Viegas v. Workers' Compensation Appeals Board

California Court of Appeal Oct 7, 1983 No. Civ. 67364Published

Before: Dalsimer

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Holding. The court held that multiple 10 percent penalties under Labor Code section 5814 are appropriate when an employer commits separate and distinct acts of unreasonable delay in the payment of benefits, even within the same class of benefits.

Issues

Whether multiple penalties under Labor Code section 5814 may be assessed for separate and distinct acts of delay occurring both before and after a court stipulation.
Whether the Board erred in limiting penalties to a single assessment per class of benefit.

Disposition. annulled and remanded

Quotations verified verbatim against the opinion

“where “the circumstances disclose separate and distinct acts of delay or nonpayment, and prior notice was given of the applicant’s intent to seek separate or additional penalties for such acts, then multiple penalties are appropriate”

“the delinquencies before and after the stipulation represent distinct and separate acts of misconduct and are thus equally subject to the 10 percent penalty.”

Opinion

DALSIMER, J.

Petitioner, Larry Viegas, seeks review of the order of respondent Workers’ Compensation Appeals Board (hereinafter Board) denying reconsideration. Specifically, petitioner challenges Board’s order refusing to impose multiple penalties for successive delays in payment of temporary disability benefits and in reimbursement for self-procured medical treatment.

On June 10, 1977, petitioner was injured in an industrial accident while employed by respondent Williams Brothers Market as a meat cutter. Thereafter, during 1977, 1978, and early 1979, petitioner incurred expenses resulting from self-procured medical treatment.

In September 1978, petitioner’s attorney requested that respondent Fremont Indemnity Company, the employer’s insurance carrier (hereinafter Fremont), pay to petitioner disability benefits which had been delayed in August 1978 and early September 1978. Fremont was also requested to reimburse petitioner for medical treatment. On September 14, 1978, Fremont filed an answer denying liability for benefits.

On September 26, 1978, petitioner requested a hearing before the Board on issues relating to temporary and permanent disability and reimbursement for medical treatment. On December 13, 1978, petitioner sought a hearing on the additional issue of penalty.

On June 18, 1979, petitioner was awarded rehabilitation benefits, temporary disability benefits on a continuing basis, less credit for temporary and permanent disability payments previously made by Fremont, and reimbursement for mileage expenses and prescription bills.

On July 25, 1979, and on October 8, 1981, petitioner notified Fremont of his intent to seek multiple penalties. Petitioner thereafter sought a hearing, claiming that Fremont had delayed or refused temporary disability benefits and failed to provide reimbursement for 'self-procured medical treatment.

[426]

At the hearing held on February 8, 1982, the parties stipulated as follows: “1. The parties agree that applicant has recurrent temporary disability beginning back to

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Viegas v. Workers' Compensation Appeals Board

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DALSIMER, J.

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