agree with the conclusion of the majority that there was no unreasonable delay by the workers’ compensation insurance carrier in paying medical transportation benefits in this case, and therefore concur in the judgment. For that reason no penalty was warranted. That conclusion makes it unnecessary to address whether those benefits are a class of benefits distinct from medical benefits themselves. I would not reach that question and do not join in the dictum of the majority opinion that a penalty for delay in payment of medical transportation benefits applies to the full award for medical treatment expenses.
I also write separately to suggest that the Legislature revisit the subject of penalties for delay in payment of workers’ compensation benefits. If the majority opinion dictum is correct in concluding that medical transportation expense is not a separate category of benefits and instead is within the general category of medical benefits, the 10 percent penalty for delay in paying those expenses may be grossly disproportionate to the employer’s culpability. Even here the penalty could have been grossly disproportionate to the harm caused the worker by a delay since, under this court’s construction of Labor Code section 5814, the penalty is assessed even for de miuimis *1181delays or amounts and is calculated on the basis of the total amount of medical benefits, including future and as yet unknown medical expenses. (Rhiner v. Workers’ Comp. Appeals Bd. (1993) 4 Cal.4th 1213, 1227 [18 Cal.Rptr.2d 129, 848 P.2d 244]; Gallamore v. Workers’ Comp. Appeals Bd. (1979) 23 Cal.3d 815, 822-823, 826-827 [153 Cal.Rptr. 590, 591 P.2d 1242].)
Moreover, the excessive penalty question is not limited to transportation benefits. It is a recurrent question and may arise again in conjunction with any workers’ compensation law penalty for delay. Unless the Legislature acts, it is inevitable that the validity of the workers’ compensation law penalty scheme will be challenged on the grounds that draconian penalties are not necessary to deter delay and that some workers’ compensation law penalties are so arbitrary that they offend both the Eighth Amendment and the due process clause of the Fourteenth Amendment. As the United States Supreme Court recently reaffirmed: “The Due Process and Equal Protection Clauses . . . protect individuals from sanctions which are downright irrational. Williamson v. Lee Optical of Okla. Inc., 348 U.S. 483 [75 S.Ct. 461, 99 L.Ed. 563] (1955). The Eighth Amendment protects against excessive civil fines .... Alexander v. United States, 509 U.S. 544 [113 S.Ct. 2766, 125 L.Ed.2d 441] (1993); Austin v. United States, 509 U.S. 602 [113 S.Ct. 2801, 125 L.Ed.2d 488] (1993).” {Hudson v. United States (1997) 522 U.S. 93, _ [118 S.Ct. 488, 495, 139 L.Ed.2d 450, 461].)
Were we faced with such a case, the court might have no alternative but to invalidate the penalty scheme in toto. The Legislature, on the other hand, has the ability to preserve the penalty scheme by acting to ensure that penalties bear some rational relationship between the need to deter delay and the harm to the injured worker the delay in payment threatens. If a fine or forfeiture imposed as punishment for crime may not be “grossly disproportional to the gravity of the defendant’s offense” (see United States v. Bajakajian (1998) _ U.S. _, _ [118 S.Ct. 2028, 2038, 141 L.Ed.2d 314]), surely a civil penalty, even when imposed for deterrent effect, may not be so. (See BMW of North America, Inc. v. Gore (1996) 517 U.S. 559 [116 S.Ct. 1589, 134 L.Ed.2d 809].)
The Legislature would do well to consider the constitutional implications of the present penalty scheme of the workers’ compensation law.