California: Commencement of Life Pension Payments

Here’s an interesting split panel decision regarding when to commence life pension payments after payments of commuted PD terminate.

CA - NOTEWORTHY PANEL DECISIONS

Copyright 2022 by Matthew Bender & Company, Inc.

Kevin Suh, Applicant v. Metropolitan State Hospital, State Compensation Insurance Fund, Defendants

W.C.A.B. Nos. ADJ9017624, ADJ9017629—WCAB Panel: Chair Zalewski, Deputy Commissioner Schmitz, Commissioner Razo (dissenting)

Workers’ Compensation Appeals Board (Board Panel Decision)

Opinion Filed August 15, 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 However, WCAB panel decisions are not binding precedent, as are en banc decisions, on all other Appeals Board panels and workers’ compensation judges [see Gee v. Workers’ Comp.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, the November 13, 2020 Joint Finding and Order is rescinded, and a new Finding and Order is substituted.

Permanent Disability—Commencement of Life Pension Payments—WCAB, granting reconsideration in split panel opinion, rescinded WCJ’s decision that applicant was not entitled to acceleration of life pension payments after last payment of commuted permanent disability indemnity (which created lengthy “hiatus” between last permanent disability indemnity payment and start of life pension) and substituted new finding that applicant’s life pension payments were due immediately following termination of commuted permanent disability indemnity payments, when parties stipulated to (and WCJ approved stipulation) commutation of 92 percent permanent disability award applicant received for industrial injuries he sustained on 3/15/2013 and during period 1/1/2002 through 3/15/2013, and WCAB panel majority reasoned that Labor Code § 4659(a) plainly states that life pension payments begin after payment of all permanent disability indemnity due under award exceeding 70 percent, and makes no exception for permanent disability indemnity paid out by virtue of commutation, and that interpreting Labor Code § 4659(a) to require life pension payments to commence immediately after exhaustion of commuted permanent disability indemnity payments is consistent with purpose of life pension as discussed in Baker v. W.C.A.B. (2011) 52 Cal. 4th 434, 257 P.3d 738, 129 Cal. Rptr. 3d 133, 76 Cal. Comp. Cases 701, and Brower v. David Jones Construction (2014) 79 Cal. Comp. Cases 550 (Appeals Board en banc opinion), to compensate injured worker for long-term, residual effects of industrial injury, and to act as form of supplemental partial permanent disability benefit consisting of payments to subclass of seriously injured workers, such as applicant, and WCAB rejected defendant’s assertion that applicant’s receipt of life pension benefits immediately following payment of agreed-upon commuted permanent disability indemnity created “windfall” for applicant, and also observed that better practice concerning parties’ stipulated commutation would have been for WCJ to withhold approval of stipulation until parties specified how payment of life pension was to be handled, to account for risk of different interpretations of statute by parties regarding life pension payment; Commissioner Razo, dissenting, found no basis to accelerate applicant’s life pension because approved commutation order contained no agreement for acceleration of payment, and Commissioner Razo opined that because commutation is extraordinary discretionary benefit, application of Labor Code § 4959(a), which provides for permanent disability and life pension benefits to compensate injured worker for long-term, residual effects of industrial injury through periodic payments over time, must be considered together with Labor Code § 5100, which gives WCAB discretion to allow commutation upon showing of immediate and necessary need for more money than periodic payments can provide. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 8.08[4]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 7, § 7.50[1], [2].]