What the panel ordered
The WCAB granted defendant's petition for reconsideration, amended Finding of Fact #16 to remove credit for certain temporary disability periods, affirmed the Findings and Award as amended, and returned the matter to the WCJ for further proceedings.
Defendant sought reconsideration of the Findings and Award issued by the WCJ on May 20, 2024; the WCAB granted reconsideration, amended Finding of Fact #16, and affirmed the F&A as amended.
This docket was decided more than once. Shown here is the latest released decision; we also hold August 4, 2023.
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 found applicant entitled to temporary disability indemnity for the period July 29, 2019 to July 23, 2020, rejecting defendant's claim for credit for overpayment for certain periods because the retirement was compelled by industrial injury and not voluntary.
From the decision · page 1Defendant seeks reconsideration of the Findings and Award (F&A) issued by the workers' compensation administrative law judge (WCJ) on May 20, 2024, wherein the WCJ found in pertinent part that applicant sustained injury to his neck, low back, left shoulder, and psyche while employed by defendant as a bus operator during the period up through April 4, 2018; that applicant was permanent and stationary on July 23, 2020; that applicant is entitled to temporary disability for the period of July 29, 2019, to July 23, 2020; and that:
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant was compelled to retire due to industrial injury, not voluntarily.
Favours Applicant prevailed
This fact supports applicant's entitlement to temporary disability indemnity and rejection of defendant's credit claim for overpayment.
From the decision · page 13Due to the effects of the industrial injury, applicant was compelled to retire from his position with the employer. The retirement was unplanned as applicant intended to return to work upon recovery from the accepted industrial injury.
Defendant delayed and failed to timely communicate applicant's retirement to the adjusting entity, causing overpayment of temporary disability.
Favours Applicant prevailed
This failure undermined defendant's claim for credit and favored applicant's position.
From the decision · page 14In sum, the inaccuracies and omissions above compound the prior issues regarding the factually inaccurate and incomplete Petition for Credit dated 04-28-2021, the inexplicable circumstances where the human resources director failed to communicate the retirement to the Cities Group, the additional delay by the Cities Group in stopping temporary disability, the failure of defendant to provide accurate information of the effective date of the retirement at the first trial, defendant's failure to provide accurate information on its unilateral recharacterization of temporary disability paid, plus the fact that Applicant was compelled to retire early after a long career, all of this has taken a toll on Applicant. The case may be referable to the Audit Unit. Without further delay, the Appeals Board should affirm the Award of 05-20-2024.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Maples v. Workers' Comp. Appeals Bd. (1980) 111 Cal.App.3d 827
Temporary disability indemnity serves as wage replacement during healing period; permanent disability indemnity compensates for residual impairment after maximum recovery.
The Board distinguished the functions of temporary and permanent disability indemnity to reject credit for temporary disability overpayment against permanent disability indemnity.
From the decision · page 8... [T]emporary disability indemnity and permanent disability indemnity were intended by the Legislature to serve entirely different functions. Temporary disability indemnity serves as wage replacement during the injured worker's healing period for the industrial injury. (Citation.) In contrast, permanent disability indemnity compensates for the residual handicap and/or impairment of function after maximum recovery from the effects of the industrial injury have been attained. (Citation.) Permanent disability serves to assist the injured worker in his adjustment in returning to the labor market. (Citation.) Thus, in many instances the allowance of credit for a temporary disability overpayment against permanent disability indemnity can be disruptive and, in some instances totally destructive of the purpose of permanent disability indemnity. (Maples v. Workers' Comp. Appeals Bd. (1980) 111 Cal.App. 3d 827, 836-837 [45 Cal.Comp.Cases 1106] (citations omitted).)
8 Cal. Code Reg. Rule 10945(a)
Petition for reconsideration must set forth grounds specifically and in full detail; each contention must be separately stated and clearly set forth.
The Board found defendant's petition materially misrepresented the issue of voluntary retirement and rejected it.
From the decision · page 12IV. DISCUSSION Labor Code section 5902 requires that a petitioner "set forth specifically and in full detail the grounds upon which the petitioner considers the final order, decision, or award... to be unjust or unlawful." Rule 10945(a) requires a petition for reconsideration to "fairly state all of the material evidence relative to the point or points at issue," and that "Each contention shall be separately stated and clearly set forth." (8 Cal. Code Reg. Rule 10945(a).) In the Petition for Reconsideration, Defendant materially misrepresents the issue by stating that "Applicant voluntarily retired under a service retirement." (Petition for Reconsideration dated 06-05-2024 at p.1/line 26 to p.2/line 2; at p. 2/lines 20-23; at p. 6/lines 10-12; p. 7/ line 19 to p. 8/line 10; p.8/lines 8-10.)
What proof carried it
The evidence the panel weighed, by kind.
Delay and failure in communication between employer and adjusting entity regarding retirement and temporary disability payments
From the decision · page 14In sum, the inaccuracies and omissions above compound the prior issues regarding the factually inaccurate and incomplete Petition for Credit dated 04-28-2021, the inexplicable circumstances where the human resources director failed to communicate the retirement to the Cities Group, the additional delay by the Cities Group in stopping temporary disability, the failure of defendant to provide accurate information of the effective date of the retirement at the first trial, defendant's failure to provide accurate information on its unilateral recharacterization of temporary disability paid, plus the fact that Applicant was compelled to retire early after a long career, all of this has taken a toll on Applicant. The case may be referable to the Audit Unit. Without further delay, the Appeals Board should affirm the Award of 05-20-2024.
Applicant's compelled retirement due to industrial injury, not voluntary retirement
From the decision · page 13Due to the effects of the industrial injury, applicant was compelled to retire from his position with the employer. The retirement was unplanned as applicant intended to return to work upon recovery from the accepted industrial injury.
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About this page
- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
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