California: Employer’s Serious and Willful Misconduct; Calculation of Increased Compensation Due; Industrial Disability Leave

In a noteworthy panel decision, a panel of the California Workers’ Compensation Appeals Board noted that while it does not have jurisdiction to order payments of IDL, it does have jurisdiction to award a 50 percent increase in compensation payments pursuant to Labor Code section 4553, calculated by including IDL payments made to Applicant during his TD period. The Board panel’s detailed explanation as to why IDL is compensation for workers’ compensation purposes appears to be one of first impression. Read the LexisNexis headnote below.

Reminder: Board panel decisions are not binding precedent. Be sure to check the subsequent history of this case before you cite to it.

CA - NOTEWORTHY PANEL DECISIONS

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Michael Ayala, Applicant v. Department of Corrections and Rehabilitation/Lancaster State Prison, legally uninsured, State Compensation Insurance Fund/State Contracts Service, Defendants

W.C.A.B. Nos. ADJ1360597 (VNO 0457429)—WCAB Panel: Chair Zalewski, Commissioners Sweeney, Lowe

Workers’ Compensation Appeals Board (Board Panel Decision)

Opinion Filed April 13, 2022

Publication Status:  CAUTION: This decision has not been designated as a “significant panel decision” by the Workers’ Compensation Appeals Board. Practitioners should proceed with caution when citing to this panel decision and should also verify the subsequent history of the decision, as these decisions are subject to appeal. WCAB panel decisions are citeable authority, particularly on issues of contemporaneous administrative construction of statutory language [see Griffith v. WCAB (1989) 209 Cal. App. 3d 1260, 1264, fn. 2, 54 Cal. Comp. Cases 145]. However, WCAB panel decisions are not binding precedent, as are en banc decisions, on all other Appeals Board panels and workers’ compensation judges [see Gee v. Workers’ Comp. Appeals Bd. (2002) 96 Cal. App. 4th 1418, 1425 fn. 6, 67 Cal. Comp. Cases 236]. While WCAB panel decisions are not binding, the WCAB will consider these decisions to the extent that it finds their reasoning persuasive [see Guitron v. Santa Fe Extruders (2011) 76 Cal. Comp. Cases 228, fn. 7 (Appeals Board En Banc Opinion)]. LexisNexis editorial consultants have deemed this panel decision noteworthy because it does one or more of the following: (1) Establishes a new rule of law, applies an existing rule to a set of facts significantly different from those stated in other decisions, or modifies, or criticizes with reasons given, an existing rule; (2) Resolves or creates an apparent conflict in the law; (3) Involves a legal issue of continuing public interest; (4) Makes a significant contribution to legal literature by reviewing either the development of workers’ compensation law or the legislative, regulatory, or judicial history of a constitution, statute, regulation, or other written law; and/or (5) Makes a contribution to the body of law available to attorneys, claims personnel, judges, the Board, and others seeking to understand the workers’ compensation law of California.

Disposition:  Reconsideration is granted, and the November 8, 2021 Findings of Fact is rescinded in its entirety and substituted with a new Findings of Fact and Award.

Counsel:  For applicant—Adams, Ferrone & Ferrone

For defendants—State Compensation Insurance Fund

Employer’s Serious and Willful Misconduct—Calculation of Increased Compensation Due—Industrial Disability Leave—WCAB, granting reconsideration, rescinded WCJ’s decision calculating 50 percent increase in compensation awarded to applicant under Labor Code § 4553 based on his temporary disability rate, and substituted new finding that 50 percent increase must be calculated based on enhanced industrial disability leave (IDL) applicant received for his 8/12/2002 industrial injury while working as correctional officer, when WCAB reasoned that language in Labor Code § 4553 providing for 50 percent increase in amount of “compensation otherwise recoverable” by applicant because of employer’s serious and willful misconduct is expansive with potential to contemplate compensation received outside Division 4 of Labor Code, that Court of Appeal has deemed IDL equivalent to temporary disability compensation for purposes of determining statutory cap in Labor Code § 4656, indicating that IDL payments must also be considered compensation for purpose of inclusion as extra compensation awarded under Labor Code § 4553, that objective of Labor Code § 4553 to more fully compensate employee for injury caused by employer’s serious and willful misconduct is best served by construing “compensation otherwise recoverable” to include enhanced IDL payments, as this construction results in greater compensation awarded to applicant than calculating Labor Code § 4553 based on temporary disability rate, that there was no evidence in this case that serious and willful misconduct award calculated based on enhanced IDL would be constitutionally excessive as defined in Ferguson v. W.C.A.B. (1995) 33 Cal. App. 4th 1613, 39 Cal. Rptr. 2d 806, 60 Cal. Comp. Cases 275, because record did not reflect such award would result in larger recovery than applicant’s potential civil recovery, and that liberal construction of Labor Code advocates in favor of calculating serious and willful misconduct award based on enhanced IDL benefits as part of applicant’s “compensation otherwise recoverable” under Labor Code § 4553. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 10.11[1]-[3]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 11, § 11.27[1], [6][a], [7].]

Opinion By: Chair Katherine A. Zalewski