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ADJ8835104 — California WCAB decision · SimilarCase

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California WCABPanel decision

ADJ8835104 · February 21, 2023

Petition for Reconsideration granted in part; section 5814 penalties amended to be payable to applicant, not applicant's attorney; otherwise WCJ decision affirmed.

Issues decided: 1
Medical opinions weighed: 0
Authorities named: 1
District office: Sacramento

What the panel ordered

Petition for Reconsideration granted in part; section 5814 penalties amended to be payable to applicant, not applicant's attorney; otherwise WCJ decision affirmed.

Petition for Reconsideration filed by Defendant and granted in part to defer issue of Labor Code section 5814.5 fees and amend award of section 5814 penalties.

Read the official decision →

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.

Penalties under Labor Code §5814Applicant prevailed

The Board found that the penalties under section 5814 are payable to the applicant and not the applicant's attorney, and deferred the issue of section 5814.5 fees.

From the decision · page 1We have considered the allegations of the Petition for Reconsideration and the contents of the Report of the workers' compensation administrative law judge (WCJ) with respect thereto. Based on our review of the record, and for the reasons stated below, we will grant reconsideration to defer the issue of Labor Code1 section 5814.5 fees and to amend the award of section 5814 penalties to reflect that it they are payable to applicant and not applicant's attorney. We will otherwise affirm the WCJ's decision for the reasons stated in the Report, which we adopt and incorporate, except as noted below.

The facts that decided it

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Checks dated February 23, 2022 were not received by applicant or applicant's attorney until after March 9, 2022, indicating delayed mailing.

Favours Applicant prevailed

Supports finding of unreasonable delay in payment under Labor Code section 5814.

From the decision · page 6On March 9, 2022, Applicant attorney notified Defendant attorney that neither he nor Applicant received their checks from the Stipulations. Applicant attorney indicated his client expected payment as soon as possible and with a self-imposed penalty. Applicant attorney asked when they could expect to receive the checks. (Defendant Exhibit E) Defendant attorney replied indicating both were paid in full on February 23, 2022 and provided check amounts and addresses. Defendant attorney also asked whether the checks should be stopped and reissued. (Defendant Exhibit F)

Defendant failed to provide evidence of when checks left the Illinois facility and relied on speculation about postal delays.

Favours Applicant prevailed

Lack of evidence undermines defendant's claim of timely payment, supporting penalty award.

From the decision · page 6Linda Marie Chase testified on behalf of Defendant at trial. However, her testimony was of little worth. She testified in pertinent part as follows: She is currently employed by CCMSI and has worked there for nearly 10 years. She is not the claims examiner that input the check information for Applicant. Her knowledge is based on a review of the information in the computer system and their notes. She works out of the Concord Office. The checks are printed and mailed from the Illinois office. She has no personal knowledge of when these checks were printed, stuffed into envelopes, and stamped. She has no documentation regarding when the checks left the Illinois facility. She did not know what happened to the checks between February 23 and when they were received but speculated it was delayed by the Post Office.

Defendant reissued checks after notification of non-receipt but did not provide a self-imposed penalty as required.

Favours Applicant prevailed

Failure to provide self-imposed penalty justified penalty award to applicant.

From the decision · page 6Defendant attorney replied indicating the checks were stopped and replacement checks were drafted and would print on Monday, March 14, 2022. (Defendant Exhibit J) At trial, Applicant testified credibly that she received a reissued check on March 17.