Ford v. Lawrence Berkeley Laboratory
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1 WORKERS' COMPENSATION APPEALS BOARD 2 STATE OF CALIFORNIA 3 Case No. WCK 13904 4 CHARLES FORD, 5 Applicant, 6 vs. 7 LAWRENCE BERKELEY LABORATORY, OPINION AND ORDER DENYING RECONSIDERATION (EN BANC) 8 Defendant. 9 Applicant employee seeks reconsideration of the Board's En 10 11 12 Banc decision filed January 27, 1997, in which the Board majority held that the workers' compensation referee's imposition of a 10% penalty on defendant employer was proper, but that an employee's 13 attorney's fees may only be assessed against an employer pursuant 14 to Labor Code section 4064 where the employer has filed the 15 initial 16 medical evaluator selected by the employee from a three-member 17 panel. 18 claim was filed by the employee. application contesting the opinion of the qualified In this case the initial application for adjudication of In his petition, applicant contends that where the defendant 19 refuses to comply with express Labor Code procedures and forces an 20 unrepresented worker to file an application, the defendant must be 21 held liable under section 4064 for the attorney's fees incurred by 22 the 23 connection, applicant asserts that the majority decision allows 24 the 25 26 worker for defendant to consequent benefit legal from its representation. wrongdoing because In the this 10% 1 penalty assessed against defendant is less than the attorney's 2 fees allowed to applicant's attorney. To 3 accomplish what applicant considers to be a more equitable result, he would have the Board rewrite section 4064. 4 Under the plain, unambiguous wording of the statute, an employer 5 is liable for an employee's attorney's fees "if an employer files 6 an application." 7 application, there is no authority for imposing liability on the 8 employer under that section. 9 the 10 Board has a If the employer is not the one who files an duty "to However, applicant contends that interpret the statues (sic), often qualifying them contrary to express language found in them, as a check and balance against the legislative branch who can make 11 errors and contradict the intent of their legislation." 12 amended petition, applicant asserts defective Code that the Board In his majority 13 “would 14 legislature corrects it, but that is the opposite of the process: 15 it 16 interpretation, and then it goes back to the legislature for 17 is allow up to the the WCAB to Section correct the to Code stand until Section the through revised drafting, etc.” We agree that it is the duty of the Appeals Board to 18 interpret statutes in such a way as to give true meaning to the 19 legislation. We do not, however, agree we have broad authority 20 to correct “defective” legislation. 21 the majority interpretation is giving full effect to the statute 22 and there is nothing which causes us to believe that the law is 23 defective. 24 Because a statute does not extend its benefits to all possible related circumstances does not render the law defective. 25 - 2 26 In any event, in this case, 1 This code section provides additional benefits to an injured 2 worker under certain conditions. 3 extend the benefits to If the Legislature wishes to apply circumstances, it may do so. to other conditions or It is not the duty or function of 4 the Appeals Board to do so. 5 In his petition, applicant argues that because the amount of 6 the 10% penalty imposed on defendant in this case is less than the 7 attorney's 8 wrong-doing." 9 institution, made a deliberate choice to incur a penalty rather 10 fees allowed, defendant However, even has if "saved $633.00 defendant, a on its non-profit than provide benefits or file an application (a supposition that is not apparent from the record), it is not the duty of the Board 11 to insure that the sanction imposed is in the highest possible 12 amount. A penalty is a penalty, and defendant has ended up having 13 to pay out more than its original liability. 14 concludes that the 10% penalty under section 5814 is insufficient 15 to deter unreasonable delay, it has the authority to change the 16 law. 17 If the Legislature It is not the function of the Board to improvise a new statutory interpretation to accomplish that purpose. In his petition, applicant asserts that "a literal reading 18 [of section 4064] contravenes the legislative intent of the reform 19 act." He contends that the Board has "the obligation to apply a 20 judicial interpretation of an imperfect statutory language," and 21 he exhorts us "to 'do the right thing' and assess the cost of the 22 attorney's fees against the defendant for their wrongful action." 23 However, the Board's role 24 Supreme is Court more has repeatedly circumscribed. 25 - 3 26 indicated (See, e.g., that Ruiz the v. 1 Industrial 2 Cal.Comp.Cases 3 Workmen's Acc. Com. 265, Comp. (1955) 267-268; Appeals Bd. 45 Cal.2d Kaiser [Keifer] 409, 413-414, Founda-tion (1974) 13 20 Hospitals Cal.3d 20, 39 Cal.Comp.Cases 857; and Nickelsberg v. Workers' Comp. Appeals Bd. 4 (1991) 54 Cal.3d 288, 302, 56 Cal.Comp.Cases 476, 487.) 5 6 Absent specific statutory authority, the Board may not assess applicant's attorney's fees as an additional liability of defendant. 7 In the Board's earlier En Banc decision in this case, Ford v. 8 Lawrence Berkeley Laboratory (1997) 62 Cal.Comp.Cases 153, we set 9 forth at length the basis for our holding that section 4064 does 10 not apply under the facts existing in this case. believe that that analysis is correct and We continue to that it would be 11 improper for the Board to interpret section 4064 contrary to its 12 express language. 13 For the foregoing reasons, 14 IT IS ORDERED THAT applicant's petition for reconsideration 15 be, and it is hereby, DENIED. WORKERS' COMPENSATION APPEALS BOARD 16 17 /s/ Arlene N. Heath 18 /s/ Jane Wiegand 19 20 /s/ R. N. Ruggles 21 /s/ Diana Marshall 22 We 23 dissent. opinion) 24 25 - 4 26 (See dissenting 1 /s/ Colleen S. Casey 2 3 /s/ Richard P. Gannon 4 5 6 DATED AND FILED IN SAN FRANCISCO, CALIFORNIA APRIL 22, 1998 SERVICE BY MAIL ON SAID DATE ON ALL PARTIES SHOWN ON THE OFFICIAL ADDRESS RECORD. 7 DISSENTING OPINION 8 In our dissent to the Board's earlier En Banc decision in 9 this case, we analyzed the legislative history and purpose of 10 Labor Code section 4064, as well as the prior Board decisions 11 which 12 application for adjudi-cation of claim was considered to have been 13 awarded attorney's "constructively" filed fees on under the that employer's section behalf. when In the that connection, we noted Civil Code section 3529, which states that an 14 act which ought to have been done is regarded as having been done 15 in favor of him to whom performance is due. We also stated that 16 "if the employer follows the procedure mandated by sections 4061 17 and 18 applications filed by the employee," and that "in interpreting and 19 applying 20 4063, proceed there is no need to refer [in section 4064] to section 4064, this Board, like the Legis-lature, must as if the employer has followed the law." We also discussed why the existence of additional remedies for employer 21 misconduct, which have significant limitations, should not 22 preclude an assessment of attorney's fees against defendant under 23 the facts presented in this case. 24 25 - 5 26 For all of those reasons, we 1 would grant applicant's petition for reconsideration and reinstate 2 the award of attorney's fees made by the workers' compensation 3 referee. 4 /s/ Colleen S. Casey 5 6 7 /s/ Richard P. Gannon DATED AND FILED IN SAN FRANCISCO, CALIFORNIA APRIL 22, 1998 8 9 SERVICE BY MAIL ON SAID DATE ON ALL PARTIES SHOWN ON THE OFFICIAL ADDRESS RECORD. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 - 6 26
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