Current through Register 2024 Notice Reg. No. 38, September 20, 2024
(a) The presiding workers' compensation judge
or the Appeals Board may order sealed medical reports, medical records or other
documents filed in a case containing references to or discussions of mental or
emotional health of any person, sexual habits or practice, use of or addiction
to alcohol or other drugs, or other matters of similar character. Sealed
documents shall not be made available for public inspection except by order of
the presiding workers' compensation judge or the Appeals Board upon a showing
of good cause.
(b) A party
requesting that documents be sealed shall file a petition to seal documents or
portions thereof with either the district office having venue or with the
Appeals Board, if the matter is pending there.
(1) Any petition to seal documents shall
demonstrate good cause and shall be accompanied by a declaration containing
facts sufficient to justify the sealing consistent with subdivision (c) of this
rule.
(2) Documents that have not
been filed prior to the petition to seal may be lodged with the Workers'
Compensation Appeals Board concurrently with the filing of the petition to
seal. A document shall be lodged in a sealed envelope with a coversheet that
includes the ADJ number, a general description of the documents and a statement
that "the documents are lodged pending the outcome of a petition to
seal."
(3) If necessary to prevent
disclosure, the petition, any opposition and any supporting documents must be
filed in a public redacted version and lodged in a complete version
conditionally under seal.
(4) If
the presiding worker's compensation judge or the Appeals Board denies the
petition to seal, the clerk shall return the lodged record to the submitting
party and shall not place it in the adjudication file.
(5) Subsequently-filed documents shall not
disclose material contained in a document previously sealed, conditionally
sealed, or subject to a pending petition to seal.
(c) The presiding workers' compensation judge
or the Appeals Board may order that a document be filed under seal or sealed
only after expressly finding facts that establish:
(1) There exists an overriding public
interest that overcomes the right of public access to the record;
(2) The overriding public interest supports
sealing the record;
(3) A
substantial probability exists that the overriding public interest will be
prejudiced if the record is not sealed;
(4) The proposed sealing is narrowly
tailored; and
(5) No less
restrictive means exists to achieve the overriding public
interest.
(d) Documents
may be ordered sealed on the motion of the presiding workers' compensation
judge or the Appeals Board if the injured employee is unrepresented or other
good cause exists for sealing the documents. All parties shall be given notice
and opportunity to be heard. After the issuance of a notice of intention to
seal documents, the documents shall be lodged conditionally under seal pending
the issuance of an order sealing the documents or an order finding no good
cause to seal the documents.
(e)
(1) An order sealing a document or documents
shall be filed in the record of the proceedings. The order shall set forth the
facts that support the findings and direct the sealing of only those documents
and pages, or, if practicable, portions of those documents and pages containing
the material that requires placement under seal.
(2) If the order directs that an entire
document shall be sealed, and if the sealed document is contained in a paper
adjudication file, the sealed document shall be placed in a sealed envelope,
which shall be removed from the file before the file is made available for
public inspection. If the sealed document is in an electronic adjudication
file, the document shall be marked as sealed. No entirely sealed document in a
paper file or an electronic file shall be available for public
inspection.
(3) If the order
directs that a portion or portions of a document be sealed, and if the
partially sealed document is contained in a paper adjudication file, the
partially sealed document shall be placed in a sealed envelope, however, a
version of the document with the sealed portion redacted shall be made
available for public inspection. If the sealed document is in an electronic
adjudication file, a version of the document with the sealed portion redacted
also shall be electronically maintained and shall be made available for public
inspection.
(f) Sealed
documents shall be made available for inspection by any party to the case or by
their representative, subject to any reasonable conditions and limitations as
the presiding workers' compensation judge or the Appeals Board may
impose.
1.
Renumbering and amendment of former section
10754 to section 10813 filed
12-17-2019; operative 1-1-2020. Submitted to OAL for printing only pursuant to
Government Code section
11351
(Register 2019, No. 51).
Note: Authority cited: Sections
133,
5307,
5309 and
5708, Labor
Code. Reference: Section
5708, Labor
Code; and Rule 2.551, California Rules of
Court.
