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Rebecca Gage sustained injury to the lumbar spine while employed as a deputy sheriff by the County of Sacramento.

In 2015, she requested advance disability pension payments per section 4850.4. Defendant made payments, but applicant contended that the payments were unreasonably delayed and sought penalties per section 5814. (Lab. Code, § 5814.)

The issue proceeded to trial. In his August 6, 2015 Findings of Fact and Order (F&O), the WCJ determined that advances made under section 4850.4 are compensation pursuant to section 3207 and subject to penalties under section 5814.

In a subsequent Opinion and Decision After Reconsideration, a split panel held that advances for a disability pension paid under section 4850.4 are not compensation and consequently not subject to the penalty provisions of section 5814. The F&O was rescinded and a new decision issued with the majority’s finding regarding this dispute.

The Court of Appeal reversed, and agreed with applicant that advance disability pension payments are compensation under section 3207 and the Appeals Board thus has jurisdiction to issue penalties per section 5814 for an unreasonable delay of payments made pursuant to section 4850.4. (Gage v. Workers’ Comp. Appeals Bd. (2016) 6 Cal.App.5th 1128 [81 Cal.Comp.Cases 1127].)

A Stipulation and Award issued on August 24, 2018 and the the parties resolved all penalties to date.

On February 16, 2021, defendant filed a DOR seeking an order compelling applicant to participate in the resolution process of Labor Code section 4850.4(f). They claimed that a mediation was scheduled to resolve the dispute, but Gage did not attend and subsequently unresponsive to communications.

4850.4(f) provides that “if an employee’s disability application is denied, the local agency and the employee shall arrange for the employee to repay any advanced disability pension payments received by the employee pursuant to this subdivision.”  And …”the local agency may take reasonable steps, including litigation, to recover the payments advanced.”

The WCJ ruled that “This request is denied because the WCAB does not have jurisdiction over this process, despite the Court of Appeal decision in this case…. Defendant further requests that the court set a hearing over the question of jurisdiction in order to create a record, but this appears to be a pure legal question for which no record is necessary and so this request is likewise denied.”

The WCAB panel granted reconsideration of this Order in the newest panel decision of Gage v County of Sacramento ADJ8010054 (2021).

Decisions of the Appeals Board “must be based on admitted evidence in the record.” Furthermore, decisions of the Appeals Board must be supported by substantial evidence. Additionally, all parties to a workers’ compensation proceeding retain the fundamental right to due process and a fair hearing under both the California and United States Constitutions. Additionally, a determination akin to summary judgment is not permitted in workers’ compensation proceedings. (See Cal. Code Regs., tit. 8, former § 10490, now § 10515 (eff. Jan. 1, 2020).)

The matter was remitted to provide both parties with an opportunity to present their arguments regarding this dispute and create an evidentiary record.