§ 10115.1. Appeal of Notice of Penalty Assessment-Filing and Contents.

(a) Within 7 days after receiving a Notice of Penalty Assessment issued under Labor Code section 129.5(a) and (c), the claims administrator may appeal all or a portion of the penalty assessments in the Notice by filing with the Administrative Director and serving the Audit Unit with a request for an appeals conference or a request for a written decision without a conference.

(b) If a request for a written decision or request for appeals conference is not timely filed and served, the Notice of Penalty Assessment will become final 7 days after the claims administrator received it, and must be paid in accordance with Labor Code §129.5(d) within 15 days of receipt.

(c) The request shall be in writing in a form specified by the Administrative Director and shall include at least the following information:

(1) The name and address of the person filing the request;

(2) A copy of the Notice of Penalty Assessment which is disputed.

(d) Within 21 days after the request for a written decision or appeals conference is filed, the appellant shall file with the Administrative Director and serve the Audit Unit with a written statement listing the assessments appealed, specifying the legal or factual basis of the appeal, and including documentation or other evidence, if any, which supports the appellant's position. If the written statement and supporting documentation are not timely filed and served, the the Administrative Director shall dismiss the request for written decision or appeals conference. The Notice of Penalty Assessment becomes final on the date of the Administrative Director's notice of dismissal. Penalties shall be paid within 15 days of receipt of the notice of dismissal.

(e) The appellant is deemed to have finally waived any legal or factual basis for appeal which is not stated in a timely filed appeal or timely filed supporting statement. However, the appellant may move the Administrative Director, upon a written showing of good cause filed and served not later than thirty days after its written statement was timely filed, for leave to amend its appeal or statement to add a legal or factual basis for appeal not previously stated. The motion shall attach a copy of the proposed amendment. The motion may include a request to file additional supporting documentation, which shall also be attached. If leave to amend is granted, the proposed amendment shall be deemed filed on the date the Administrative Director's order is served.

(f) Documentation which the appellant did not file with its appeal or supporting statement (including an amended appeal and statement allowed under subdivision (e)) will not be admitted into evidence in support of the appeal without a showing of good cause. Good cause requires the appellant to show that the additional documentation was not reasonably available to accompany its appeal statement, and also requires that the appellant serve a copy of the proposed additional documentation on the Audit Unit before the hearing, as soon as the document becomes available.

(g) The appellant shall mail or deliver an original and one copy of its request under subdivision (a) and its statement, documentation and any motion under subdivisions (d) or (e) to the office of the Administrative Director at the address shown in the report of audit findings. Requests, statements, documentation and motions are timely if they were:

(1) Placed in the United States mail in a fully prepaid, sealed envelope postmarked within the times specified in subdivisions (a), (d) and (e); or,

(2) Delivered to the office of the Administrative Director between the hours of 8:00 a.m. and 5:00 p.m. within the periods specified in subdivisions (a), (d) and (e).

If a date to submit a request under subdivision (a) or to submit a filing under subdivisions (d) or (e) falls on a weekend or holiday, that date is extended to the next business day.

(h) The appellant shall serve two copies of any request, statement, document or motion filed with the Administrative Director concurrently on the Audit Unit, by the same means of delivery as the original which was filed with the Administrative Director. The original and all copies of any filing shall attach proof of service, which may be made as provided in California Code of Regulations, title 8, section 10975.

(i) If a request for a written decision or an appeals conference, or a written statement in support of the appeal, contests only a portion of a Notice of Penalty Assessment, the portions of which are not appealed (or not included in the supporting statement(s)) shall become final on the same date an entire Notice of Penalty Assessment would become final if not timely appealed or supported, and appellant shall pay the uncontested assessments by the date payment would be due under subdivision (b) if an entire Notice of Penalty Assessment were involved.

HISTORY

1. Renumbering and amendment of former section 10113 to section 10115.1 filed 1-28-94; operative 1-28-94. Submitted to OAL for printing only pursuant to Government Code section 11351 (Register 94, No. 4).

2. Amendment of subsection (i) filed 2-14-96; operative 2-14-96. Submitted to OAL for printing only pursuant to Government Code section 11351 (Register 96, No. 7).

3. Amendment of subsections (a) and (d) filed 12-30-2002; operative 1-1-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 1).

4. Amendment filed 4-20-2009; operative 5-20-2009 (Register 2009, No. 17).

Note

Note: Authority cited: Sections 59, 129.5, 133 and 5307.3, Labor Code. Reference: Sections 129 and 129.5, Labor Code.