WCAB: No Penalty on Delayed RTW Fund $5,000
Happy Monday, dear readers!
Your humble blogger has a case for you today on one of those topics that probably stands out as a favorite for everyone (that one was sarcasm, so please be ready for what comes next) – penalties!
Penalties (and sanctions) typically only affect defendants. It is incredibly rare for any form of penalties or sanctions to be imposed on applicants (or their attorneys). When it is the misdeed of the applicant attorney that causes the harm to the defendant, the injured worker often serves as a human shield for the attorney’s actions. We wouldn’t want to punish the injured worker, would we?
Well, the case I’m bringing to your attention today is about penalties on alleged defense inaction (it’s not entirely clear from the case what caused the delay in issuing the voucher, or if this delay was reasonable, but the penalty dispute on the voucher itself was resolved by agreement). In the case of McFarland v. Redlands Unified School District, a relatively recent panel decision, applicant sought penalties for the delay of a supplemental job displacement voucher, a claim resolved by agreement, but ALSO on the $5,000 return to work fund supplemental to the voucher.
The case-in-chief was resolved by way of C&R, and a voucher was to be provided to applicant. Defendant was late getting the voucher out and so paid a penalty on the value of the voucher itself. But applicant sought an additional penalty on the $5,000 return-to-work fund offered by the state under Labor Code section 139.48.
The reasoning behind the WCAB’s decision lies in the fact that the extra $5,000 provided by the state (after being collected from California’s employers and insurers) is not a benefit provided by the defendant. The extra return-to-work fund is a supplemental benefit to those provided by the defendant, and so is not subject to the penalty.
What happens when there are consequences beyond the immediate provision of benefits? If a delay in reimbursement of mileage caused an indigent applicant to be evicted from his apartment, is there a viable claim for penalties above and beyond the mileage reimbursement itself? Based on this decision, it doesn’t look like it.