ADJ4406140 — California WCAB decision

ADJ4406140 · July 13, 2023

Appeals Board granted reconsideration on its own motion, rescinded the June 29, 2023 Decision, and substituted a new decision rescinding the WCJ's Findings and Order and Opinion on Decision issued June 6, 2022; found applicant's attorneys entitled to section 5710 fees and interest; denied penalties under section 5814 and attorney fees under section 5814.5; denied section 5813 sanctions; rejected laches defense; ordered payment of self-imposed penalty to applicant.

Issues decided

Medical opinions weighed

Authorities named

District office

Los Angeles

What the panel ordered

Petition for Reconsideration filed by applicant's attorneys challenging the WCJ's Findings and Order and Opinion on Decision issued June 6, 2022; WCJ found claims barred by laches; WCJ ordered reimbursement to defendant for overpayment; WCJ Report recommended denial of reconsideration; Appeals Board granted reconsideration on its own motion and rescinded WCJ's decision.

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What was disputed, and how it came out

Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.

Penalties under Labor Code §5814Applicant prevailed

The Appeals Board found that the defense of laches did not apply because defendant did not demonstrate prejudice or clean hands, and defendant's delay was partly due to its own inaction; therefore, the WCJ's laches finding was rescinded and penalties and fees were awarded accordingly.

From the decision · page 96. The Doctrine of Laches The equitable doctrine of laches may apply in workers' compensation proceedings. (See, e.g., Kaiser Foundation Hospitals v. Workers' Comp. Appeals Board (1985) 39 Cal.3d 57 [50 Cal.Comp.Cases 411]; Truck Ins. Exchange v. Workers' Comp. Appeals Bd. (2016) 2 Cal.App.5th 394 [81 Cal.Comp.Cases 685] (Kwok).) "The defense of laches requires unreasonable delay plus either acquiescence in the act about which plaintiff complains or prejudice to the defendant resulting from the delay." (Conti v. Board of Civil Service Commissioners (1969) 1 Cal.App.3d 351, 359-360, see also Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 77.) In addition, defendants must come to the determination with clean hands, and not be found to have participated in the delay. (See Kwok, supra.) In this instance, the sole basis for the WCJ's decision to reject applicant's attorneys' claims under sections 5813, 5800, 5814, and 5814.5 was that defendant successfully demonstrated the elements of laches. Upon review, we disagree with the WCJ's determination. With respect to delay, the WCJ found that the seventeen-year delay in requesting payment of the 5710 fees and bringing the Petition for Penalties was unreasonably long, and we do not

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

Defendant voluntarily paid the section 5710 fees and a self-imposed penalty, indicating no prejudice from delay.

Favours Applicant prevailed

This undermined the defense of laches and supported awarding fees and interest to applicant's attorneys.

From the decision · page 10disagree. Based on the record before us, including defendant's remission of the 5710 fees within three weeks of the request on March 20, 2018, defendant has not demonstrated that applicant's attorneys' tardy request prejudiced defendant. More significantly, defendant had to demonstrate, among other things, that it came to the table with clean hands. Given that it was defendant's counsel who took the depositions that generated the section 5710 fees at issue, defendant's claim of complete and utter surprise over the fee request is doubtful enough to convince us that this was not the case, particularly where there is evidence that defendant first objected to the deposition fees before signing the C&R and then agreed to the specific amount in the C&R. (MOH/SOE, June 21, 2021, p. 2 ["There are notes indicating there were notes per 5710 fees, and there was an objection prior to the C&R."].) Additionally, since defendant was required to pay the fees and did not, it is clear that the delay in payment was also due to defendant's action, or in this case, inaction. As a result, we conclude that defendant's laches defense fails, and the WCJ's finding to the contrary will be rescinded.

Defendant's counsel took the depositions generating the section 5710 fees and objected prior to the C&R, showing defendant did not come with clean hands.

Favours Applicant prevailed

This negated the laches defense requiring clean hands.

From the decision · page 10disagree. Based on the record before us, including defendant's remission of the 5710 fees within three weeks of the request on March 20, 2018, defendant has not demonstrated that applicant's attorneys' tardy request prejudiced defendant. More significantly, defendant had to demonstrate, among other things, that it came to the table with clean hands. Given that it was defendant's counsel who took the depositions that generated the section 5710 fees at issue, defendant's claim of complete and utter surprise over the fee request is doubtful enough to convince us that this was not the case, particularly where there is evidence that defendant first objected to the deposition fees before signing the C&R and then agreed to the specific amount in the C&R. (MOH/SOE, June 21, 2021, p. 2 ["There are notes indicating there were notes per 5710 fees, and there was an objection prior to the C&R."].) Additionally, since defendant was required to pay the fees and did not, it is clear that the delay in payment was also due to defendant's action, or in this case, inaction. As a result, we conclude that defendant's laches defense fails, and the WCJ's finding to the contrary will be rescinded.

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Labor Code section 5803

The Appeals Board has continuing jurisdiction to rescind, alter, or amend orders, decisions, or awards for good cause under Labor Code section 5803.

The Appeals Board granted reconsideration on its own motion to correct a clerical error and rescinded the prior decision.

From the decision · page 3Preliminarily, we observe that the Appeals Board has continuing jurisdiction over all its orders, decisions, and awards made and entered and may rescind, alter, or amend any order, decision, or award, for good cause. (Lab. Code, § 5803; Barnes v. Workers' Comp. Appeals Bd.

Labor Code section 5804

No award of compensation shall be rescinded, altered, or amended after five years from the date of the injury under Labor Code section 5804.

The OACR constitutes a final judgment with res judicata effect after five years, but the Appeals Board retains jurisdiction to enforce awards.

From the decision · page 4(2000) 23 Cal.4th 679, 687 [65 Cal.Comp.Cases 780] (Barnes); Hodge v. Workers' Comp. Appeals Bd. (1981) 123 Cal.App.3d 501, 509 [46 Cal.Comp.Cases 1034].) Section 5804 provides that "No award of compensation shall be rescinded, altered, or amended after five years from the date of the injury." An approved workers' compensation compromise and release rests `upon a higher plane than a private contractual release; it is a judgment, with "the same force and effect as an award made after a full hearing."'" (Smith v. Workers' Comp. Appeals Bd. (1985) 168 Cal.App.3d 1160, 1169 [50 Cal.Comp.Cases 311] (Smith), quoting Johnson v. Workmen's Comp. App. Bd. (1970) 2 Cal.3d 964, 973 [35 Cal.Comp.Cases 362].) Consequently, after the five-year period has expired, the OACR constitutes a final judgement with the full effect of res judicata. (Smith, supra, 168 Cal.App.3d at p. 1169.) Moreover, in contrast to the limitations imposed by the statute on the Appeals Board to set aside an entire award, the Appeals Board continues to have jurisdiction after five years to enforce its awards. (Barnes, supra, 23 Cal.4th at p. 687.)

Conti v. Board of Civil Service Commissioners (1969) 1 Cal.App.3d 351, 359-360

The defense of laches requires unreasonable delay plus either acquiescence or prejudice to the defendant, and the defendant must come with clean hands.

The Appeals Board found defendant did not meet the elements of laches because it did not demonstrate prejudice or clean hands.

From the decision · page 96. The Doctrine of Laches The equitable doctrine of laches may apply in workers' compensation proceedings. (See, e.g., Kaiser Foundation Hospitals v. Workers' Comp. Appeals Board (1985) 39 Cal.3d 57 [50 Cal.Comp.Cases 411]; Truck Ins. Exchange v. Workers' Comp. Appeals Bd. (2016) 2 Cal.App.5th 394 [81 Cal.Comp.Cases 685] (Kwok).) "The defense of laches requires unreasonable delay plus either acquiescence in the act about which plaintiff complains or prejudice to the defendant resulting from the delay." (Conti v. Board of Civil Service Commissioners (1969) 1 Cal.App.3d 351, 359-360, see also Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 77.) In addition, defendants must come to the determination with clean hands, and not be found to have participated in the delay. (See Kwok, supra.) In this instance, the sole basis for the WCJ's decision to reject applicant's attorneys' claims under sections 5813, 5800, 5814, and 5814.5 was that defendant successfully demonstrated the elements of laches. Upon review, we disagree with the WCJ's determination. With respect to delay, the WCJ found that the seventeen-year delay in requesting payment of the 5710 fees and bringing the Petition for Penalties was unreasonably long, and we do not

What proof carried it

The evidence the panel weighed, by kind.

Testimony and credibilityfavours Defendant prevailed

Seventeen-year delay in requesting payment of section 5710 fees

From the decision · page 96. The Doctrine of Laches The equitable doctrine of laches may apply in workers' compensation proceedings. (See, e.g., Kaiser Foundation Hospitals v. Workers' Comp. Appeals Board (1985) 39 Cal.3d 57 [50 Cal.Comp.Cases 411]; Truck Ins. Exchange v. Workers' Comp. Appeals Bd. (2016) 2 Cal.App.5th 394 [81 Cal.Comp.Cases 685] (Kwok).) "The defense of laches requires unreasonable delay plus either acquiescence in the act about which plaintiff complains or prejudice to the defendant resulting from the delay." (Conti v. Board of Civil Service Commissioners (1969) 1 Cal.App.3d 351, 359-360, see also Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 77.) In addition, defendants must come to the determination with clean hands, and not be found to have participated in the delay. (See Kwok, supra.) In this instance, the sole basis for the WCJ's decision to reject applicant's attorneys' claims under sections 5813, 5800, 5814, and 5814.5 was that defendant successfully demonstrated the elements of laches. Upon review, we disagree with the WCJ's determination. With respect to delay, the WCJ found that the seventeen-year delay in requesting payment of the 5710 fees and bringing the Petition for Penalties was unreasonably long, and we do not

Testimony and credibilityfavours Applicant prevailed

Defendant did not demonstrate prejudice from delay and did not come to the table with clean hands

From the decision · page 10disagree. Based on the record before us, including defendant's remission of the 5710 fees within three weeks of the request on March 20, 2018, defendant has not demonstrated that applicant's attorneys' tardy request prejudiced defendant. More significantly, defendant had to demonstrate, among other things, that it came to the table with clean hands. Given that it was defendant's counsel who took the depositions that generated the section 5710 fees at issue, defendant's claim of complete and utter surprise over the fee request is doubtful enough to convince us that this was not the case, particularly where there is evidence that defendant first objected to the deposition fees before signing the C&R and then agreed to the specific amount in the C&R. (MOH/SOE, June 21, 2021, p. 2 ["There are notes indicating there were notes per 5710 fees, and there was an objection prior to the C&R."].) Additionally, since defendant was required to pay the fees and did not, it is clear that the delay in payment was also due to defendant's action, or in this case, inaction. As a result, we conclude that defendant's laches defense fails, and the WCJ's finding to the contrary will be rescinded.