Sullivan on Comp Blog

A California Court of Appeal ruling this month held that an industrially injured employee may not receive temporary disability benefits when he or she takes time off from work to attend medical treatment appointments.

BACKGROUND

Labor Code 4600(e)(1) states, "When at the request of the employer, the employer’s insurer, the administrative director, the appeals board, or a workers’ compensation administrative law judge, the employee submits to examination by a physician, he or she shall be entitled to receive, in addition to all other benefits herein provided, ... one day of temporary disability indemnity for each day of wages lost in submitting to the examination."

In Department of Rehabilitation v. WCAB (Lauher) (2003) 30 Cal. 4th 1281, 1295. the California Supreme Court explained that "this benefit is in the nature of a medical-legal benefit, reimbursing the employee for his time when requested to submit to a medical examination to resolve a compensation claim." So, although § 4600 generally relates to medical treatment, the Supreme Court interpreted the benefit in § 4600(e)(1) as relating to medical-legal expenses.

In that case, the Supreme Court held that an employee was not entitled to temporary disability benefits while pursuing medical treatment for a permanent and stationary injury. It also held that the employer did not discriminate against the employee within the meaning of § 132a by requiring the employee to use sick leave and vacation leave when he was away from the workplace seeking treatment for his permanent injury.

The Supreme Court, however, did not specifically address whether an employee was entitled to temporary disability benefits for missing work to attend medical appointments before permanent and stationary status. Although the WCAB confronted the issue in one case,^[1] for 16 years after Lauher there was no binding authority.

Then, on Sept. 5, 2019, the 6th District Court of Appeal in Skelton v. WCAB ^[2] held that an employee was not entitled to temporary disability indemnity arising from time off work to attend medical treatment appointments.

FACTS OF THE CASE

In Skelton, an employee filed claims for two separate injuries. She was placed on modified work and continued working after each injury. Her work hours were not flexible, and she could not visit her doctors on weekends. She initially used her sick and vacation leave, but eventually her paycheck was reduced for missed time at work.

The employee sought reimbursement for her wage loss to attend medical treatment and medical-legal evaluations. The WCAB concluded that pursuant to § 4600(e)(1) and Lauher, the employee was entitled to one day of temporary disability indemnity for each day of wage loss in submitting to a medical-legal evaluation, but not for a medical treatment appointment. This decision was upheld by the appellate court.

THE COURT'S DECISION

Citing other cases, the 6th District Court of Appeal explained, "The purpose of temporary disability indemnity is to provide interim wage replacement assistance to an injured worker during the period of time he or she is healing and incapable of working" (emphasis added). In addition, "The employer’s obligation to pay temporary disability benefits is tied to the employee’s actual incapacity to perform the tasks usually encountered in one’s employment and the wage loss resulting therefrom" (emphasis added). In that case, the court found that the employee returned to work full time after her injuries and subsequently took time off from work because she could not schedule medical treatment during nonwork hours. It found that neither the employee's time off from work nor her wage loss were due to an incapacity to work. Instead, they were due to scheduling issues and her employer’s leave policy. The court concluded that because the employee's injuries did not render her incapable of working during the time she took off from work and suffered wage loss, she was not entitled to temporary disability indemnity for that time off or wage loss.

The case originally was issued as an unpublished decision on Sept. 5, 2019, but on Sept. 16, 2019, the court ordered publication of the case.

ANALYSIS OF THE DECISION

It is well-established that employers are generally liable for any subsequent injuries that are a compensable consequence of the original industrial injury. As a result, injured employees often feel that employers should be liable for any and all consequences of an industrial injury.

In Lauher, however, the Supreme Court held that employees were not entitled to temporary disability benefits or wage loss while pursuing medical treatment after becoming permanent and stationary. Now, in Skelton, the 6th District Court of Appeal has held that employees are not entitled to those benefits while pursuing medical treatment after returning to work, even if they are not yet permanent and stationary.

Both Lauher and Skelton explained that the workers' compensation system does not provide a make-whole remedy, and that in exchange for the blanket coverage of compensation without regard to fault, the employee bears some of the burden. So, employees aren't entitled to any and all loses as a result of an industrial injury –– they are expected to suffer some loss as a result of an industrial injury.

Accordingly, employees are not entitled to schedule medical treatment appointments for an industrial injury during working hours. If an appointment is scheduled during that time, an employer does not necessarily violate the Labor Code by requiring an industrially injured employee to use sick and vacation leave to attend the appointment. And, if an employee does not have any sick and vacation leave, he or she may be required to forgo any payment to attend the medical treatment appointment.

1. SeeWard v. WCAB(2004) 69 CCC 1179 (writ denied).

2. 2019 Cal. App. LEXIS 874

For injuries occurring on or after Jan. 1, 2004, an employee who suffers residual effects from an injury and is unable to return to work is entitled to a supplemental job displacement benefit. The benefit comes in the form of a nontransferable voucher, and often is referred to by practitioners simply as the "voucher."

Prior to 2013, an employer was liable for the voucher if it did not offer permanent, modified or alternative work meeting certain requirements within 30 days of the termination of temporary disability indemnity payments. Because of the statutory limits on temporary disability, it was not uncommon for temporary disability payments to end even before an employee was deemed to be permanent and stationary. So, as part of SB 863, the California Legislature changed the point at which the benefit is triggered.

For injuries on or after Jan. 1, 2013, in order to avoid liability for the voucher, Labor Code 4658.7(b)(1) requires an employer to offer regular, modified or alternative work "no later than 60 days after receipt by the claims administrator of the first report received from either the primary treating physician, an agreed medical evaluator, or a qualified medical evaluator, in the form created by the administrative director ..., finding that the disability from all conditions for which compensation is claimed has become permanent and stationary and that the injury has caused permanent partial disability" (emphasis added).

The Legislature considered the "form created by the administrative director" to be a "mandatory attachment to a medical report to be forwarded to the employer ... for the purpose of fully informing the employer of work capabilities and of activity restrictions resulting from the injury that are relevant to potential regular work, modified work, or alternative work" (LC 4658.7(h)(2)).

Accordingly, the administrative director adopted California Code of Regulations, Title 8, 10133.31; subsection (b) specifies that an employer's duty to offer regular, modified or alternative work is "no later than 60 days after receipt by the claims administrator of the Physician's Return to Work & Voucher report (Form DWC-AD 10133.36) ...." The Physician's Return-to-Work & Voucher Report (RTW Report) requires a physician to specify an injured employee's work restrictions. It also allows physicians to consider a job description and specify whether an employee's work capacity is compatible with the physical requirements of the job. It is intended to make it easier for employers to determine when they should begin investigating whether work is available to an injured worker and clearly delineate the work restrictions that must be considered.

Although the RTW Report was adopted effective Jan. 1, 2014, physicians still frequently fail to complete the form. It is not uncommon for an injured worker to be declared permanent and stationary without the form being completed by any physician. Accordingly, if an employer's duty to investigate liability for the voucher is never triggered, can an employer be liable for the voucher?

In Fndkyan v. Opus One Labs, 2019 Cal. Wrk. Comp. P.D. LEXIS 51, the WCAB held that it could. The WCAB recognized that the RTW Report is described by § 4658.7(h)(2) as a "mandatory attachment" to a medical report. In that case, however, it was undisputed that the defendant received the QME report, which informed the defendant that the applicant was permanent and stationary and of the applicant's work capabilities and restrictions. The WCAB determined that because the QME report provided the information required by the RTW Report, it would "place form over substance" to require the RTW Report. So, even though it was undisputed that there was no evidence that the RTW Report was sent to or received by the defendant, the WCAB concluded that the applicant was entitled to the voucher.

The WCAB's decision can still be challenged to the extent that the Labor Code and administrative regulations specify that an employer's liability for the voucher is triggered by receipt of the RTW Report. In Honeywell v. WCAB (Wagner) (2005) 35 Cal. 4th 24, the California Supreme Court explained that when a statute is clear and unambiguous, the WCAB may not depart from it. In that case, the Supreme Court held that the 90-day investigation period starts on receipt of the filing of the claim form per § 5402(b), based on the clear statutory language, not on the employer's knowledge of the injury. Accordingly, because § 4658.7(b)(1) specifies that the 60-day period starts on receipt of the RTW Report, employers may argue that liability for the voucher also doesn't begin until they receive the RTW Report.

But it must be considered that CCR § 10109(a) requires a claims administrator to "conduct a reasonable and timely investigation upon receiving notice or knowledge of an injury or claim for workers' compensation benefits." Subsection (b) specifies, "A reasonable investigation must attempt to obtain the information needed to determine and timely provide each benefit, if any, which may be due the employee." So if an employer receives information that an employee may be entitled to the voucher, it must attempt to obtain information needed to determine whether the voucher must be provided.

Accordingly, if an employer receives a permanent and stationary report from a physician, but the physician does not complete a RTW Report, the employer may request one if it does not believe it has enough information to determine whether permanent, modified or alternative work is available. On receipt of the RTW Report, the employer would then have 60 days to make an offer of work. But, if an employer receives the necessary information to make an offer of work, even if it is not on the required form, it cannot avoid liability for the voucher by its own inaction.

New Sullivan on Comp publication provides comprehensive analysis of recent significant changes to the California workers’ compensation law and is available as a free, downloadable e-book.

LOS ANGELES, CA (PRWEB) July 11, 2017— Sullivan on Comp, a California Workers’ Compensation legal treatise publisher, today announced the release of the new “Special Report: SB 863 Five Years Later” e-book. This comprehensive, 285-page book is available online as a free download at http://www.sullivanoncomp.com/sb-863-five-years-later.

"Every stakeholder in the California workers’ compensation system needs to have a firm grasp of SB 863,” said Michael Sullivan, lead author of Sullivan on Comp. “But its impact is ever-changing because the law evolves rapidly.”

There are over 500 persuasive cases and approximately 20 binding or significant cases interpreting the provisions of SB 863. Currently there are roughly 20 different sets of regulations implementing SB 863, with others still in development.

Senate Bill 863 (SB 863) was passed on August 1, 2012 and established significant changes to the California workers’ compensation system. Since this legislation passed, administrative regulations have been promulgated, case law has issued, and subsequent legislation has been advanced to clarify the reforms. Employees, employers, and their representatives need to constantly adjust to the new practices as they are adopted into law.

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