Labor Code section 4909
Labor Code section 4909 allows credit for overpayment of benefits
The WCAB allowed credit for overpayment of temporary disability indemnity to be applied against permanent disability indemnity liability.
From the decision · page 2Under Labor Code section 4909, the WCAB is allowed to "take[] into account," i.e. to
allow a credit, for any payment, allowance, or benefit paid by the defendant to the injured
employee when it was not then due and payable or when there was a dispute or question concerning
the right to compensation.
State Comp. Ins. Fund v. Industrial Acc. Comm. (Verden) (1955) 30 Cal.Comp.Cases 132; Herrera v. Workers' Comp. Appeals Bd. (1969) 71 Cal.2d 254; Cordes v. General Dynamics-Astronautics (1966) 31 Cal.Comp.Cases 429; Maples v. Workers' Comp. Appeals Bd. (1980) 111 Cal.App.3d 827; Kemper National Ins. Co. v. Workers' Comp. Appeals Bd. (Spangler) (1999) 65 Cal.Comp.Cases 78; Abdala v. Aziz (1992) 3 Cal.App.4th 369
Allowance of credit is within WCAB's discretion and equity principles apply
The WCAB weighed equities and public policy against double recovery in allowing the credit.
From the decision · page 2In State Comp. Ins. Fund v. Industrial Acc. Comm. (Verden) (1955) 30 Cal.Comp.Cases
132 (writ den.), the defendant overpaid temporary disability indemnity through its own
inadvertence. Its subsequent request for credit against the applicant's permanent disability
indemnity was denied because the credit would have totally exhausted the applicant's permanent
disability indemnity and therefore would have frustrated the Legislature's purpose in providing for
permanent disability indemnity. Our Supreme Court has stated that the allowance of credit is
within the WCAB's discretion. (Herrera v. Workers' Comp. Appeals Bd. (1969) 71 Cal.2d 254,
258 [34 Cal.Comp.Cases 382].) As we said in Cordes v. General Dynamics-Astronautics (1966)
31 Cal.Comp.Cases 429 (Appeals Bd. panel), "Whether a credit is to be allowed is a matter directed
to the discretionary authority of the [WCAB] to be weighed in the light of the circumstances of
the particular case and should not be subjected to a harsh dictate that avoids the equities presented."