Penalties and sanctions issues were raised at trial but not litigated or adjudicated; no findings or awards were made on these issues by the WCJ.
Favours Applicant prevailed
This meant the issues were not denied by operation of law under section 5815, allowing them to be litigated later.
From the decision · page 2FACTS
Trial commenced in this matter on September 3, 2019, and was thereafter continued to
November 14, 2019 and January 29, 2020. (See Minutes of Hearing and Summary of Evidence
(MOH) dated September 3, 2019, November 14, 2019, and January 29, 2020.) The penalties and
sanctions issues were raised on the first day of trial: "a) Applicant claims 4650(d) penalties for
failure to pay PD and petition for sanctions and penalties per temporary disability." (MOH,
September 3, 2019, p. 3, § 8.)
The WCJ issued a Findings and Award on April 21, 2020 (F&A). (F&A, April 21, 2020.)
The WCJ did not issue any findings of fact related to the penalties and sanctions issues, nor did
the WCJ issue any orders or awards related to those issues. (Ibid.) There is no discussion of these
issues in the Opinion on Decision. (Id., Opinion on Decision, April 21, 2020.)
On April 24, 2020, applicant requested amendment of the F&A related to the penalties and
sanctions issues.
Applicant did not testify about late indemnity payments and defendant did not present rebuttal evidence or cross-examine on this issue.
Favours Applicant prevailed
This supported the conclusion that the penalties and sanctions issues were not actually litigated, preventing issue preclusion.
From the decision · page 4Next, defendant contends that the penalties and sanctions issues were litigated and
adjudicated at trial, and contends that applicant is therefore precluded from re-litigating the issues
under the doctrine of issue preclusion.5 We disagree. The record of this case indicates that although
the penalties and sanctions issues were identified in the initial MOH, neither the parties nor the
WCJ intended to adjudicate these issues at trial. For example, in addition to the WCJ not including
the issues in the F&A or Opinion on Decision, applicant did not testify regarding any late
indemnity checks. Also, and more telling, there is no rebuttal evidence in the record from
defendant, i.e., defendant neither called its own witnesses nor cross-examined applicant regarding
late indemnity payments.6 We therefore disagree that applicant can be precluded from litigating
issues that were never litigated, and which were never subject to a final decision on the merits.
(See DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 824 [2015 Cal. LEXIS 4652] ["issue
preclusion applies...after final adjudication...of an identical issue...actually litigated and
necessarily decided in the first suit..."].)
The 5-year limitation of Labor Code section 5804 does not apply to penalties and sanctions claims under sections 4650 and 5814.
Favours Applicant prevailed
This allowed the Appeals Board to retain jurisdiction to enforce penalties and sanctions beyond the 5-year period.
From the decision · page 5Finally, the adjudication and/or award of penalties and/or sanctions under section 4650 or
5814, are not barred by the 5-year time limit of section 5804. (Lab. Code, § 5804 ["No award of
compensation shall be rescinded, altered, or amended after five years from the date of the injury
except upon a petition by a party in interest filed within such five years..."], emphasis added.)8 The
"authority [of the WCJ and the Appeals Board] under section 5803 to enforce its awards, including