Berry v. Workmen's Compensation Appeals Board

nulment of an order by respondent Workmen’s Compensation Appeals Board awarding petitioner a 63 percent permanent disability rating. Petitioner attacks only the board’s refusal to assess a 10 percent penalty against respondent employer and insurance carrier (hereinafter called “employer”) under Labor Code section 5814 for unreasonable delay in paying compensation.

On September 30, 1968, the employer petitioned the board to terminate compensation, which had earlier been ordered for temporary disability, contending that petitioner’s condition had become stationary and ratable as of August 21, 1968. In support of the petition, the employer offered the opinion of

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Dr. de Silva that, as of August 21, 1968, petitioner’s condition had become stationary, that he was able to do light work, and that 25 percent of his disability was due to his industrial injury, the remaining 75 percent being attributable, to a preexisting heart condition. At the same time, the employer ceased paying temporary disability benefits.

Petitioner resisted, asserting that his condition was still temporary and requesting assessment of a 10 percent penalty “for the unreasonable delay in the payment of temporary compensation benefits in the event they [the employer and insurance carrier] fail to make advances against permanent disability. ...” The referee determined that petitioner’s condition had become stationary as of September 25,1968 and that his permanent disability was 63 percent; award was made accordingly. The referee determined a.t the same time that benefits had not been refused or delayed unreasonably and therefore that no penalty was warranted under Labor Code section 5814. The board denied reconsideration, adopting the report of the trial referee in its-opinion.

Petitioner contends that the. board erred in refusing to assess a penalty for the employer’s delay in making permanent disability payments. Labor Code'section 4650 requires that compensation benefits for permanent disability commence on the eighth day after the injury becomes permanent or the last payment of temporary disability, whichever first occurs. Therefore, the permanent disability payments in this ease should have commenced at least by October 3, 1968. In fact, no payments were made until after issuance of the award on February 6, 1969. Thus the requirement of Labor Code section 4650 was not met. Labor Code section 5814 provides, in relevant part: “When payment of compensation has been nm reasonably delayed or refused, either prior to or subsequent to the issuance of an award, the full amount of the order, decision or award shall be increased by 10 percent. The question of delay and the reasonableness of the cause therefor shall be determined by the appeals board in accordance with the facts. ’ ’ This section clearly contemplates that there must be a reasonable cause for delay in making disability payments. Once delay is shown, a satisfactory explanation must be made by the employer.