Chapter 4.5. Division of Workers' Compensation
Subchapter 2. Workers' Compensation Appeals Board--Rules and Practice Procedure
Article 4. Conduct of Parties, Attorneys and Non-Attorney Representatives

§10404. Suspension and Removal of a Non-Attorney Representative's Privilege to Appear Before the Workers' Compensation Appeals Board Under Labor Code Section 4907.

(a) Upon motion of the Appeals Board, a non-attorney representative may have the privilege to appear before the Workers' Compensation Appeals Board removed or suspended for good cause after a hearing.

(b) Good cause includes, but is not limited to, serious or repeated violations of these rules, failure to comply with rule 10401 or failure to pay a final order of sanctions, attorney's fees or costs issued under Labor Code section 5813 within 60 days.

(c) The Appeals Board shall designate a hearing officer to conduct the hearing and make initial rulings on all issues and objections. The hearing officer is subject to disqualification as provided in Labor Code section 5311 and rule 9721.12. A Petition for Disqualification of a Hearing Officer shall be filed with the Appeals Board as provided in rule 10960.

(d) The Appeals Board shall initiate proceedings by issuing a Notice of Proposed Action setting forth:

(1) the acts or omissions that constitute good cause for removal or suspension and any statutes and rules that the non-attorney representative is alleged to have violated;

(2) the intended action, whether removal or suspension, and the length of time of any proposed suspension;

(3) the date on which the hearing regarding suspension or removal of the non-attorney representative's privilege to appear will take place and the identity of the hearing officer; and

(4) the right to submit a written response to the Notice of Proposed Action within the time specified in the Notice of Proposed Action.

(e) The Appeals Board shall serve the non-attorney representative with the Notice of Proposed Action and copies of materials relied upon.

(f) Any pleadings, response, correspondence, requests and other documents shall be submitted in writing only to the Appeals Board and not filed at any district office or in EAMS.

(g) All hearings regarding the removal or suspension of a non-attorney representative's privilege to appear shall be held at the office of the Appeals Board, or at a District Office of the Workers' Compensation Appeals Board as designated by the Appeals Board.

(h) If the non-attorney representative does not testify on their own behalf, their testimony may be taken as if under cross-examination.

(i) After considering the evidence and any response submitted by the non-attorney representative, the hearing officer shall issue a recommended decision and findings of fact addressing all issues and objections and setting forth the recommended action to be taken. The recommended decision shall be submitted to the Appeals Board.

(j) The Appeals Board, acting en banc, may (1) adopt and incorporate the recommended decision of the hearing officer as its own in whole or in part; (2) review the record and increase or decrease the recommended action; or (3) take further or other action, including directing the conduct of a new hearing on one or more of the issues presented, as deemed just and appropriate. The Appeals Board shall serve the non-attorney representative and hearing officer with copies of its final decision as well as the hearing officer's recommended decision.

(k) Once the Appeals Board has served its final decision, any person may request a copy of all or a portion of the record, subject to any assertions of privilege, protective orders or provisions of law prohibiting disclosure. The complete record includes the pleadings, all notices and orders issued by the Appeals Board, any proposed decision by the hearing officer, the final decision, all exhibits whether admitted or rejected, the written evidence and any other papers in the case, except as provided by law.

(l) A non-attorney representative whose privilege to appear has been removed or suspended may petition the Appeals Board for reinstatement of the privilege after a period of not less than one year has elapsed from the date on which the decision of the Appeals Board took effect, or from the date of the denial of a similar petition.

Note: Authority cited: Sections 4907 and 5307, Labor Code. Reference: Sections 4907 and 5311, Labor Code.

HISTORY

1. New section filed 12-23-93; operative 1-1-94. Submitted to OAL for printing only pursuant to Government Code section 11351 (Register 93, No. 52). For prior history, see Register 91, No. 7.

2. Amendment filed 12-19-2002; operative 1-1-2003. Submitted to OAL for printing only pursuant to Government Code section 11351 (Register 2002, No. 51).

3. Renumbering of former section 10404 to section 10470 and new section 10404 filed 12-17-2019; operative 1-1-2020. Submitted to OAL for printing only pursuant to Government Code section 11351 (Register 2019, No. 51).

4. Amendment of subsection (b) filed 12-15-2021; operative 1-1-2022 pursuant to Government Code section 11343.4(b)(3). Submitted to OAL for filing and printing only pursuant to Government Code section 11351 (Register 2021, No. 51).