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SB-335 Workers’ compensation: liability.(2021-2022)

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Date Published: 03/10/2021 09:00 PM
SB335:v98#DOCUMENT

Amended  IN  Senate  March 10, 2021

CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Senate Bill
No. 335


Introduced by Senator Cortese

February 08, 2021


An act to amend Section 5814 of Sections 3212.86, 3212.87, 3212.88, 3761, and 5402 of, and to add Section 5814.3 to, the Labor Code, relating to workers’ compensation.


LEGISLATIVE COUNSEL'S DIGEST


SB 335, as amended, Cortese. Workers’ compensation: proceedings: payment delay. liability.
Existing law establishes a workers’ compensation system, administered by the Administrative Director of the Division of Workers’ Compensation, to compensate an employee for injuries arising out of and in the course of their employment. Existing Existing law prohibits a claim for workers’ compensation from being maintained unless within 30 days after the occurrence of the injury, the injured person, or in case of the death, a dependent, or someone on the injured person’s or dependent’s behalf, serves notice of the injury upon the employer. Existing law also requires an injured employee, or in the case of death, a dependent, or an agent of the employee or dependent, to file a claim form with the employer. Under existing law, except for specified injuries, if liability is not rejected within 90 days after the date the claim form is filed with the employer, the injury is presumed compensable and the presumption is rebuttable only by evidence discovered subsequent to the 90-day period.
This bill would reduce those 90-day time periods to 45 days and, for certain injuries or illnesses, including hernia, heart trouble, pneumonia, or tuberculosis, among others, sustained in the course of employment of a specified member of law enforcement or a specified first responder, would reduce those time periods to 30 days.
Existing law requires an employer, one working day after an employee files a claim form, to authorize the provision of all treatment, as specified, for the alleged injury and to continue to provide the treatment until the date that liability for the claim is accepted or rejected. Existing law limits liability for medical treatment to $10,000 until the date the claim is accepted or rejected.
This bill would increase that amount from $10,000 to $17,000.
Existing law requires that certain proceedings, including for the recovery of compensation, or concerning any right or liability arising out of or incidental thereto, proceedings for the enforcement against the employer or an insurer of any liability for compensation, be instituted before the Workers’ Compensation Appeals Board. Existing law authorizes the appeals board to fix and determine, in its award, the total amount of compensation to be paid and specify the manner of payment, or may fix and determine the weekly disability payment to be made and order payment during the continuance of disability. Existing law requires that when payment of compensation has been unreasonably delayed or refused, either prior to or subsequent to the issuance of an award, the amount of the unreasonably delayed or refused payment be increased up to 25% or up to $10,000, whichever is less, and less. Existing law requires the appeals board is required to use its discretion to accomplish a fair balance and substantial justice between the parties.

This bill would make technical, nonsubstantive changes to those provisions.

This bill would require, if payment of compensation has been unreasonably delayed or refused, either prior to or subsequent to the issuance of an award, for specified claims of injury or illness, including hernia, heart trouble, pneumonia, or tuberculosis, among others, sustained in the course of employment of a specified member of law enforcement or a specified first responder, the full amount of the order, decision, or award to be increased by 10%. The bill would prohibit multiple increases from being awarded for repeated delays in making a series of payments due for the same type or specie of benefit unless there has been a legally significant event between the delay and the subsequent delay in payments of the same type or specie of benefit that establishes the employer’s or insurance carrier’s liability. The bill would apply to all injuries, without regard to whether the injury occurs before, on, or after the operative date of the bill. The bill would make other conforming changes.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NOYES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Section 3212.86 of the Labor Code is amended to read:

3212.86.
 (a) This section applies to any an employee with a COVID-19-related illness.
(b) The term “injury,” as used in this division, includes illness or death resulting from COVID-19 if both all of the following circumstances apply:
(1) The employee has tested positive for or was diagnosed with COVID-19 within 14 days after a day that the employee performed labor or services at the employee’s place of employment at the employer’s direction.
(2) The day referenced in paragraph (1) on which the employee performed labor or services at the employee’s place of employment at the employer’s direction was on or after March 19, 2020, and on or before July 5, 2020. The date of injury shall be the last date the employee performed labor or services at the employee’s place of employment at the employer’s direction.
(3) If paragraph (1) is satisfied through a diagnosis of COVID-19, the diagnosis was done by a licensed physician and surgeon holding an M.D. or D.O. degree or a state licensed physician assistant or nurse practitioner, acting under the review or supervision of a physician and surgeon pursuant to standardized procedures or protocols within their lawfully authorized scope of practice, and that diagnosis is confirmed by testing or by a COVID-19 serologic test within 30 days of the date of the diagnosis.
(c) The compensation that is awarded for injury pursuant to this section shall include full hospital, surgical, medical treatment, disability indemnity, and death benefits, as provided by this division.
(d) (1) If an employee has paid sick leave benefits specifically available in response to COVID-19, those benefits shall be used and exhausted before any temporary disability benefits or benefits under Section 4800, 4800.5, or 4850 are due and payable. If an employee does not have those sick leave benefits, the employee shall be provided temporary disability benefits or Section 4800, 4800.5, or 4850 benefits, if applicable, from the date of disability. There shall not be a waiting period for temporary disability benefits.
(2) To qualify for temporary disability or Section 4800, 4800.5, or 4850 benefits under this section, an employee shall satisfy either of the following:
(A) If the employee has tested positive or is diagnosed with COVID-19 on or after May 6, 2020, the employee shall be certified for temporary disability within the first 15 days after the initial diagnosis, and shall be recertified for temporary disability every 15 days thereafter, for the first 45 days following diagnosis.
(B) If the employee has tested positive or was diagnosed with COVID-19 before May 6, 2020, the employee shall have obtained a certification, no later than May 21, 2020, documenting the period for which the employee was temporarily disabled and unable to work, and shall be recertified for temporary disability every 15 days thereafter, for the first 45 days following diagnosis.
(3) An employee shall be certified for temporary disability by a physician holding a physician’s and surgeon’s license issued pursuant to Chapter 5 (commencing with Section 2000) of Division 2 of the Business and Professions Code. If the employee has a predesignated physician pursuant to subdivision (d) of Section 4600, is covered by a medical provider network pursuant to Article 2.3 (commencing with Section 4616) of Chapter 2 of Part 2, is covered by a workers’ compensation health care organization pursuant to Article 2 (commencing with Section 4600) of Chapter 2 of Part 2, or is covered by a group health plan, the certifying physician shall be a physician and surgeon in that network, organization, or plan. Otherwise, the certifying physician may be a physician and surgeon of the employee’s choosing.
(e) An injury described in subdivision (b) is presumed to arise out of and in the course of the employment. This presumption is disputable and may be controverted by other evidence. Unless controverted, the appeals board is bound to find in accordance with the presumption.
(f) Notwithstanding Section 5402, if If liability for a claim of a COVID-19-related illness is not rejected within 30 days after the date the claim form is filed pursuant to Section 5401, the illness shall be presumed compensable. The presumption of this subdivision is rebuttable only by evidence discovered subsequent to the 30-day period.
(g) The Department of Industrial Relations shall waive the right to collect any death benefit payment due pursuant to Section 4706.5 arising out of claims covered by this section.
(h) This section applies to all pending matters except as otherwise specified, including, but not limited to, pending claims relying on Executive Order N-62-20. This section is not a basis to rescind, alter, amend, or reopen any final award of workers’ compensation benefits.
(i) For purposes of this section:
(1) “COVID-19” means the 2019 novel coronavirus disease.
(2) “Place of employment” does not include an employee’s residence.
(j) This section shall remain in effect only until January 1, 2023, and as of that date is repealed.

SEC. 2.

 Section 3212.87 of the Labor Code is amended to read:

3212.87.
 (a) This section applies to the following employees:
(1) Active firefighting members, whether volunteers, partly paid, or fully paid, of all of the following fire departments:
(A) A fire department of a city, county, city and county, district, or other public or municipal corporation or political subdivision.
(B) A fire department of the University of California and the California State University.
(C) The Department of Forestry and Fire Protection.
(D) A county forestry or firefighting department or unit.
(2) Active firefighting members of a fire department that serves a United States Department of Defense installation and who are certified by the United States Department of Defense as meeting its standards for firefighters.
(3) Active firefighting members of a fire department that serves a National Aeronautics and Space Administration installation and who adhere to training standards established in accordance with Article 4 (commencing with Section 13155) of Chapter 1 of Part 2 of Division 12 of the Health and Safety Code.
(4) Active firefighting members of a fire department that provides fire protection to a commercial airport regulated by the Federal Aviation Administration (FAA) under Part 139 (commencing with Section 139.5) of Subchapter G of Chapter 1 of Title 14 of the Federal Code of Regulations and are trained and certified by the State Fire Marshal as meeting the standards of Fire Control 5 and Section 139.319 of Title 14 of the Federal Code of Regulations
(5) Peace officers, as defined in Section 830.1 of the Penal Code, subdivisions (a), (b), (e), (f), and (h) of Section 830.2 of the Penal Code, subdivision (a) of Section 830.3 of the Penal Code, subdivisions (a) and (b) of Section 830.37 of the Penal Code, subdivisions (a) and (b) of Section 830.5 of the Penal Code, and subdivision (a) of Section 830.53 of the Penal Code, who are primarily engaged in active law enforcement activities.
(6) (A) Fire and rescue services coordinators who work for the Office of Emergency Services.
(B) For purposes of this paragraph, “fire and rescue services coordinators” means coordinators with any of the following job classifications: coordinator, senior coordinator, or chief coordinator.
(7) An employee who provides direct patient care, or a custodial employee in contact with COVID-19 patients, who works at a health facility. For the purposes of this subdivision, “health facility” means a health facility as defined in subdivision (a), (b), (c), (m), or (n) of Section 1250 of the Health and Safety Code.
(8) An authorized registered nurse, emergency medical technician-I, emergency medical technician-II, emergency medical technician-paramedic, as described in Chapter 2 (commencing with Section 1797.50) of Division 2.5 of the Health and Safety Code.
(9) An employee who provides direct patient care for a home health agency, as defined under Section 1727 of the Health and Safety Code.
(10) Employees of health facilities, other than those described in paragraph (7). For these employees, the presumption shall not apply if the employer can establish that the employee did not have contact with a health facility patient within the last 14 days who tested positive for COVID-19. If it is determined that the presumption does not apply, the claim shall be evaluated pursuant to Sections 3202.5 and 3600. For the purposes of this subdivision, “health facility” means a health facility, as defined in subdivision (a), (b), (c), (m), or (n) of Section 1250 of the Health and Safety Code.
(11) A provider of in-home supportive services under Article 7 (commencing with Section 12300) of Chapter 3 of Part 3 of Division 9 of, or Sections 14132.95, 14132.952, and 14132.956 of, the Welfare and Institutions Code, when they provide the in-home supportive services outside their own home or residence.
(b) The term “injury,” as used in this division, includes illness or death resulting from COVID-19 if all both of the following circumstances apply:
(1) The employee has tested positive for COVID-19 within 14 days after a day that the employee performed labor or services at the employee’s place of employment at the employer’s direction.
(2) The day referenced in paragraph (1), on which the employee performed labor or services at the employee’s place of employment at the employer’s direction, was on or after July 6, 2020. The date of injury shall be the last date the employee performed labor or services at the employee’s place of employment at the employer’s direction prior to the positive test.
(c) The compensation that is awarded for injury pursuant to this section shall include full hospital, surgical, medical treatment, disability indemnity, and death benefits, as provided by this division.
(d) If an employee has paid sick leave benefits specifically available in response to COVID-19, those benefits shall be used and exhausted before any temporary disability benefits or benefits under Section 4800, 4800.5, or 4850 are due and payable. If an employee does not have those sick leave benefits, the employee shall be provided temporary disability benefits or Section 4850 benefits, if applicable, from the date of disability. There shall not be a waiting period for temporary disability benefits.
(e) An injury described in subdivision (b) is presumed to arise out of and in the course of the employment, except as provided in this subdivision. This presumption is disputable and may be controverted by other evidence. Unless controverted, the appeals board is bound to find in accordance with the presumption. This presumption shall be extended to a person described in subdivision (a) following termination of service for a period of 14 days, commencing with the last date actually worked in the specified capacity at the employee’s place of employment as described in subdivision (b).
(f) Notwithstanding Section 5402, if If liability for a claim of a COVID-19-related illness is not rejected within 30 days after the date the claim form is filed pursuant to Section 5401, the illness shall be presumed compensable. The presumption of this subdivision is rebuttable only by evidence discovered subsequent to the 30-day period.
(g) The Department of Industrial Relations shall waive the right to collect any death benefit payment due pursuant to Section 4706.5 arising out of claims covered by this section.
(h) This section applies to all pending matters, unless otherwise specified in this section, but shall not be a basis to rescind, alter, amend, or reopen any final award of workers’ compensation benefits.
(i) For purposes of this section:
(1) “COVID-19” means the 2019 novel coronavirus disease.
(2) Unless otherwise indicated, “test” or “testing” means a PCR (Polymerase Chain Reaction) test approved for use or approved for emergency use by the United States Food and Drug Administration to detect the presence of viral RNA. “Test” or “testing” does not include serologic testing, also known as antibody testing. “Test” or “testing” may include any other viral culture test approved for use or approved for emergency use by the United States Food and Drug Administration to detect the presence of viral RNA which has the same or higher sensitivity and specificity as the PCR Test.
(3) An “employee’s place of employment” does not include an employee’s home or residence.
(j) This section shall remain in effect only until January 1, 2023, and as of that date is repealed.

SEC. 3.

 Section 3212.88 of the Labor Code is amended to read:

3212.88.
 (a) This section applies to employees who are not described in Section 3212.87, who test positive during an outbreak at the employee’s specific place of employment, and whose employer has five or more employees.
(b) The term “injury,” as used in this division, includes illness or death resulting from COVID-19 if all of the following circumstances apply:
(1) The employee tests positive for COVID-19 within 14 days after a day that the employee performed labor or services at the employee’s place of employment at the employer’s direction.
(2) The day referenced in paragraph (1) on which the employee performed labor or services at the employee’s place of employment at the employer’s direction was on or after July 6, 2020. The date of injury shall be the last date the employee performed labor or services at the employee’s place of employment at the employer’s direction prior to the positive test.
(3) The employee’s positive test occurred during a period of an outbreak at the employee’s specific place of employment.
(c) The compensation that is awarded for injury pursuant to this section shall include full hospital, surgical, medical treatment, disability indemnity, and death benefits, as provided by this division.
(d) If an employee has paid sick leave benefits specifically available in response to COVID-19, those benefits shall be used and exhausted before any temporary disability benefits, benefits under Section 4800, 4800.5, or 4850 or Section 44977, 44984, 45192, 45196, 87780, 87787, 88192, or 88196 of the Education Code are due and payable. If an employee does not have those sick leave benefits, the employee shall be provided temporary disability benefits or Section 4850 benefits, if applicable, from the date of disability. There shall not be a waiting period for temporary disability benefits.
(e) (1) An injury described in subdivision (b) is presumed to arise out of and in the course of the employment, except as provided in this subdivision. This presumption is disputable and may be controverted by other evidence. Unless controverted, the appeals board is bound to find in accordance with the presumption. This presumption shall be extended to a person described in subdivision (a) following termination of service for a period of 14 days, commencing with the last date actually worked in the specified capacity at the employee’s place of employment. This section does not affect an employee’s rights to compensation for an injury or illness under this division in accordance with a preponderance of evidence.
(2) Evidence relevant to controverting the presumption may include, but is not limited to, evidence of measures in place to reduce potential transmission of COVID-19 in the employee’s place of employment and evidence of an employee’s nonoccupational risks of COVID-19 infection.
(f) Notwithstanding Section 5402, if If liability for a claim of a COVID-19-related illness is not rejected within 45 30 days after the date the claim form is filed pursuant to Section 5401, the illness shall be presumed compensable. The presumption of this subdivision is rebuttable only by evidence discovered subsequent to the 45-day 30-day period.
(g) The Department of Industrial Relations shall waive the right to collect any death benefit payment due pursuant to Section 4706.5 arising out of claims covered by this section.
(h) This section applies to all pending matters, unless otherwise specified in this section, but is not a basis to rescind, alter, amend, or reopen any final award of workers’ compensation benefits.
(i) When the employer knows or reasonably should know that an employee has tested positive for COVID-19, the employer shall report to their claims administrator in writing via electronic mail or facsimile within three business days all of the following:
(1) An employee has tested positive. For purposes of this reporting, the employer shall not provide any personally identifiable information regarding the employee who tested positive for COVID-19 unless the employee asserts the infection is work related or has filed a claim form pursuant to Section 5401.
(2) The date that the employee tests positive, which is the date the specimen was collected for testing.
(3) The specific address or addresses of the employee’s specific place of employment during the 14-day period preceding the date of the employee’s positive test.
(4) The highest number of employees who reported to work at the employee’s specific place of employment in the 45-day period preceding the last day the employee worked at each specific place of employment.
(j) An employer or other person acting on behalf of an employer who intentionally submits false or misleading information or fails to submit information when reporting pursuant to subdivision (i) is subject to a civil penalty in the amount of up to ten thousand dollars ($10,000) to be assessed by the Labor Commissioner.
(1) If, upon inspection or investigation, the Labor Commissioner determines that an employer or other person has intentionally submitted false or misleading information in violation of subdivision (i), the Labor Commissioner may issue a citation to the person in violation. The citation may be served personally, in the same manner as provided for service of a summons as described in Chapter 4 (commencing with Section 413.10) of Title 5 of Part 2 of the Code of Civil Procedure, by certified mail with return receipt requested, or by registered mail in accordance with subdivision (c) of Section 11505 of the Government Code. Each citation shall be in writing and shall describe the nature of the violation, including reference to the statutory provision alleged to have been violated.
(2) If a person desires to contest a citation or the proposed assessment of a civil penalty therefor, they shall, within 15 business days after service of the citation, notify the office of the Labor Commissioner which appears on the citation of their request for an informal hearing. The Labor Commissioner or their deputy or agent shall, within 30 days, hold a hearing at the conclusion of which the citation or proposed assessment of a civil penalty shall be affirmed, modified, or dismissed. The decision of the Labor Commissioner shall consist of a notice of findings, findings, and order which shall be served on all parties to the hearing within 15 days after the hearing by regular first-class mail at the last known address of the party on file with the Labor Commissioner. Service shall be completed pursuant to Section 1013 of the Code of Civil Procedure. Any amount found due by the Labor Commissioner as a result of a hearing shall become due and payable 45 days after notice of the findings and written findings and order have been mailed to the party assessed. A writ of mandate may be taken from this finding to the appropriate superior court, as long as the party agrees to pay any judgment and costs ultimately rendered by the court against the party for the assessment. The writ of mandate shall be taken within 45 days of service of the notice of findings, findings, and order thereon.
(3) An employer or person to which a citation has been issued shall, in lieu of contesting a citation pursuant to this section, transmit to the office of the Labor Commissioner designated on the citation the amount specified for the violation within 15 business days after issuance of the citation.
(4) If the party filing a writ of mandate is unsuccessful in challenging the decision of the hearing officer, the Labor Commissioner shall recover costs and attorney fees.
(k) (1) The claims administrator shall use information reported pursuant to subdivision (i) to determine if an outbreak has occurred for the purpose of administering a claim pursuant to this section. To calculate the number of employees at a specific place of employment, the claims administrator shall utilize the data reported pursuant to subdivision (i) for the first employee who is part of the outbreak, or, for claims between July 6, 2020, and the effective date of this section, the number reported under paragraph (2).
(2) Any employer who is aware of an employee testing positive on or after July 6, 2020, and prior to the effective date of this section, shall report to their claims administrator, in writing via electronic mail or facsimile, within 30 business days of the effective date of this section, all of the data required in subdivision (i). For the data required by paragraph (4) of subdivision (i), the employer shall instead report the highest number of employees who reported to work at each of the employee’s specific places of employment on any given work day between July 6, 2020, and the effective date of this section. The claims administrator shall use the information reported under this paragraph to determine if an outbreak has occurred from July 6, 2020, to the effective date of this section, for the purpose of applying the presumption under this section.
(l) A claim is not part of an outbreak if it occurs during a continuous 14-day period where the requisite number of positive tests under paragraph (4) of subdivision (m) have not been met. For purposes of applying the presumption in this section, the claims administrator shall continually evaluate each claim to determine whether the requisite number of positive tests have occurred during the surrounding 14-day periods.
(m) For purposes of this section:
(1) “COVID-19” means the 2019 novel coronavirus disease.
(2) Unless otherwise indicated, “test” or “testing” means a PCR (Polymerase Chain Reaction) test approved for use or approved for emergency use by the United States Food and Drug Administration to detect the presence of viral RNA. “Test” or “testing” does not include serologic testing, also known as antibody testing. “Test” or “testing” may include any other viral culture test approved for use or approved for emergency use by the United States Food and Drug Administration to detect the presence of viral RNA which has the same or higher sensitivity and specificity as the PCR Test.
(3) (A) “A specific place of employment” means the building, store, facility, or agricultural field where an employee performs work at the employer’s direction. “A specific place of employment” does not include the employee’s home or residence, unless the employee provides home health care services to another individual at the employee’s home or residence.
(B) In the case of an employee who performs work at the employer’s direction in multiple places of employment within 14 days of the employee’s positive test, the employee’s positive test shall be counted for the purpose of determining the existence of an outbreak at each of those places of employment, and if an outbreak exists at any one of those places of employment, that shall be the employee’s “specific place of employment.”
(4) An “outbreak” exists if within 14 calendar days one of the following occurs at a specific place of employment:
(A) If the employer has 100 employees or fewer at a specific place of employment, 4 employees test positive for COVID-19.
(B) If the employer has more than 100 employees at a specific place of employment, 4 percent of the number of employees who reported to the specific place of employment, test positive for COVID-19.
(C) A specific place of employment is ordered to close by a local public health department, the State Department of Public Health, the Division of Occupational Safety and Health, or a school superintendent due to a risk of infection with COVID-19.
(n) This section shall remain in effect only until January 1, 2023, and as of that date is repealed.

SEC. 4.

 Section 3761 of the Labor Code is amended to read:

3761.
 (a) An insurer securing an employer’s liability under this division shall notify the employer, within 15 days, of each claim for indemnity filed against the employer directly with the insurer if the employer has not timely provided to the insurer a report of occupational injury or occupational illness pursuant to Section 6409.1. The insurer shall furnish an employer who has not filed this report with an opportunity to provide to the insurer, prior to the expiration of the 90-day applicable time period specified in subdivision (b) of Section 5402, 5402 for rejecting a claim, all relevant information available to the employer concerning the claim.
(b) (1) An employer shall promptly notify its insurer in writing at any time during the pendency of a claim when if the employer has actual knowledge of any facts which that would tend to disprove any aspect of the employee’s claim. When If an employer notifies its insurer in writing that, in the employer’s opinion, no compensation is payable to an employee, at the employer’s written request, to the appeals board, the appeals board may approve a compromise and release agreement, or stipulation, that provides compensation to the employee only where if there is proof of service upon the employer by the insurer, to the employer’s last known address, not less than 15 days prior to the appeals board action, of notice of the time and place of the hearing at which the compromise and release agreement or stipulation is to be approved. The insurer shall file proof of this service with the appeals board.

Failure

(2) Failure by the insurer to provide the required notice shall not prohibit the board from approving a compromise and release agreement, or stipulation; however, stipulation. However, the board shall order the insurer to pay reasonable expenses as provided in Section 5813.
(c) In establishing a reserve pursuant to a claim that affects premiums against an employer, an insurer shall provide the employer, upon request, a written report of the reserve amount established. The written report shall include, at a minimum, the following:
(1) Estimated medical-legal costs.
(2) Estimated vocational rehabilitation costs, if any.
(3) Itemization of all other estimated expenses to be paid from the reserve.
(d) When If an employer properly provides notification to its insurer pursuant to subdivision (b), and the appeals board thereafter determines that no compensation is payable under this division, the insurer shall reimburse the employer for any premium paid solely due to the inclusion of the successfully challenged payments in the calculation of the employer’s experience modification. The employee shall not be required to refund the challenged payment.

SEC. 5.

 Section 5402 of the Labor Code is amended to read:

5402.
 (a) Knowledge of an injury, obtained from any source, on the part of an employer, his or her the employer’s managing agent, superintendent, foreman, or other person in authority, or knowledge of the assertion of a claim of injury sufficient to afford opportunity to the employer to make an investigation into the facts, is equivalent to service under Section 5400.
(b) (1) If liability is not rejected within 90 45 days after the date the claim form is filed under Section 5401, the injury shall be presumed compensable under this division. The presumption of this subdivision is rebuttable only by evidence discovered subsequent to the 90-day 45-day period.
(2) Notwithstanding paragraph (1), for injuries or illnesses covered under Sections 3212 to 3213.2, inclusive, if the liability is not rejected within 30 days after the date the claim form is filed pursuant to Section 5401, the injury shall be presumed compensable under this division. The presumption of this subdivision is rebuttable only by evidence discovered subsequent to the 30-day period.
(c) Within one working day after an employee files a claim form under Section 5401, the employer shall authorize the provision of all treatment, consistent with Section 5307.27, for the alleged injury and shall continue to provide the treatment until the date that liability for the claim is accepted or rejected. Until the date the claim is accepted or rejected, liability for medical treatment shall be limited to ten seventeen thousand dollars ($10,000). ($17,000).
(d) Treatment provided under subdivision (c) shall does not give rise to a presumption of liability on the part of the employer.

SEC. 6.

 Section 5814.3 is added to the Labor Code, to read:

5814.3.
 (a) Notwithstanding Section 5814, if payment of compensation has been unreasonably delayed or refused, either prior to or subsequent to the issuance of an award, for claims of injury or illness covered under Sections 3212 to 3213.2, inclusive, the full amount of the order, decision, or award shall be increased by 10 percent. Multiple increases shall not be awarded for repeated delays in making a series of payments due for the same type or specie of benefit unless there has been a legally significant event between the delay and the subsequent delay in payments of the same type or specie of benefit that establishes the employer’s or insurance carrier’s liability. The question of delay and the reasonableness of the cause shall be determined by the appeals board in accordance with the facts. This delay or refusal shall constitute good cause under Section 5803 to rescind, alter, or amend the order, decision, or award for the purpose of making the increase provided for in this section.
(b) This section shall apply to all injuries, without regard to whether the injury occurs before, on, or after the operative date of this section.

SECTION 1.Section 5814 of the Labor Code is amended to read:
5814.

(a)When payment of compensation has been unreasonably delayed or refused, either prior to or subsequent to the issuance of an award, the amount of the payment unreasonably delayed or refused shall be increased up to 25 percent or up to ten thousand dollars ($10,000), whichever is less. In a proceeding pursuant to this section, the appeals board shall use its discretion to accomplish a fair balance and substantial justice between the parties.

(b)If a potential violation of this section is discovered by the employer prior to an employee claiming a penalty pursuant to this section, the employer, within 90 days of the date of the discovery, may pay a self-imposed penalty in the amount of 10 percent of the amount of the payment unreasonably delayed or refused, along with the amount of the payment delayed or refused. This self-imposed penalty shall be in lieu of the penalty pursuant to subdivision (a).

(c)Upon the approval of a compromise and release, findings and awards, or stipulations and orders by the appeals board, it shall be conclusively presumed that any accrued claims for penalty have been resolved, regardless of whether a petition for penalty has been filed, unless the claim for penalty is expressly excluded by the terms of the order or award. Upon the submission of any issue for determination at a regular trial hearing, it shall be conclusively presumed that any accrued claim for penalty in connection with the benefit at issue has been resolved, regardless of whether a petition for penalty has been filed, unless the issue of penalty is also submitted or is expressly excluded in the statement of issues being submitted.

(d)The payment of any increased award pursuant to subdivision (a) shall be reduced by any amount paid under subdivision (d) of Section 4650 on the same unreasonably delayed or refused benefit payment.

(e)An unreasonable delay in the provision of medical treatment shall not be found when the treatment has been authorized by the employer in a timely manner and the only dispute concerns payment of a billing submitted by a physician or medical provider as provided in Section 4603.2.

(f)Nothing in this section shall be construed to create a civil cause of action.

(g)Notwithstanding any other law, an action shall not be brought to recover penalties that may be awarded under this section more than two years from the date the payment of compensation was due.

(h)This section shall apply to all injuries, without regard to whether the injury occurs before, on, or after the operative date of this section.