P&S date on Stip and Award (California) (California)

[smtilley]

Someone gave me this scenario:

An applicant settled a claim with a stipulated award at 30% in 2005, indicating P&S in 2004. All the PD is paid out as of 1/2006. Applicant files a new and further in 2006, has surgery in 2007, is paid TTD from 5/30/07 to 11/19/08. Found P&S again as of 8/08 but report did not come in until 11/20/08 so there is an overpayment of TTD.

Sign a second stipulated award in 2009 at 50%, includes the original 30% and the latest 20%. Indication on the stip that P&S date is 2004. CA is paying out 2nd award weekly and AA makes claim for lump sum payment as P&S date is indicated as 2004 (and not the new P&S date in 8/08) with demand for penalties, interest, attorney fees to enforce award.

Question is: Even though the P&S date for the second stip indicates 2004, is there a valid argument that the intervening TTD should act to prevent the AA’s claim for a lump sum payment, at least for the time the TTD was paid, and really the PDAs should start effective 11/20/08 date? Not my case but I am stumped after doing research. Any thoughts?

[stewshe]

smtilley,

Sounds to me like a "mutual mistake" or "clerical error." The new stip is contradictory if P&S in 2004 and then subsequently TD, since with the benefit of hindsight we know the EE was not REALLY P&S in 2004 because the PD increased from the 2004 stip. Right?

One problem I see is that after 5 years, it may be the stip could not just be set aside, but perhaps the WCAB could use its "continuing jurisdiction" under L.C. 5803 to correct, e.g., this "clerical error"?

(My Index has 14 pargraphs on "Clerical Errors," citing a varitey of cases.)

Good luck!

stew

James T. (Stew) Stewart stewshe@comcast.net
Author/Publisher Work Comp Index, 8th ed. due 5/2010
Revises Tables & Schedules in "The Labor Code Book"
(Properly Workers' Compensation Laws of California
by Matthew Bender/LexisNexus)

[vampireinthenight]

Argue that there has been multiple P&S dates. Then you don't have to argue mistake, just argue that the Stips are incomplete as they do not reference ALL P&S dates.