JOHN K. VAN DE KAMP Attorney General
ANTHONY S. DA VIGO Deputy Attorney General
AGO 82-1111
No. 82-1111
California Attorney General Opinion
Office of the Attorney General State of California
February 9, 1983
THE
HONORABLE VICTOR VEYSEY, DIRECTOR, DEPARTMENT OF INDUSTRIAL
RELATIONS, has requested an opinion on the following
question:
Are
pro-tempore workers' compensation referees appointed
under Labor Code section 123.7 immune from liability under
the California Tort Claims Act for their discretionary acts
within the scope of employment to the same extent as
permanent referees of the Workers' Compensation Appeals
Board?
CONCLUSION
Pro-tempore
workers' compensation referees appointed under Labor Code
section 123.7 are immune from liability under the California
Tort Claims Act for their discretionary acts within the scope
of employment to the same extent as permanent referees of the
Workers' Compensation Appeals Board.
ANALYSIS
The
Workers' Compensation Appeals Board (formerly, the
Industrial Accident Commission), established by the
Legislature pursuant to its constitutional grant of plenary
power to create and enforce a comprehensive system of
workers' compensation (Cal. Const., art. XIV, § 4),
is vested with the authority to adjudicate claims for
compensation brought by employees against employers due to
injuries arising from employment. (§§
3200-6002
1; 61 Ops.Cal.Atty.Gen. 46 (1978).) In order
to facilitate the accomplishment of its judicial powers
(§ 111), the board may direct and order a referee to try
the issues in any proceeding before it, whether of fact or of
law, and to make a finding, order, decision, or award based
thereon. (§§ 5309, 5310, 5313, 130.) The board may
confirm, adopt, modify or set aside the findings, order,
decision, or award of a referee, or enter its own based upon
the record. (§ 5315; cf. Conf. of Referees v. State
Personnel Board (1968) 262 Cal.App.2d 131, 133.) It is
sufficient for purposes of this analysis to observe that a
workers' compensation referee is engaged either in the
exercise of judicial (Perry Farms, Inc. v. Agricultural
Labor Relations Board (1978) 86 Cal.App.3d 448, 460; 61
Ops.Cal.Atty.Gen., supra, 49-50) or quasi-judicial
(cf. Conf. of Referees v. State Personnel Board,
supra; 62 Ops.Cal.Atty.Gen. 788, 790 n. 5 (1979))
power.
In
addition to the employment of permanent referees
(§§ 123, 123.5), section 123.7 provides:
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