Evans: Report Delay and the Worker’s Burden Supported Denial of an Overpayment Credit

If an insurer says your temporary-disability checks were too high, a proposed reduction in your permanent-disability award can put money you were counting on at risk. The payment history matters, but so does the effect of taking that money from a different benefit. In Evans v. San Mateo County Transit District, No. ADJ13182924 (WCAB Jan. 3, 2025), the Appeals Board upheld a judge’s refusal to allow a $5,720.14 credit after a delayed medical report caused the overpayment.

The parties agreed that the report delay caused the excess payments. The record contained no evidence that the worker caused or contributed to the overpayment, and the proposed credit would consume close to one third of his permanent-disability award. The judge weighed the harm to both sides; the Board upheld that exercise of discretion. Evans explains why those facts mattered together.

Injury, award and reconsideration petition

The worker, a bus operator, sustained an industrial injury to his cervical spine and left shoulder on October 3, 2019. The WCJ found 17 percent permanent disability without apportionment and denied the requested temporary-disability credit. The employer sought reconsideration, challenging both the disability determination and the credit ruling. Evans.

The overpayment resulted solely from report delay

The employer claimed $5,720.14 for November 5 through December 12, 2020, roughly five and a half weeks. The parties stipulated that delay in receiving the medical report was the sole cause. The record contained no evidence that the worker caused or contributed to the overpayment. Evans.

The delay affected both sides. The employer continued paying temporary disability, while the worker lacked timely notice that the doctor considered him able to return to work. The judge compared the consequences of granting or denying the credit after the stipulated report delay.

The judge described the credit as close to one third of the permanent-disability award. The judge found the burden of the offset substantially greater for the worker than the employer’s loss from the payments already made. The Board accepted that balance. Evans.

Why the judge could deny the credit

The Board drew on Maples v. Workers’ Comp. Appeals Bd., 111 Cal.App.3d 827, 836–838 (1980), which explained how credit against a second benefit can disrupt the purpose of that benefit. The considerations included whether a credit is small, whether it interrupts benefits significantly, and whether the worker received the payments in good faith. Applying those considerations to the stipulated delay and the size of this offset, the Board concluded: “We see no abuse of discretion.” Evans.

Labor Code section 4909 permits the Board to take payments into account when fixing compensation. The disputed-credit petition rule, title 8, section 10555(a), requires an employer seeking this credit to identify the payments, the benefits against which credit is sought and the amount. Those details define the requested offset; the equitable analysis then addresses whether the judge should allow it.

The apportionment challenge failed for separate evidentiary reasons

The employer separately sought to reduce the disability rating from 17 percent to 15 percent. The Board adopted the judge’s report, which applied Escobedo v. Marshalls, 70 Cal.Comp.Cases 604, 614, 621 (2005) (en banc), requiring an explained medical basis for attributing disability to other causes. The doctor assigned part of the cervical impairment to unspecified prior pathology, without explaining what it was or how it contributed. His shoulder discussion identified an earlier injury but likewise omitted the needed causal explanation. The Board adopted the judge’s rejection of those conclusions. Evans.

The prior-award theory required different proof. Under Kopping v. Workers’ Comp. Appeals Bd., 142 Cal.App.4th 1099, 1115 (2006), the employer had to establish both the prior award and the extent of overlap with the present disability. Here, it introduced neither the prior award nor the supporting medical record and first specifically raised the theory on reconsideration. The Board rejected it for those evidentiary reasons. Evans.

Practical significance and limits

A proposed credit should be evaluated with the payment ledger, medical-report timeline and benefit schedule together. The facts that mattered here were concrete: A stipulated cause, no evidence of worker fault, lack of timely return-to-work information and a substantial reduction of the disability award. A materially different record may justify a different discretionary outcome.

Our guide to documenting a proposed TD credit explains how to put the payment history, report dates and proposed reduction together for review.

Read the primary decision: Evans v. San Mateo County Transit District—WCAB panel decision (PDF).