Antonie Tur sustained an injury in 1991 while employed as a general manager at a certain facility that processes avian creatures of the insane variety. The matter proceeded to trial and applicant was awarded an 83% permanent disability rating with future medical treatment.
The remaining issues of additional temporary disability and penalties were settled on September 8, 2008, and, as part of the agreement, all penalties and interest claims were expressly waived. Defendant made payments to applicant and his attorney in accordance with the agreement on September 24, 2008.
After defendant made payment, applicant sought interest and penalties, presumably on interest accrued during the 16 days between the award and payment made. The matter proceeded to trial, and the Workers’ Compensation Judge found no penalties or late feed were owed and that all payments were timely.
Applicant filed a petition for reconsideration, arguing that the stipulation waiver of interest only applied to those payments already accrued, not future payments.
Incorporating the WCJ’s report and recommendation, which now agreed with the payment of interest, but not to applicant’s attorney and not penalties, the Workers’ Compensation Appeal Board granted reconsideration as to interest owed on the post-award amount, finding interest owed both to the applicant and the applicant’s attorney. The WCAB denied the petition for penalties.
In reaching its conclusion, the WCAB found that Labor Code section 5800 is mandatory and the WCAB does not have jurisdiction to enforce any award that negates the section.
Interestingly enough, § 5800, while stating that “[a]ll awards of the appeals board … shall carry interest … from the date of the making and filing of said award,” also states “[a]s to amounts which by the terms of the award subsequently become due in installments or otherwise, such interest shall run from the date when each such amount becomes due and payable.”
In theory, had the settlement agreement included language of when the payment is to become due, such as in 30 days, no interest would have then been payable under section 5800.
The Court of Appeal denied applicant’s petition for a writ of review.
Perhaps we should all consider amending our standard settlement language?