Your humble blogger learned a long time ago to give credit where credit was due.  After all, the law in general dislikes windfalls and encourages disgorgement of unearned benefits.  Workers’ compensation law, not so much.

Credit is a tricky issue in comp law, and many defense attorneys find themselves fighting an uphill battle when money goes into the applicant’s left pocket instead of the right (or vice-versa).

Take, for example, the case of Lumb v. City of Chula Vista.  There, the injured worker claimed a cumulative trauma as well as a specific injury to the same body parts.  Defendant had overpaid permanent disability benefits in one case by roughly $2,500, and the WCJ was inclined to let the injured worker keep the extra money while making the defendant pay the same amount on the other case.

So, because of a mislabeled check, or the wrong claim number, the defendant was set to be out an extra $2,500, and the injured worker was set to receive that amount.  That seems fair, right?

The WCJ reasoned that the injured worker would have received more money prior to the decision in Benson, and the WCJ is merely mitigating the loss caused by that decision. (“It is clear that Applicant would have received more permanent disability prior to Benson and that Defendant received a monetary benefit regarding the overall amount of permanent disability owed, after the application of Benson.”)

Well, the defense didn’t think so, and it filed a petition for reconsideration, seeking to have the credit applied.  The Workers’ Compensation Appeals Board reversed the WCJ.

Relying on Maples v. WCAB (“Such resulting overpayments of temporary disability indemnity are typically small and do not result in any significant interruption of benefits.  Equity favors the allowance of such credit against permanent disability indemnity”), the panel reasoned that this was a relatively small amount and the injured worker was still going to receive plenty of permanent disability benefits as a whole.

But, that being said, we’re talking about a $2,500 credit which will now have to be reduced by the cost of the petition for reconsideration.  So, the injured worker gets no additional funds, the employer gets back less than what it should have, and there was delay and uncertainty in resolving the case.

Perhaps the proper thing to do here would have been to settle the matter of credit?  But, that’s a hard call to make: some defendants are willing to invest the time and money to develop a reputation for protecting their rights, and some don’t think the attrition is worth it.

Some have asked if there is a way to get the money back without seeking credit.  After all, if the injured worker has received benefits to which he is not actually entitled, don’t we have a case for unjust enrichment?  Well, good luck – even if a Superior Court Judge were disinclined to kick your case to the curb noting that whole exclusive jurisdiction matter, injured workers fighting tooth-and-nail for workers’ comp benefits don’t tend to have a lot of cash on hand for one to recover.

Well, at least in this case, the WCAB was willing to give credit where credit was due.