Hernandez v. WCAB

Filed 3/30/06 Hernandez v. WCAB CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

ORIGINAL PROCEEDINGS; petition for writ of review from a decision of the Workers' Compensation Appeals Board. James C. Cuneo, Frank M. Brass, and Janice Jamison Murray, Commissioners. David D. Bovett, Workers' Compensation Administrative Law Judge.

Rancaño & Rancaño PLC, and Juan Carlos Rancaño, for Petitioners.

No appearance by Respondent Workers' Compensation Appeals Board.

Stockwell, Harris, Widom & Woolverton, and Kerry L. Sawyer, for Respondents Aguiar-Faria & Sons Dairy, California Insurance Guaranty Association and Broadspire for Legion Insurance in Liquidation.

-ooOoo-

The widow and minor of a fatally injured worker petition for a writ of review contending the Workers' Compensation Appeals Board (WCAB) erred by reversing previously imposed penalties against the California Insurance Guarantee Association (CIGA). We will deny the petition in light of the Legislature's amendment to the Insurance Code eliminating the penalties from the CIGA's liability.

BACKGROUND

Twenty-one-year-old Jose Alatorre (Alatorre) fell and drowned on February 22, 2001, while repairing a sump-hole pump valve for Aguiar-Faria & Sons Dairy (Dairy) in Merced County. Alatorre was survived by his totally dependant widow and infant son (Petitioners).

The Dairy admitted Alatorre's death was industrially related and paid Petitioners death benefits at the rate of $255 per week based on two-thirds of Alatorre's $382.50 weekly earnings. In February 2002, a workers' compensation administrative law judge (WCJ) determined Petitioners were entitled to the maximum statutory death benefits of $490 per week based on Alatorre's potential earnings. The WCAB summarily denied the Dairy's petition for reconsideration in April 2002. The Dairy petitioned the Court of Appeal, Third Appellate District for a writ of review; that court also summarily denied the petition and awarded supplemental attorney fees to Alatorre's family in July 2002.^[1] (Aguiar-Faria & Sons Dairy v. Workers' Comp. Appeals Bd. (2002) 67 Cal.Comp.Cases 927; Lab. Code, § 5801.)

The Dairy's workers' compensation insurer, Legion Insurance Company (Legion), became insolvent and the CIGA assumed responsibility for the Alatorre family's workers' compensation claim in April 2003. (See Ins. Code, § 119.5 et seq.)

In August 2003, the matter again came before a WCJ to address Petitioners' increased benefit and penalty claims. On October 29, 2003, the WCJ determined that, pursuant to newly enacted statutory rates, the Petitioners were entitled to weekly death benefits of $490 before 2003, $602 during 2003, and $666.67 after 2003. The WCJ also found the Dairy, while insured by Legion, engaged in seven acts of unreasonably delaying or failing to issue death benefit payments and attorney fees, warranting separate 10 percent penalties under Labor Code section 5814 (section 5814).^[2]

The CIGA petitioned the WCAB for reconsideration in November 2003, raising various abuse of discretion and insufficient evidence claims. In December 2003, the WCJ reported to the WCAB that the Dairy engaged in â€