Cal. Code Regs. Tit. 8, § 10112.3 - Notice of Administrative Penalty Assessment, Appeal Hearing Procedures and Review
(a) Pursuant to
Labor Code section
5814.6, the
Administrative Director shall issue a Notice of Assessment when the
Administrative Director, or his or her designee (the investigating unit of the
Division of Workers Compensation), has evidence to support a finding that an
employer or insurer has knowingly violated section
5814 with a frequency that
indicates a general business practice.
(b) Successor liability may be imposed on a
corporation or other business entity that has merged with, consolidated with,
or otherwise continued the business of an employer or insurer that is subject
to penalties under Labor Code section
5814.6. The
surviving entity shall assume and be liable for all the liabilities,
obligations and penalties of the prior employer or insurer. Successor liability
will be imposed if there has been a substantial continuity of business
operations and/or the new business uses the same or substantially the same work
force.
(c) The Notice of Assessment
shall be in writing and shall contain all of the following:
(1) The basis for the penalty assessment,
including a statement of the alleged violations and the amount of each proposed
penalty;
(2) A description of the
methods for paying or appealing the penalty assessment.
(d) The Notice of Assessment shall be served
personally or by registered or certified mail.
(e) Within thirty (30) calendar days after
the date of service of the Notice of Assessment, the employer or insurer may
pay the penalties as assessed or file an appeal with the Administrative
Director.
(f) If the employer or
insurer pays the penalties within thirty (30) calendar days, the Notice of
Assessment shall be deemed a Stipulated Order.
(g) If the employer or insurer files an
appeal of the Notice of Assessment with the Administrative Director, the appeal
shall:
(1) Admit or deny, in whole or in part
any of the allegations set forth in the Notice;
(2) Appeal the existence of any or all of the
alleged violations;
(3) Appeal the
amount of any or all the penalties assessed;
(4) Set forth any affirmative and other
defenses;
(5) Set forth the legal
and factual bases for each defense and each ground for appeal. Any item listed
in the Notice of Assessment but not appealed shall be paid within thirty (30)
calendar days after the date of service of the Notice of
Assessment.
(h) Failure
to timely file an appeal shall constitute a waiver of the appellant's right to
an evidentiary hearing. Unless set forth in the appeal, all defenses to the
Notice of Assessment shall be deemed waived. The appellant may also file a
written request for leave to assert additional defenses which the
Administrative Director may grant upon a showing of good cause.
(i) The appeal shall be in writing signed by,
or on behalf of, the employer or insurer, and shall state the appellant's
mailing address. The appeal shall be verified, under penalty of perjury, by the
employer or insurer. If the appellant is a corporation, the verification may be
signed by an officer of the corporation. In the event the appellant is not the
employer, the employer's address shall be provided and the employer shall be
included on the proof of service.
(1) The
appellant shall file the original and one copy of the appeal on the
Administrative Director and concurrently serve one copy of the appeal on the
investigating unit of the Division of Workers Compensation designated by the
Administrative Director. The original and all copies of any filings required by
this section shall have a proof of service attached.
(j) At any time before the hearing, the
Administrative Director may file or permit the filing of an amended Notice of
Assessment. All parties shall be notified thereof. If the amended Notice of
Assessment presents new allegations or new penalties, the Administrative
Director shall afford the Appellant a reasonable opportunity to prepare its
defense, and the Appellant shall be entitled to file an amended
appeal.
(k) At the Administrative
Director's discretion, the Administrative Director may proceed with an informal
pre-hearing conference with the appellant in an effort to resolve the contested
matters. If any or all of the proposed penalties in Notice of Assessment or the
amended Notice of Assessment remain contested, those contested matters shall
proceed to an evidentiary hearing.
(l) Whenever the Administrative Director's
Notice of Assessment has been contested, the Administrative Director may
designate a hearing officer to preside over the hearing. The authority of the
Administrative Director or any designated hearing officer includes, but is not
limited to: conducting a prehearing settlement conference; setting the date for
an evidentiary hearing and any continuances; issuing subpoenas for the
attendance of any person residing anywhere within the state as a witness or
party at any pre-hearing conference and hearing; issuing subpoenas duces tecum
for the production of documents and things at the hearing; presiding at
hearings; administering oaths or affirmations and certifying official acts;
ruling on objections and motions; issuing prehearing orders; and preparing a
Recommended Determination and Order based on the hearing.
(m) The Administrative Director, or the
designated hearing officer, shall set the time and place for any prehearing
conference on the contested matters in a Notice of Hearing and shall give sixty
(60) calendar days written notice to all parties.
(n) The prehearing conference may address one
or more of the following matters:
(1)
Exploration of settlement possibilities.
(2) Preparation of stipulations.
(3) Clarification of issues.
(4) Rulings on identity and limitation of the
number of witnesses.
(5) Objections
to proffers of evidence.
(6) Order
of presentation of evidence and cross-examination.
(7) Rulings regarding issuance of subpoenas
and protective orders.
(8)
Schedules for the submission of written briefs and schedules for the
commencement and conduct of the hearing.
(9) Any other matters as shall promote the
orderly and prompt conduct of the hearing.
(o) The Administrative Director, or the
designated hearing officer, shall issue a prehearing conference order
incorporating the matters determined at the prehearing conference. The
Administrative Director, or the designated hearing officer, may direct one or
more of the parties to prepare the prehearing conference order.
(p) Not less than 30 calendar days prior to
the date of the pre-hearing conference, or if no pre-hearing conference is set,
not less than 30 calendar days prior to the date of the evidentiary hearing,
the Appellant shall file and serve the original and one copy of a written
statement with the Administrative Director, or the designated hearing officer,
specifying the legal and factual bases for its appeal and each defense, listing
all witnesses the Appellant intends to call to testify at the hearing, and
appending copies of all documents and other evidence the Appellant intends to
introduce into evidence at the hearing. A copy of the written statement and its
attachments shall also concurrently be served on the investigating unit of the
Division of Workers' Compensation. If the Appellant's written statement and
supporting evidence are not timely filed and served, the Administrative
Director, or the designated hearing officer, shall dismiss the appeal and the
violations and penalties as stated in the Notice of Assessment shall be final,
due and payable. Within ten (10) calendar days of the date for filing the
written statement and supporting evidence, the Appellant may file a written
request for leave to file a written statement and supporting evidence. The
Administrative Director, or the designated hearing officer, may grant the
request, upon a showing of good cause. If leave is granted, the written
statement and supporting evidence must be filed and served no later than ten
(10) calendar days prior to the date of the hearing.
(q) Oral testimony shall be taken only on
oath or affirmation.
(r)
(1) Each party shall have these rights: to
call and examine witnesses, to introduce exhibits; to cross-examine opposing
witnesses on any matter relevant to the issues even though that matter was not
covered in the direct examination; to impeach any witness regardless of which
party first called him or her to testify; and to rebut the evidence.
(2) In the absence of a contrary order by the
Administrative Director, or the designated hearing officer, the investigating
unit of the Division of Worker's Compensation shall present evidence
first.
(3) The hearing need not be
conducted according to the technical rules relating to evidence and witnesses,
except as hereinafter provided. Any relevant evidence shall be admitted if it
is the sort of evidence on which responsible persons are accustomed to rely in
the conduct of serious affairs, regardless of the existence of any common law
or statutory rule which might make improper the admission of the evidence over
objection in civil actions.
(4)
Hearsay evidence may be used for the purpose of supplementing or explaining
other evidence but over timely objection shall not be sufficient in itself to
support a finding unless it would be admissible over objection in civil
actions. An objection is timely if made before submission of the case to the
Administrative Director, or to the designated hearing
officer.
(s) The written
affidavit or declaration of any witness may be offered and shall be received
into evidence provided that (i) the witness was listed in the written statement
pursuant to section
10112.3(p), (ii)
the statement is made by affidavit or by declaration under penalty of perjury,
(iii) copies of the statement have been delivered to all opposing parties at
least 20 calendar days prior to the hearing, and (iv) no opposing party has, at
least 10 calendar days before the hearing, delivered to the proponent of the
evidence a written demand that the witness be produced in person to testify at
the hearing. The Administrative Director, or the designated hearing officer,
shall disregard any portion of the statement received pursuant to this
regulation that would be inadmissible if the witness were testifying in person,
but the inclusion of inadmissible matter does not render the entire statement
inadmissible. Upon timely demand for production of a witness in lieu of
admission of an affidavit or declaration, the proponent of that witness shall
ensure the witness appears at the scheduled hearing and the proffered
declaration or affidavit from that witness shall not be admitted. If the
Administrative Director, or the designated hearing officer, determines that
good cause exists that prevents the witness from appearing at the hearing, the
declaration may be introduced in evidence, but it shall be given only the same
effect as other hearsay evidence.
(t) The Administrative Director, or the
designated hearing officer, shall issue a written Recommended Determination and
Order, granting or denying the appeal, in whole or part, and affirming or
amending the penalty assessment(s). The Recommended Determination and Order
shall include a statement of the basis for the decision and each penalty
assessed. It shall be served on all parties within sixty (60) calendar days of
the date the case was submitted for determination. This requirement is
directory and not jurisdictional.
(u) The Administrative Director shall have up
to sixty (60) calendar days to adopt or modify the Recommended Determination
and Order issued by the Administrative Director or the designated hearing
officer. In the event the Recommended Determination and Order is modified, the
Administrative Director shall include a statement of the basis for the
Determination and Order. If the Administrative Director does not act within
sixty (60) calendar days, then the Recommended Determination and Order shall
become the Determination and Order on the sixty-first calendar day.
(v) The Determination and Order shall be
served on all parties personally or by registered or certified mail by the
Administrative Director.
(w) The
Determination and Order, if any, shall become final on the date it was served,
unless the aggrieved party files a timely Petition Appealing Determination and
Order within twenty (20) days. A timely filed Petition Appealing the
Determination and Order tolls the period for paying any disputed penalty. All
findings and assessments in the Determination and Order that are not contested
in the Petition Appealing Determination and Order shall become final as though
no such petition was filed.
(x) At
any time prior to the date the Determination and Order becomes final, the
Administrative Director may correct the Determination and Order for clerical,
mathematical or procedural error.
(y) Penalties assessed in a Determination and
Order shall be paid within thirty (30) calendar days of the date the
Determination and Order has been served, if no Petition Appealing Determination
and Order has been filed. The penalties shall be deposited into the
Return-to-Work-Fund.
(z) All
appeals from any part or the entire Determination and Order shall be made in
the form of a Petition Appealing the Determination and Order, in conformance
with the requirements of chapter 7, part 4 of Division 4 of the Labor Code. Any
such Petition Appealing the Determination and Order shall be filed at the
Workers' Compensation Appeals Board in San Francisco (and not with any district
office of the Workers' Compensation Appeals Board), in the same manner
specified for petitions for reconsideration.
Notes
Note: Authority cited: Sections 133, 5307.3 and 5814.6, Labor Code. Reference: Sections 129.5, 139.48, 5300, 5814, 5814.6 and 5900 et seq., Labor Code.
State regulations are updated quarterly; we currently have two versions available. Below is a comparison between our most recent version and the prior quarterly release. More comparison features will be added as we have more versions to compare.
No prior version found.