What the panel treated as outcome-determinative, and which side it favoured.
Applicant was underpaid temporary disability for the periods August 6, 2009 through October 4, 2009, and July 1, 2011 through October 6, 2011.
Favours Applicant prevailed
This underpayment led to the award of additional temporary disability and the issue of attorney's fees on that amount.
From the decision · page 2Initially, the issues of date of injury pursuant to Labor Code section
5412, and liability pursuant to Labor Code section 5500.5 were
tried. The proper Defendants were found to be Insurance Company
of the West, and Liberty Mutual Insurance. Old Republic Insurance
was dismissed as a party defendant, after the initial trial, pursuant to
Labor Code section 5500.5. The remaining defendants were unable
to resolve the issues of underpayment of temporary disability,
permanent disability, and apportionment. The matter proceeded to
trial on November 19, 2019. The court found the Applicant had
been underpaid temporary disability for the period August 6, 2009
through and including October 4, 2009, and for the period July 1,
2011 through and including October 6, 2011. The parties were
ordered to adjust the underpayment less credit for amounts of
temporary disability previously paid. The undersigned did not
provide an award of attorney fees on the underpayment temporary
disability.
Applicant failed to prove employer employed 50 or more employees to qualify for the statutory increase under Labor Code section 4658(d)(2).
Favours Defendant prevailed
This lack of proof led to deferral and remand for further development of the record on this issue.
From the decision · page 3According to the Report, the applicant failed to prove that the employer employed 50 or
more employees in order to meet the requirements of section 4658(d)(2). The Appeals Board has
the discretionary authority to develop the record when the medical record is not substantial
evidence or when appropriate to provide due process or fully adjudicate the issues. (Lab. Code, § 5701, 5906; Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 389, 392-394 [62
Cal.Comp.Cases 924]; see McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117,
1120-1122 [63 Cal.Comp.Cases 261].) In our en banc decision in McDuffie v. Los Angeles County
Metropolitan Transit Authority (2001) 67 Cal.Comp.Cases 138, 141 (Appeals Board en banc), we
stated that "[s]ections 5701 and 5906 authorize the WCJ and the Board to obtain additional
evidence, including medical evidence, at any time during the proceedings (citations) [but] [b]efore
directing augmentation of the medical record... the WCJ or the Board must establish as a
threshold matter that specific medical opinions are deficient, for example, that they are inaccurate,
inconsistent or incomplete. (Citations.)" (McDuffie, supra, 67 Cal.Comp.Cases at 141.) Here, we
return this matter to the trial level to develop the record on this issue.
Applicant's attorney is entitled to attorney's fees on the life pension award.
Favours Applicant prevailed
This entitlement led to deferral of the attorney's fees issue for further determination at trial level.
From the decision · page 4We disagree that attorney's fees on the life pension award is dependent on the complexity
of the matter and conclude that applicant's attorney is entitled to attorney's fees on the life pension
award. We return this matter to the trial level to determine what constitutes reasonable attorney's
fees from the life pension award.