SELF DIRECTED PLANS

4644. (a) The liability of the employer for vocational
rehabilitation services shall terminate when any of the following
events occur:
   (1) An employee who has received notice of potential eligibility
to participate in a rehabilitation plan under Section 4637 declines
vocational rehabilitation services in the form and manner prescribed
by the administrative director.
   (2) A qualified injured worker completes a vocational
rehabilitation plan except as otherwise provided in subdivisions (c)
and (d).
   (3) The qualified injured worker unreasonably failed to complete a
vocational rehabilitation plan.
   (4) An employee has not requested vocational rehabilitation
services within 90 days of the notification that the employee is
medically eligible for vocational rehabilitation services. The
liability of the employer for vocational rehabilitation services
shall not terminate under this paragraph unless the employer, not
earlier than 45 days nor later than 70 days after the employee's
receipt of the notice required by Section 4637, reminds the employee
of his or her right to vocational rehabilitation services or until
the 21st day after the employee receives the reminder notification.
The reminder notification shall be in writing, in the form and manner
prescribed by the administrative director, and shall be served by
certified mail. The provisions of this paragraph shall not apply if
the employee shows he or she was unable to comprehend the
consequences of failing to timely request vocational rehabilitation
services, or that, because of conditions beyond the control of the
employee, the employee was unable to exercise his or her right to
accept or decline vocational rehabilitation services.
   (5) The employer offers, and the employee accepts or rejects, in
the form and manner prescribed by the administrative director,
modified work lasting at least 12 months, provided that an employer
who offers modified work that is available for the 12-month period
required by this paragraph meets the requirements of this paragraph
even if the employee voluntarily quits prior to the end of that
12-month period.
   (6) The employer offers and the employee accepts or rejects, in
the form and manner prescribed by the administrative director,
alternative work meeting all of the following conditions:
   (A) The employee has the ability to perform the essential
functions of the job provided.
   (B) The job provided is in a regular position lasting at least 12
months. An employer who offers alternative work that is available
for the 12-month period required by this paragraph meets the
requirements of this paragraph even if the employee voluntarily quits
prior to the end of the 12-month period.
   (C) The job provided offers wages and compensation that are within
15 percent of those paid to the employee at the time of injury.
   (D) The job is located within reasonable commuting distance of the
employee's residence at the time of injury.
   (7) The employer offers, and the employee accepts, in the form and
manner prescribed by the administrative director, work not meeting
the conditions of paragraph (5) or (6) provided that the work lasts
at least 12 months. The employee shall be required to reject the
offer, in the form and manner prescribed by the administrative
director, in order for the employee to be eligible for vocational
rehabilitation services. An employer who offers work that is
available for the 12-month period meets the requirements of this
paragraph, even if the employee voluntarily quits prior to the end of
that 12-month period.
   (8) The employee and employer have agreed to self-directed
vocational rehabilitation that is approved as set forth in Section
4646.
   (b) Nothing in this article shall preclude the deferral or
interruption of vocational rehabilitation services upon agreement of
the employee and employer or, if no agreement can be reached, upon a
good cause determination by the administrative director.
   (c) (1) Except as provided in this section, vocational
rehabilitation plans prepared pursuant to Section 4638 shall be
limited to one plan per injured worker. The plans shall be completed
within an 18-month period after approval of the plan. The plan
shall not include a period of job placement exceeding 60 days unless
the plan is exclusively utilizing transferable skills and experience
for direct placement activities. In these cases, the period of job
placement may be up to 90 days.
   (2) The employee shall be entitled to one additional vocational
rehabilitation plan only if the original plan is determined to be
inappropriate due to one of the following:
   (A) The employee's disability has deteriorated to the point where
the worker is unable to meet the physical demands of the first plan.

   (B) The first plan is disrupted due to circumstances beyond the
control of the employee.
   (C) Failure by the employer to provide timely service required by
this article and the vocational rehabilitation plan when the plan has
not been completed.
   The cost of the original and the additional plan plus all other
vocational rehabilitation costs shall not exceed the overall cap and
the counselor fee cap established in subdivision (c) of Section
139.5.
   (d) Notwithstanding subdivision (c), an employee may apply to the
rehabilitation unit for approval of a second vocational
rehabilitation plan which exceeds the overall cap provided for in
subdivision (c) of Section 139.5 if all of the following conditions
are met:
   (1) The employee has a permanent disability rating of 25 percent
or greater. In reaching this determination, the rehabilitation unit
shall consider any treating physicians' reports.
   (2) The first plan cannot be completed due to circumstances beyond
the control of the employee. Those circumstances include the
deterioration of the employee's disability to the point where the
worker cannot meet the requirements of the first plan.
   (3) The rehabilitation unit finds that a second plan is necessary
to provide the employee the opportunity for suitable gainful
employment. Approval for circumstances other than a change in the
employee's disability must be based on objective and verifiable facts
pursuant to rules promulgated by the administrative director.
   However, in no case shall the cost solely attributable to the
second plan exceed the overall cap and the counseling fee cap
contained in subdivision (c) of Section 139.5.
   (e) Notwithstanding subdivision (c), an employee may receive a
second vocational rehabilitation plan that exceeds the overall cap
provided for in subdivision (c) of Section 139.5 if the
rehabilitation unit finds that the employee cannot complete the plan
because the school or other training facility has closed or the
worker has a sudden and unexpected change in disability that renders
the plan inappropriate or other similar circumstances.
   (f) Notwithstanding paragraph (2) of subdivision (a), if a
qualified injured worker returns to modified or alternative work with
the same employer or to work with a different employer as a result
of direct job placement assistance and that employment terminates,
other than for cause, within 12 months of the date the employee was
employed at the modified or alternative work, and if that work is
unavailable in the labor market, the employer shall be liable,
subject to Section 4642, for additional vocational rehabilitation
services, provided that the employer's liability for vocational
rehabilitation services shall terminate if the employee voluntarily
quits prior to the end of that 12-month period. To qualify for
additional vocational rehabilitation services, the employee shall
demonstrate an inability to compete for suitable gainful employment
with his or her existing skills.
   (g) An employer shall not be liable to provide vocational
rehabilitation services at a location outside the state, unless upon
agreement of the employer and the employee, or a determination by the
Division of Workers' Compensation that those services are more cost
effective than similar services provided in the state.

4646. (a) Settlement or commutation of prospective vocational
rehabilitation services shall not be permitted under Chapter 2
(commencing with Section 5000) or Chapter 3 (commencing with Section
5100) of Part 3 except as set forth in subdivision (b), or upon a
finding by a workers' compensation judge that there are good faith
issues that, if resolved against the employee, would defeat the
employee's right to all compensation under this division.
   (b) The employer and a represented employee may agree to settle
the employee's right to prospective vocational rehabilitation
services with a one-time payment to the employee not to exceed ten
thousand dollars ($10,000) for the employee's use in self-directed
vocational rehabilitation. The settlement agreement shall be
submitted to, and approved by, the administrative director's
vocational rehabilitation unit upon a finding that the employee has
knowingly and voluntarily agreed to relinquish his or her
rehabilitation rights. The rehabilitation unit may only disapprove
the settlement agreement upon a finding that receipt of
rehabilitation services is necessary to return the employee to
suitable gainful employment.
   (c) Prior to entering into any settlement agreement pursuant to
this section, the attorney for a represented employee shall fully
disclose and explain to the employee the nature and quality of the
rights and privileges being waived.