Duncan v. WCAB 11/25/09 CA6

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: H034040

Case Date: 03/25/2010

Preview:Filed 11/25/09

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT

JOHN C. DUNCAN, as Administrator, etc., Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD and X.S., Respondents.

H034040 (W.C.A.B. No.ADJ1510738) WRIT OF REVIEW

John Duncan, administrator of the Subsequent Injuries Benefit Trust Fund of the State of California1 (SIBTF) petitions this court for review of a decision of the Workers' Compensation Appeals Board, which construed Labor Code section 4659, subdivision (c) to mean that the cost of living adjustment to total permanent disability payments and life

1

Labor Code section 4751, provides in relevant part: "If an employee who is permanently partially disabled receives a subsequent compensable injury resulting in additional permanent partial disability so that the degree of disability caused by the combination of both disabilities is greater than that which would have resulted from the subsequent injury alone, and the combined effect of the last injury and the previous disability or impairment is a permanent disability equal to 70 percent or more of total, he shall be paid in addition to the compensation due under this code for the permanent partial disability caused by the last injury compensation for the remainder of the combined permanent disability existing after the last injury . . . ." The payment for the combined disability is made by the SIBTF. (Subsequent Injuries Fund v. Workmen's Comp. App. Bd. (1970) 2 Cal.3d 56, 59.)

pensions are retroactive to the date of injury, no matter when the first payment is actually received. We granted two requests for leave to file briefs as amici curiae.2 In this case of first impression, we hold that the cost of living adjustments pursuant to Labor Code section 4659, subdivision (c), for life pensions and total permanent disability indemnity, are added to those payments, per the words of the statute, starting January 1, 2004, and every January 1 thereafter. Accordingly, we annul the decision of the Workers' Compensation Appeals Board. Background On or about June 19, 2007, an injured worker (the Worker) and his employer's insurance company settled the Worker's claim for an industrial injury that occurred on January 20, 2004. The parties stipulated that the Worker's injury became permanent and stationary on October 20, 2006; and that the industrial injuries caused permanent disability of 69.5 percent for which permanent disability indemnity was payable at the rate of $200 per week beginning October 20, 2006, for a period of 437 weeks. The Worker had received temporary disability benefits from 2004 to 2006.3 However, because the Worker had a pre-existing disability caused by Hepatitis B and his HIV positive status, the Worker submitted a claim to the SIBTF about a month after he settled with his employer. On or about March 25, 2008, SIBTF and the Worker stipulated that the Worker's January 20, 2004 injury resulted in a 69.5 percent industrial permanent disability, which became permanent and stationary on October 20, 2006; that October 20, 2006, was the date of his first payment for permanent disability; and that the Worker's previous permanent disability combined with his industrial disability resulted in a combined total
2

One amicus brief was filed in support of real party in interest by the California Applicants' Attorneys Association. The other amicus brief was filed in support of the SIBTF by the County of Los Angeles. 3 The Worker was paid temporary disability from 1/20/04 to 12/16/04 and then 12/31/04 through 10/19/06 at the rate of $728 per week. 2

permanent disability of 100 percent. Accordingly, the worker would receive $528 weekly payments for total permanent disability as of October 20, 2006 ($728 less $200 paid by the insurance company for Worker's employer), for 422 weeks, and thereafter $728 weekly for life. Subsequently, it appears that a dispute arose after the Worker claimed the initial $728 weekly rate that started October 20, 2006, had to be increased by annual changes in the state average weekly wage starting from the date of his injury -- January 20, 2004 -to the date payments became due -- October 20, 2006. On July 15, 2008, the Workers' Compensation administrative law judge (WCJ) issued a FINDINGS and AWARD against the SIBTF. Specifically, the WCJ found that by failing to implement Labor Code section 4659, subdivision (c) in a timely fashion, the SIBTF delayed payments to the Worker in the sum of $3,585.56; and that increased payments to the Worker should have begun on January 1, 2005. The WCJ based these findings on an interpretation of Labor Code section 4659, the application of which to the facts of the case the WCJ found "somewhat puzzling." After the SIBTF appealed to the Workers' Compensation Appeals Board (WCAB), the WCAB issued its OPINION AND DECISION. The WCAB held that Labor Code section 4659, subdivision (c) "provides that for injuries on or after January 1, 2003, where an employee becomes entitled to total permanent disability indemnity or a life pension, that payment shall be increased annually commencing on January 1, 2004. We construe this to mean that each payment of total permanent disability indemnity or life pension that is received on or after January 1 following the date of injury shall be increased, no matter when the first such payment is received. This ensures that severely injured workers are protected from inflation, no matter when they receive their first payment. In some cases there may be years of litigation before there is a determination that an employee is entitled to receive a life pension or total permanent disability indemnity award. In the case of a life pension, the first payment will ordinarily be made 3

years after the date of injury. Nonetheless, the injured worker will have been protected against any inflation that may have ensued between the date of injury and the date of first payment of the life pension or total permanent disability indemnity." Following the WCAB's decision, the SIBTF petitioned this court for a writ of review, which this court granted on June 30, 2009.4 Appellate Review All judicial powers under the workers' compensation system are vested in the WCAB, subject only to the review by the appellate courts of this state. (Lab. Code,

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