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  1. #1
    Join Date
    Sep 2007
    Posts
    196

    Default Penalty Phase of Settlement

    bvia,
    we are in the negotiating part of my case.
    bvia,under the penalty part,i remember my aa telling me he had a bunch of penalty's lined up and was going to use them as a bargaining tool,when the ic and aa got serious about setlling.that never happened.
    bvia,from 2000 to 2002 i never got any ttd money.we went to court and won.the judge ruled that i was not p&s,and was entitled to ttd payments.the ic made that ttd payment.my aa got 15% of my ttd money,which i thought was wrong.i said he should get 15% of the total above my total ttd owed.my aa told me at the time the case was settled,he would make things right about taking 15 of my ttdanyway ,he said there should be a late penalty for the ttd payment that the ic was late on.iirc,is that total 10%,or can that be up to 25% of the total of the award.
    thanks for advice anyone

  2. #2
    Join Date
    Mar 2011
    Posts
    291

    Default Re: Penalty Phase of Settlement

    caselaw limits the penalty to 10% of the species of benefit unreasonably delayed.
    in this case TTD.
    if all benefits from an award were delayed then the penalty would be against the total award.

  3. #3
    Join Date
    Feb 2007
    Location
    Calif
    Posts
    18,011

    Default Re: Penalty Phase of Settlement

    case law doesn't control penalties. Statute controls penalties. And, case law would only apply to that specific case, may or may not be sitable. Too many variables for that blanket statement.
    Penalties are awarded based on the facts.
    There is also a two year sol on filing for penatlies. If there is stipulation agreement and penalties are not specifically set for later adjudication...you can't get them post stip/award.

    Your AA is entitled to fees based on benefits recovered. When benefits/TTD is paid with out dispute and no reason to go to court, there would obviously be no fee. In your case...AA is entitled to fee, as awarded by the judge. If a judge didn't approve/award the fee, there wouldn't be any fee on the TTD recovered.

    Penalties are self imposed if the ER/IC recognizes and pays first. If the IW notifies there is unreasonable delay, first, then petitions the court for penalties under 5813-5814 a judge may award fees up to 25% of the portion unreasonably delayed. It's entirely up to a judge, and appeal process.
    Where there are significant dollar amounts in penalties, you should expect an appeal. IE, on entire specie of PD indemnity. That could be substantive.

  4. #4
    Join Date
    Mar 2011
    Posts
    291

    Default Re: Penalty Phase of Settlement

    sheesh...
    what a moron.

    caselaw controls all law.
    without legal precedent from previous cases and decisions the legal system collapses.

  5. #5
    Join Date
    Feb 2007
    Location
    Calif
    Posts
    18,011

    Default Re: Penalty Phase of Settlement

    you love to spew that crap... sad you don't know what you're talking about...but then from a CA point of view... it would stand to reason the BS you provide here.

    Case law applies to the case being decided. No others...not all case law is sitable.
    Published decisions are sitable, enbanc decisions carry the weight of law.

    As you know, or at least should know. WC is administrative law... the Title 8 CCR's as adopted by the AD govern, as law, how those statutes are applied.

  6. #6
    Join Date
    Sep 2007
    Posts
    196

    Default Re: Penalty Phase of Settlement

    ok bvia,
    lets forget about my aa taking 15% of my ttd.i dont want to argue with that whole office,and delay the end of this case.and i know there would be a big arguement about that 15 they took.there was a big arguement when i found out about it 10 years ago.
    bvia or sh ,
    on the ttd money that the ic did not pay,then was ordered to a close to 2 years later,is their a penalty for not paying that ttd amount.
    and how much is the penalty.the total of the money they did not pay for 2 years was close to 50k.
    should my aa have filed a complaint about that ,and if they did,can i find out from them.
    i know she told me this was one of the penaltys that she would or was going to file.
    is their a time limit on the ic for not paying the penalty.

  7. #7
    Join Date
    Feb 2007
    Location
    Calif
    Posts
    18,011

    Default Re: Penalty Phase of Settlement

    on the ttd money that the ic did not pay,then was ordered to a close to 2 years later,is their a penalty for not paying that ttd amount.
    and how much is the penalty.the total of the money they did not pay for 2 years was close to 50k.
    If the AA got a fee on the past due TTD...it's been paid. If there wasn't a petition for penalties filed within 2 years of the action...you can forget about the penalties now. If there was a penalty due and they knew it...on 50K...you'd have to think it would have been paid or appealed by now.

    There is NO penalty due during a delay/dispute/appeal period. It would be the IW/AA burden of proof there was any unreasonable delay to begin with, and a judge to award the penalty.
    You aren't go to know what happens here until a judge issues a finding/decision.
    should my aa have filed a complaint about that ,and if they did,can i find out from them.
    Anything filed and pending in a claim would be available at the WCAB/DWC site, and the EAMS system.http://www.dir.ca.gov/dwc/eams/eams.htm

  8. #8
    Join Date
    Sep 2007
    Posts
    196

    Default Re: Penalty Phase of Settlement

    bvia ,the aa got paid 15% on the 50 past due ttd.

    i want to keep this simple.
    the ic did not pay me for 2 years
    we went to court and the ic lost.
    the ic was ordered to pay 50k in past ttd
    my aa said they were going to file a penalty for late payment.
    they will not talk to me since i fired them.which is no problem as they did not talk to me before i fired them so i dont know if they filed a penalty.i agree, you would think the ic would have paid the 10 by now.if they would have had a penalty against them

  9. #9
    Join Date
    Feb 2007
    Location
    Calif
    Posts
    18,011

    Default Re: Penalty Phase of Settlement

    Didn't you say this was resolved TEN years ago.... ?
    The AA got the 15% fee awarded by the judge. = $7.5
    You got the past due 50K TTD...= $42.5
    There isn't going to be any penalty paid now. Its over. IF the penalty petition wasnt filed within 2 years...the SOL has tolled.
    IF a petition was filed...check EAMS or call an I&A officer at the WCAB location where the claim was adjudicated.

    You termed your AA, didn't you get a copy of your file ?

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