SAN MATEO COUNTY TRANSIT DISTRICT v. WORKERS COMPENSATION APPEALS BOARD (1990)

The petition for writ of review is denied.   The denial of the Workers' Compensation Appeals Board (Board) of petitioner San Mateo County Transit District's (hereafter petitioner) “petition to bar applicant's right to medical treatment and disability payments and to compel medical examination” is supported by substantial evidence.  (Lab.Code,1 §§ 5952, subd. (d), 5953;  LeVesque v. Workmen's Comp. App. Bd. (1970) 1 Cal.3d 627, 637, 83 Cal.Rptr. 208, 463 P.2d 432.)   The Board properly assessed attorney fees against petitioner as required by sections 4607 and 4651.3.   Petitioner presents no evidence that said fees were unreasonable.

The Board's assessment of penalties against petitioner pursuant to section 5814 is supported by substantial evidence.   Petitioner did not demonstrate that it had a “genuine doubt from a medical or legal standpoint as to [its] liability for benefits.”  (Kerley v. Workmen's Comp. App. Bd. (1971) 4 Cal.3d 223, 230, 93 Cal.Rptr. 192, 481 P.2d 200.)   Additionally, in light of petitioner's separate and distinct acts of unreasonable delay, as well as its particularly cavalier disregard of the law, the Board's award of multiple penalties is neither harsh nor unreasonable.  (See Gallamore v. Workers' Comp. Appeals Bd. (1979) 23 Cal.3d 815, 824, 153 Cal.Rptr. 590, 591 P.2d 1242.)

 The Board properly assessed attorney fees against petitioner as required by section 5814.5.   Petitioner has unreasonably delayed the payment of an award of workers' compensation benefits.   This delay of three-plus years, occasioned by petitioner, is precisely the type of unreasonable conduct that the Legislature sought to deter with section 5814.5, enacted to address the widespread failure of state political subdivisions to promptly pay workers' compensation benefits awarded to their employees.  (See Stats.1984, ch. 806, §§ 1, 2.)   When a section 5814 penalty is imposed against an employer, such as petitioner, for failure to promptly pay an award of benefits, section 5814.5 requires that the Board assess, in addition to a penalty, attorney fees incurred in enforcing the award.   Petitioner presents no evidence that the attorney fees assessed under section 5814.5 herein were improper or unreasonable.

 Petitioner previously filed two petitions for writ of review before this court in this same case concerning the same issues raised herein.   Both petitions for writ of review were denied and found to be without reasonable basis under section 5801.  (San Mateo County Transit District v. Workers' Comp. Appeals Bd., A035692, review den. Nov. 17, 1986;  San Mateo County Transit District v. Workers' Comp. Appeals Bd., A039962, review den. Dec. 24, 1987.)   Accordingly, the Board's assessment of additional penalties pursuant to section 5814 is appropriate and supported by substantial evidence.  (Klee v. Workers' Comp. Appeals Bd. (1989) 211 Cal.App.3d 1519, 1524–1525, 260 Cal.Rptr. 217.)   Petitioner presents no evidence that said penalties were unreasonable.

Petitioner's contention that it has been denied its constitutional right to procedural due process is without any merit.   Petitioner presents no evidence that it was denied a fundamentally fair decision-making process by the Board.  (See People v. Ramos (1984) 37 Cal.3d 136, 153, 207 Cal.Rptr. 800, 689 P.2d 430.)   Petitioner initiated the instant proceedings by filing a declaration of readiness to proceed on June 10, 1987, under penalty of perjury that it was “presently ready to proceed to regular hearing on the issues.”  (Cal.Code Regs., tit. 8, § 10414.)   On this record, petitioner's contentions that it was denied the right to cross-examine respondent applicant and denied a reasonable opportunity to present medical evidence are a sham.

We find no reasonable basis for this petition.  (See Employers Mut. Liab. Ins. Co. v. Workmen's Comp. Appeals Bd. (1975) 46 Cal.App.3d 104, 108–109, 120 Cal.Rptr. 48.)   As noted in Bekins Moving & Storage Co. v. Workers' Comp. Appeals Bd. (1980) 103 Cal.App.3d 675, 685, 163 Cal.Rptr. 213, the circumstances for finding no reasonable basis for a petition for review are “analogous to the lack of merit of a frivolous appeal.”  (See In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650, 183 Cal.Rptr. 508, 646 P.2d 179 [“[A]n appeal should be held to be frivolous only when it is prosecuted for an improper motive—to harass the respondent or delay the effect of an adverse judgment—or when it indisputably has no merit—when any reasonable attorney would agree that the appeal is totally and completely without merit.”].)  (Accord Klee v. Workers' Comp. Appeals Bd., supra, 211 Cal.App.3d at p. 1524, 260 Cal.Rptr. 217.)

Here, petitioner claims that the report of the workers' compensation judge (hereafter WCJ) is not supported by substantial evidence in the light of the entire record.   Petitioner, however, utterly fails to give a fair statement of the material evidence relative to the points at issue set forth in the WCJ's report.  (See Cal. Rules of Court, rule 57(a).)   Moreover, petitioner blatantly misrepresents the record and misleads this court concerning the issue of respondent applicant's need for a myelogram.   A major premise of the petition is that respondent applicant failed to undergo a myelogram.   A review of the record reveals (1) that there is no evidence that respondent applicant refused to undergo a myelogram, and (2) that the medical evidence, without contradiction, indicates that applicant should not have a myelogram in light of the normal results of the MRI, EMG, CT scan, and bone scan.   Furthermore, petitioner filed the instant “petition to bar” on June 1, 1987, while its previously filed “petition to terminate,” concerning the same issues raised herein, was still pending before the Board on petition for reconsideration, and ultimately before this court on petition for writ of review.

In summary, this petition is the culmination of a calculated, persistent effort on the part of petitioner and its counsel of record, Law Offices of William F. Pagano, to avoid its clear liability to provide workers' compensation benefits in compliance with the Board's original findings and order dated June 5, 1986.   Petitioner and the Law Offices of William F. Pagano and Michael C. Johnston, Esq., are advised to cease the filing of unreasonable petitions for writ of review.   Petitioner and counsel are cautioned that a pattern of filing unreasonable petitions for writ of review may be grounds for this court to issue an order to show cause regarding sanctions.

The matter is remanded to the Board for the award of reasonable attorney fees pursuant to section 5801.   It is further remanded for an award of reasonable appellate costs.  (§ 5811;  Johnson v. Workers' Comp. Appeals Bd. (1984) 37 Cal.3d 235, 243, 207 Cal.Rptr. 857, 689 P.2d 1127.)

FOOTNOTES

FN1. All further statutory references are to the Labor Code unless otherwise specified..  FN1. All further statutory references are to the Labor Code unless otherwise specified.

LOW, Presiding Justice.

KING and HANING, JJ., concur.