Smith v. Workers' Compensation Appeals Board

RICKLES, Acting P. J.

I respectfully dissent from the majority’s characterization that Zenith’s delay in paying the additional $1,000 was not unreasonable.

The undisputed facts indicate there was originally some confusion as to whether the compromise and release was for $23,750 or $24,750. This discrepancy was apparently clarified by Zenith’s hearing representative because he submitted the compromise and release specifying the sum of $24,750 on November 12, 1984.

*1459Two days later, the Board issued an order approving the compromise and release specifying the settlement sum as $24,750. Zenith was served with a copy of the order.

Because Zenith’s claim representative had not corrected the claims department file, the claims department promptly paid the compromise and release contained in their file in the sum of $23,750 on November 19, 1984.

“The discrepancy in the Compromise and Release contained in the file, and Order approving Compromise and Release, was noted by the Claims Department, and the record stated: ‘C & R papers indicate total gross amount of settlement was $23,750.00. Order does not reflect this. Pay per C & R papers and refer file to O.D. Richardson to have Judge issue an amended Order.’ This memorandum was dated 11/19/84. [1Í] As stated, defendant has no record of the Compromise and Release, as allegedly amended, being returned to its office for signature.” (Defendant’s answer to applicant’s petition for reconsideration filed by O. D. Richardson, defendant’s hearing representative.)

The record on appeal is devoid of any action taken by Zenith to check the Board’s file or do anything concerning this discrepancy. Smith, at this point, had been shorted $1,000. Nothing further occurred until January 1985.

On January 16, 1985, Smith contacted his attorney advising him he had been short-changed $1,000. On January 23, Smith’s attorney advised Zenith’s hearing representative Smith had been shorted $1,000 and demanded payment. Smith’s attorney was advised the representative would contact the claims department.

On February 1,1985, a clerical employee of Zenith’s wrote a memorandum to O. D. Richardson,1 which read: “Please review. Compromise and release you drew up was for $23,700. Approval came in $24,750. Please advise which is correct.” Richardson reviewed the Board’s file on February 7, 1985, and instructed Zenith to make immediate payment. On February 14, 1985, Zenith paid the remaining $1,000.

The workers’ compensation judge found that the payment of sums pursuant to the order of November 14, 1985, was not unreasonably delayed. The workers’ compensation judge found there were extenuating circumstances because of the misunderstanding as to the amount of the compromise and release.

*1460I

The evidence is uncontradicted that Zenith’s records demonstrate it had failed to pay Smith the $1,000 from November 19, 1984, to February 14, 1985. This information was before the workers’ compensation judge and the board.2

I am aware our “review is confined to the question of whether, under applicable principles of law, the award of the appeals board is supported by substantial evidence. (LeVesque v. Workmen’s Comp. App. Bd. (1970) 1 Cal.3d 627, 637 [83 Cal.Rptr. 208, 463 P.2d 432].) The application of section 5814[3] has been the subject of a number of appellate decisions. A review of those cases clearly reveals that, although denominated a ‘penalty,’ the section is to be interpreted liberally, in accordance with the general purpose of the workmen’s compensation laws. (E.g., Langer v. Workmen’s Comp. App. Bd. (1968) 258 Cal.App.2d 400 [65 Cal.Rptr. 598]; Davison v. Industrial Acc. Com. (1966) 241 Cal.App.2d 15 [50 Cal.Rptr. 76]; Argonaut Ins. Co. v. Industrial Acc. Com. (1962) 210 Cal.App.2d 267 [26 Cal.Rptr. 470] (hg. den.).)” (Kerley v. Workmen’s Comp. App. Bd. (1971) 4 Cal.3d 223, 226-227; fn. omitted [93 Cal.Rptr. 192, 481 P.2d 200].)

“Section 5814 is explicit and clear. It requires that ‘[w]hen payment of compensation has been unreasonably delayed . . . the full amount of the order, decision or award shall be increased by 10 percent.’ . . . ‘The penalty ... is designed to help an employee obtain promptly the cure or relief he is entitled to under the law, and to compel his employer to provide this cure or relief in timely fashion.’ (Davison v. Industrial Acc. Com. (1966) 241 Cal.App.2d 15, 18 [50 Cal.Rptr. 76].)” (Adams v. Workers’ Comp. Appeals Bd. (1976) 18 Cal.3d 226, 229 [133 Cal.Rptr. 517, 555 P.2d 303].)

It is obvious that section 5814 is designed to protect employees’, not employers’, rights and to encourage employers to make prompt payment by making delay costly. (Jardine v. Workers’ Comp. Appeals Bd. (1984) 163 Cal.App.3d 1, 8 [209 Cal.Rptr. 139]; Jensen v. Workers’ Comp. Appeals Bd. (1985) 170 Cal.App.3d 244, 247 [216 Cal.Rptr. 33].)

“ [T]he only satisfactory excuse for delay in payment of disability benefits, whether prior to or subsequent to an award, is genuine doubt from a medical or legal standpoint as to liability for benefits, and that the burden is on the *1461employer or his carrier to present substantial evidence on which a finding of such doubt may be based.” (Kerley v. Workmen’s Comp. App. Bd. (1971) 4 Cal.3d 223, 230 [93 Cal.Rptr. 192, 481 P.2d 200]; Jensen v. Workers’ Comp. Appeals Bd., supra, 170 Cal.App.3d 244, 247; Johnson v. Workers’ Comp. Appeals Bd. (1985) 163 Cal.App.3d 770, 774 [210 Cal.Rptr. 28]; Bekins Moving & Storage Co. v. Workers’ Comp. Appeals Bd. (1980) 103 Cal.App.3d 675, 680 [163 Cal.Rptr. 213].)

In the case at bench, the record is clear that $1,000 was due Smith on the date of the order of November 14, 1984, until payment was made on February 14, 1985. Zenith has presented no evidence as to a genuine doubt regarding medical or legal liability. The majority and Zenith attempt to justify Zenith’s failure to pay because of inadvertence and mistake, relying on Kampner v. Workers’ Comp. Appeals Bd. (1978) 86 Cal.App.3d 376 [150 Cal.Rptr. 222].

Their reliance on Kampner is misplaced. Kampner did not modify Kerley as to either the grounds for imposition of the penalty or impose the burden of proof on the applicant. Kampner allows the Board to determine preliminarily whether a delay occurred and secondarily to measure delays to determine whether such delays are unreasonable. Kampner does not indicate that every inadvertent delay does not justify penalty. It was an attempt by the courts to discourage applicants from filing requests for penalties occasioned by every de minimis administrative delay. Kampner is not our case.

Zenith is betrayed by the evidence it presented at the hearing. Had Zenith promptly investigated the discrepancy between the order approving the compromise and release and the one contained in their file, this matter would not have appeared before this court. Zenith’s evidence indicated if a prompt investigation had been undertaken as was done in February, payment could have been made in two weeks. There is no evidence justifying the delay in making such an investigation from November 14, 1984, until February 1, 1985.

Accordingly, I would annul the Board’s order with directions to enter a new award providing for the 10 percent penalty pursuant to section 5814.

Petitioner’s application for review by the Supreme Court was denied February 19, 1987. Racanelli, J.,* and Anderson, J.,* participated therein. Mosk, J., was of the opinion that the application should be granted.

O. D. Richardson was the same hearing representative previously referred to in the memorandum of November 19, 1984.

The 22-day delay adopted by the majority occurs as a result of the complaint of Smith’s attorney that the original delay was compounded by the additional 22 days of delay of payment after notification.

3Unless otherwise indicated, all section references in this opinion are to the Labor Code.

Assigned by the Chairperson of the Judicial Council.