ADJ13411734 — California WCAB decision

What was disputed, and how it came out

Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.

Temporary disabilityApplicant prevailedneck · back · left knee · right knee · bilateral shoulders

The WCAB affirmed the award of temporary disability indemnity for the period 1/19/2021 to 11/10/2021, rejecting defendant's claim for credit for overlapping TTD payments in case ADJ11084519 because defendant failed to timely raise or present evidence. The WCAB deferred the issues of penalties and attorneys' fees for further analysis and explanation by the WCJ.

From the decision · page 3commencing on August 26, 2017. However, the time to raise and present evidence on this issue was prior to the issuance of the December 22, 2022 decision. Having failed to raise or present evidence on this issue, and having failed to seek reconsideration from the December 22, 2022 decision, defendant cannot now say that applicant was temporarily disabled in the cumulative case during any period other than January 19, 2021 to November 10, 2021. (Lab. Code, § 5904.) The only way defendant could show it was entitled to a credit for overlapping periods of temporary disability is to show that applicant was temporarily disabled in the specific injury case at some point during the period between January 19, 2021 and November 10, 2021. But defendant admits in its Petition that this is not the case. We therefore affirm the WCJ's decision that applicant is entitled to full payment of the award of temporary disability indemnity in case ADJ13411734.

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

Defendant failed to timely raise or present evidence to claim credit for overlapping temporary disability payments in case ADJ11084519.

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Labor Code section 5814

Labor Code section 5814 permits a penalty of up to 25 percent for delayed payment of benefits, with discretion to the WCJ to determine the amount based on factors such as the amount and length of delay, and the defendant's conduct.

From the decision · page 3Assuming defendant's conduct justified section 5814 penalties, the WCJ must do a full analysis under Ramirez v. Drive Financial Services (2008) 73 Cal.Comp.Cases 1324 (Appeals Board en banc) regarding the amount of penalties awarded. The WCJ did not explain the basis of his imposition of a maximum penalty. Labor Code section 5814(a) permits a penalty of "up to 25 percent." (Emphasis added.) The amount of the penalty is discretionary, and the full 25 percent penalty should be reserved for the most culpable conduct on the part of a defendant. In Ramirez, we emphasized that Labor Code section 5814 affords a WCJ discretion in determining the penalty which should be assessed, with a primary view towards the goals of encouraging the prompt payment of benefits by making delays costly on defendants, and of ameliorating the effects of any delays on the injured worker.

Labor Code section 5813

Labor Code section 5813 deals with attorney's fees for bad faith litigation tactics, distinct from section 5814.5 which deals with fees for enforcing an award of compensation.

The WCJ must explain the basis for awarding attorney's fees under section 5813 separately from section 5814 penalties.

From the decision · page 4Finally, the WCJ must explain the basis behind the attorney's fee award, specifically explaining a reasonable rate and the specifying the time expended in enforcing the award. The WCJ should also explain the basis of awarding fees pursuant to Labor Code section 5813 which deals with bad faith litigation tactics rather than Labor Code section 5814.5 which deals with fees for enforcing an award of compensation.

Labor Code section 5904

Labor Code section 5904 bars defendant from raising issues not timely presented before the issuance of a final decision.

Defendant's failure to timely raise evidence on temporary disability periods bars credit for overlapping TTD payments.

From the decision · page 3commencing on August 26, 2017. However, the time to raise and present evidence on this issue was prior to the issuance of the December 22, 2022 decision. Having failed to raise or present evidence on this issue, and having failed to seek reconsideration from the December 22, 2022 decision, defendant cannot now say that applicant was temporarily disabled in the cumulative case during any period other than January 19, 2021 to November 10, 2021. (Lab. Code, § 5904.) The only way defendant could show it was entitled to a credit for overlapping periods of temporary disability is to show that applicant was temporarily disabled in the specific injury case at some point during the period between January 19, 2021 and November 10, 2021. But defendant admits in its Petition that this is not the case. We therefore affirm the WCJ's decision that applicant is entitled to full payment of the award of temporary disability indemnity in case ADJ13411734.

Ramirez v. Drive Financial Services (2008) 73 Cal.Comp.Cases 1324 (Appeals Board en banc)

Ramirez v. Drive Financial Services (2008) 73 Cal.Comp.Cases 1324 (Appeals Board en banc) provides factors for assessing Labor Code section 5814 penalties, emphasizing discretion and goals of prompt payment and ameliorating delay effects on injured workers.

The WCJ must consider Ramirez factors in determining the amount of Labor Code section 5814 penalties.

From the decision · page 3Assuming defendant's conduct justified section 5814 penalties, the WCJ must do a full analysis under Ramirez v. Drive Financial Services (2008) 73 Cal.Comp.Cases 1324 (Appeals Board en banc) regarding the amount of penalties awarded. The WCJ did not explain the basis of his imposition of a maximum penalty. Labor Code section 5814(a) permits a penalty of "up to 25 percent." (Emphasis added.) The amount of the penalty is discretionary, and the full 25 percent penalty should be reserved for the most culpable conduct on the part of a defendant. In Ramirez, we emphasized that Labor Code section 5814 affords a WCJ discretion in determining the penalty which should be assessed, with a primary view towards the goals of encouraging the prompt payment of benefits by making delays costly on defendants, and of ameliorating the effects of any delays on the injured worker.

ADJ13411734 · January 26, 2024

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