California WCABPanel decision

ADJ7148169 · May 2, 2022

Petition for Reconsideration granted in part; Findings of Fact and Award of February 10, 2022 affirmed except amended to remove penalties under Labor Code sections 5814 and 5814.5; back wages and attorney fees awarded as amended.

Issues decided: 3
Medical opinions weighed: 1
Authorities named: 3
District office: Marina Del Rey

What the panel ordered

Defendant sought reconsideration of the Findings of Fact and Award issued on February 10, 2022; the WCJ had continuing jurisdiction over the 7/18/2016 Findings of Fact and Award; the Board granted reconsideration and issued a Decision After Reconsideration affirming the F&A except for penalty findings.

Read the official decision →

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.

Earnings / average weekly earningsApplicant prevailed

Applicant testified credibly and unrebutted that she sought work after medical release but could not find any, supporting entitlement to back wages under continuing jurisdiction of prior award.

Penalties under Labor Code §5814Defendant prevailed

The evidence failed to establish that defendant unreasonably delayed payment, so penalties were denied.

Jurisdiction / venue

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The rules the panel named

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

Labor Code Section 132(a)

Labor Code Section 132(a) prohibits discrimination against injured workers and provides remedies including reinstatement and back wages.

Applied to find defendant violated section 132a and applicant entitled to back wages.

Labor Code Section 5803

The Board has continuing jurisdiction over its orders and awards under Labor Code Section 5803.

Applied to find continuing jurisdiction over prior Findings and Award to clarify back wages entitlement.

From the decision · page 6Based on Applicant's testimony at the first trial, Defendant was placed on notice that Applicant had sustained lost wages as a result of her unlawful termination on March 9, 2010. The back wages awarded in the 2/10/2022 Findings of Fact and Award are supported by the entire record and not barred by Res Judicata. The trial on 11/23/2022 was conducted under the continuing jurisdiction of the WCJ over her previous Findings of Fact dated 7/18/2016.... After reviewing the entire record, the WCJ concurs that she erred in awarding Labor Code Section 5814 and Labor Code Section 5814.5 penalties in her 2/10/2022 Findings of Fact and Award. On 8/15/2019 the 7/18/2016 Findings of Fact and Award became final when the 4th District Court of Appeals denied the Petition for Writ of Review.... Defendant paid the attorney fees portion on 12/16/2019. The Findings of Fact and Award dated 7/18/2016 defers the issue of attorney fees with jurisdiction reserved. The Opinion on Decision further encourages the parties to adjust the attorney fees, which they in fact did.

doctrine of res judicata

The doctrine of res judicata bars relitigation of issues previously decided.

Applied to find that back wages issue was not previously litigated and thus not barred.

From the decision · page 8It is thus clear that, as stated by the WCJ in the Report, the parties have previously litigated the issue of whether or not defendant violated section 132a, but not the issue of whether applicant is entitled to back wages. (Report, pp. 3, 6-7.) Accordingly, we conclude that the WCJ correctly determined that the issue of back wages is not barred by the doctrine of res judicata (or collateral estoppel).

ADJ7148169 · May 2, 2022

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

What the panel did with the medical opinions

The rules the panel named

What proof carried it

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