5700-5710
LABOR CODE
SECTION 5700-5710
5700. 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. 5701. 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. 5702. 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. 5703. 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 hearing: (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 without charge. (i) The medical treatment utilization schedule in effect pursuant to Section 5307.27 or the guidelines in effect pursuant to Section 4604.5. 5703.5. (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. 5704. 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 is rendered. 5705. 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 establish them: (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 alleged employer. (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 employee. (e) Prejudice to the employer by failure of the employee to give notice, as required by Sections 5400 and 5401. 5706. 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. 5707. 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 this division. 5708. 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. 5709. 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 procedure. 5710. (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 other jurisdictions. (b) Where 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) A 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) A reasonable allowance for interpreter's fees for the deponent, if interpretation services are needed and provided by 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 shall be in accordance with the fee schedule set by the administrative director and paid by the employer or his or her insurer. Payment for interpreter's services shall be allowed for deposition of a non-English-speaking injured worker, and for any other deposition-related events as permitted by the administrative director.