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Vol 2, Issue 20

Find Solutions & Strategies                               May 16, 2011

Dollar BillsOverpayments
There's nothing automatic about a defendant's entitlement to recover an overpayment
In This Issue
* NEWS HEADLINES: WCIRB informational submission

A Note From the Editor

Robin Kobayashi 2010
Dear WC Professionals: 


Just a quick reminder to everyone: Be sure to check the subsequent history of a WCAB panel decision before you cite to it. Read our explanation on citing panel decisions.


Robin E. Kobayashi, J.D.
LexisNexis Editorial & Content Development

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There Is Nothing Automatic About an Overpayment.


In a workers' compensation case, where there is an expectation of permanent disability, the law requires that the defendant make reasonable permanent disability advances to the applicant. In what appears to be an increasing number of cases, there are issues involving the defendant's entitlement to a credit when it has over-advanced PD.


There are several potential reasons for advancing too much PD. One reason may be the generally more conservative ratings provided for by the American Medical Association's Guides to the Evaluation of Permanent Impairment. Another and possibly more significant factor is Benson v. Workers' Comp. Appeals Bd. (2009) 74 Cal.Comp.Cases 113, which requires separate awards of permanent disability (PD) where previously, the law may have allowed for one overall combined award of PD. A defendant may go months, or possibly even years, believing there is going to be a single award of PD only to find out, after the Panel Qualified Medical Evaluation Process is completed that the medical evidence actually supports the award of two or even three separate awards of PD.


On Sept. 7, 2010, a panel of commissioners with the Workers' Compensation Appeals Board addressed a defendant's entitlement to a credit against benefits in one case where PD was over-advanced in a different case. > Read more. subscribers can link to the cases and other citations in this article. Be sure that you're logged into your account.


This article appeared in the April 2011 issue of the California WCAB Noteworthy Panel Decisions Reporter. To subscribe to this reporter, contact The reporter is designed for subscribers only.

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Each week we report one or two panel decisions that we're considering for the LexisNexis® services:
NOTE:This free eNewsletter reports only a handful of panel decisions each month. If you want notification of all 50 to 65 noteworthy panel decisions added each month to the Lexis database, please consider purchasing our new panel decisions reporter (see below).
Penalties--Failure to Advance Permanent Disability--Exclusion of Penalty Claim from Settlement--WCAB, affirming WCJ's finding in a split opinion, held that petition for penalty filed by applicant/rehabilitation counselor with cumulative injury to neck and low back during period through 1/6/2003 for defendant's alleged failure to advance permanent disability indemnity, was settled by OACR based upon plain language of Labor Code § 5814(c) requiring parties to "expressly exclude" accrued penalty claims from settlements to avoid conclusive presumption that penalty was resolved, and that ambiguous language in parties' Compromise and Release Agreement regarding settlement of penalty was insufficient to "expressly exclude" penalty from settlement. Read Henderson panel decision. 
BLOG ROUND UP: lexisnexis workers' comp law community
Cal Comp CasesCal. Comp. Cases May Advanced Postings (5/11/2011). users can link to this week's advanced postings of "writ denied" cases to read the complete headnotes and case summaries. Read it.  





Fraud SignWorkers' Comp Fraud Blotter - Recent Arrests, Charges, Convictions, and Investigations (5/12/2011). Read it.
Mark PopolizioThe U.S. Attorney's Office for the Western District of New York Releases MSP Protocol for Liability Cases, by Mark Popolizio, Esq. Read it.


Cal Comp CasesCalifornia Workers' Compensation Cases Round Up (5/11/2011). Here are the CCC cites for the April 2011 issue of Cal. Comp. Cases. users can link to the cases to read the complete headnotes and summaries. Read it.



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Jennifer C. Jordan, Esq., Editor-in-Chief

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citeability of panel decisions

PDPractitioners should proceed with caution when citing to a panel decision that hasn't been designated as a "significant panel decision" by the Workers' Compensation Appeals Board, and should also verify the subsequent history of the panel decision. 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)]. subscribers can link to the cases cited above.

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Designed especially for subscribers only, this monthly reporter saves you research time so that you can quickly find recent panel decisions on key topics.


We do the legwork for you: Our editorial consultants pour through hundreds of cases to find noteworthy decisions that you should know about.

What you get each month: Brief summaries of typically 40 to 65 cases, arranged by topic. Commentary articles written by guest contributors.
How you'll get it: (1) Word document (sent via email), which allows Lexis subscribers to link directly to the WCAB decisions on; and (2) Print version, which can be stored in a binder.
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overpayments, continued...

dunehewIn Dunehew v. Don Keith Transportation, ADJ4045682, ADJ2806318, and ADJ6769921, 2010 Cal. Wrk. Comp. P.D. LEXIS 407, petition for writ of review filed 1-13-2011 sub nom. State Compensation Insurance Fund v. W.C.A.B. (Civ. No. F061625), applicant sought reconsideration of a Findings and Award wherein the workers' compensation administrative law judge (WCJ) found that the applicant sustained industrial injuries cumulatively through August 16, 2000 (ADJ4045682) and June 30, 2007 (ADJ6769921) and on March 31, 2003 (ADJ2806318). The WCJ awarded permanent disability indemnity in all three cases and allowed a credit for permanent disability advances paid in ADJ2806318 against the permanent disability owed in ADJ6769921.


On reconsideration, applicant argued that the WCJ erred in allowing defendant a credit for permanent disability advances paid in ADJ2806318 against the permanent disability owed in ADJ6769921.


In addressing applicant's contention on reconsideration, the majority on the panel noted:


"Under Labor Code section 4909, the WCJ may allow a credit for any payment, allowance or benefit paid by the defendant to the injured employee when it was not then due and payable or when there is a dispute or question concerning the right to compensation. The California Supreme Court has stated that the allowance of a credit is within the Workers' Compensation Appeals Board's discretion. (City and County of San Francisco v. Workmen's Comp. Appeals Bd. (Quinn)(1970) 2 Cal. 3d 1001, 1016 [35 Cal.Comp.Cases 390, 395]; Herrera v. Workers' Comp. Appeals Bd. (1969) 71 Cal.2d 254, 258 [34 Cal.Comp.Cases 382. 384].)... In Maples v. Workers' Comp. Appeals Bd. (1980) 111 Cal.App.3d 827 [45 Cal.Comp.Cases 1106] the Court of Appeal stated that equitable principles are frequently applied to workers' compensation matters, that equity favors allowance of a credit if the credit is small and does not cause a significant interruption of benefits, that the allowance of a credit of overpayment of one benefit against a second benefit can be disruptive and in some cases totally destructive of the purpose of the second benefit, and that the injured employee should not be prejudiced by defendant's actions when the employee received benefits in good faith with no wrong-doing on his part. These equitable principles are particularly important where a defendant seeks a credit in one case for benefits paid in a different case and such claims for credit should be scrutinized closely. (City of Santa Clara v. Workers' Comp. Appeals Bd. (Henry) (2004) 69 Cal. Comp. Cases 386 [writ den.].)"


The majority continued:


"In analyzing whether the WCJ abused his discretion in allowing defendant a credit for a benefit paid in a different workers' compensation case, we will follow the equitable principles discussed in Maples, supra. In this case, as a result of the passage of Senate Bill 899 in 2004 and the decision in Benson v. Workers' Comp. Appeals Bd. (2009) 170 Cal.App.4th 1535 [74 Cal.Comp.Cases 113] applicant's permanent disability was apportioned between three dates of injury, resulting in a smaller monetary award than if the permanent disability from all three injuries was combined. Defendant received a benefit from this change in the law, and it would be inequitable for defendant to obtain the benefit of the separation of the three injuries for purposes of calculating permanent disability, while allowing defendant to essentially merge the cases for purposes of permanent disability advances...Furthermore, allowing defendant a credit would be destructive of the purpose of the permanent disability award for applicant's 2007 injury. Defendant advanced $11,477.40 in ADJ2806318. All advances were made prior to applicant's 2007 cumulative trauma injury in ADJ6769921. Pursuant to the Finding and Award, the applicant is entitled to $6,336.25 in ADJ2806318 and $4,830.00 in ADJ6769921. Allowing defendant a credit for permanent disability advances made in ADJ2806318 against permanent disability indemnity due in ADJ6769921, would result in the applicant not receiving any "new money" for his 2007 injury."


There was a dissenting opinion which argued that the credit against the separate and distinct injury should have been allowed.


The case highlights a couple of very important points. First, when dealing with overpayments and credits created by those overpayments, the Workers' Compensation Appeals Board is supposed to apply "equitable principles" in determining whether the credit should be allowed. This can often lead to the credit being allowed, denied or modified. Additionally, when defendant asks that the overpayment credit be applied to a separate and distinct case, such a request is likely going to be examined carefully.


In conclusion, many in the workers' compensation community assume that where there has been any type of overpayment, defendant will always be allowed to recoup the loss. The point of this article is to highlight the fact that when the Workers' Compensation Appeals Board is dealing with overpayments, especially when the reimbursement is being sought from a different case, there is nothing "automatic" about the defendant's entitlement to recover the overpayment.


[Editor's Note: Defendant State Compensation Insurance Fund filed a petition for writ of review on Jan. 13, 2011. See Civ. No. F061625. According to the case docket, the Court of Appeal has not acted yet on the petition. Practitioners should check the subsequent history of the case before citing to it.]


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enewsletter archives
Take a deep dive into our past eNewsletters for 2011 and prior...warning - some links to articles may not any linking problems to

May 9, 2011

May 2, 2011

April 25, 2011

April 20, 2011 (Special Alert)

April 18, 2011

April 11, 2011 (Special Alert)

April 11, 2011

April 4, 2011

March 28, 2011

March 21, 2011

March 17, 2011 (Special Alert)

March 14, 2011

March 7, 2011

February 28, 2011
February 21, 2011
February 14, 2011
February 7, 2011
January 31, 2011

January 24, 2011 (addendum)
January 24, 2011 

January 17, 2011 

January 10, 2011 

January 3, 2011



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