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Chapter 8. Office of the Director
Subchapter 2. Administration of Self-Insurance Plans
Article 11. Hearing and Appeal Procedures

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15434. Hearing Procedures

(a) The affected employer, surety, any custodian of a surety deposit, maker of a letter of credit, the SISF, an aggrieved party, and any other affected parties or persons shall be notified of the time and place of the hearing by a notice issued by the Director, designated hearing officer or the Manager and such notice to be served on all parties.

(b) Notification shall be placed in the U.S. mail in a fully prepaid, postmarked and sealed envelope at least twenty-one (21) calendar days in advance of the hearing. Without good cause being shown and a written request for extended time to respond, the time to respond shall not be extended beyond the twenty-one (21) days by California Code of Civil Procedure section 1013.

(c) The employer, surety, custodian of a security deposit, maker of a letter of credit, the SISF, an aggrieved party, and any other party, shall be given an opportunity to present evidence and/or written or oral arguments in support of its position.

(d) The hearing need not be conducted according to the technical rules of evidence. In the interest of expeditious and inexpensive adjudication, evidence by way of affidavit or declaration shall be allowed under the following conditions:

(1) At any time fifteen (15) days or more prior to the hearing date or continued hearing date, a party may mail or deliver to the opposing party or parties, a copy of any affidavit or declaration which is proposed to be introduced in evidence, together with a notice as provided in subsection (2). Unless an opposing party, within ten (10) days after such mailing or delivery, mails or delivers to the proponent a request to cross-examine the affiant or declarant, his right to cross-examine such affiant or declarant is waived and the affidavit or declaration, if introduced into evidence, shall be given the same effect as if the affiant or declarant has testified orally. If an opportunity to cross-examine an affiant or declarant is not afforded after request therefore is made as herein provided, the affidavit or declaration may be introduced into evidence, but shall be given only the same effect as other hearsay evidence.

(2) The notice referred to in subsection (1) shall be substantially in the following form:

The accompanying affidavit or declaration of (here insert name of affiant or declarant) will be introduced as evidence at the hearing in (here insert title and docket number of proceeding). (Here insert name) will not be called to testify orally and you will not be entitled to question him unless you notify (name of the proponent, representative, agent or attorney) at (here insert address) that you wish to cross-examine him. To be effective, your request must be mailed or delivered to (here insert name of proponent, representative, agent or attorney) on or before (here insert date ten (10) days after the date of mailing or delivering the affidavit or declaration to the opposing party)."

(e) All witnesses testifying before the hearing officer shall testify under oath, affirmation or penalty of perjury.

(f) Upon written request to the Director and for good cause shown, an aggrieved party may request the production of his or her own test and application records from Self-Insurance Plans. At the time of hearing or, upon written request to the Director and for good cause, an aggrieved party may request inspection of his/her own test records prior to the time of hearing.

(g) Discovery. The parties shall have the right to take depositions and to obtain discovery and to that end may exercise all of the same rights, remedies, and procedures, and shall be subject to all of the same duties, liabilities and obligations as provided in part 4, Title 3, chapter 3, of the Code of Civil Procedure, except that applications to the court or requests for relief from the court shall be considered as applications or requests of the hearing officer. All discovery shall be completed not less than fifteen (15) days prior to the date set for hearing, unless the Director, upon a showing of good cause, makes an order granting an extension of the time within which discovery must be completed. The hearing officer shall not have authority to impose monetary sanctions.

(h) Subpoena of Witnesses: Subpoena Duces Tecum.

 

Subject to the provisions of Title 2, division 2, part 1, chapter 2, of the Government Code and before the hearing has commenced, the Director shall issue a subpoena and subpoena duces tecum at the request of a party for attendance of a person or production of a document, object or thing determined to be reasonably relevant, to the issues to be decided at the hearing.

After the hearing has commenced, the Director may issue a subpoena and subpoena duces tecum as follows:

(1) The subpoenaing party shall prepare the affidavit of good cause required by section 1985 of the Code of Civil Procedure before a subpoena duces tecum will be issued.

(2) A subpoenaing party shall comply with section 1985.3 of the Code of Civil Procedure. A person not a party to the matter, is not obliged to attend as a witness in any matter under this article at a place out of the county in which he resides, unless the distance is less than fifty (50) miles from his place of residence. A party or party-identified witness may be obliged to attend a deposition in like manner as in Code of Civil Procedures section 2025.

(i) The hearing shall be recorded by audio recorder. Parties wishing a written transcript shall pay the cost of a transcription or may provide a certified reporter at the time of hearing. A copy of the recorded proceedings shall be provided to the Director if reconsideration is requested.

(j) The Director may appoint an interpreter and fix the interpreter's compensation in any matter where an interpreter is requested by the parties or determined to be needed by the Director or his/her designee. It shall be the responsibility of any party producing a witness requiring an interpreter to arrange for the presence of a qualified interpreter. Interpreter fees are to be paid by the party requesting the use of the interpreter. It shall be the responsibility of the party seeking to use an interpreter to show that the interpreter is proficient in the appropriate language and has sufficient knowledge relating to the terminology and procedures generally used in hearings before the Director to function satisfactorily. The Director may disqualify an interpreter due to conflict of interest, bias, prejudice, partiality or for disclosure of confidential or privileged information.

(k) A request for intervention may be allowed by the Director or designated hearing officer in like matter as in California Code of Civil Procedure section 387.

(l) In the interests of the expeditious resolution of al disputes, the Director may allow time for settlement of disputes. The Director shall approve settlement of any dispute regarding a third-party administrator examination, a revocation of a third-party certificate or certificate of consent to self-insure. The Director, in his discretion, may approve resolution of disputes involving the Self-Insurers' Security Fund. Approval by the Director of disputes, involving SISF is necessary only after a formal hearing on the merits has begun.

(m) An official address record shall be maintained by the Director or the designated hearing officer. Each party shall furnish one address and one telephone number, for itself or it's representative, to which all communications by the Director and other parties shall be directed. If the address is a Post Office Box, a physical address shall also be provided for use when physical delivery other than by mail is intended. All communications by the Director or hearing officer, including all notices and decisions and determinations, shall be made to the addresses on the official address record. Service of anything required to be served shall be acceptable if mailed by registered or certified mail, with return receipt, if mailed to the official address. Legal service may also be made by personal delivery to the official address.

(n) No party or representative of a party shall communicate with a hearing officer on the merits of a matter except in the presence of the other parties or their representatives. No written communication shall be directed to a hearing officer or the Director unless it shows on the face of it or on an attached proof of service that the communication has been simultaneously served on other parties. No written communications in violation of this rule shall be received by the hearing officer or Director. The Director, after a hearing officer has been designated and while the hearing officer is continuing to act on the case, shall not communicate with the hearing officer about the merits of the matter before the hearing officer.

(o) Foundation Evidence. Evidence of the genuineness of any document, and of the authenticity of records, shall be by affidavit or declaration only, unless good cause is shown by a party for the necessity for testi-mony in the presence of the hearing officer. At the discretion of the hearing officer, any other evidence of a foundational nature shall also be by declaration or affidavit, except where good cause is shown why it should be otherwise.

Authority cited: Sections 54, 55 and 3702.10, Labor Code. Reference: Sections 59, 3700, 3701, 3701.5, 3702, 3702.1, 3702.5, 3702.6, 3702.7, 3702.9, 3702.10, 3705, 3740-3747; Labor Code; Sections 11181-11188, 15378, Government Code; Sections 1985-2031, 2033-2036, Code of Civil Procedure.

HISTORY

1. Amendment filed 12-17-90; operative 1-16-91 (Register 91, No. 6).