PENALTY - Excuse for delay in providing benefits–Labor Code §5814–The standard as to whether a penalty applies is that when the payment or furnishing of any compensation benefit has been "unreasonably delayed or refused," the award is increased under the provisions of Labor Code §5814. The only satisfactory excuse for delay in payment before or after an award is "genuine legal doubt from a medical or legal standpoint as to the liability for benefits," and the burden is on the employer to show substantial evidence of the basis for the doubt. (See Kerley v. Workers' Comp. Appeals Bd. (1971) 4 Cal.3d 223.) Cedar Fair/Knott's Berry Farm v. Workers' Comp. Appeals Bd. (Steven Chadwell) 10 WCAB Rptr. 10,117 [Writ Denied]

PENALTY - Labor Code §5814(b)–If a potential delay in payments of benefits is discovered by the employer prior to an employee claiming a penalty, the employer, within 90 days of the date of discovery, may pay a self-imposed penalty in the amount of 10% of the amount of the payment unreasonably delayed or refused, along with the amount of the payment delayed or refused. This self-imposed penalty is in lieu of a penalty under Labor Code §5814(a). [In this case, the employer became aware of delay in payment of permanent disability advances when the employee claimed a penalty at a mandatory settlement conference. The employer's payment of the self-imposed penalty of 10% four months after the mandatory settlement conference did not excuse the imposition of a penalty under Labor Code §5814(a).] Warner Bros. Studio Facilities v. Workers' Compensation Appeals Board (Mary Jo Hanold) 10 WCAB Rptr. 10,065 [Writ Denied]

PENALTY - Labor Code §5814-Before a WCJ can make a determination as to an employer's liability for penalties under Labor Code §5814 for unreasonable delay and/or refusal to provide medical treatment, he must first determine that the specific treatment at issue, i.e., each payment allegedly unreasonably delayed or refused was for medical treatment reasonably required to cure or relieve the injured worker from the effect of his industrial injury under Labor Code §4600. Khatchik Yeressian v. Workers' Compensation Appeals Board, Ralphs Grocery Company 9 WCAB Rptr. 10,080 [Writ Denied]

PENALTY - Labor Code §5814 as enacted by SB 899 applies to unreasonable delays that occurred prior to the operative date of SB 899 where the finding of unreasonable delay is made on or after June 1, 2004. (See Green v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 1426.) Russell Mackey v. Workers' Compensation Appeals Board, Fry's Foods 9 WCAB Rptr. 10,084 [Writ Denied]

PENALTY - Labor Code §5814-Delay in payment of Labor Code §132a award-Workers' compensation benefits ordered paid an injured worker because of an employer's unlawful discrimination constitute a separate class of benefits and a delay in the payment of any part of the increased discrimination benefits will result in a penalty assessment imposed under Labor Code §5814 on the entire amount of discrimination benefits. (See Burton v. Workers' Comp. Appeals Bd. (1980) 112 Cal.App.3d 85.) Alpha Connection Group Homes for Children, Inc. v. Workers' Compensation Appeals Board (Maria Gonzales) 9 WCAB Rptr. 10,087 [Writ Denied]

PENALTY - Labor Code §5814-With the enactment of SB 899, vocational rehabilitation, which was eliminated from the Labor Code the preceding year, was reinserted into Labor Code §139.5, applicable only to injuries occurring before January 1, 2004. At the same time SB 899 amended Labor Code §3207 to delete vocational rehabilitation from the definition of 'compensation. Since Labor Code §5814 provides for a penalty for unreasonable delay or refusal to pay compensation, no penalty can now be imposed for delay or refusal to pay vocational rehabilitation benefits. George J. Gajdos v. Workers' Compensation Appeals Board, County of Los Angeles 8 WCAB Rptr. 10,371[Writ Denied]

PENALTY - Labor Code §4650(d)–An employer is strictly liable in the situation in which the employer fails to apply a self-imposed penalty if the first payment of temporary or permanent disability indemnity is not made within 14 days after the award is final. (See Rhiner v. Workers' Comp. Appeals Bd. (1993) 4 Cal.4th 1213.) Sheila Zimarik v. Workers' Compensation Appeals Board, Hughes Aircraft Company 8 WCAB Rptr. 10,287 ___Cal.App.4th___

PENALTY-Labor Code §5814-The Appeals Board improperly interpreted the newly enacted Labor Code §5814 by assessing penalties despite the fact that the third-party administrator paid a self-assessed penalty pursuant to Labor Code §5814(b) New United Motors Manufacturing, Inc. v. Workers' Compensation Appeals Board (John Gallegos) 8 WCAB Rptr. 10,251 ___Cal.App.4th___

PENALTY-Labor Code §5814–A reasonably short delay attributable to human error cannot, standing alone, be considered "unreasonable." (See State Compensation Insurance Fund v. Workers' Comp. Appeals Bd. Stuart) (1998) 18 Cal.4th 1209.) But the burden is on the employer to establish that a delay is reasonable. See County of San Luis Obispo v. Worker's Comp. Appeals Bd. (Barnes) (2001) 92 Cal.App.4th 869, 3 WCAB Rptr. 10,299.) [In this case, the employer offered no good excuse to explain how it sent the check to the wrong address. It was stipulated that the error was promptly corrected when the check was returned by the postal service, and although there was no evidence showing willful disregard of the employer to his duties or the rights of the applicant and his attorneys, there was a delay and absent any evidence of a good excuse, the delay was deserving of a penalty.] Fida Khan v. Workers' Compensation Appeals Board, Environmental Service Products Manufacturing, Inc. 8 WCAB Rptr. 10,258 [Writ Denied]

PENALTY-Labor Code §5814–The WCJ properly denied a penalty in this case in which the defendant discovered its own mistake in failing to pay all of the temporary disability pursuant to an Award and immediately sent applicant a check covering the late payment plus the self-imposed penalty and interest. William Little v. Workers' Compensation Appeals Board, Bayshore Mortgage Company 8 WCAB Rptr. 10,228 [Writ Denied]

PENALTY-Labor Code §4650(d)–Is an employer strictly liable in the situation in which the employer fails to apply a self-imposed penalty if the first payment of temporary or permanent disability indemnity is not made within 14 days after a Petition for Writ of Review is denied? Sheila Zimarik v. Workers' Compensation Appeals Board, Hughes Aircraft Company 8 WCAB Rptr. 10,208 [Writ Granted]

PENALTY-Labor Code §5814-Did the Appeals Board improperly interpret the newly enacted Labor Code §56814 by assessing penalties despite the fact that the third-party administrator paid a self-assessed penalty pursuant to Labor Code §5814(b)? New United Motors Manufacturing, Inc. v. Workers' Compensation Appeals Board (John Gallegos) 8 WCAB Rptr. 10,189 [Writ Granted]

PENALTY-Labor Code §5814-The $10,000.00 maximum penalty award under the new Labor Code §5814 relates to the particular specie of benefit delayed or denied and is not limited to one penalty for all species of benefits lumped together. All Tune & Lube, Crawford & Company v. Workers' Compensation Appeals Board (Chris Derboghossian) 8 WCAB Rptr. 10,179 [Writ Denied]

PENALTY- Retroactive application of new Labor Code §5814–The statutory repeal rule applies because the legislature by SB 899 repealed the purely statutory right to a particular formula for calculating penalties for unreasonable delay or refusal to pay compensation. Because the new statute affected only a procedural change in the law, the new penalty provisions can be retroactively applied. Ann McCarthy v. Workers' Compensation Appeals Board, Best Sanitizers, Inc. 8 WCAB Rptr. 10,045 ___Cal.App.4th___

PENALTY– Labor Code §5418– Under the new Labor Code §5815, the WCJ properly awarded a penalty of 25% on the medical treatment in dispute, consisting of a psychiatric evaluation and treatment by a pain management specialist up to a maximum of $10,000. Santa Ana Unified School District v. Workers' Compensation Appeals Board (Esperanza Ward) 7 WCAB Rptr. 10,334 [Writ Denied]

PENALTY– Labor Code §5814(b) – Under the new Labor Code §5814(b), the defendant is not liable for a penalty if payment of the delayed amount plus a self-imposed penalty of 10% is paid within 90 days of the discovery that the amount was not paid. Billie D. Holland v. Workers' Compensation Appeals Board, American Home Food Products 7 WCAB Rptr. 10,332 [Writ Denied]

PENALTY– Labor Code §5814(b) – Under the new Labor Code §5814(b), the defendant is not liable for a penalty if payment of the delayed amount plus a self-imposed penalty of 10% is paid within 90 days of the discovery that the amount was not paid. Billie D. Holland v. Workers' Compensation Appeals Board, American Home Food Products 7 WCAB Rptr. 10,314 [Writ Denied]

PENALTY– Labor Code §5814–Unreasonable failing to pay or delaying payment of Labor Code §4650(d) penalty, the 10% penalty under Labor Code §5814, applies to all payments of the underlying species of disability indemnity. (See Farris v. Industrial Wire Products (2000) 2 WCAB Rptr. 10,279 [en banc].) The Earthgrains Company v. Workers' Compensation Appeals Board (Floyd Adams) 7 WCAB Rptr. 10,304 [Writ Denied]

PENALTY– Labor Code §5814– Genuine legal or medical doubt– The employer's utilization review denial was within 14 days of the receipt of the treating physician's recommendation. As such, the employer had a genuine legal and medical doubt as to applicant's entitlement to housekeeping and accordingly the employer did not unreasonably refuse to provide the benefit and a penalty was not warranted. (See Ralphs Grocery Co. v. Workers' Comp. Appeals Bd. (Lara) (1995) 38 Cal.App.4th 820.) Gracie Creel v. Workers' Compensation Appeals Board, Longs Drugs 7 WCAB Rptr. 10,269 [Writ Denied]

PENALTY– Labor Code §5814– The new Labor Code §5814 enacted by SB 899 applies to all pending claims, even those in which the delay occurred before the effective date of the new section on June 1, 2004. (See Green v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 1426, 7 WCAB Rptr. 10,115) Timothy East v. Workers' Compensation Appeals Board, D&S Movers 7 WCAB Rptr. 10,247 [Writ Denied]

PENALTY– Labor Code §5814– The new Labor Code §5814, as enacted by SB 899 and operative June 1, 2004, applies to unreasonable delays or refusals to pay compensation that occur prior to the operative date where the finding or unreasonable delay is made on or after June 1, 2004. (See Abney v. Aera Energy and Liberty Mutual Ins. Co. (2004) 7 WCAB Rptr. 10,014 [en banc].) Charlene Brumfield v. Workers' Compensation Appeals Board, True Alliance 7 WCAB Rptr. 10,246 [Writ Denied]

PENALTY– Statute of limitations– Labor Code §5814(g)-Does the new two year statute of limitations apply to penalty petitions filed after June 1, 2004 for unreasonable delays in payment of benefits occurring prior to that date? John Finley v. Workers' Compensation Appeals Board, Pacific Steel and Engineering WCAB Rptr. 10,238 [Writ Granted]

PENALTY– Labor Code §5814– The new Labor Code §5814, as enacted by SB 899 and operative June 1, 2004, applies to unreasonable delays or refusals to pay compensation that occur prior to the operative date, where the finding of unreasonable delay is made after June 1, 2004. (See Abneyv. Aera Energy (2005) 7 WCAB Rptr. 10,014 [en banc].) Tara Jowitt v. Workers' Compensation Appeals Board, Butter Cream Bakery, Liberty Mutual Insurance Company 7 WCAB Rptr. 10,223 [Writ Denied]

PENALTY– Retroactive application of new Labor Code §5814– Were penalties properly calculated under the post-SB899 statute applying the new penalty provisions to an injury that occurred prior to the effective date of the new statute? Ann McCarthy v. Workers' Compensation Appeals Board, Best Sanitizers, Inc. 7 WCAB Rptr. 10,204 [Writ Granted]

PENALTY– Labor Code §5814– The new version of Labor Code §5814 is intended to be applied to all cases except in proceedings brought before the Appeals Board to reopen an existing award. (See Green v. Workers' Compensation Appeals Board (2005) 127 Cal.App.4th 1426, 7 WCAB Rptr. 10,115.)United Airlines v. Workers' Compensation Appeals Board (Sondra L. Conner) 7 WCAB Rptr. 10,195 ___Cal.App.4th___

PENALTY– Labor Code §5814– Application of SB899 changes to Labor Code §5814– Where a right of action does not exist at common law but depends solely on statute, repeal of the statute destroys the inchoate right unless it has been reduced to final judgment or the repealing statute contains a savings clause protecting the right pending litigation. (See Graczyk v. Workers' Comp. Appeals Bd. (1986) 184 Cal.App.3d 997.) Sonja Wells v. Workers' Compensation Appeals Board, Compass Health, Inc. 7 WCAB Rptr. 10,175

PENALTY– Labor Code §5814– In this case, Labor Code §5814 was repealed before the penalty award and before the penalty award became final and therefore the newly enacted provisions of Labor Code §5814 applied. (See Green v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 1426, 7 WCAB Rptr. 10,115.) Sonja Wells v. Workers' Compensation Appeals Board, Compass Health, Inc. 7 WCAB Rptr. 10,175

PENALTY– Labor Code §5814(d) as amended by SB899 does not require an additional 10% payment under Labor Code §4650(d) when the increase is not paid prior to the award of a Labor Code–5814 penalty for unreasonable delay in paying temporary disability. Mary Stackhouse v. Workers' Compensation Appeals Board, Rifocs Corporation 7 WCAB Rptr. 10,172

PENALTY– Labor Code §5814 as amended by SB899 applies to delay or refusal to pay compensation when the finding made on or after June 4, 2004. Terri Shores v. Ennis Business Forms 7 WCAB Rptr. 10,157

PENALTY– Labor Code §5814–Reasonably short delays attributable to human errors alone or short delays caused by the realities of business are not considered unreasonable. (See State Compensation Ins. Fund v. Workers' Comp. Appeals B (1998) 18 Cal.4th 1209.) [In this case, a pharmacy bill was resolved by settlement paid within 20 days.] Clennon Moore v. Workers' Compensation Appeals Board, County of Los Angeles 7 WCAB Rptr. 10,156

PENALTY– Repeal of Labor Code §5814 by SB 899–In workers' compensation, where rights are purely statutory and not based on common law, the repeal of a statute ends the right, absent a savings clause. Statutory rights end during litigation if repeal of the statute occurs before final judgment. By definition, there is no final judgment if an appeal is pending. State Compensation Insurance Fund v. Workers' Compensation Appeals Board (Bobbie Singleton) 7 WCAB Rtpr. 10,117

PENALTY– Labor Code §5814–If there has not been a final determination of penalties, the repeal and amendments to the Labor Code pursuant to Senate Bill 899 apply to applicant's penalty claim for unreasonable delays regardless of date of injury. James Green v. Workers' Compensation Appeals Board, City of Compton 7 WCAB Rptr. 10,115

PENALTY– Labor Code §5814–Delay in providing vocational rehabilitation benefits–Labor Code §5814 applies to virtually every type of benefit provided by workers' compensation. (See Kopitske v. Workers' Comp. Appeals Bd. (1999) 74 Cal.App.4th 623, 1 WCAB Rptr. 10,003.) Imposition of a penalty pursuant to Labor Code §5814 is appropriate when vocational rehabilitation benefits are unreasonably delayed. (See American Home Assurance v. Workers' Comp. Appeals Bd. (Pacey) (2004) 6 WCAB Rptr. 10,109 [writ denied].) Jonathan Menezes v. Workers' Compensation Appeals Board, City of Rialto 7 WCAB Rptr. 10,094

PENALTY– Labor Code §5814–The Appeals Board may consider the size of the late payment in relation to the amount of the potential penalty to determine whether the employer or insurance carrier acted reasonably. (See County of San Luis Obispo v. Workers' Comp. Appeals Bd. (Barnes) (2001) 92 Cal.App.4th 869, 2 WCAB Rptr. 10,299.) [In this case, the applicant had received benefits totaling $170,000 and sought multiple penalties for the delay in reimbursement of medical mileage of $19.46.] Warren Turner v. Workers' Compensation Appeals Board, Pacific Corinthian Life Insurance, California Insurance Guarantee Association 6 WCAB Rptr. 10,326

PENALTY– Labor Code §5814–The only satisfactory excuse for delay in payment before or after an award is genuine doubt from a medical or legal standpoint as to liability for benefits, and the burden is on the employer or carrier to show substantial evidence of the basis for doubt. (See Kerley v. Workers' Comp. Appeals Bd. (1971) 4 Cal.3d 223.) [In this case, medical liens were allowed in full, defendant failed to pay after the award became final when the Court of Appeal denied defendant's Petition for Writ of Review, and defendant was then found liable for the original award, interest at the same rate as judgments in civil actions retroactive to the date of receipt of the medical bills, and a 10% penalty against all medical benefits.] Town of Hillsborough v. Workers' Compensation Appeals Board (Jack Doss) 6 WCAB Rptr. 10,319

PENALTY– Labor Code §5814–Because there has not been a final determination of penalties, do the repeal and amendments to the Labor Code under Senate Bill 899 affect applicant's claim for additional penalties under Labor Code §5814? James Green v. Workers' Compensation Appeals Board, City of Compton 6 WCAB Rptr. 10,279

PENALTY– Labor Code §5814–Reasonableness of delay–The issue raised in this case was whether or not the delay in purchasing a wheelchair was unreasonable. The defendant stipulated to providing a wheelchair "within 30 days of a prescription which includes any/all details of the type, model, H.P., and size requirements which may be needed." The ordering of the wheelchair required a meeting with the wheelchair manufacturer and the applicant, and the wheelchair was provided within 60 days of the original prescription. State Compensation Insurance Fund v. Workers' Compensation Appeals Board (Bobbie Singleton) 6 WCAB Rtpr. 10,280

PENALTY– Labor Code §5814– A penalty pursuant to Labor Code §5814 is not warranted when there is a delay based on a genuine doubt from a medical or legal standpoint. (See Kerley v. Workers' Comp. Appeals Bd. (1971) 4 Cal.3d 223.) [In this case, the defenses of AOE/COE and the statute of limitations were raised by the employer, but there was no basis to impose a penalty for failure to pay temporary disability benefits until after the Findings and Award were issued.) Edward Belton v. Workers' Compensation Appeals Board, Digital Equipment 6 WCAB Rptr. 10,270

PENALTY– Labor Code §5814–The applicant has the burden of proof that compensation was delayed or refused. Once the burden is met, it is defendant's burden to prove that the delay was unreasonable or legally excusable. (See Kerley v. Workers' Comp. Appeals Bd. (1974) 4 Cal.3d 73.) [In this case, there was an evidentiary failure on the part of the defendant. Defendant offered no evidence to support the allegations that: (1) the late payment was a one-time event, (2) the late payment was due to administrative and logistical problems, which were eventually remedied, (3) the failure was not demonstrative of a pattern and practice of delay in payments in the case, and (4) the penalty constituted an unlawful excessive payment in proportion to the delayed amount.] California Indemnity Insurance Company v. Workers' Compensation Appeals Board (Kim Carper) 6 WCAB Rptr. 10,255

PENALTY– Labor Code §5814–The issue of whether a delay or refusal to pay a benefit is unreasonable is a question of fact to be resolved by the Board. (See Gallamore v. Workers' Comp. Appeals Bd. (1979( 23 Cal.3d 815.) [In this case, there was no evidence to establish that the defendant knew of the existence of the prescription for a cane or that the treating physician presented a report or prescription indicating the need for a cane.] American Civil Contractors, Zurich American Insurance v. Workers' Compensation Appeals Board (Michael Stancombe) 6 WCAB Rptr. 10,237

PENALTY– Labor Code §5814– In this case, it was found that the unilateral taking of credit for an overpayment, though inappropriate, did not result in an unreasonable failure to pay permanent disability benefits awarded, because indemnity greater than that awarded had been paid in the form of the overpayment of temporary disability. Grace Brisco v. Workers' Compensation Appeals Board, Kaiser Foundation Health Plan. 6 WCAB Rptr. 10,187

PENALTY– Labor Code §5814 penalties are specified for unreasonable delay in the provision of benefits, not for the failure on the part of a defendant to timely deny an injury. Mary Lou Blades v. Workers' Compensation Appeals Board, Barnes & Noble. 6 WCAB Rptr. 10,186

PENALTY– Labor Code §5814– Constitutionality– Is Labor Code §5814, as written and applied, unconstitutional because it provides excessive fines in violation of the Eighth and Fourteenth Amendments? United Airlines v. Workers' Compensation Appeals Board (Sondra L. Conner) 6 WCAB Rptr. 10,168

PENALTY– Labor Code §5814– Attorneys' fees are a separate specie of benefits for purposes of calculating penalties for delay in payment of attorneys' fees. (See State Compensation Insurance Fund v. Workers' Comp. Appeals Board (LaFavor) (1981) 117 Cal.App.3d 143.) Maria Chavez v. Workers' Compensation Appeals Board, Department of Motor Vehicles. 6 WCAB Rptr. 10,139

PENALTY– Labor Code §5814– Because defendant had provided no evidence to show that non-payment of benefits was reasonable or based on any genuine doubt, either medical or legal, the penalty was justified. (See Kerley v. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d 223.) Consolidated Freightways Inc. v. Workers' Compensation Appeals Board (Wain Escalona) 6 WCAB Rptr. 10,138

PENALTY– Labor Code §5814– Delay in reimbursement of self-procured medical expenditures– The burden is on the applicant to show not only the need for continued medical treatment but also those facts that entitle the applicant to reimbursement for self-procured treatment. (See Boyles v. Workers' Comp. Appeals Bd. (1966) 244 Cal.App.2d 821.) There must be a showing that the self-procured medical treatment was reasonable. (See Braewood Convalescent Hospital v. Workers' Comp. Appeals Bd. (1982) 136 Cal.App.3d 95.) [In this case, the applicant procured a detoxification program prescribed by his treating chiropractor. The program cost $6,000.00 and there was no evidence presented what the $6,000.00 cost for the program covered and there was no report of progress or treatment by the chiropractor during the applicant's participation in the program.] Lance Thomas v. Workers' Compensation Appeals Board, Pacific Bell Telephone. 6 WCAB Rptr. 10,137

PENALTY– Labor Code §5814– Unilateral taking of credit for an alleged overpayment is an unreasonable delay under Labor Code §5814. (See Rohrback v. Workers' Comp. Appeals Bd. (1983) 144 Cal.App.3d 896.) City of Santa Clara v. Workers' Compensation Appeals Board (Steven L. Henry) 6 WCAB Rptr. 10,126

PENALTY– Labor Code §5412– The legal doubt as to liability was that the demand for payment was unsubstantiated by the injured worker but the first request for substantiation was made after the period the defendant failed to pay for medical services. [In addition, the facts in this case showed: (1) the amount of compensation delayed was not a nominal sum ($20,790), (2) the delay was not the first incident of delay, (3) the delay went on for more than 18 weeks, and (4) the worker advised the defendant of the delay and in spite of the warning, defendant did not take any action.] National Plant Services v. Workers' Compensation Appeals Board (Celedonio Trujillo) 6 WCAB Rptr. 10,080

PENALTY– Labor Code §5412– The only satisfactory excuse for delay in payment of compensation, whether prior to, or subsequent to an award, is genuine doubt from a medical or legal standpoint as to liability for benefits. The burden is on the employer or his carrier to present substantial evidence on which a finding of such doubt may be based. (See Kerley v. Workers' Comp. Appeals Bd. (1971) 4 Cal.3d 73.) [In this case, the defendant acted reasonably on the report of a QME who opined that applicant was not in need of any home health care services.] Kelley Traylor v. Workers' Compensation Appeals Board, Airborne Express. 6 WCAB Rptr. 10,080

PENALTY– Labor Code §5412– Although applicant has the initial burden of proof that compensation was delayed or refused pursuant to Labor Code §5412, once applicant establishes such a delay the burden shifts to the defendant to prove that the delay was reasonable. The defendant must establish that it had a genuine good faith doubt as to its liability. (See State Compensation Ins. Fund v. Workers' Comp. Appeals Bd. (Stuart) (1998) 18 Cal.4th 1209.) [In this case, the defendant acted reasonably in initially asserting a credit for permanent disability advances when paying the amount of an approved Compromise and Release.] Patricia Odom v. Workers' Compensation Appeals Board, Klein Bottle Youth Program. 6 WCAB Rptr. 10,078

PENALTY– Delay in Authorization of Medical Treatment– Labor Code §5814– To support an award of a penalty for unreasonably delaying authorization of medical treatment, there must be evidence that the request for authorization for additional medical testing was communicated to the defendant. (See State Comp. Ins. Fund. v. Workers' Comp. Appeals Bd.(1998) 18 Cal..4th 1209.) Lake County Vector Control District v. Workers' Compensation Appeals Board (Jan Sanders) 6 WCAB Rptr. 10,067

PENALTY– Labor Code §5814– Failure to pay interest on award– Pursuant to Labor Code §5800, interest is payable on all awards of the WCAB. Interest is considered compensation and failure to pay interest invokes the 10% penalty for unreasonable refusal of compensation under Labor Code §5814. (See Laucirica v. Workers' Comp. Appeals Bd. (1971) 17 Cal.App.3d 681.) Davit Cattell v. Workers' Compensation Appeals Board (Li Fang Yan) 6 WCAB Rptr. 10,046

PENALTY– Labor Code §5814– Unreasonable delay in payment of an award– When the payment of compensation benefits is unreasonably delayed a §5814 penalty is required. (See Kampner v. Workers' Comp. Appeals Bd. (1978) 86 Cal.App.3d 376.) [In this case, an overworked and inexperienced claims adjuster waited 17 days after receipt on an award to commence the processing necessary for payment. There was no explanation offered for this aspect of the delay and no showing of due diligence.] Davit Cattell v. Workers' Compensation Appeals Board (Li Fang Yan) 6 WCAB Rptr. 10,046

PENALTY– Labor Code §5814– Reasonably short delays attributable to human error or short delays caused by realities of doing business, standing alone, are not unreasonable. (See State Compensation Insurance Fund v. Workers' Comp. Appeals Bd. (Stuart) (1998) 18 Cal.4th 1209.) In further analyzing whether a delay was unreasonable, the amount of delay as compared to the amount of the potential penalty is also a factor to be considered. (See County of San Luis Obispo v. Workers' Comp. Appeals Bd. (Barnes) (2001) 92 Cal. App.4th 8699.)] In this case, a delay of 27 days in payment of permanent disability indemnity was not unreasonable because the claims administrator contracted by CIGA formed a new claims unit and physically transferred files to new claims examiners and changed computer systems. The amount of the one permanent disability check was $980.00 and the potential penalty on a 100% permanent disability award would have been $39,600.00.] Jimmy Norris v. Workers' Compensation Appeals Board, Pool California Energy Services, Inc. 6 WCAB Rptr. 10,025

PENALTY– Multiple penalties– Labor Code §5814– When a defendant unreasonably delays payment of permanent disability and fails to self-impose the automatic 10% increase on the delayed payment, two penalties are properly imposed. (See Patrick Farris v. Industrial Wire Products and Liberty Mutual Insurance Company (2000) 2 WCAB Rptr. 10,279 [en banc].) Safeway, Inc. v. Workers' Compensation Appeals Board (Melba Perez) 6 WCAB Rptr. 10,006

PENALTY– Labor Code §5814– The employer carries the burden of defending its refusal or untimely payment of benefits by presenting the existence of a genuine doubt, from a medical or legal standpoint, as to its liability for workers' compensation benefits. (See Kerley v. Workers' Comp. Appeals Bd. (1971) 4 Cal.3d 223.) The employer's reasonableness is a question of fact for the WCAB to decide in light of the circumstances of the case. (See Moulton v. Workers' Comp. Appeals Bd. (2000) 84 Cal.App.4th 637, 2 WCAB Rptr. 10,363.) [In this case, the employer properly relied on an unambiguous opinion of the treating physician that the injury was not an industrial injury in denying workers' compensation benefits.] Genaro Magana v. Workers' Compensation Appeals Board, Huron Ginning. 5 WCAB Rptr. 10,349

PENALTY– Labor Code §5814– In this case, the penalty was properly imposed after trial on an agreed statement of facts. The defendant did not argue that it was not sufficiently apprised of applicant's penalty claims such that a thorough investigation could not be undertaken. The defendant did not ask for a continuance on the day of trial so that it would have time to gather its evidence and procure attendance of tis witnesses. Defense counsel simply submitted the agreed statement of facts and, after passively listening to them being read into the record, departed. Huntington Memorial Hospital v. Workers' Compensation Appeals Board (Lisa Chamberlin) 5 WCAB Rptr. 10,343

PENALTY– Labor Code §5814– When a defendant fails to pay a penalty award until after the Petition for Writ of Review is denied, a second penalty may be awarded if the Court of Appeal remands the case for an award of attorney's fees on the basis that there was no reasonable basis for the Petition for Writ of Review. (See Klee v. Workers' Comp. Appeals Bd. (1989) 211 Cal.App.3d 1519.) GAR Robins of North America v. Workers' Compensation Appeals Board (Beverly Ruether) 5 WCAB Rptr. 10,326

PENALTY– Labor Code §5814– When a defendant unreasonably delays the payment of an approved compromise and release, the penalty applies only to the particular class or classes of benefits delayed; it does not apply to non-delayed benefits that may also have been the subject of the approved compromise and release. City of Carson, Fleming and Associates v. Workers' Compensation Appeals Board (George Thomson) 5 WCAB Rptr. 10,318

PENALTY– Labor Code §4650 does not apply to future periodic indemnity payments that are commuted to a lump sum. Juan A. Rivera v. Workers' Compensation Appeals Board, Tower Staffing Solutions. 5 WCAB Rptr. 10,299

PENALTY– Labor Code §4650(b) is not limited to periodic permanent disability indemnity payments and includes lump sum payments of accrued permanent disability. Juan A. Rivera v. Workers' Compensation Appeals Board, Tower Staffing Solutions. 5 WCAB Rptr. 10,299

PENALTY– Multiple penalties– Labor Code §5814– Multiple penalties are proper only when the refusal of, or delay in payment of benefits, necessarily involved separate and distinct unreasonable acts by the insurance carrier. Multiple penalties must involve separate classes of benefits, individual claims for payment or reimbursement of medical or travel expenses, or a repeated refusal or delay in payment of a benefit after the same conduct had already been found by the Board to be unreasonable and a prior penalty imposed, or some analogous, legally significant event such as a stipulation of liability by the carrier had intervened between the first act for which a penalty was imposed and the second. (See Christian v. Workers' Comp. Appeals Bd. (1997) 15 Cal. 4th 505.) [In this case, only one penalty was imposed for unreasonably delayed furnishing medical treatment to applicant on four separate and distinct occasions.] Juan Rodriguez v. Workers' Compensation Appeals Board, Lomco. 5 WCAB Rptr. 10,246

PENALTY– Labor Code §5814– In this case, the defendant paid permanent disability indemnity at $170 per week based upon the available medical evidence. Four years later, a Findings of Fact and Award found applicant's permanent disability to be 75% payable at the weekly rate of $230.00. Defendant argued in a petition for reconsideration, the medical evidence it relied upon was more persuasive than the evidence relied upon by the WCJ. Reconsideration was denied and the subsequent petition for writ of review was denied. Up to the time the writ petition was denied, the defendant had a genuine, good-faith doubt as to its liability for the additional permanent disability. Therefore there was no untimely indemnity payment made by defendant and the 10% self-assessed increase per Labor Code §4650(d) did not apply and no penalty should be imposed for failure to self-assess the 10% increase. Louann Rice v. Workers' Compensation Appeals Board, Los Angeles Unified School District. 5 WCAB Rptr 10,230

PENALTY–Labor Code §5814– When an injured worker has shown a delay in the payment of compensation, the burden shifts to the employer to show a good reason for the delay. The only satisfactory excuse for delay in payment of disability benefits is genuine doubt from a medical or legal standpoint as to liability for benefits. (See Kerley v. Workmen's Comp. Appeals Bd. (1974) 4 Cal.3d 273.) [In this case, the defendant showed that the applicant had submitted duplicate requests for medical mileage.] Raytheon Systems, Liberty Mutual Insurance Company v. Workers' Compensation Appeals Board (Patricia Ann Moskowitz) 5 WCAB Rptr. 10,214

PENALTY–Labor Code §5814– Once nonpayment has been established, the burden shifts to the defendant to demonstrate that the refusal or delay was reasonable. To establish reasonableness, defendant must prove by substantial evidence that there was a genuine doubt from a medical or legal standpoint as to liability for benefits or due doubt from a medical or legal standpoint as to liability for benefits or that due diligence was used in attempting to make the payments in a timely manner. County of Los Angeles v. Workers' Compensation Appeals Board (Darlene Lopez) 5 WCAB Rptr. 10,212

PENALTY– Labor Code §5814–A delay in the payment of a lien for post-injury living expenses that is ordered repaid from compensation benefits is a separate class of benefits and the penalty for delay in payment is calculated on the total living expense lien awarded. County of Los Angeles v. Workers' Compensation Appeals Board (Daniel Glover) 5 WCAB Rptr. 10,205

PENALTY– Labor Code §5814– When considering the imposition of a penalty, the WCJ must weigh the fair balance between the right of the employee to prompt compensation benefits and the avoidance of imposition upon the employer or insurance carrier of harsh and unreasonable penalties. (State Compensation Insurance Fund v. Workers' Comp. Appeals Bd. (Stuart) (1998) 18 Cal.4th 1802.) Consideration must be given to the lengthy delay in bringing claims of multiple penalties to the attention of the defendant. [In this case, applicant asserted penalties on benefits commencing in July 1995 and continuing until December 2000. The applicant's petition was dated November 14, 2001. During that period of time, defendant had three adjusters on applicant's claim who were no longer employed by the defendant and the defendant had changed computer systems. The WCAB panel concluded that the five-year delay in asserting the claim for penalties barred the imposition of multiple penalties. (Applicant had sought 58 separate penalties and the one penalty imposed for failure to self-impose a 10% augmentation pursuant to Labor Code §4650(d) was affirmed.)] Nathan Koenig v. Workers' Compensation Appeals Board, Whole Foods Market. 5 WCAB Rptr. 10,183

PENALTY– Labor Code §5814– Multiple penalties– Multiple penalties may be imposed when the refusal of, or delay in payment, necessarily involves separate and distinct unreasonable acts of the defendant. (See Christian v. Workers' Comp. Appeals Bd. (1997) 15 Cal.4th 505.) [In this case, one penalty was imposed for failure to pay temporary disability at the proper rate and a second penalty for failure to pay the automatic increase required by Labor Code §4650(d) on the temporary disability benefits paid at the wrong rate.] Bashir Mehr v. Workers' Compensation Appeals Board, Drake Shell Company. 5 WCAB Rptr. 10,182

PENALTY– Labor Code §5814– Failure to self-assess 10% increase for failure to pay indemnity benefits under Labor Code §4650(d)– The penalty for failure to self-assess the section 4650(d) 10% increase is applied against the entirety of the benefit increased by the section 4650(d) penalty amount. (See Farris v. Industrial Wire Products (2000) 2 WCAB Rptr. 10,279 [en banc].) Bashir Mehr v. Workers' Compensation Appeals Board, Drake Shell Company. 5 WCAB Rptr. 10,182

PENALTY– The only satisfactory excuse for delay with regard to the provision of workers' compensation benefits is genuine doubt as to entitlement to those benefits from a medical or legal standpoint. (Kerley v. Workers' Comp. Appeals Bd. (1971) 4 Cal.3d 223.) [In this case, urological treatment concerned bowel and bladder incontinence. After many years, issues arose regarding applicant's need for Viagra and Flomax on an industrial basis. The treating physician found applicant's impotence/erectile dysfunction was not related to his industrial injury. Applicant consistently frustrated defendant's attempt to clarify treatment issues via medical examination and reporting, which contributed the existence of defendant's genuine doubt as to applicant's medical treatment needs.] Roberto Barrero v. Workers' Compensation Appeals Board, Fireman's Fund Insurance Company. 5 WCAB Rptr. 10,182

PENALTY– Labor Code §5814– When the defendant's delay in paying an award of temporary disability benefits was due to the time necessary to obtain information on the amount owed on a county child support lien, the Appeals Board properly found that the delay was not unreasonable. [Code of Civil Procedure §704.160(c) provides that 25% shall be deducted from an injured worker's temporary disability to pay a support lien unless there is an agreement with the creditor or a court order providing a lesser payment. In this case, there was no such agreement or court order and the defendant was required to compute this deduction, which required more administrative time than payment in a less complicated case.] Antonio Otero v. Workers' Compensation Appeals Board, State Compensation Insurance Fund. 5 WCAB Rptr. 10,178

PENALTY– Labor Code §5814– Did the Appeals Board err as a matter of law when it failed to consider the size of the late payment in relation to the penalty as required by County of San Luis Obispo v. Workers' Comp. Appeals Bd. (Barnes) (2001) 92 Cal.App.4th 869, 4 WCAB Rptr. 10,299 because it erroneously believed there was no evidence as to the overall cost of applicant's medical treatment? State Compensation Insurance Fund v. Workers' Compensation Appeals Board (Joseph Mike) 5 WCAB Rptr. 10,174

PENALTY– Multiple penalties– Labor Code §5814– Applicant was awarded continuing temporary disability indemnity, which defendant unilaterally ceased to pay. Because the defendant did not file a petition to terminate payment of temporary disability indemnity, the WCJ properly imposed a penalty against temporary disability indemnity. The defendant failed to include a 10% increase in delayed payments of indemnity pursuant to Labor Code §4650(d), which constituted the basis for a second penalty. (See Moulton v Workers' Comp. Appeals Bd. (2000) 84 Cal.App.4th 837, 2 WCAB Rptr. 363.) AEI Music Network, Royal & Sunalliance Insurance Company v. Workers' Compensation Appeals Board (Richard Hall) 5 WCAB Rptr. 10,151

PENALTY– Labor Code §5814– In this case, the WCJ properly determined that the employer did not unreasonably delay permanent disability payments. Two biweekly checks were timely issued but later cancelled and replaced. The WCJ found that without evidence when the payee informed the payor that the checks were missing, he could not conclude that the payor was guilty of unreasonable delay. In addition, the WCJ found that one check was short by $87.12 that was the result of clerical error and a penalty would be grossly disproportionate. (See County of San Luis Obispo v. Workers' Comp. Appeals Bd. (Barnes) (2001) 92 Cal.App.4th 869, 3 WCAB Rptr. 10,299.) Raghvendra Singh v. Workers' Compensation Appeals Board, Department of Transportation. 5 WCAB Rptr. 10,150

PENALTY– Labor Code §4650(d)– Where indemnity payments are reduced to a lump sum through an order of commutation, does the lump sum characteristic of a commuted award remove these indemnity payments from the operation of Labor Code §4650(d)? Juan A. Rivera v. Workers' Compensation Appeals Board, Tower Staffing Solutions. 5 WCAB Rptr.10,131

PENALTY– Labor Code §5814– Were two penalties properly imposed for delay in the payment of permanent disability indemnity and the failure to pay a Labor Code §4650(d) 10% increase on delayed payment of permanent disability indemnity. [In this case, the WCJ rejected defendant's argument that the applicant contributed to the delay by failing for eight months to provide any notice of a delay in the issuance of one late check.] Safeway, Inc. v. Workers' Compensation Appeals Board (Melba Perez) 5 WCAB Rptr. 10,126

PENALTY– Multiple penalties– Labor Code §5814– Multiple penalties for each unreasonable delay of payment on the same species of benefit may be awarded, if there was a legally significant intervening event occurring between the two delays, such as an award. (See Christian v. Workers' Comp. Appeals Bd. (1997) 15 Cal.4th 505; Mote v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 902.) [In this case, the defendant unreasonably delayed payment of permanent disability and then did not change the benefit rate upon receipt of a medical report that increased the level of permanent disability. The failure to increase the benefit rate was a legally sufficient intervening event justifying a second §5814 penalty.] Harris Corporation v. Workers' Compensation Appeals Board (Michelle Lee) 5 WCAB Rptr. 10,117

PENALTY– Labor Code §5814– After the applicant has established that the defendant delayed in the payment of compensation, the defendant has the burden of proof to establish the reasonableness of the delay. (See Kerley v. Workers' Comp. Appeals Bd. (1971) 4 Cal.3d 223.) Unreasonable delay or refusal occurs when there is no genuine doubt benefits are owed, from a medical or legal standpoint. (See Gallamore v. Workers' Comp. Appeals Bd. (1979) 23 Cal.3d 815.) [In this case, applicant sought medical treatment 22 years after an award that included medical treatment. Defendant delayed providing medical treatment and sought a medical examination. The defendant's continued delay in providing medical treatment after receipt of the medical report because it was not under oath and "not as thorough" as defendant wanted, did not constitute a genuine doubt as to its liability.] City of Novato, Athens Administrators v. Workers' Compensation Appeals Board (Robert Manning) 5 WCAB Rptr. 10,099

PENALTY– Labor Code §5814– A unilateral mistake by the defendant does not relieve the defendant of liability for a determination of unreasonable delay in compliance with the terms of an award based on stipulations of the parties. For a party to be relieved from a stipulated settlement, there must be a mutual mistake of material fact, not a unilateral one. American Commercial Claims Administrators on behalf of Legion Insurance Company in Rehabilitation v. Workers' Compensation Appeals Board (Michael Buehler) 5 WCAB Rptr. 10,068

PENALTY– Labor Code §5814– The mere fact that the defendant may have been involved in a multilevel decision-making process regarding whether to file a petition for a writ of review on multiple penalty issues does not, standing alone, render "reasonable" its 44-day delay between the issuance of the order denying reconsideration and the mailing of the checks. (See Jensen v. Workers' Compensation Appeals Board (1985) 170 Cal.App.3d 244.) California Highway Patrol v. Workers' Compensation Appeals Board (Jaime Erebia) 5 WCAB Rptr. 10,064

PENALTY– Labor Code §5814– Once a delay in payment of benefits is shown by the applicant, the burden of proof shifts to the defendant to show that the delay was reasonable. (See Kamel v. West Cliff Medical (2002) 4 WCAB Rptr. 10,032 [En Banc].) Ready Springs Union School District v. Workers' Compensation Appeals Board (Terry Laughlin) 5 WCAB Rptr. 10,055

PENALTY– Labor Code §5814 does not grant an injured worker any right to an accounting and cannot serve as a basis for imposing a penalty against the employer. Paula N. Limousin-Ballard v. Workers' Compensation Appeals Board, St. Jude Medical Center. 5 WCAB Rptr. 10,050

PENALTY– Labor Code §5814– A delay in the payment of compensation must be shown by the applicant before the defendant has the burden of proof as to the reasonableness of the delay. (See Kamel v. West Cliff Medical (2002) 4 WCAB Rptr. 10,032 [en banc].) Paula N. Limousin-Ballard v. Workers' Compensation Appeals Board, St. Jude Medical Center. 5 WCAB Rptr. 10,050

PENALTY– Labor Code §5814– Does the Appeals Board have the power to impose a 10% penalty on the delayed payment of a debt for living expenses when such expenses do not fall within the definition of "compensation under the Labor Code?" Assuming the Appeals Board had the power to impose such a penalty, is the 10% penalty assessed against the debt for living expenses as a separate specie of funds, or is the penalty imposed on the entire award? County of Los Angeles v. Workers' Compensation Appeals Board (Daniel Glover) 5 WCAB Rptr. 10,048

PENALTY– Labor Code §5814– In this case, it was not unreasonable for the defendant to rely on information orally transmitted by a member of the staff of the treating physician that the applicant's condition was permanent and stationary, and to terminate temporary disability benefits. The defendant's failure to provide applicant with timely notice of the reason for the termination does not make the termination of benefits unreasonable. But, defendant's failure to timely initiate permanent disability benefits within 14 days of the termination of temporary disability benefits justified imposition of a penalty. The right to credit against permanent disability for overpayment of temporary disability does not prevent a finding of unreasonable delay in payment of permanent disability. Southern California Edison v. Workers' Compensation Appeals Board (Harold Woods) 5 WCAB Rptr. 10,038

PENALTY– Labor Code §5814– A penalty was properly imposed in this case when the defendant terminated temporary total disability indemnity payments based on the defense QME's permanent and stationary report. The defendant had previously entered into a stipulation with applicant that temporary disability indemnity would be paid until the treating physician declared the applicant permanent and stationary. Liberty Mutual Insurance Company v. Workers' Compensation Appeals Board (Helen Tsu) 5 WCAB Rptr. 10,022

PENALTY– Labor Code §5814– In this case, the WCJ properly imposed a penalty for underpayment of permanent disability after receipt of a psychiatric AME report showed work function impairment rated at 75 percent standard, which modified to 87% when adjusted for age and occupation. Hartford Underwriters Insurance v. Workers' Compensation Appeals Board (Jeanne Merservey) 5 WCAB Rptr. 10,020

PENALTY– Labor Code §5814– In this case a penalty was properly imposed when the defendant failed to take corrective action for more 30 days after being informed by the applicant that the quarterly payment of penalties had not been made. GAB Robbins of North America v. Workers' Compensation Appeals Bd (Beverly Reuter) 4 WCAB Rptr. 10,304

PENALTY– Labor Code §5814– A penalty was properly imposed in this case since the defendant failed for 14 months to investigate a claim for a Jacuzzi purchased by the applicant pursuant to the recommendation of the treating physician. City of Manteca v. Workers' Compensation Appeals Board (Jonathan Shaefer) 4 WCAB Rptr. 10,301

PENALTY– Labor Code §5814– The penalty for unreasonable delay in payment of an attorney's fee award is calculated on the all attorney's fees awarded in the case and not just on the amount of the fees for which payment was delayed. County of Los Angeles v. Workers' Compensation Appeals Board (Stacy Jones) 4 WCAB Rptr. 10,292

PENALTY– Labor Code §5814– In this case the WCJ properly rejected applicant's demand for the imposition of a penalty for failure to self assess pursuant to Labor Code §4650(d) because the defendant offered an explanation of reasonableness pointing out that at the time the indemnity payments were being made there were issues of overpayments and corresponding credits and accordingly the defendant had a reasonable doubt as to its total liability. (See Kerley v. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d 223.) Betty Tavares v. Workers' Compensation Appeals Board, TRW Technar. 4 WCAB Rptr. 10,287

PENALTY– Multiple penalties– Multiple penalties are properly awarded only when the refusal of, or delay in payment of benefits necessarily involved separate and distinct unreasonable acts by the insurance carrier. Multiple penalties may involve separate classes of benefits, individual claims for payment or reimbursement of medical or travel expenses, or a repeated refusal or delay in payment after the same conduct had already been found by the Board to be unreasonable and a prior penalty was imposed, or some analogous, legally significant event such as a stipulation of liability by the carrier that intervened between the first act for which a penalty was imposed and the second. (See State Compensation Insurance Fund v. Workers' Comp. Appeals Bd. (Stuart) (1998) 18 al.4th 1209.) [In this case the Appelas Board rejected applicant's contention that failure to correct an underpayment within a reasonable time should result in a second penalty.] Georgia Biebel v. Workers' Compensation Appeals Board, Classic Pools. 4 WCAB Rptr. 10,286

PENALTY– Award of attorney fees– Labor Code §5814,5 applies to a penalty for unreasonable delay in payment of compensation subsequent to the issuance of an award. [In this case temporary disability indemnity was unreasonably delaed in 1988 and 1989 but the award of penalty for delay in payment was issued in 2000.] Joan Rascoe v. Workers' Compensation Appeals Board, Los Angeles Unified School District. 4 WCAB Rptr. 10,250

PENALTY– Multiple penalties– Labor Code §5814– When a defendant unreasonably delays of refuses to pay compensation benefits on separate and distinct occasions, the Appeals Board must impose separate penalties for each separate delay. (See Gallamore v. Workers' Comp. Appeals Bd. (1979) 23 Cal.3d 815.) Each delay must be a legally significant event to justify the imposition of multiple penalties. (See Christian v. Workers' Comp. Appeals Bd. (1997) 15 Cal.4th 505.) [In this case one penalty was imposed for delay in pharmaceutical reimbursement while the second penalty was imposed for a delay six months later in the payment of medical mileage. The WCJ properly found these two delays to be separate and distinct events.] Your Problems Solved, AIG Claims Services, Inc., v. Workers' Compensation Appeals Board (Linda Damasco) 4 WCAB Rptr. 10,235

PENALTY– Labor Code §5814– When considering the imposition of a penalty, the totality of the circumstances of the case must be considered including the size of the late payment, the defendant's history of payment and the effect of the delay upon the injured worker. (See County of San Luis Obispo v. Workers' Comp. Appeals Bd. (Barnes) (2001) 92 Cal.App.4th 869, 3 WCAB Rptr. 10,299.) [In this case no penalty was imposed since the totality of circumstances included: the payment delayed was for the preparation of a medical report, the amount was $75.00, there was no impact on the injured worker and the defendant did not have any other delays in payment.] Beau Wilburn v. Workers' Compensation Appeals Board, Fremont Pacific Ins. Co. 4 WCAB Rptr. 10,235

PENALTY– Labor Code §5814– The only satisfactory excuse for a delay in payment of a benefit is genuine doubt from a medical or legal standpoint as to liability for the benefit. (See Kerley v. Workers' Comp. Appeals Bd. (1971) 4 Cal.3d 223.) [In this case the defendant's refusal to provide temporary disability benefits was based on it view in absence of legal authority, for applicant's claim of temporary disability due to his stroke, during a period in which the applicant had voluntarily withdrawn from the open labor market. City of Covina v. Workers' Compensation Appeals Board (Daniel Alvarez) 4 WCAB Rptr. 10,234

PENALTIES– Labor Code §5814– Multiple penalties may be applied in some circumstances in which the refusal of, or delay in payment of benefits, necessarily involves separate and distinct unreasonable acts. Such multiple penalties might include separate classes of benefits, individual claims for payment or reimbursement of medical or travel expenses or repeated refusal of delay in payment after the same conduct has already been found by the Board to be unreasonable and a prior penalty imposed or some analogous, legally significant event intervening between the first act for which a penalty was imposed and the second. (Christian v. Workers' Comp. Appeals Bd. (1997) 15 Cal.4th 505.) Georgia Biebel v. Workers' Compensation Appeals Board, Classic Pools. 4 WCAB Rptr. 10,202

PENALTY– Labor Code §5814– Is a delay in the payment of attorney fees awarded by the WCAB assessed against the entire award on only on the amount of the attorney fees. County of Los Angeles v. Workers' Compensation Appeals Board (Stacy Jones) 4 WCAB Rptr. 10,200

PENALTY– Labor Code §5814– The unreasonable delay or refusal required for a 10 percent penalty under Labor Code §5814 occurs when there is no genuine doubt from a medical or legal standpoint. The burden is on the employer to establish the delay was not unreasonable. (See Kerley v. Workers' Comp. Appeals Bd. (1971) 4 Cal.3d 223.) [In this case the treating physician recommended continued medical treatment and opined that 'the mechanism of injury the patient describes is consistent with an injury to her right knee" but he deferred the issue of causation to the trier of fact.] Star Insurance v. Workers' Compensation Appeals Board (Deborah Brand) 4 WCAB Rptr. 10,188

PENALTY– Labor Code §5814– Penalty imposed only on the portion of the death benefit on which payment was delayed. [In this case death benefit was awarded $125,000 to the surviving spouse and $12,000 to a surviving child. The payment to the spouse was delayed. The penalty was properly imposed only on the amount of the payment that was unreasonably delayed.] Christine Holzhauser v. Workers' Compensation Appeals Board, XKT Engineering 4 WCAB Rptr. 10,183

PENALTY– Labor Code §5814– The size of the late payment in relation to the amount of the potential penalty is relevant to determining penalties, particularly when the defendant promptly made payment when notified by the applicant that the amount had not been paid. (See County of San Luis Obispo v. Workers' Comp. Appeals Bd. (Barnes) (2001) 92 Cxal.App.4th 869, 3 WCAB Rptr. 10,299.0 [In this case a permanent disability payment of $360.00 would have resulted in a penalty of over $10,000. The payment was made within 5 days after the applicant notified the defendant the payment had not been paid.] Gene Baxter v. Workers' Compensation Appeals Board, Bell & Howell. 4 WCAB Rptr. 10,170

PENALTY– Labor Code §5814– The language of Labor Code §5814 clearly contemplates that when an injured worker has shown a delay in payment of compensation, the burden is on the employer to show good reason for the delay. See Kerley v. Workers' Comp. Appeals Bd. (1971) 4 Cal.3d 273.) [In this case CIGA did not meet the burden of proving its two-day delay in paying the lump sum on a compromise and release was reasonable. The evidence showed that the check in the amount of $30,920 was dated May 26, 2000 and not mailed until June 2, 2000 and received by applicant on June 5, 2000.] California Insurance Guarantee Association v. Workers' Compensation Appeals Board (Gerald Walters) 4 WCAB Rptr. 10,170

PENALTY– Labor Code §5814– When a defendant delays the payment of a settlement, the penalty is imposed on the amount the defendant was ordered to pay. [This case was settled by a compromise and release in the amount of $68,250 with one insurer timely paying its $10,000 share of the settlement and the other carrier delayed in paying the remaining $58,250 and the penalty was properly imposed only on the amount of the compromise and release payment that was delayed.] California Insurance Guarantee Association v. Workers' Compensation Appeals Board (Gerald Walters) 4 WCAB Rptr. 10,170

PENALTY– Labor Code §5814– In determining whether a delay is unreasonable the facts must be viewed in the totality and then balance the rights of the injured worker against imposing harsh penalties. Penalties are not applied merely because of delay but are to be applied if the delay is unreasonable given the facts of a particular case. (See County of San Luis Obispo v. Workers' Comp. Appeals Bd. (Barnes) (2001) 92 Cal.App.4th 869, 4 WCAB Rptr. 10,299.) [In this case the defendant ignored an initial written request and three follow-up letters for a hospital bed prescribed by the treating physician. In a 65-day period between the initial request and the purchase of the hospital bed which showed that it was not an inadvertent act but rather demonstrates institutional neglect.] Liberty Mutual Insurance Company v. Workers' Compensation Appeals Board (Richard Sampson) 4 WCAB Rptr. 10,154

PENALTY– Labor Code §5814– Not every delay results in a penalty, and Labor Code §5814 is expressly limited to payments that are unreasonably delayed. (See Avalon Bay Foods v. Workers' Comp. Appeals Bd. (1998) 18 Cal.4th 1165.) [In this case a check for medical mileage was incorrectly issued and sent to the applicant's attorney, the check was reissued and sent to an incorrect address, and defendant then failed to remedy this for over one year after the initial receipt of documentation of the medical mileage request. The delay and errors in this case were the result of "institutional neglect" and the employer did not meet its burden to show good reasons for the delay. (See Kamel v. West Cliff Medical (2001 4 WCAB Rptr. 10,032 (en banc).] County of Riverside v. Workers' Compensation Appeals Board (James Shannon) 4 WCAB Rptr. 10,152

PENALTY– Labor Code §5814– The issue of whether a delay or a refusal to pay a benefit is "unreasonable" is a question of fact. (See Gallamore v. Workers' Comp. Appeals Bd. (1979) 23 Cal.3d 815.) Each case must be judged on its own facts as to whether the delay was reasonable or not. (See Smith v. Workers' Comp. Appeals Bd. (1986) 186 Cal.App.3d 1451.) [In this case the defendant delayed seeking its own evaluation of applicant's condition and did not explain the reason for a six month delay in providing medical treatment. Although the treating physician's reports suggested that applicant's symptoms may have had other causes, and might have given defendant reason to investigate further, but could not serve as a reasonable basis for defendant's denying compensation while delaying further investigation for six months.] Rosalba Arevalo v. Workers' Compensation Appeals Board, Verizon. 4 WCAB Rptr. 10,151

PENALTY– Labor Code §5814– When vocational rehabilitation maintenance allowance benefits were delayed in being paid resulting in payment of benefit is paid at the temporary disability rate, the penalty is properly assessed against that rate. Helmsman Management Services, Inc. v. Workers' Compensation Appeals Board (Susan Cloudman-Moss) 4 WCAB Rptr. 10,118

PENALTY– Labor Code § 5814– Before a defendant must establish an excuse of non-payment, the applicant must establish a right to payment and a delay in payment. In requiring a finding of unreasonableness as the basis for a penalty, there must be something beyond the mere existence of any delay in payment of benefits. (State Compensation Insurance Fund v Workers' Comp. Appeals Bd. (Stuart) (1998) 18 Cal.4th 1209.) A delay of a certain number of days does not per se make a delay unreasonable, but each case must be analyzed on its own merits regarding whether or not the delay was unreasonable. (See Kampner v. Workers' Comp. Appeals Bd. (1978) 86 Cal.App.3d 376.) [In this case the delay was at most a period of 14 days, at a time when applicant changed his address and only notified defendant of the change of address verbally.] Richard Summers v. Workers' Compensation Appeals Board. Terminex. 4 WCAB Rptr. 10,106

PENALTY– Labor Code §5814– Defendant's difficulty in calculating the amount of permanent disability does not relieve them of responsibility to advance payments in a timely manner. (See Kerley v. Workers' Comp. Appeals Bd. (1971) 4 C.3d 223.) [In this case the WCJ determined defendant's apparent failure to pay weekly advances, even in the face of its entitlement to a credit for lump sum advances paid, was not based on any genuine medical or legal doubt as to liability for the advances.] Costco Wholesale v. Workers' Compensation Appeals Board (Kimberly Rawls) 4 WCAB Rptr. 10,105

PENALTY– Labor Code §5814– Failure to pay 132a award due to alleged financial inability-To establish a delay in paying a 132a award was not unreasonable based on an alleged financial incapacity to pay, the employer must show it lacked the requisite finances during the entire time of the delay or provide an explanation why the money that was available could not be used to pay the award. Devin Deakin v. Workers' Compensation Appeals Board, Bear River Lake Resort. 4 WCAB Rptr. 10,099

PENALTIES– Labor Code §5814– Imposition of multiple penalties-Multiple penalties are properly imposed when the refusal of, or delay in payment of benefits, necessarily involved separate and distinct unreasonable acts by the defendant. [In this case, the Appeals Board found that the defendant's unreasonable failure to provide medical treatment and pay for applicant's mileage expenses to obtain the treatment on a self-procured basis constituted a single course of conduct for which a single penalty should be applied. The defendant's unreasonable conduct arose out of its erroneous belief that the award of further medical treatment was somehow limited to the treatment recommendations of two Agreed Medical Examiners and that no medical treatment beyond that was awarded.] (See Christian v. Workers' Comp. Appeals Bd. (1997) 15 Cal.4th 505.) Barbara Clark v. Workers' Compensation Appeals Board, San Joaquin Community Hospital. 4 WCAB Rptr. 10,092

PENALTY– Labor Code §5814– Merely procuring a medical/legal report may not protect a defendant against the imposition of a penalty. [In this case the defendant ignored the report of the AME that the applicant was 100% disabled and procured another medical report which was considered "doctor shopping."] (See Johnson v. Workers' Comp. Appeals Bd. (1985) 163 Cal.App.3d 770; see also Jardine v. Workers' Comp. Appeals Bd. (1984) 163 Cal.App.3d 1.) Cooper & Brain Oil Company v. Workers' Compensation Appeals Board (Mitchell Aldridge) 4 WCAB Rptr. 10,076

PENALTY– Labor Code §5814– Penalty against an insolvent carrier– The California Insurance Guarantee Association is liable for payment of penalties for acts or failure to act, which occurred before the insurance carrier was declared insolvent. (See Carver v. Workers' Comp. Appeals Bd. (1990) 217 Cal.App. 3d 1539.) California Insurance Guarantee Association v. Workers' Compensation Appeals Board (David Novak) 4 WCAB Rptr. 10,074

PENALTY– Labor Code §5814– The size of the penalty in relation to the delayed benefit is not relevant. Even a de minimum unreasonable delay will result in a penalty aginst the full amount of the class of benefits so delayed. [In this case the medical costs exceeded $100,000 and the resulting penalty was over $10,000. The medical expenses extended back more than one year and defendant and still not paid for the treatment.] Wal-Mart, Inc, v. Workers' Compensation Appeals Board (Naomi Ferrel) 4 WCAB Rptr. 10,060

PENALTY– Labor Code §5814– Penalty against an insolvent carrier– The California Insurance Guarantee Association is liable for payment of penalties for acts or failure to act, which occurred before the insurance carrier became insolvent. (See Carver v. Workers' Comp. Appeals Bd. (1990) 217 Cal.App.3d 1539, see also Golden Eagle Insurance Company w. Workers' Comp. Appeals Bd. (Brown) (2001) 3 WCAB Rptr. 10,220 [writ denied].) California Insurance Guarantee Association v. Workers' Compensation Appeals Board (Paul Harris) 4 WCAB Rptr. 10,059

PENALTY– Labor Code §5814– In order for a penalty to be properly imposed, there must be an unreasonable delay in the payment of compensation. The failure to give notice of reduced benefits contrary to AD Rule 9812(c) with no delay in payment of benefits is not a basis for imposing a penalty under Labor Code §5814. Brenda Curry v. Workers' Compensation Appeals Board, Alameda County Probation Department 4 WCAB Rptr. 10.059

PENALTY– Labor Code §5814– Failure to provide necessary medical treatment– Under Labor Code §4600, the defendant has an unequivocal obligation to provide medical treatment reasonably required to cure or relieve from the effects of the industrial injury. The finding in this case that defendant unreasonably delayed the payment of medical treatment by refusal to promptly authorize the treatment recommended in a Life Care Plan was supported by substantial evidence. [Defendant solicited a registered nurse to prepare a Life Care Plan and failed to timely tender the treatment recommended or even to formally object to the recommendations made in the plan so as to trigger the procedures under Labor Code §4062. The defendant argued that it was not required to provide the treatment because the Life Care Plan was prepared by a nurse. If the defendant believed that the treatment recommended in the Life Care Plan required a physician's prescription, the defendant was obligated to obtain such a prescription in order to provide the necessary treatment.] Redwood Empire Vineyard Management v. Workers' Compensation Appeals Board (Raymond Dedini) 3 WCAB Rptr. 10,362

PENALTY– Labor Code §5814– Multiple penalties may be appropriate when there are separate and distinct acts of unreasonable misconduct. (See Christian v. Worker's Comp. Appeals Bd. (1997) 15 Cal.4th 505.) [In this case the defendant did not seek clarification or reconsideration of a Commutation Order commuting attorney's fees from the far end of a life pension, but rather unilaterally reduced the permanent total disability indemnity rate. After a penalty was awarded for paying permanent total disability indemnity at the wrong rate by reason of this unilateral reduction, the defendant failed to correct the indemnity rate and a further penalty was properly awarded.] City of San Buena Ventura v. Workers' Compensation Appeals Board (Wayne Belitski) 3 WCAB Rptr. 10,358

PENALTY– Labor Code §5814– Delay in the payment of attorney's fees– If there is a penalty for delay in paying attorney's fees, the penalty should be calculated on the amount of attorney fees and not the underlying benefits. (See State Compensation Insurance Fund v. Workers' Comp. Appeals Bd. (La Favor) (1981) 117 Cal. App.3d 143,) Liberty Mutual Insurance Company v. Workers' Compensation Appeals Board (Cezar Florian) 3 WCAB Rptr. 10,355

PENALTY– Labor Code §5814– Unauthorized credit of permanent disability against total temporary disability payments-Any payment, allowance or benefit received by an injured worker during the period of his incapacity, which was not due and payable or when there is any dispute or question concerning the right to compensation, may be taken into account by the Appeals Board when fixing the amount of compensation to be paid. (See generally, Labor Code §4909.) In this case the defendant without a prior order, improperly and unilaterally recharacterized prior payments of permanent disability to be temporary disability and took a credit for the amounts previously paid as permanent disability. Liberty Mutual Insurance Company v. Workers' Compensation Appeals Board (Cezar Florian) 3 WCAB Rptr. 10,355

PENALTY– Labor Code §5814– In order to impose a penalty pursuant to Labor Code §5814, the employee has the burden to prove delay or refuse to pay benefits. The burden of proof then shifts to the employer to show the delay or refusal was reasonable. (See Kerley v. Worker' Comp. Appeals Bd. (1971) 4 Cal.3d 223.) [In this case the defendant declined liability for a Viagra prescription contenting applicant's urologic complaints were related to his prostrate condition and not his back injury. The parties agreed to defer to an agreed medical examiner to resolve all disputed issues including the nature of treatment. After receipt of the AME report which concluded that the prescription for Viagra was reasonable and necessary to cure or relieve the effects of the industrial injury, the defendant delayed paying for the Viagra prescription until after the deposition of the AME. This delay was found to be unreasonable and a penalty was affirmed by the WCAB panel.] E&J Gallo Winery v. Workers' Compensation Appeals Board (Fred Winters) 3 WCAB Rptr. 10,342

PENALTY– Labor Code §5814– The defendant cannot be found to have unreasonably underpaid temporary disability when the calculation of what temporary disability is due, on a wage loss basis, is controlled by applicant's earning records, which were in applicant's control and not the defendant's and were unknown to defendant. [In this case the applicant worked for multiple employers during the period of temporary partial disability and either had the earnings records or should have signed a release that would enable the defendant to obtain the earnings records, and that information would enable a determination of the sum that was due her, if any, of the sum for which defendant had a credit for overpayment of temporary disability.] Carla Llanos v. Workers' Compensation Appeals Board, McDonald's Inc. 3 WCAB Rptr. 10,341

PENALTIES– Labor Code §5814– The fact that proceedings are suspended for failure to submit to a medical examination, is not an excuse for an unreasonable delay in providing medical treatment. [Under Labor Code §4053, after a written request by the employer, the employee fails or refuses to submit to a medical examination, the right to begin or maintain any proceeding for collection of workers' compensation benefits is suspended but benefits continue to accrue. Under Labor Code §4054, if an employee fails or refuses to submit to a medical examination after an order of the Appeals Board, the right to disability payments which accrue during the period of failure, refusal or obstruction shall be barred.] Waste ManagementIDewey's Rubbish Service v. Workers' Compensation Appeals Board (Gail LaCorazza) 3 WCAB Rptr. 10,339

PENALTIES– Labor Code §5814– Multiple penalties may be appropriate when there is prior notice of intent to seek multiple penalties and there are separate and distinct acts of unreasonable conduct. (See Gallamore v. Workers' Comp. Appeals Bd. (1979) 23 Cal.3d 815; Christian v. Workers' Comp. Appeals Bd. (1997) 15 CaL4' 505,) [In this case the WCAB panel decision returning the matter to the trial level for further proceedings on all penalty issues put defendant on notice that applicant was seeking multiple penalties. Delays in reimbursement of prescription bills, provision of psychiatric treatment and reimbursement of mileage expense were separate and distinct events of unreasonable delays following a stipulated award.] Waste ManagementIDewey's Rubbish Service v. Workers' Compensation Appeals Board (Gail LaCorazza) 3 WCAB Rptr. 10,339

PENALTY– Labor Code §5814– The totality of the circumstances including the size of the late payment, the length of the delay, the failure of the injured worker to notify the employer the payment had not been received and the defendant's history of payment must be considered when considering the imposition of a penalty. [In this case the court reversed the Appeals Board imposition of a penalty when the payment was less than $100.00, there was a two-month delay with no delay in the provision of benefits, the defendant had not missed paying medical expenses for more than 25 year or any similar quarterly payments for penalties on medical treatment for more than 4 years, and the penalty exceeded $65,500.00.] County of San Luis Obispo v. Workers' Compensation Appeals Board (Russell Barnes) 3 WCAB Rptr. 10,168

PENALTY– Labor Code §5814– When only one type of medical treatment is not provided, only a single penalty could properly be awarded. (Christian v. Workers' Comp. Appeals Bs. (1997) 15 Cal. 4th 505) Beverly Bass v. Workers' Compensation Appeals Board, City of Lynwood. 3 WCAB Rptr. 10,290

PENALTY– Labor Code §5814– The only satisfactory excuse for a delay in the payment of a benefit is genuine doubt from a medical or legal standpoint s to the liability for the benefit, and the burden is upon the employer to present substantial evidence upon which a finding of such doubt may be based. (See Kerley v Workers' Comp. Appeals Bd. (1971) 4 Cal.3d 223.) [In this case the employer unilaterally asserted a credit without an order of the Appeals Board and there was no showing that the defendant had a a genuine doubt as to its legal liability for further benefits.] California Compensation/Superior National Insurance Company v. Workers' Compensation Appeals Board (Edgar Stephenson) 3 WCAB Rptr. 10,276

PENALTY– Responsibility of California Insurance Guarantee Association to pay penalty caused by an insolvent carrier's delay– The California Insurance Guarantee Association (CIGA) is required to pay increased compensation for an insolvent insurance carrier's delay in the provision of benefits. California Compensation/Superior National Insurance Company v. Workers' Compensation Appeals Board (Edgar Stephenson) 3 WCAB Rptr. 10,276

PENALTY– Labor Code §5814– Delay in the payment of attorney fees– For the purpose of penalty assessment, attorney fees are a separate class of benefit and an unreasonable delay in payment of attorney fees will result in a 10 percent penalty calculated on the amount of the attorney fees and not on the class of benefits for which the attorney fees were awarded. Ristina Quinlan v. Workers' Compensation Appeals Board, Century Direct Marketing 3 WCAB Rptr. 10,257

PENALTY– Labor Code §5814– Delay in the payment of interest– Interest is not a separate class of benefits, but an integral part of the class of benefits on which it is accrued. (See Gellie v. Workers' Comp. Appeals Bd. (1985) 171 Cal.App. 3d 917.) Thus, a Labor Code §5814 penalty based on a finding of unreasonable delay in the payment of interest is computed on the basis of the underlying benefit to which the interest applies increased by the amount of the delinquent interest. (See Soto v. Workers' Comp. Appeals Bd. (1996) 46 Cal. App.4th 1356.) Ristina Quinlan v. Workers' Compensation Appeals Board, Century Direct Marketing 3 WCAB Rptr. 10,257

PENALTY– Labor Code §5814– Multiple penalties do not apply for repeated delays in making a series of payments due for a single type or class of benefit, unless such payment still has not been made after a first penalty payment has been assessed. (See Mote v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App. 4th 902.) Ristina Quinlan v. Workers' Compensation Appeals Board, Century Direct Marketing 3 WCAB Rptr. 10,257

PENALTY– Labor Code §5814– A defendant may be guilty of unreasonable delay when there is a violation of Labor Code §4651, which requires that indemnity benefits be paid by a written instrument that is immediately negotiable and payable in cash on demand without discount. (See generally, Barney v. Esson's Snack Bar (1979) 44 Cal.Comp.Cases 142 (en banc).) [In this case the evidence established that there was no violation of Labor Code §4651 since the bank in which the settlement draft of $79,560.00 was deposited exercised it discretion under a federal banking regulation and the bank's own policy that it would not disburse a large amount of cash to a single customer on a single day without one week's prior notice so that it could assure that it had sufficient cash on hand for all its customers. Daniel Lauer v. Workers' Compensation Appeals Board, Freeman Decorating 3 WCAB Rptr. 10,256

PENALTIES– Labor Code §5814– When there is an unreasonable delay in paying an award, a separate 5814 penalty is imposed for each type of benefit delayed. Once the delay is determined to be unreasonable, the WCAB has no discretion in calculating the penalty. (See Rhiner v. Workers' Comp. Appeals Bd. (1993) 4 Cal.4th 1213.) Daniela Schroeder v. Workers' Compensation Appeals Board, The Gap 3 WCAB Rptr. 10,235

PENALTY– Labor Code §5814– Failure to pay interest– When an employer delays in paying an award and does not include interest with the late payment, the failure to pay interest is a single course of conduct warranting a single section 5814 penalty. (See California Highway Patrol v. Workers' Comp. Appeals Bd. (Erebia) (2001) 89 Cal.App.4th 1201, 3 WCAB Rptr. 10,195.) Daniela Schroeder v. Workers' Compensation Appeals Board, The Gap 3 WCAB Rptr. 10,235

PENALTY– Labor Code §5814– When an employer makes a late benefit payment and fails to include interest in that payment, only a single penalty may be imposed under Labor Code §5814. California Highway Patrol v. Workers' Compensation Appeals Board (Jaime Erebia) 3 WCAB Rptr. 10,195

PENALTY– Labor Code §5814– The award of multiple penalties was reversed since medical bill which were allegedly not timely paid, were not admitted in evidence and there was no evidence about what the bills were for, when the bills were submitgted, and when the bills were paid. Los Angeles Unified School District v. Workers' Compensation Appeals Board (Joel Bloomstone) 3 WCAB Rptr. 10,190

PENALTY– Delay in payment of medical bills– Labor Code §5814– When the treating physician fails to fails to properly report explaining what treatment is being provided and the current prognosis based on that treatment, the defendant had a reasonable basis for failing to pay the treating physician. [In this case the injury occurred over twelve years ago and the current treatment included a pain management physician, a chiropractor and a psychiatrist. The psychiatrist failed to prepare proper reports as required by AD Rule 9785 which were virtually identical and provided no information on the applicant's current status.] Marie Mathis v. Workers' Compensation Appeals Board, K-Mart 3 WCAB Rptr. 10,189

PENALTIES– Labor Code §5814– Multiple penalties should be imposed if the employee suffers separate and distinct acts of delay or nonpayment of different benefits by the employer or insurance carrier. (See Christian v. Workers' Comp. Appeals Bd. (1997) 15 Cal.4th 505; Mote v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 902.) Town of Atherton v. Workers' Compensation Appeals Board (Anita Blick) 3 WCAB Rptr. 10,187

PENALTY– Labor Code §5814– The unreasonable delayed payment of a stipulated penalty and interest on the settlement constitutes a single course of conduct by the defendant, rather than two separate and distinct acts of unreasonable delay and one penalty was warranted. Phillip Flowers v. Workers' Compensation Appeals Board, Healthcare Foundation 3 WCAB Rptr. 10,170

PENALTY– Labor Code §5814– Does the totality of the circumstances including the size of the late payment, the length of the delay and the defendant's history of payment warrant an imposition of a penalty. [In this case the payment was less than $100.00, there was a two-month delay with no delay in the provision of benefits, the defendant had not missed any similar quarterly payments for penalties on medical treatment, and the penalty exceeded $65,500.00.] County of San Luis Obispo v. Workers' Compensation Appeals Board (Russell Barnes) 3 WCAB Rptr. 10,168

PENALTY– Labor Code §5814– The unreasonable delayed payment of a stipulated penalty and interest on the settlement constitutes a single course of conduct by the defendant, rather than two separate and distinct acts of unreasonable delay and one penalty was warranted. Phillip Flowers v. Workers' Compensation Appeals Board, Healthcare Foundation 3 WCAB Rptr. 10,170

PENALTY– Labor Code §5814– Failure to pay self– imposed Labor Code §4650 increase– Though defendant was obligated to increase each untimely payment by an additional ten percent pursuant to Labor Code §4650(d), the en banc decision in Farris v. Industrial Wire Products (2000) 2 WCAB Rptr. 10,279, allowing a 5814 penalty to apply to unreasonable failure to comply with section 4650(d) was given prospective application only. Thus, the section 5814 penalty will attach to defendant's conduct if it occurred after July 17, 2000, the issuance date of the decision in Farris, or if the conduct occurred prior to the issuance date, but the petition for penalty was already on file and pending as of that date. Long Beach Unified School District v. Workers' Compensation Appeals Board (Jose Hernandez) 3 WCAB Rptr. 10,158

PENALTY– Labor Code §5814– The penalty is applied to the entire species of benefit for which payment was delayed. [In this case the defendant conduct in paying the Compromise and Release was not unreasonable. The defendant paid the amount that the parties had agreed should be paid if the permanent disability indemnity previously paid was correctly set forth in the Compromise and Release. The defendant's unreasonable conduct involved its efforts to prove that the permanent disability indemnity had been paid prior to the Compromise and Release and its delay in trying to settle this issue. Therefore, the penalty was properly assessed against permanent disability and not on the amount of the Compromise and Release.] Maria Sanchez-Delgado v. Workers' Compensation Appeals Board, Wharf Associates dba Ramada Inn 3 WCAB Rptr. 10,153

PENALTY– Delay in filing executed Compromise and Release– Labor Code § 5814– A 55-day delay in filing the executed Compromise and Release after receipt by defendant was unreasonable and justified the imposition of a penalty. Jean De Young v. Workers' Compensation Appeals Board, Purdue Frederick Co. 3 WCAB Rptr. 10,107

PENALTY– Labor Code §5814– The penalty for late payment of attorney fees in connection with vocational rehabilitation benefits was properly imposed as 10 percent of the attorney fees rather than 10 percent of the entire vocational rehabilitation benefits. [Attorney fees constitute a distinct class of benefits. (See State Compensation Insurance Fund v. Workers' Comp. Appeals Bd. (La Favor) 117 Clap. 3d 143, see also, General Accident Group v. Workers' Comp. Appeals Bd. (Lucas) 117 Cal.App. 3d 15.) Debra Reynoso v. Workers' Compensation Appeals Board, Ojai Valley Hospital 3 WCAB Rptr. 10,10

PENALTY– Multiple penalties– Labor Code § 5814-In this case substantial evidence supported the WCJ's finding of four separate 10 percent penalties based on the evidence that the defendant unreasonably delayed on four separate occasions benefits owed to applicant. County of Los Angeles v. Workers' Compensation Appeals Board (Floyd Dulan) 3 WCAB Rptr. 10,105

PENALTY– Labor Code §5814– The defendants properly withheld permanent disability advances because the applicant had failed to timely disclose to the treating physician a prior workers compensation claim, three non-industrial vehicle accidents, an a non -industrial slip and fall injury, since the defendant reasonably believed these non-industrial injuries were relevant to the issues of apportionment and the assessment of residual permanent disability. Ramon Baldando v. Workers' Compensation Appeals Board, Danly Die 3 WCAB Rptr. 10,060

PENALTY– Labor Code §5814– It is proper to deny a penalty for failure to advance permanent disability if there is a reasonable medical basis not to advance benefits and a legitimate issue exists as to whether applicant's disability was attributed to a prior injury or the current injury. (See Kerley v. Workers' Comp. Appeals Bd. (1971) 4 Cal.3d 223.) Geraldine Housley v. Workers' Compensation Appeals Board 3 WCAB Rptr. 10,138

PENALTY– Labor Code §5814– An underpayment of the amount due on a compromise and release resulted from the third party administrator taking credit for permanent disability advances to which it was not entitled. In imposing a penalty the Appeals Board concluded that a claims administrator should determine what advances it is or is not claiming as credit prior to the signing of a compromise, or at a minimum, to properly determine credit when the compromise and release amount is paid. Los Angeles Unified School District v. Workers' Compensation Appeals Board (William Mannion) 3 WCAB Rptr. 10,122

PENALTY– Multiple penalties– Labor Code §5814– Multiple penalties may be applied in some circumstances when the refusal of, or delay in payment of benefits, necessarily involved separate and distinct unreasonable acts by the defendant or its insurance carrier. (See generally, Christian v. Workers' Comp. Appeals Bd. (1997) 15 Cal.4th 505.) Shani Holloway v. Workers' Compensation Appeals Board, Celite Corp. 3 WCAB Rptr. 10,104

PENALTY– Failure to pay interest– Labor Code §5814– Where interest or penalty is not paid as required the resultant penalty attaches to the underlying species of benefit. The rationale for this is that interest and penalty become part of the underlying benefit. Conversely if penalty and interest are part of the underlying benefit [in this case temporary disability], a separate penalty cannot be awarded for delay of each because each constitutes part and parcel of the same delay. Shani Holloway v. Workers' Compensation Appeals Board, Celite Corp. 3 WCAB Rptr. 10,104

PENALTY– Labor Code §5814– Failure to make permanent disability advances– Without any medical evidence or other basis to conclude the applicant had no permanent disability, defendant could not have had a genuine doubt as to its liability for making permanent disability advances. [In this case the parties had agreed to use an AME, but the applicant treating physician issue a P&S report before the AME issued his report and defendant failed to begin PD advances on receipt of the treating physician's report.] City of Oxnard v. Workers' Compensation Appeals Board (Elizabeth Cabral) 3 WCAB Rptr. 10.045

PENALTY– Labor Code §5814– A deminimus delay caused by inadvertence and which is immediately corrected is reasonable conduct and no penalty should be assessed. (See State Compensation Insurance Fund v. Workers' Comp. Appeals Bd. (1998) 18 Cal.4th 1209.) [In this case the payment delayed was one made to applicant's counsel, had no impact on applicant and was paid within a few days once the error was found.] Ursula Businger v. Workers' Compensation Appeals Baord, Stanford University. 3 WCAB Rptr. 10,030

PENALTIES– Labor Code §5814– Is the failure to include interest on late payments of a Findings and Award which included permanent disability, temporary disability and attorneys fees one continuous act of failing to pay in a timely manner which results in the imposition of a single penalty or should multiple penalties for failure to include interest in the payment of various species of benefits? Daniela Schroeder v. Workers' Compensation Appeals Board (The Gap, Inc.) 3 WCAB Rptr. 10,024

PENALTY– Labor Code §5814– Is the penalty for delay in payment of a lump sum under a Compromise and Release assessed only on the amount of the settlement or is it assessed against the underlying species of benefits settled by the Compromise and Release in addition to the amount of the settlement? City of Carson, Fleming and Associates v. Workers' Compensation Appeals Board (George Thomson) 5 WCAB Rptr. 10,254

PENALTY–Labor Code §5814–In determining whether or not to impose a penalty, the Appeals Board should consider: (1) The amount of the benefits unreasonably delayed; (2) the length of the delay(s); (3) the effect of the failure to supply accurate and correct information when requesting reimbursement; (4) the defendant's history of payment of benefits; and (5) whether the assessment of the penalty is fair, reasonable and proportional, considering the amount delayed. State Compensation Insurance Fund v. Workers' Compensation Appeals Board (Joseph Mike) 5 WCAB Rptr. 10,268

PENALTY–Labor Code §5814–When a defendant takes a position that a medical condition is nonindustrial throughout the pendency of the claim, are any delays or denials of payment of prescriptions and treatment related to that medical condition a continuous course of conduct and not separate and distinct acts? Green Hospital/Scripps Health v. Workers' Compensation Appeals Board (Sharon Sanchez) 5 WCAB Rptr. 10,289

PENALTY–Labor Code §5814–Is the delay in authorizing change of primary treating physician a delay in providing compensation as that term is envisioned in Labor Code §5814? Green Hospital/Scripps Health v. Workers' Compensation Appeals Board (Sharon Sanchez) 5 WCAB Rptr. 10,289

PENALTY–Labor Code §5814–Any payment or benefit received by the injured worker during the period of his incapacity that was not due and payable or when there is any dispute or question concerning the right to compensation, may be taken into account in fixing the amount of compensation to be paid. [In this case, the WCJ properly found that the employer was entitled to unilaterally claim credit for overpayment of temporary disability benefits against the permanent disability award even though the issue of credit for overpayment of benefits was not raised at the Mandatory Settlement Conference or trial.] Soino Lugo v. Workers' Compensation Appeals Board, Southern California Permanente Medical Group/Kaiser Permanente 5 WCAB Rptr. 10,292