California: Labor Code Does Not Permit Defendant to Bury Its Head in the Sand to Dodge Its Obligations

California: Labor Code Does Not Permit Defendant to Bury Its Head in the Sand to Dodge Its Obligations

In The Romano Trust v. The Kroger Co., 2013 Cal. Wrk. Comp. P.D. LEXIS --, a WCAB panel declared it had rarely encountered a case in which a defendant “has exhibited such blithe disregard for its legal and ethical obligation to provide medical care to a critically injured worker.” In Romano, the WCAB panel affirmed the WCJ’s award of multiple 25 percent penalties under LC 5814 and attorney’s fees under LC 5814.5 for defendant’s 11 separate instances of unreasonable delay or denial of medical care to the applicant who incurred industrial injuries to various body parts on 12/20/2003 and in the form of MRSA, which ultimately led to his paralysis and death on 5/2/2008, when the WCAB found that:

(1) In denying medical treatment and hospital expenses (including the failure to authorize the final hospitalization where the applicant died from cardiorespiratory arrest, respiratory failure and pneumonia brought on by his industrial MRSA infection and related medical conditions), defendant exhibited a complete disregard for its legal and ethical obligation to provide medical care to a critically injured applicant, and the claims administrator demonstrated a callous indifference to the catastrophic consequences of its delays, inaction and neglect;

(2) Defendant was not protected from a penalty liability for unreasonably delayed treatment ultimately paid for by Medi-Cal;

(3) Defendant’s liability for penalties was not absolved by the applicant’s death since the penalties were part and parcel of the original 2006 award of medical benefits due to the applicant under LC 4600; and

(4) Defendant waived the LC 5814(g) two-year statute of limitations defense to the penalty liability by failing to raise the issue at the Mandatory Settlement Conference or trial.

The WCAB panel further found that defendant’s repeated, unreasonable delays and denials and willingness to ignore the award of medical treatment by the WCAB justified referral of this case to the Audit Unit of the DWC for potential imposition of an administrative penalty.

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