L. C. 5814.5 ATTORNEY FEES ARE LIMITED IN SCOPE BY THE WCAB
Applicant had an Award for orthopedic medical treatment, but his psychiatric treatment was delayed. Judge found a LC 5814 penalty was warranted, along with awarding additional attorney fees under LC 5814.5. Defense appealed.
Pena v. WCAB
(2019) 84 CCC 527, the WCAB agreed there was an unreasonable delay warranting a LC 5814 penalty. However, the additional attorney fee penalty was inappropriate because there was no prior award for psych treatment that was being "enforced", the only prior award was for orthopedic treatment.Therefore, any attorney fees would be subtracted from the penalty awarded to the applicant, not in addition to the awarded amount.
[COMMENT: Commissioner Sweeney dissented, asserting that
prior award should trigger allowance of a L.C. 5814.5 attorney fee penalty; which is contrary to the clear wording of the statute which limits the attorney fees that are incurred in "enforcing the payment of compensation awarded", which in this case the prior award pertained solely to orthopedic treatment and not psychiatric treatment.]
CATASTROPHIC INJURY UPDATE
The Court of Appeal has declined the writ of review in
Kris Wilson v. WCAB (2019) which defined "catastrophic injury" as being determined by the results of the industrial injury, and not how the injury occurred.