Pacific Gas And Electric Company, permissibly self-insured, Beatrice Sywassink, WORKERS’ COMPENSATION APPEALS BOARDSTATE OF CALIFORNIABEATRICE SYWASSINK,Applicant,vs.PACIFIC GAS AND ELECTRIC COMPANY, permissibly self-insured,Defendant.Case No. ADJ7296817(Stockton District Office)OPINION AND DECISION AFTER RECONSIDERATION We previously granted defendant’s Petition for Reconsideration to provide an opportunity to further study the legal and factual issues raised by the Petition. This is our Opinion and Decision After Reconsideration. Defendant seeks reconsideration of the Findings and Order (“F&O”) issued on November 16, 2016 by a workers’ compensation administrative law judge (“WCJ”) wherein he found that pursuant to the parties’ stipulation, applicant sustained injury on September 29, 2009, and that defendant was not entitled to a credit for applicant’s recovery from the National Vaccine Injury Compensation Program (“NVICP”) (42 USCS § 300aa-10 et seq.). The WCJ ordered that defendant’s claim of credit be denied. Defendant contends that Labor Code1 section 3861 allows an employer to be relieved from its obligation to pay further compensation and benefits from “any recovery by the employee for his injury;” sections 3852 to 3862 (“the subrogation statutes”) do not limit third party credit or recovery to a certain type of lawsuit or to cases where the employer/carrier may stand in the shoes of applicant; while the NVICP expressly precludes payment for expenses covered under state compensation, there is no evidence in the record that NVICP had notice that there was an ongoing workers’ compensation case; 1 All further references are to the Labor Code unless otherwise noted. , and that credit for applicant’s recovery under the NVICP can be analogized to recovery by victims of crime under the California’s Victim Restitution Fund where carriers are allowed to assert a credit even though they cannot stand in the shoes of the victim.
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