Chapter 5. Hearings of California Labor Code >> Division 4. >> Part 4. >> Chapter 5.
The hearing on the application may be adjourned from time to
time and from place to place in the discretion of the appeals board
or the workers' compensation judge holding the hearing. Any hearing
adjourned by the workers' compensation judge shall be continued to be
heard by and shall be concluded and the decision made by the workers'
compensation judge who previously heard it. Either party may be
present at any hearing, in person, by attorney, or by any other
agent, and may present testimony pertinent under the pleadings.
The appeals board may, with or without notice to either
party, cause testimony to be taken, or inspection of the premises
where the injury occurred to be made, or the timebooks and payroll of
the employer to be examined by any member of the board or a workers'
compensation judge appointed by the appeals board. The appeals board
may also from time to time direct any employee claiming compensation
to be examined by a regular physician. The testimony so taken and
the results of any inspection or examination shall be reported to the
appeals board for its consideration.
The parties to a controversy may stipulate the facts relative
thereto in writing and file such stipulation with the appeals board.
The appeals board may thereupon make its findings and award based
upon such stipulation, or may set the matter down for hearing and
take further testimony or make the further investigation necessary to
enable it to determine the matter in controversy.
The appeals board may receive as evidence either at or
subsequent to a hearing, and use as proof of any fact in dispute, the
following matters, in addition to sworn testimony presented in open
(a) Reports of attending or examining physicians.
(1) Statements concerning any bill for services are admissible
only if made under penalty of perjury that they are true and correct
to the best knowledge of the physician.
(2) In addition, reports are admissible under this subdivision
only if the physician has further stated in the body of the report
that there has not been a violation of Section 139.3 and that the
contents of the report are true and correct to the best knowledge of
the physician. The statement shall be made under penalty of perjury.
(b) Reports of special investigators appointed by the appeals
board or a workers' compensation judge to investigate and report upon
any scientific or medical question.
(c) Reports of employers, containing copies of timesheets, book
accounts, reports, and other records properly authenticated.
(d) Properly authenticated copies of hospital records of the case
of the injured employee.
(e) All publications of the Division of Workers' Compensation.
(f) All official publications of the State of California and
United States governments.
(g) Excerpts from expert testimony received by the appeals board
upon similar issues of scientific fact in other cases and the prior
decisions of the appeals board upon similar issues.
(h) Relevant portions of medical treatment protocols published by
medical specialty societies. To be admissible, the party offering
such a protocol or portion of a protocol shall concurrently enter
into evidence information regarding how the protocol was developed,
and to what extent the protocol is evidence-based, peer-reviewed, and
nationally recognized. If a party offers into evidence a portion of
a treatment protocol, any other party may offer into evidence
additional portions of the protocol. The party offering a protocol,
or portion thereof, into evidence shall either make a printed copy of
the full protocol available for review and copying, or shall provide
an Internet address at which the entire protocol may be accessed
(i) The medical treatment utilization schedule in effect pursuant
to Section 5307.27 or the guidelines in effect pursuant to Section
(j) Reports of vocational experts. If vocational expert evidence
is otherwise admissible, the evidence shall be produced in the form
of written reports. Direct examination of a vocational witness shall
not be received at trial except upon a showing of good cause. A
continuance may be granted for rebuttal testimony if a report that
was not served sufficiently in advance of the close of discovery to
permit rebuttal is admitted into evidence.
(1) Statements concerning any bill for services are admissible
only if they comply with the requirements applicable to statements
concerning bills for services pursuant to subdivision (a).
(2) Reports are admissible under this subdivision only if the
vocational expert has further stated in the body of the report that
the contents of the report are true and correct to the best knowledge
of the vocational expert. The statement shall be made in compliance
with the requirements applicable to medical reports pursuant to
(a) The appeals board, at any time after an application is
filed and prior to the expiration of its jurisdiction may, upon the
agreement of a party to pay the cost, direct an unrepresented
employee to be examined by a qualified medical evaluator selected by
the appeals board, within the scope of the qualified medical
evaluator's professional training, upon any clinical question then at
issue before the appeals board.
(b) The administrative director or his or her designees, 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 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 injuries occurring on and after January 1, 1991.
Transcripts of all testimony taken without notice and copies
of all reports and other matters added to the record, otherwise than
during the course of an open hearing, shall be served upon the
parties to the proceeding, and an opportunity shall be given to
produce evidence in explanation or rebuttal thereof before decision
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
(a) That an injured person claiming to be an employee was an
independent contractor or otherwise excluded from the protection of
this division where there is proof that the injured person was at the
time of his or her injury actually performing service for the
(b) Intoxication of an employee causing his or her injury.
(c) Willful misconduct of an employee causing his or her injury.
(d) Aggravation of disability by unreasonable conduct of the
(e) Prejudice to the employer by failure of the employee to give
notice, as required by Sections 5400 and 5401.
Where it is represented to the appeals board, either before
or after the filing of an application, that an employee has died as a
result of injuries sustained in the course of his employment, the
appeals board may require an autopsy. The report of the physician
performing the autopsy may be received in evidence in any proceedings
theretofore or thereafter brought. If at the time the autopsy is
requested, the body of the employee is in the custody of the coroner,
the coroner shall, upon the request of the appeals board or of any
party interested, afford reasonable opportunity for the attendance of
any physicians named by the appeals board at any autopsy ordered by
him. If the coroner does not require, or has already performed the
autopsy, he shall permit an autopsy or reexamination to be performed
by physicians named by the appeals board. No fee shall be charged by
the coroner for any service, arrangement, or permission given by him.
If the body of a deceased employee is not in the custody of
the coroner, the appeals board may authorize the performance of such
autopsy and, if necessary, the exhumation of the body therefor. If
the dependents, or a majority thereof, of any such deceased employee,
having the custody of the body refuse to allow the autopsy, it shall
not be performed. In such case, upon the hearing of any application
for compensation it is a disputable presumption that the injury or
death was not due to causes entitling the claimants to benefits under
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, which is best
calculated to ascertain the substantial rights of the parties and
carry out justly the spirit and provisions of this division. All oral
testimony, objections, and rulings shall be taken down in shorthand
by a competent phonographic reporter.
No informality in any proceeding or in the manner of taking
testimony shall invalidate any order, decision, award, or rule made
and filed as specified in this division. No order, decision, award,
or rule shall be invalidated because of the admission into the
record, and use as proof of any fact in dispute, of any evidence not
admissible under the common law or statutory rules of evidence and
(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 without the state to be taken in the manner
prescribed by law for like depositions in civil actions in the
superior courts of this state under Title 4 (commencing with Section
2016.010) of Part 4 of the Code of Civil Procedure. To that end the
attendance of witnesses and the production of records may be
required. Depositions may be taken outside the state before any
officer authorized to administer oaths. The appeals board or a
workers' compensation judge in any proceeding before the appeals
board may cause evidence to be taken in other jurisdictions before
the agency authorized to hear workers' compensation matters in those
(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, but shall be paid by the employer or his
or her insurer.
(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.