26 | 2024 Cal-Peculiarities ©2024 Seyfarth Shaw LLP www.seyfarth.com injured worker’s entitlement to future medical treatment. Both types of settlement must be approved by a workers’ compensation referee. The standard “C&R” form used to effect a compromise and release will not release an individual’s civil claims against the employer63 and a civil release alone cannot settle a workers’ compensation claim. Applicants’ attorney fees also must be approved by a workers’ compensation judge, and are generally 915% of the settlement amount.64 Only the WCAB can resolve workers’ compensation issues. They cannot be resolved in a Settlement and Release on the civil side without WCAB approval. 1.9 Workers’ Compensation Appeals Board (WCAB) The WCAB is a seven-member judicial body appointed by the Governor and confirmed by the California Senate. It reviews petitions for reconsideration of decisions by workers’ compensation administrative law judges of the DWC and regulates the adjudication process by adopting rules of practice and procedure. A WCAB decision is reviewable only by the appellate courts. 1.10 Division of Occupational Safety and Health (DOSH) The DOSH, also known as Cal/OSHA, protects workers and the public from safety hazards by enforcing occupational health and safety laws and providing information and consultative assistance to employers, workers, and the public about workplace and public safety matters. The DOSH, through the Cal/OSHA Enforcement Unit, inspects California workplaces based on worker complaints, accident reports, and programmed inspections especially in high hazard industries. Penalties for Cal/OSHA violations are assessed per citation, and can run from several hundred dollars to tens of thousands of dollars.65 DOSH amended its regulations several years ago to (1) increase the “look back” period from three years to five years to determine if there is a “repeat” violation of a safety order, (2) allow a repeat citation for any prior employer violations in the state (as opposed to repeat citations to a fixed establishment or within the region for businesses that have no fixed establishments), and (3) allow a repeat citation for a substantially similar violation, hazard, or condition (as opposed to the “same violation” under former law).66 DOSH’s broader authority to issue repeat citations could have significant ramifications for employers, in that repeat violations require no higher proof of intent by the employer, and penalties for repeat citations can reach $158,727 per violation.67 The Occupational Safety and Health Appeals Board, a three-member quasi-judicial body appointed by the Governor and confirmed by the California Senate, handles appeals from private and public sector employers regarding citations issued by DOSH for alleged violations of workplace safety and health laws and regulations.68 1 For more information, see www.ca.gov (last visited July 12, 2024). 2 Historically, disability discrimination complaints have been the most common, followed by retaliation, race, and gender discrimination, and sexual harassment. For more information, see www.calcivilrights.ca.gov (last visited July 11, 2024). 3 Dep’t of Fair Employment & Housing v. Am. Pac. Corp., No. 34-2013-00151153-CU-CR-GDS, Sacramento Cnty. Superior Ct. (Mar. 13, 2014). 4 Cheng v. WinCo Foods LLC, No. 14-CV-0483-JST, 2014 WL 2735796 (N.D. Cal. June 11, 2014). 5 2 Cal. Code Regs. §§ 11029-11030. 6 2 Cal. Code Regs. § 11028. 7 2 Cal. Code Regs. § 11028(g). 8 2 Cal. Code Regs. § 11024. 9 2 Cal. Code Regs. § 11023(b), (c). 10 2 Cal. Code Regs. § 11023(a).
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