Hockett v. Industrial Accident Commission

NOURSE, J. pro tem.

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By writ of review petitioner seeks to annul an award of the respondent commission which denied him a penalty pursuant to section 5814 of the Labor Code, of 10 per cent on certain items of the commission’s award to him.

[157]

Petitioner, in the scope and course of his employment, sustained injuries which required medical care and hospital treatment. Despite the report of its own examining physician that petitioner had sustained a disabling injury, the employer’s compensation insurance carrier denied liability and refused to make payments of compensation or to provide medical and hospital treatment. Petitioner was disabled for 22 weeks and incurred reasonable medical and hospital expenses in the sum of $1,141.43; he also expended the sum of $95 for the examination by and report of a physician for the purpose of establishing his claim.

During the period of his disability Continental Casualty Company, the unemployment compensation insurance carrier of petitioner’s employer, made disability payments to petitioner in the sum of $964.29.

The commission found that the payment of compensation had been unreasonably delayed and refused. It, as a penalty, increased the payments of compensation on account of temporary total disability by 10 per cent, that is, it increased those payments from $50 to $55 per week. It denied petitioner the penalty of 10 per cent provided by section 5814 on the amount of his medical and hospital bills, the item of $95 incurred by the examination for the report of the physician which was used to establish his claim and upon the amount paid by the Continental Casualty Company as unemployment compensation benefits, but allowed that company a lien for the amount of its advances, to wit, $964.29 upon the award for disability benefits. Petitioner asserts that the commission erred in denying him 10 per cent upon the entire award including the amount advanced for his benefit by Continental as unemployment compensation benefits.

We have concluded that the commission was in error in denying petitioner 10 per cent on the amount incurred by him for medical care and hospital treatment. Section 5814 of the Labor Code is not ambiguous and expressly provides that “When payment of compensation has been unreasonably delayed or refused, .. . the