assessed against all temporary
disability paid, following a petition
to terminate temporary disability
benefits.
FOREST
PRODUCTS V.
WCAB (HINES)
injury. At a hearing the Workers'
Compensation Judge (WCJ) Robert
Kutz found the applicant temporarily
disabled and ordered temporary
disability benefits to be continued.
The WCJ ordered the employer to
report cessation of benefits pursuant
to Rules of Practice and Procedure,
Sections 10462 and 10464.
The employer received a medical
employer paid temporary disability
through September 27. 1996. The
employer filed a petition to terminate
benefits October 4, 1996, and also sent
a letter to the applicant informing the
applicant that temporary disability was
ending. On October 10, 1996 the WCJ
filed and served a notice of intention to
terminate liability for temporary
disability. The applicant objected and
eventually a 10 % penalty was
imposed. The WCJ relied on Labor
Code section 4661.5 and Rule 10462 to
assess the penalty. The WCJ believed
these sections inherently in conflict but
still assessed the penalty.
two sections and indicated mere was no
conflict between the two sections.
"Thus, the two provisions should be
read together and harmonized as
follows: An employer who reasonably
believes an employee has become
permanent and stationary (and
therefore the employee's temporary
disability has ended) on a particular
date may terminate payments as of that
date and then must file a petition to
terminate within 10 days. However,
when the Board considers the petition
to terminate, there will be a rebuttable
presumption that the employee's
temporary disability should continue
filing, and payment of temporary
disability should be made for that
week."
employer tried to comply with the
applicable sections. Section 5814
deals with unreasonable delays. The
court indicated that in this instance
there was no delay, unreasonable or
otherwise. Therefore, even though
the statute may not have been
complied with correctly no 10%
penalty should accrue.
serve the petition to terminate with the
medical upon receipt of the medical.
Payment of temporary disability
should continue for one week after the
permanent and stationary date.
Firm: SAMUELSEN, GONZALEZ,
VALENZUELA, AND SORROW
Phone: 310 831-0872
Address: 350 WEST 5th ST. #105
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