Manning v. Workmen's Compensation Appeals Board

Opinion

TAMURA, Acting P. J.

Petitioner (applicant) seeks review and annulment of an order of the Workmen’s Compensation Appeals Board (Board) denying his petition for reconsideration of supplemental findings and award assessing a penalty for an unreasonable delay in the payment of permanent disability compensation. The sole issue is whether the penalty should have been computed by applying the penalty to temporary disability benefits previously paid under an earlier award as well as on the award of permanent benefits.

[657]

Applicant who was employed as a heavy equipment operator was injured on September 2, 1965, when, while fueling a welder, he slipped and dropped a five-gallon can of gasoline on his right ankle. Receiving no benefits for the injury sustained, he filed an application for compensation. On October 26, 1966, he was awarded continuing temporary disability indemnity from December 29, 1965, reimbursement for self-procured medical treatment and further medical treatment as required.

The matter was thereafter reopened on motion of applicant and further proceedings were commenced on August 16, 1968. At that hearing the parties stipulated that applicant’s condition had become permanent and stationary on August 12, 1968. On February 19, 1969, the referee issued supplemental findings and award. He found that applicant was 100 percent permanently disabled, denied apportionment, and ordered permanent disability indemnity in the sum of $21,000 payable at the rate of $52.50 per week beginning August 20, 1968, with a life pension thereafter, together with permanent lifetime medical care. Respondents (employer and its carrier, State Compensation Insurance Fund) petitioned for reconsideration on the ground that the decision was contrary to an alleged stipulation by the parties to a 100 percent permanent disability with a 50 percent apportionment to the industrial injury. Applicant denied the existence of such a stipulation. Reconsideration was ordered and on June 10, 1969, the Board issued its order affirming the supplemental findings and award.

On July 10, 1969, applicant filed a claim for penalty for unreasonable delay in the payment of compensation. It was stipulated that the June 10, 1969, Board decision was received by the carrier on June 13, 1969, but that payment pursuant to the order was not commenced until July 25, 1969. Applicant testified he received no compensation for two or three months prior to July 25. The referee found that the carrier failed to make a sufficient showing of justification for the delay in payments, that it unreasonably delayed payment of permanent disability compensation, and ordered that the permanent disability benefits, including the life pension, be increased by 10 percent. Both parties petitioned for reconsideration; applicant on the ground that the penalty should also have been applied to past paid benefits under the temporary award of October 26, 1966, and the carrier on the ground that the delay was not unreasonable. Both petitions were denied. Applicant seeks review of the order denying reconsideration.