State Compensation Insurance Fund v. Workmen's Compensation Appeals Board

Opinion

KINGSLEY, J.

The real party in interest, a physical education teacher, suffered an industrial injury on February 4, 1972. Her employer paid her salary through the rest of that school year and furnished medical care. Her employment was terminated at the close of the school year (June 30, 1972) and payments then ceased. Petitioner (the employer’s insurance carrier) learned of that termination on August 7, 1972,

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but it did not make any payments on account of disability until September 14, 1972, when it paid to her the amount of the unpaid back payments. There has been no further delay. Ultimately the real party in interest was awarded permanent disability and collateral benefits, the award making no provision for disability beyond reciting that they had been “adequately paid.”

[376]

However the award found unreasonable delay in making the disability payment as above recounted and imposed the 10 percent penalty provided for in section 5814 of the Labor Code on the full amount of the final award. The appeals board affirmed.

The action of the referee and the board was in direct conflict with our opinion in

Daniels

v.

Workmen’s Comp. Appeals Bd.

(1972) 27 Cal.App.3d 504 [104 Cal.Rptr. 129]. In that case, following our interpretation of

Garcia

v.

Workmen’s Comp. Appeals Bd.

(1972) 6 Cal.3d 687 [100 Cal.Rptr. 149, 493 P.2d 877], we affirmed an award which imposed the 10 percent penalty only on the temporary disability payments actually delayed unreasonably. The Supreme Court denied a hearing. The same result should follow here. Admittedly, only the amount due from July 1 to September 14, 1972, was unreasonably delayed.

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It is only on that amount that the 10 percent penalty may be imposed.