WAHBY KAMEL Applicant,
v.
WEST CLIFF MEDICAL; SUPERIOR NATIONAL INSURANCE COMPANY, Defendants.
No. LBO 301852
California Workers Compensation Decisions
Workers Compensation Appeals Board State of California
December 24, 2001
OPINION AND DECISION AFTER RECONSIDERATION (EN
BANC)
MERLE
C. RABINE, Chairman
On
September 21, 2001, the Board granted defendant's
petition for reconsideration of the Findings and Order issued
by the workers' compensation administrative law judge
(WCJ) on July 3, 2001. In that decision, the WCJ determined
that defendant unreasonably delayed payment of permanent
disability indemnity, and therefore assessed a 10 percent
penalty under Labor Code section 5814 against the entire
award of permanent disability benefits.[1] Defendant
contends that the WCJ erred in this finding, asserting that
applicant "completely failed to establish that the delay
was anything other than inadvertent clerical delay caused by
human error in the normal course of business."
Because
of the important legal issue presented, and in order to
secure uniformity of decision in the future, the Chairman of
the Board, upon a majority vote of its members, has
reassigned this case to the Board as a whole for an en
banc decision. (Lab. Code, §115.) For the reasons
discussed below, we conclude, notwithstanding defendant's
apparent claim to the contrary, that recent case law has not
changed the longstanding legal precedent that once a delay in
the payment of compensation has been shown by the applicant,
the defendant then has the burden of proof as to the
reasonableness of the delay, including whether the delay was
inadvertent or was a solitary instance of human error.
Accordingly, because the defendant here failed to present any
evidence regarding the basis for its delay in paying
permanent disability indemnity, we will affirm the WCJ's
decision.
I.
BACKGROUND
Applicant,
while employed as a medical technologist on November 10,
1998, sustained 3 industrial injury to his back, left hip and
lower extremity. In Findings and Award issued on February 2,
2000, it was determined, among other things, that this injury
caused permanent disability of 48 percent. After defendant
delayed payment of the permanent disability indemnity 3 j
awarded—subsequent to its check dated February 21,
2001, defendant's next check was not i issued
until March 28, 20012—applicant filed a Declaration of
Readiness to Proceed (DOR) on April 17, 2001, seeking a
section 5814 penalty for the delay. Following defendant's
failure to appear at the May 21, 2001 mandatory settlement
conference, this matter was set for trial on June 14, 2001. )
At the
trial of June 14, 2001, applicant was the only witness. He
testified that he called the insurer on either the 25th or
the 26th of March 2001, because he had not received a check
for permanent disability indemnity following the one dated
February 21, 2001. Applicant stated that he spoke to a Mr.
Louth who told him that the next check would be sent very
soon, and that 5 thereafter, the checks would be on time. No
mention was made, however, of what had caused the delay.
Applicant received the next check, which included the amounts
past due and the 10 percent increase under section
4650(d),3 two days after his conversation with Mr.
Louth.
Based
on this record, the WCJ determined in the Findings and Order
issued on July 3, 2001, that defendant had unreasonably
delayed the payment of permanent disability indemnity, and...
