What the panel ordered
The WCAB amended the Findings and Award to defer the issue of attorney's fees and eligibility for the statutory increase under Labor Code section 4658(d)(2) and returned the matter to the trial level for further proceedings.
Petition for Reconsideration filed by applicant from the February 14, 2020 Findings and Answer; WCJ prepared a Report and Recommendation on Petition for Reconsideration recommending partial grant of petition; WCAB granted reconsideration and issued Opinion and Decision After Reconsideration on January 6, 2022, amending Findings and Award and returning matter to trial level for further proceedings.
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.
The WCAB returned the matter to the trial level to amend the Findings and Award to include attorney's fees in the amount of 15% of the additional temporary disability awarded.
From the decision · page 3A. ATTORNEY'S FEES FROM THE ADDITIONAL TEMPORARY DISABILITY AWARD.
The WCAB concluded that applicant's attorney is entitled to attorney's fees on the life pension award and returned the matter to the trial level to determine reasonable attorney's fees from the life pension award.
From the decision · page 4C. ATTORNEY'S FEES FROM SECTION 4658(D)(2) INCREASE AND LIFE PENSION
The WCAB returned the matter to the trial level to develop the record on whether the employer employed 50 or more employees to determine eligibility for the statutory increase under section 4658(d)(2).
From the decision · page 3B. STATUTORY INCREASE UNDER SECTION 4658(D)(2)
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant was underpaid temporary disability for the periods August 6, 2009 through October 4, 2009, and July 1, 2011 through October 6, 2011.
Favours Applicant prevailed
This underpayment led to the award of additional temporary disability and the issue of attorney's fees on that amount.
From the decision · page 2Initially, the issues of date of injury pursuant to Labor Code section 5412, and liability pursuant to Labor Code section 5500.5 were tried. The proper Defendants were found to be Insurance Company of the West, and Liberty Mutual Insurance. Old Republic Insurance was dismissed as a party defendant, after the initial trial, pursuant to Labor Code section 5500.5. The remaining defendants were unable to resolve the issues of underpayment of temporary disability, permanent disability, and apportionment. The matter proceeded to trial on November 19, 2019. The court found the Applicant had been underpaid temporary disability for the period August 6, 2009 through and including October 4, 2009, and for the period July 1, 2011 through and including October 6, 2011. The parties were ordered to adjust the underpayment less credit for amounts of temporary disability previously paid. The undersigned did not provide an award of attorney fees on the underpayment temporary disability.
Applicant failed to prove employer employed 50 or more employees to qualify for the statutory increase under Labor Code section 4658(d)(2).
Favours Defendant prevailed
This lack of proof led to deferral and remand for further development of the record on this issue.
From the decision · page 3According to the Report, the applicant failed to prove that the employer employed 50 or more employees in order to meet the requirements of section 4658(d)(2). The Appeals Board has the discretionary authority to develop the record when the medical record is not substantial evidence or when appropriate to provide due process or fully adjudicate the issues. (Lab. Code, § 5701, 5906; Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 389, 392-394 [62 Cal.Comp.Cases 924]; see McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117, 1120-1122 [63 Cal.Comp.Cases 261].) In our en banc decision in McDuffie v. Los Angeles County Metropolitan Transit Authority (2001) 67 Cal.Comp.Cases 138, 141 (Appeals Board en banc), we stated that "[s]ections 5701 and 5906 authorize the WCJ and the Board to obtain additional evidence, including medical evidence, at any time during the proceedings (citations) [but] [b]efore directing augmentation of the medical record... the WCJ or the Board must establish as a threshold matter that specific medical opinions are deficient, for example, that they are inaccurate, inconsistent or incomplete. (Citations.)" (McDuffie, supra, 67 Cal.Comp.Cases at 141.) Here, we return this matter to the trial level to develop the record on this issue.
Applicant's attorney is entitled to attorney's fees on the life pension award.
Favours Applicant prevailed
This entitlement led to deferral of the attorney's fees issue for further determination at trial level.
From the decision · page 4We disagree that attorney's fees on the life pension award is dependent on the complexity of the matter and conclude that applicant's attorney is entitled to attorney's fees on the life pension award. We return this matter to the trial level to determine what constitutes reasonable attorney's fees from the life pension award.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code
Labor Code section 4658(d)(2)
The WCAB considered the statutory increase eligibility requirements and returned the matter to the trial level to develop the record on employer size.
From the decision · page 3If, within 60 days of a disability becoming permanent and stationary, an employer does not offer the injured employee regular work, modified work, or alternative work, in the form and manner prescribed by the administrative director, for a period of at least 12 months, each disability payment remaining to be paid to the injured employee from the date of the end of the 60-day period shall be paid in accordance with paragraph (1) and increased by 15 percent. This paragraph shall not apply to an employer that employs fewer than 50 employees. (§ 4658(d)(2).)
Labor Code
Labor Code section 4903
The WCAB applied this statute to attorney's fees issues and returned the matter to the trial level for determination of reasonable fees.
From the decision · page 4Section 4903 authorizes the Appeals Board to award attorney's fees for legal services pertaining to any claim for compensation. (§ 4903(a).) WCAB Rule 10844 states,
Cal. Code Regs., tit. 8, 10844
WCAB Rule 10844
The WCAB applied this rule to attorney's fees determinations.
From the decision · page 4Section 4903 authorizes the Appeals Board to award attorney's fees for legal services pertaining to any claim for compensation. (§ 4903(a).) WCAB Rule 10844 states,
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