ADJ4651980 · October 10, 2022

The WCJ and WCAB found no new evidence or grounds to reconsider; the applicant's delay and lack of credible evidence led to denial.

From the decision · page 5Before turning toward discussion of the case, the court notes that the applicant has not shown that the attached documents to the Petition for Reconsideration are new evidence which applicant could not with reasonable diligence have discovered and produced at trial as required under Labor Code Section 5903(d). In addition, the Petition for Reconsideration has attached

Applicant had knowledge of the settlement since at least 2007 but delayed raising non-payment claim until 2021-2022.

Favours Defendant prevailed

This delay caused prejudice to defendant by destruction of evidence and undermined applicant's credibility.

From the decision · page 7In addition, the Petition for Reconsideration brings forth another discrepancy. The applicant testified at trial that he did not know he had a settlement (MOH/SOEpg.6:10.5-11) and that he learned of the award in 2020. (MOH/SOE Pg. 7:16.5-18) However, in the petition for reconsideration, he indicates that he was aware of the settlement in 2007. (Recon Addendum entitled Findings of Fact paragraph #4) Accordingly, applicant had knowledge of the settlement since at least 13 years prior to the hiring of applicant's attorney in 2020. Therefore, he had sufficient time to allege non-payment of the settlement since at least 2007.

Defendant provided a printout showing payments consistent with the award but could not produce check images due to destruction after 10 years.

Favours Defendant prevailed

The lack of check images due to destruction prejudiced defendant's ability to prove payment receipt, supporting denial of applicant's claim.

From the decision · page 7Next, applicant claimed he never received those checks. (MOH/SOE pg. 6:4.5-7) Ordinarily, the defendant would be able to produce copies or images of the checks that bear the signature of the person that cashed the checks as evidence of receipt. However, the defense witness credibly testified that since it had been over 10 years since the checks issued in this case, that they were not able to pull them up from the City. The claims administrator's data had been cleared and the City of Montebello destroyed checks after 10 years from the issuance date. (MOH/SOE pg. 9:19-23.5) Therefore, the defendant's witness testimony established that while they still have the printout of payments made, they no longer have copies of the checks due to the amount of time that has passed. The applicant's significant delay in alleging non-payment has caused prejudice to the defendant in that the evidence they normally would have produced was purged and destroyed. The standard in this case is not "beyond a reasonable doubt" as alleged by the applicant but by a preponderance of the evidence standard. Therefore, the court finds that the printout was sufficient to show that defendant more likely than not issued the checks to applicant and that it was more likely than not that the applicant received them given the significant delay in applicant claiming non-payment and prejudice suffered by the defendant.

Applicant's testimony about not knowing the settlement and not receiving checks was found not credible by the WCJ and WCAB.

Favours Defendant prevailed

Credibility findings supported denial of reconsideration and upheld the original payment findings.

From the decision · page 7Applicant's testimony was equivocal and continues to be so even post trial. The court did not find the applicant credible that he did not know about a settlement until 2020 and that he did not receive the checks. This finding was correct as the Petition for Reconsideration shows that applicant was aware in 2007. The court did not find him credible that he was not curious about the status of his case during a 14-year period. (MOH pg.7:203.5) Even assuming arguendo that the court found him credible that he did not receive payment, the

Dyer v. Workers' Comp. Appeals Bd. (1994) 22 Cal. App. 4th 1376

Laches requires unreasonable delay plus prejudice to defendant; prejudice must be affirmatively demonstrated.

Applied to applicant's delay and defendant's prejudice in evidence destruction.

From the decision · page 1The appeals board has broad equitable powers with respect to matters within its jurisdiction. (Dyer v. Workers' Comp. Appeals Bd. (1994) 22 Cal. App. 4th 1376, 1382 [28 Cal. Rptr. 2d 30].) Thus, equitable doctrines such as laches are applicable in workers' compensation proceedings. (Truck Ins. Exchange v. Workers' Comp. Appeals Bd. (Kwok) (2016) 2 Cal. App. 5th 394, 401 [81 Cal.Comp.Cases 685]; State Farm General Ins. Co. v. Workers' Comp. Appeals Bd. (Lutz) (2013) 218 Cal. App. 4th 258, 268 [159 Cal. Rptr. 3d 779]; Kaiser Foundation Hospitals v. Workers' Comp. Appeals Bd. (Martin) (1985) 39 Cal.App.3d 57, 68, fn. 11 [50 Cal.Comp.Cases 411]; Kaiser Foundation Hospitals v. Workers' Comp. Appeals Bd. (Valencia) (1976) 41 Cal.Comp.Cases 730, writ denied.) Laches is a question of fact to be determined by the trier of fact. (Kwok, supra, 2 Cal. App. 5th at p. 402.) "The defense of laches requires unreasonable delay plus either acquiescence in the act about which plaintiff complains or prejudice to the defendant resulting from the delay." (Conti v. Board of Civil Service Commissioners (1969) 1 Cal. App. 3d 351, 359, 360, see also Johnson v. City of Loma Linda (2000) 24 Cal. 4th 61, 77.) Once an

Applicant's significant delay in alleging non-payment caused prejudice to defendant by destruction of evidence (checks).

From the decision · page 7Next, applicant claimed he never received those checks. (MOH/SOE pg. 6:4.5-7) Ordinarily, the defendant would be able to produce copies or images of the checks that bear the signature of the person that cashed the checks as evidence of receipt. However, the defense witness credibly testified that since it had been over 10 years since the checks issued in this case, that they were not able to pull them up from the City. The claims administrator's data had been cleared and the City of Montebello destroyed checks after 10 years from the issuance date. (MOH/SOE pg. 9:19-23.5) Therefore, the defendant's witness testimony established that while they still have the printout of payments made, they no longer have copies of the checks due to the amount of time that has passed. The applicant's significant delay in alleging non-payment has caused prejudice to the defendant in that the evidence they normally would have produced was purged and destroyed. The standard in this case is not "beyond a reasonable doubt" as alleged by the applicant but by a preponderance of the evidence standard. Therefore, the court finds that the printout was sufficient to show that defendant more likely than not issued the checks to applicant and that it was more likely than not that the applicant received them given the significant delay in applicant claiming non-payment and prejudice suffered by the defendant.