Judgments: post-trial dispositions, decisions and other matters (interest, costs, credit, clerical error, enforcement, commutation and restitution)

• Pages: 1283-1326
• Author: David L. Pollak,Roger A. Tolman, Jr.,Monika R. Reyes

JUDGMENTS

22-1

CHAPTER 22

JUDGMENTS:

Post-Trial Dispositions, Decisions and Other Matters

(Interest, Costs, Credit, Clerical Error,

Enforcement, Commutation and Restitution)

I. FINDINGS AND AWARD OR ORDER

§22:01 “Judgment;” Findings; Orders

§22:02 Opinion on Decision

§22:03 Decision Within 15 Days — Expedited Hearings

§22:04 Decision Within 30 Days

§22:05 Decision Within 90 Days of “Submission” or No Salary

§22:06 Decision of WCJ Final Unless Reconsideration

§22:07 Effect of Decision — Res Judicata; Collateral and Judicial Estoppel

§22:08 Determination of Issues: Implied Findings

§22:09 Relief From Final Board Orders

§22:10 Service of WCJ’s Decision

II. INTEREST

§22:20 Benefits for Which Interest Is Payable; the Legal Rate

§22:21 Date of Accrual From WCJ’s Award

§22:22 Penalty for Unreasonable Failure to Pay Interest

§22:23 Pre-Award Interest on LC §132a and Lien Awards

III. COSTS

§22:30 Appellate Costs

§22:31 Sanctions for Bad Faith Actions or Tactics Including Fees and Costs

§22:32 Deposition and Discovery Costs

§22:33 Upon Ex Parte Communication With AME or QME

IV. LIEN CLAIMS  GENERALLY

§22:50 Compensation Not Reachable by Creditors Without a Valid Lien

§22:51 Allowable Liens Under §4903

§22:52 Tax Liens — 26 USC §6.34

§22:53 Lien Claimant’s Civil Remedies Against Applicant

V. CLERICAL ERROR

§22:180 General Discussion

§22:181 Definition

§22:182 Time Limits

§22:183 Effect of Reconsideration Proceedings

JUDGMENTS

California Workers’ Compensation 22-2

VI. CREDIT

§22:190 In General; Voluntary Payments and PD Advances

§22:191 Wage Continuation Plans Where Credit Is Intended

§22:192 Burden of Proof

§22:193 For Overpayment of TD and PD, Employer Payments, and Third-Party Payments

§22:194 Credit Against Award of Medical Treatment

§22:195 Credit for and Against Rehabilitation Benefits

§22:196 For Mistaken Payments

§22:197 None for Wrongful Death Recovery or Employee Death Benefits

§22:198 Credit for Settlement of Claim

§22:199 Third-Party Recoveries; Civil Suits Against Employer

§22:200 Private Insurance and Social Security

VII. RESTITUTION

§22:210 Equitable and Statutory Power

§22:211 Actual Fraud by Employee Normally a Prerequisite

§22:212 Reimbursement of Benefits Paid Before Award Final

§22:213 Reimbursement Based on Change of Law

§22:214 Employer Fraud

VIII. COMMUTATION

§22:220 In General; Attorney Fee Commutations; Structured Settlements; SIF Benefits

§22:221 Board Discretion

§22:222 Commutation Calculations; Rate of COLA Increases; Methods of Commutation

§22:223 Board Procedures

IX. ENFORCEMENT OF AWARDS

§22:240 No Time Limits

§22:241 By the Labor Commissioner

§22:242 By the Courts and the Sheriff

§22:243 Staying Execution of Award

§22:244 Enforcement Against Unnamed Parties

§22:245 Administration of Award

§22:246 Awards of Benefits to Missing Persons

FORMS (ON DIGITAL ACCESS ONLY)

22.1 Notice and Request for Allowance of Lien (DWC WCAB Form 6)

22.2 Petition for Commutation of Future Payments (DWC WCAB Form 49)

JUDGMENTS

22-3 Judgments §22:01

I. FINDINGS AND AWARD OR ORDER

§22:01 “Judgment;” Findings; Orders

Following trial and submission of the cause, the judge will issue ndings of fact and an award or order. Juries are not

utilized in workers’ compensation proceedings. An award will issue as part of the decision if benets are found owing, or in

the case of ndings in favor of defendant employer or carrier, the decision will direct that applicant “take nothing” further

on account of the claim, except perhaps medical-legal costs. The award of benets is known as the “F&A.” A decision in

favor of a defendant is known as a “take-nothing” or “ndings and order” (F&O). The term “ndings and award” or “F&A”

is a description of a single document, so that the term is a collective noun and takes a singular verb. For example: “Based

upon the evidence, ndings and award is this day issuing.” The ndings and award or the ndings and order constitute the

judgment of the Workers’ Compensation Appeals Board. Unlike other state agency adjudications, the judgments of the trial

level of the Appeals Board as issued by WCJs are nal if no petition for reconsideration is led. They do not have to be

ratied by the commissioners of the Appeals Board to be binding. [See §22:06.]

The ndings must be based on evidence in the record. Otherwise, the WCJ’s opinion may be viewed as an advisory

opinion. In Caruso v. City of Anaheim (BPD), the Board rescinded the WCJ’s decision that found, based on parties’ 4/4/2019

Stipulated Award, the defendant was not entitled to reduce the applicant’s weekly permanent disability award of $230.00 per

week or to reduce the applicant’s attorney’s fees by 3 percent. Although it agreed with WCJ’s nding that the parties were

bound by stipulations, the Board found that the sole issue before the WCJ at trial was whether the defendant was entitled to

interest savings on the commutation of the attorney’s fees award. The WCJ decided the issue without any evidence being

admitted into record, including any evidence that the defendant failed to comply with the Stipulated Award. The broad scope

of the WCJ’s determination without a frame of reference constituted an “advisory opinion,” which should be avoided, and

could have theoretically precluded the defendant from applying for credit against payments for the costs of commuting the

applicant’s attorney’s fees. The WCJ must make ndings of fact based on admitted and substantial evidence and should not

oer advisory opinions in the absence of that evidence. The WCJ had discretionary authority to develop the record if the

record did not contain substantial evidence or if necessary to fully adjudicate issues. Because the WCJ’s decision was not

supported by admitted or substantial evidence, further proceedings at trial level were necessary.

It may be sucient in many cases simply to issue a “Findings of Fact” on a disputed issue or issues. For example, if

the issue is limited to whether the applicant may treat outside the employer’s medical provider network, factual ndings on

an issue such as this may suce. At that point, the parties would be expected to follow such ndings absent a successful

appeal or face penalty or sanctions liability.

Accordingly, the failure to render an explicit “award” of LC §5814 penalties has been held not to invalidate the

court’s nding of unreasonable delay and resultant penalty liability. [United Stationers, Inc. v. WCAB (DeMille), 68

CCC 312 (W/D-2003).] In that case, the WCJ made Findings of Fact which, when coupled with the Opinion on Decision

[see §22:02], indicated a clear intent to award penalty compensation. As the result of a clerical error, the order to pay the

penalties was omitted from the “award” section of the F&A. The WCAB determined that the document was suciently

certain to permit enforcement.

However, the parties; stipulations must be included in the Findings of Fact. In Ott v. County of Ventura, 2020 Cal.

Wrk. Comp. P.D. LEXIS 399, the Board, rescinded the WCJ’s decision, noted that the parties’ stipulations were not

included in the WCJ’s Findings of Fact, and that reference to stipulations in the Opinion on Decision were not “Findings”

and could not be considered in making a nal determination of issues submitted for decision. The WCAB, in returning

matter to trial level for new decision, instructed the WCJ to identify and include parties’ stipulations as Findings of Fact

when issuing new decision.

Likewise, where issues are rendered moot by the judge’s ndings, they need not be addressed, or it may be sucient to

state words to the eect of “All other issues raised in the trial herein are moot.” Arguably, it is not even necessary to state

this much, as, under LC §5815, any issued not determined in the F&A “will be deemed decided adversely as to the party

in whose interest such issue was raised.” This situation most commonly arises in “take nothing” ndings of no industrial

injury, in which multiple other issues such as earnings, TD, PD, etc., are rendered moot. [See also §22:08.]

Indeed, in the “noteworthy” panel decision in Enriquez v. Douglas Furniture of California, 2010 Cal. Wrk. Comp. P.D.

LEXIS 231, the Board criticized the trial WCJ for deciding a moot issue of whether a lien was uncollectible against CIGA

due to its assignment to a third party where the lien was also denied on the grounds that the lien claimant had already been

paid the reasonable value of their services. [See Chapter 13, Insurance.] The trial WCJ’s nding on the assignment issue led

to an unnecessary reconsideration petition led by CIGA, who contended that this adverse nding could have a collateral

estoppel eect against them in other cases. The Board amended the award to delete any nding on the assignment issue.

See Chapter 16, Claim Filing Procedure, regarding the eect of an order of dismissal.

Any ndings and award must name a defendant who is properly liable for benets. In the “noteworthy” panel deci-

sion in De Jesus v. Massoud Jafari, 2009 Cal. Wrk. Comp. P.D. LEXIS 449, an award of benets based on a nding that