What the panel treated as outcome-determinative, and which side it favoured.
The WCJ found the delay in payment of attorney's fees unreasonable based on a standard of payment within 30 days, with some allowance up to 60 days.
Favours Applicant prevailed
This finding justified the imposition of section 5814 penalties for delayed payment.
From the decision · page 3The usual standard, in my experience, is that payment should be made within 30
days. Special circumstances may delay payment somewhat, and payment made
within 60 days cannot always be said to be unreasonable in some situations.
Overwork, indolence, or inattention on the part of defendant do not generally
Attorney's fees under section 5710 are considered compensation subject to section 5814 penalties for unreasonable delay.
Favours Applicant prevailed
This legal classification supports imposing penalties for delayed payment of attorney's fees.
From the decision · page 3The Appeals Board, as well as the Courts of Appeal, have long held that attorney's fees
constitute "compensation" under section 5814, and, as a result, an unreasonable delay in payment
thereof is subject to penalties under the statute. (See, e.g., Koszdin v. State Comp. Ins. Fund (2010)
186 Cal.App.4th 480 [75 Cal.Comp.Cases 711, 717]; State Comp. Ins. Fund v. Workers' Comp.
Appeals Bd. (1981) 117 Cal.App.3d 143, 146 [46 Cal.Comp.Cases 348] ["attorneys' fees are
within the definition of `compensation' of Labor Code section 5814"].) Thus, we reject
defendant's first contention that section 5710 is not subject to section 5814 penalties.
Section 4650(d) penalties apply to any untimely indemnity payment, regardless of dispute over the TD rate.
Favours Applicant prevailed
This legal standard supports imposing penalties for delayed payment of temporary disability benefits.
From the decision · page 5carrier is required to automatically include payment of an extra ten percent. In Gangwish v.
Worker's Comp. Appeals Bd. (2001) 89 Cal.App.4th 1284 [66 Cal.Comp.Cases 584], the Court of
Appeal explained that "the purpose of enacting...section 4650 was to promote prompt payment of
benefits and certainty of timing." (Id. at p. 1293, emphasis added.) Thus, it is timing of the
payment of TD benefits, rather than absolute certainty over the final amount, that is essential under
the statute. As the WCJ notes in his Report, while the state of applicant's records may have made
determination of the correct TD rate difficult, there was "no real doubt that at least some TD
benefits were underpaid. The only question was the exact amount of the underpayment." (Report,
pp. 4-5.) Pursuant to section 4650(d), it is to this underpaid amount, which was eventually
determined in the parties' stipulated agreement, that the automatic ten percent penalty would apply.
Defendant accepted liability for injury and TD benefits; the only dispute was the amount of TD owed.
Favours Applicant prevailed
Acceptance of liability supports application of section 4650(d) penalties despite dispute over amount.
From the decision · page 5carrier is required to automatically include payment of an extra ten percent. In Gangwish v.
Worker's Comp. Appeals Bd. (2001) 89 Cal.App.4th 1284 [66 Cal.Comp.Cases 584], the Court of
Appeal explained that "the purpose of enacting...section 4650 was to promote prompt payment of
benefits and certainty of timing." (Id. at p. 1293, emphasis added.) Thus, it is timing of the
payment of TD benefits, rather than absolute certainty over the final amount, that is essential under
the statute. As the WCJ notes in his Report, while the state of applicant's records may have made
determination of the correct TD rate difficult, there was "no real doubt that at least some TD
benefits were underpaid. The only question was the exact amount of the underpayment." (Report,
pp. 4-5.) Pursuant to section 4650(d), it is to this underpaid amount, which was eventually
determined in the parties' stipulated agreement, that the automatic ten percent penalty would apply.