Jerry’s Famous Deli; Centre Insurance Company Jose Berrios WORKERS’ COMPENSATION APPEALS BOARDSTATE OF CALIFORNIAJOSE BERRIOS, Applicant,vs.JERRY’S FAMOUS DELI; CENTRE INSURANCE COMPANY, Defendants.Case Nos. ADJ1113447 (LAO 0753696)ADJ3547384 (LAO 0753697)OPINION AND ORDERS DENYING RECONSIDERATION, GRANTING RECONSIDERATION AND DECISION AFTER RECONSIDERATION Applicant, Jose Berrios, and defendant, Centre Insurance Company, on behalf of its insured Jerry’s Famous Deli, have filed petitions for reconsideration from the Joint Findings and Award, filed May 13, 2011, in which a workers’ compensation administrative law judge (WCJ) granted defendant’s petition to terminate temporary disability as of March 9, 2006, but found applicant became temporarily disabled again and awarded temporary disability as of January 23, 2008 and continuing, at the rate of $356.56 per week. The WCJ also found defendant unreasonably delayed applicant’s spinal surgery and imposed a penalty of 13% of the reasonable cost of the surgery, and also found defendant unreasonably failed to make temporary disability payments and imposed a 17% penalty on retroactive temporary disability benefits. Applicant’s attorney’s request for a fee pursuant to Labor Code section 5814.5 was denied, and attorney fees were awarded out of accrued benefits and penalties. The WCJ also found California Insurance Guarantee Association was not liable for temporary disability or penalties. Defendant contests the award of temporary disability at the rate of $356.56 per week, applicant’s stipulated average weekly wage, contending the WCJ incorrectly applied the principles of Hofmeister v. Workers’ Comp. Appeals Bd. (1984) 156 Cal.App.3d 848 [49 Cal.Comp.Cases 438] when calculating applicant’s temporary total disability rate. Defendant argues that applicant is not entitled to a rate greater than his earnings provide as he did not establish that he was entitled to an increase in his temporary disability indem
Menu
