Ramirez v. Workmen's Comp. App. Bd.

• Decision Date: 04 August 1970
• Citation: 10 Cal.App.3d 227,88 Cal.Rptr. 865
• Court: California Court of Appeals
• Parties: Mario S. RAMIREZ, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD of the State of California, Respondent; SAFEWAY STORES, INC., permissibly Self-Insured with Employers Self Insurance Service, Real Parties in Interest. Civ. 35860.

Page 865

88 Cal.Rptr. 865

10 Cal.App.3d 227

Mario S. RAMIREZ, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD of the State of California, Respondent SAFEWAY STORES, INC., permissibly Self-Insured with Employers Self Insurance Service, Real Parties in Interest.

Civ. 35860.

Court of Appeal, Second District, Division 5, California.

Aug. 4, 1970.

Ghitterman, Spielman & Steele and Allan S. Ghitterman, Ventura, for petitioner.

Rupert A. Pedrin, San Francisco, Nathan Mudge and Sheldon M. Ziff, Los Angeles, for respondent.

Waite, Drapeau & Peters and David R. Drapeau, Ventura, for real parties in interest.

SELBER, ^* Associate Justice Pro Tem.

An employee seeks review and annulment of an award of the Workmen's Compensation Appeals Board insofar as it denies to him the ten percent increase in benefits provided by Labor Code, section 5814 by way of penalty against an employer for unreasonable delay or refusal of compensation. ¹

By the findings and award it was determined that petitioner, a meat cutter, sustained injuries to his back in 1965 and on January 13, 1969, which arose out of and occurred in the course of his employment by Safeway Stores, Inc., permissibly self-insured; that these injuries caused total temporary disability from February 13 through February 24, 1969 and from February 27 through March 31, 1969, and permanent disability of 18 1/2 percent; that petitioner's earnings were maximum; and that the employer was liable for medical treatment which petitioner had procured from Dr. Violet, a chiropractor, between February 12 and March 19, 1969, and for medical-legal costs. No compensation whatever having been paid, the award directed payment forthwith of all accrued benefits with weekly installments of permanent disability beginning as of April 8, 1969, less amounts allowed to lien claimants including Dr. Violet for his services and the Department of Employment which had asserted a lien pursuant to the provisions of Labor Code, sections 4903(f) and 4904 for unemployment compensation disability benefits covering the period of temporary disability on and after February 19, 1969.

The referee denied the penalty provided by Labor Code, section 5814 'because the Department of Employment advanced temporary benefits' and because the 'failure to follow on with permanent disability as condemned in the case of Berry v. WCAB, 276 ACA 468, (81 Cal.Rptr. 65) was not tried herein.' ² Petitioner filed a petition for reconsideration in which he pointed out that he had raised the penalty issue in respect to the failure to provide 'benefits' which term he asserted includes medical treatment and compensation for both temporary and permanent disability. Quoting from the case cited by the referee (BERRY V. WORKMEN'S COMP. APP. BD., (1969) 276 CAL.APP.2D ---, 81 CAL.RPTR. 65),^B he argued that the burden was on the employer to show a satisfactory excuse for its delay in providing benefits and that the only satisfactory excuse which has been recognized in the decisions is a showing of some basis for genuine doubt, from a medical or legal standpoint, as to liability.

In a report on the petition the referee stated: 'At the hearing applicant raised the question of ten percent additional compensation for the failure to pay temporary disability. He did not raise the question presented in Berry v. WCAB, 34 CC 507 (District Court, 1969), i.e., the only explanation offered by defendant was the fact that the Department of Employment had paid UCD benefits and had filed a lien in the case. It appears settled that the specific issue of additional compensation or the facts constituting cause for the additional compensation must be pleaded at the time of trial, allowing the defendant an opportunity to be heard and offer rebuttal evidence, otherwise there is a denial of due process. National Auto and Casualty Company v. IAC, 95 Cal.App.2d 10, 212 P.2d 1 (1950) (sic). Because nothing was said about the failure to make payment of permanent disability benefits as required under Labor Code, Section 4650, the Referee does not believe that issue has been squarely presented. Awarding additional compensation under the rule of the Berry Case would constitute a denial of due process as condemned in the National Auto Case.' Quoting these comments of the referee and without any discussion of whether the penalty should have been imposed for failure to pay compensation for temporary disability or for failure to provide medical treatment, the appeals board denied reconsideration without prejudice to petitioner's raising the issue dealt with in the Berry case 'by proper procedure.'

Petitioner renews the contentions made below. He interprets the board's decision as denying the penalty for failure to pay temporary disability compensation and medical expenses because he did not plead in detail each theory on which he sought to have the penalty imposed. In that respect he argues that there is no authority for the proposition that an employee must specify with particularity the legal theories to support his claim for benefits.

Respondents take the position that the advancement of unemployment compensation disability benefits is a satisfactory excuse for the employer's failure to pay temporary disability compensation and that the penalty was sought only in that respect. They argue that in no event is the employee entitled to benefits from both sources (Garcia v. Industrial Accident Comm., (1953) 41 Cal.2d 689, 263 P.2d 8) and that to pay an employee temporary disability compensation when a lien has been imposed would sbject the employer to liability for dual payments (Cal.-Western States Life Ins. Co. v. Ind. Acc. Comm., (1952) 39 Cal.2d 104, 244 P.2d 912).

We hold that the conclusions of the board and referee are erroneous and that the uncontradicted evidence in the record compels the imposition of the penalty for the employer's failure to provide medical treatment and compensation for temporary disability in a timely manner. The conclusion that the penalty issue was not raised and tried in respect to all benefits is contradicted by the transcript of the hearing in this matter. The conclusion that the advancement of unemployment compensation disability benefits is a satisfactory excuse for an employer's failure to pay compensation for temporary disability in any amount either before or after notice or knowledge of such advancement is in error as a matter of law. We therefore conclude that the decision of the board, whether based on the first conclusion or on both, is erroneous.

At the hearing of this matter on September 2, 1969, it was stipulated that no compensation had been paid. The penalty issue was stated by the referee as follows: 'Ten per cent penalty for unreasonable failure to pay benefits.' The word 'benefits' is in common use in compensation law and raises no ambiguity. Labor Code, section 5814 authorizes the penalty when payment of 'compensation' has been unreasonably delayed. Labor Code, section 3207 provides that compensation 'includes every benefit * * *'. We can see no reason why the language used is not sufficient to put an employer on notice that the penalty is sought in respect to all benefits which were not timely provided. In the case of National Automobile & Casualty Ins. Co. v. Ind. Acc. Comm., (1949) 95 Cal.App.2d 10, 212 P.2d 1, cited by the referee and board, a penalty for willful failure to insure was imposed on an employer although the issue had not been raised. That portion of the award was annulled with directions to allow the employer to be heard on the issue. In the present case it is clear that the employer had notice and the opportunity to show good reason, if it had any, for its failure to provide each and every benefit required by law. Furthermore, the record reflects no contention on the part of the employer that it was misled by the statement of the penalty issue. The only reasonable conclusion to be drawn is that the parties have had their day in court on the issue of penalty in respect to each and every benefit.

In respect to the penalty issue, petitioner testified without contradiction or impeachment that he gave prompt notice of the injury of January 13, 1969 to the manager of the market where he was employed; that he continued to work with back pain which became progressively worse; that on February 12, 1969, he obtained treatment from Dr. Violet who advised him to remain off work; that on the subsequent advice of Dr. Violet he returned to work on February 25 on a trial basis for a day and a half but was unable to continue and on the doctor's further advice he remained off work; that after two or three weeks of disability he applied for unemployment compensation disability benefits which he subsequently received; that to his knowledge Dr. Violet submitted a first report of work injury to the employer, the Department of Employment, and the appeals board; that a representative of the employer interviewed him on March 25 at which time he told the latter that he felt able to return to work; that the employer would not permit him to return until he underwent a physical examination by a medical examiner on behalf of the employer; and that on April 2, 1969 he was examined by Dr. Offerman who allowed him to return to work.

The employer offered no evidence except for the medical records in its possession which it had filed in accordance with the rules of the board. They included two reports of Dr. Offerman of his...