Skelton & Further Defining Temporary Disability

FROM THE LOBBY BAR AT THE HYATT:

After a busy week of bouncing around the various Workers’ Compensation Appeals Boards negotiating C&Rs, I decided to head to the Lobby Bar to celebrate the end of the year, or what I colloquially refer to as “settlement season.” Decked out in my most festive red sweater dress, I joined my colleagues for some merriment. I found your friend and mine, Mr. Joe Truce, at the bar, attired in his own red jacket and festive tie.

Joe was surrounded at the bar by work comp friends and foes alike from various firms, all congenially toasting together. The joy of the holiday spirit works wonders. Of course, he was delighting in his spirit of choice, a Beefeater’s martini, straight up with two olives.² I ordered my spirit from George, a Whistlepig rye Manhattan with an extra cherry, and toasted with Joe.

One of those present at the bar was less cheery than the rest. Joe and I didn’t know him well, but recognized him as Harry Ellis, a relatively new defense attorney with a rival firm, Gruber LLC.

We asked Harry why he was so glum. He told us that he was having a difficult time celebrating because he had just received a Declaration of Readiness to Proceed to an expedited hearing on a temporary disability issue he knew would make his adjuster (who was already exasperated by his handling of this case) frown like the Grinch.

Harry went on to explain that the applicant in his case had suffered an admitted back injury, and had been returned to modified duty by the treating physician although his condition was not yet at maximum medical improvement. The employer had undertaken significant effort to accommodate the work restrictions and the applicant was back to work full time, earning he regular wages.

The trouble arose when the applicant learned that he could only treat for his admitted back condition during work hours. The applicant’s attorney was aggressively seeking temporary disability benefits to compensate the applicant for lost wages for the time missed from work to obtain treatment.

Although on June 26, 2003, the Supreme Court of California found there is no entitlement to temporary disability benefits based on wage loss incurred for treatment in Department of Rehabilitation v. Workers’ Comp. Appeals Bd. (Department of Rehabilitation) 30 Cal. 4th 1281, Harry said the applicant’s attorney argued that the decision did not apply in the current case because the applicant in that matter had already reached permanent and stationary status. In Harry’s case, the applicant was not yet at maximum medical improvement.

“My client is going to be so irritated!” Harry exclaimed. “And I already bother her so much.”

Joe and I gave each other a look. We had sympathy for this poor young man because he didn’t seem to be getting much help from his own colleagues, and everyone has to start somewhere. I said “Buck up my friend. You’re not going to need to tell your adjuster that any temporary disability is owed. You’re going to tell her that the applicant attorney’s claim is without merit.”

Joe chimed in, saying, “That’s right. You should send the applicant’s attorney a letter demanding that they withdraw their DOR and send your adjuster a holiday card. Let the applicant’s attorney know that this issue has already been resolved in the recent Court of Appeal case, Renee Skelton v. Workers’ Comp. Appeals Bd., 39 Cal. App. 5th 1098, published September 16, 2019.”³ Joe pulled out his trusty briefcase and handed Harry a copy of the case.

In Skelton, the applicant alleged two dates of injury, with the first being to her ankle and the second to her shoulder. Both claims were admitted. Much like the applicant in Harry’s case, Skelton was returned to modified duty and began working full time prior to her injuries reaching maximum medical improvement. Her hours at the DMV were not flexible and she found it impossible to treat for her work injury during non-work hours.

Skelton exhausted her sick and vacation time in order to attend medical evaluations, and sought temporary disability benefits for time lost to treat her work injuries. She argued she was entitled to the temporary disability benefits because she had not reached maximum medical improvement (MMI) and the need for treatment resulted in wage loss.

The Workers’ Compensation Judge (WCJ) determined that there was no entitlement to temporary disability benefits after the applicant returned to work.

A Petition for Reconsideration was filed in which Skelton argued that the lack of temporary disability for treatment would have a chilling effect on her ability to seek medical care for her industrial injury. In his Report and Recommendation, the WCJ acknowledged that there would be entitlement to benefits for time missed to attend a panel QME appointment per California Labor Code §4600(e)(1), but otherwise recommended that their decision be affirmed. Labor Code §4600(e)(1) states:

The Appeals Board agreed, relying on Department of Rehabilitation and the writ denied case, Kenneth Ward v. Workers’ Compensation Appeals Bd. (Ward) 69 Cal. Comp. Cases 1179 (Cal. App. 3d Dist. September 2, 2004), in which the applicant was found to not be entitled to temporary disability benefits for treatment. Skelton responded with a Petition for Writ of Review, which was granted by the 6th District Court of Appeal (CA).

In their review of the case, the Court of Appeal began by acknowledging that although Labor Code §3202 requires that issues of compensation be liberally construed to extend benefits, they cannot do so where not authorized, citing the Court of Appeal decision in Signature Fruit Co. v. Workers’ Comp. Appeals. Bd. (2006) 142 Cal.App.4th 790).⁴

In response to Skelton’s argument that the lack of benefits would have a chilling effect on her ability to seek out treatment, the Court of Appeal decision emphasized the overall purposes of the workers’ compensation system. They issued a reminder, stating as follows:

The system of workers’ compensation is not intended to provide full and total recompense for any and all consequences of a workers’ injury, but instead represents a compromise between the interests of workers and those of employers.

Ultimately, the Court of Appeal affirmed the Appeals Board decision, determining that while the applicant had suffered wage loss, there was no incapacity to work and, therefore, temporary disability benefits were not owed. The ability to work had already been restored and thus the applicant did not need income replacement.

We told Harry that it can be frustrating to be a defense attorney, in part because the Labor Code’s liberal construction mandate in favor of the injured worker can be discouraging. However, it is essential for defendants to assess each unambiguous element required for a claim of benefits when considering what might be owed.

An elated Harry thanked us for being his white knights and picked up the next round.

DISCLAIMER:

All characters at the Lobby Bar aside from Joe, George, Kim and I are fictional and the storyline is simply a product of my vibrant imagination.

Ms. Skelton filed a petition with the California Supreme Court for a review of her case on October 17, 2019, and on December 11, 2019, the Supreme Court denied review, essentially affirming the Court of Appeal’s decision.

In Skelton and Harry’s case, although temporary disability is not explicitly defined in the Labor Code, its definition has evolved over time through case law and does not vaguely refer to any replacement for wage loss. Skelton affirms that in order to be entitled to temporary disability, an applicant must have suffered wage loss due to a compensable work injury which has caused a temporary incapacity to work.

Make mine a double, George.