ADJ8195851 — California WCAB decision

What the panel ordered

Petition for Reconsideration denied.

Petition for Reconsideration filed by defendant from Findings, Award, and Order issued on August 25, 2021, regarding wage rate, permanent total disability benefits, penalties, and interest; WCJ report recommends denial of petition.

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This docket was decided more than once. Shown here is the latest released decision; we also hold February 8, 2021.

What was disputed, and how it came out

Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.

Reconsideration / removalDefendant prevailed

Defendant's petition primarily attempts to relitigate the issue of permanent total disability which was finally decided and not appealed; defendant failed to pay undisputed portions of the award, constituting bad faith conduct; petition is denied.

From the decision · page 3IT APPEARING THAT on September 16, 2021, defendant filed a timely and verified Petition for Reconsideration from the Findings, Award, and Order issued on August 25, 2021, which determined applicant's wage rate and awarded the amount of total disability benefits due pursuant to that wage rate, and further found that defendant improperly delayed payment of permanent total disability benefits and awarded penalties and interest accordingly. Lastly, I ordered defendant to pay any undisputed portion of applicant's permanent total disability award immediately, regardless of whether defendant sought reconsideration on the issues of applicant's wage rate, penalties, and interest.

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

Defendant did not appeal the February 8, 2021 Decision After Reconsideration finding applicant permanently totally disabled.

Favours Applicant prevailed

This precludes defendant from relitigating the issue and supports denial of petition for reconsideration.

From the decision · page 3Having thoroughly reviewed the contents of the Board's file and the Petition for Reconsideration, I respectfully recommend that defendant's Petition for Reconsideration be DENIED as the February 8, 2021 Decision After Reconsideration was a final determination on the question of whether applicant is permanently totally disabled. Defendant did not file any appeal from the finding of permanent total disability that issued on February 8, 2021; thus, defendant is estopped from raising that as an issue. Defendant did not raise the issue of permanent disability at trial and thus the issue is waived.

Defendant failed to pay undisputed portions of permanent total disability benefits after the decision became final.

Favours Applicant prevailed

Supports award of penalties and interest and finding of bad faith conduct by defendant.

Defendant's argument about automobile allowance was unsupported and waived.

Favours Applicant prevailed

Weakens defendant's challenge to wage rate and supports denial of petition.

Defendant's attempt to relitigate permanent total disability issue was frivolous and bad faith conduct.

Favours Applicant prevailed

Supports denial of petition and consideration of sanctions.

From the decision · page 6Defendant has now filed a petition for reconsideration, which primarily attempts to relitigate the already decided issue of whether applicant is permanently and totally disabled. Defendant raises an issue that was finally decided over seven months ago. The issue was neither raised at trial nor listed on the pre-trial conference statement. Defendant cites to sub-rosa video, which was neither admitted into evidence nor reviewed by the court. Defendant's attempt to relitigate the decided issue of permanent total disability, its citation of exhibits excluded from evidence, and its failure to pay any undisputed portion of permanent total disability per the February 8, 2021 award constitute frivolous and bad faith conduct.

ADJ8195851 · November 15, 2021

What the panel ordered

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