Los Angeles Unified School District v. Workers' Compensation Appeals Board

Opinion

FLEMING, Acting P. J. Petitioner Los Angeles Unified School District (hereinafter L.A. School District) contends that respondent [664]Workers’ Compensation Appeals Board (WCAB) erred in assessing a ten (10) percent penalty pursuant to Labor Code section 58141 against L.A. School District for late issuance of a single permanent disability payment. For the reason stated below, we agree and annul the penalty assessment.

I

Respondent Dorothy A. Crawford (hereinafter applicant) on September 14, 1976, did sustain injury to her low back and left lower extremity, arising out of and occurring in the course of her employment as a teacher’s aide for L. A. School District. Per findings and award issued on July 20, 1978, applicant was awarded 59 percent permanent disability, which was ordered payable at $70 per week for 304 weeks for a total of $21,280. Per supplemental order filed September 14, 1978, applicant’s disability award was corrected for clerical error so as to provide for a permanent disability payable at $40 per week for 304 weeks for a total of $12,160.

Thereafter, per a declaration of readiness to proceed (WCAB Rules of Prac. & Proc. (Cal. Admin. Code, tit. 8, ch. 4.5, subch. 2) §§ 10414, 10415) filed by applicant, she requested a hearing on the issue of “penalty for unreasonable delay in payment of compensation.” Applicant did not specify in the declaration of readiness, nor in any documents filed therewith, the exact nature of the facts surrounding the claimed “penalty.”

When the matter came to hearing on November 2, 1979, applicant claimed three separate 10 percent penalties pursuant to Labor Code section 5814 should be assessed against L. A. School District. The first claimed penalty was for failure or delay in paying the permanent disability award issued on July 20, 1978, at the rate of $40 per week. The second claimed penalty was for unreasonable delay in paying the amended permanent disability award of September 14, 1978. The final of the asserted penalties was the delay in a single payment in April 1979.

[665]With regard to the latter of the three claimed penalties, it must be noted that permanent disability payments may not be made less frequently than twice in each calendar month. (Lab. Code, § 4651.) In accord with this requirement, L. A. School District’s practice was to make permanent disability payments to applicant at least twice each month with each payment being $80.