Applellate Decision Affirms WCAB Determination regarding Temporary Total Disability Entitlement
On September 5, 2019, the Sixth Appellate District issued an Opinion affirming the Workers’ Compensation Appeals Board’s determination to disallow TTD benefits for lost time from work for medical treatment after return to work. On September 16, 2019 the opinion was certified for publication, making this a citable case. Renee Skelton v. Workers’ Comp. Appeals Bd. (citation not yet available.)
The applicant filed two claims for injury while working at the California Department of Motor Vehicles. She returned to work performing modified duty before one of the injuries was deemed permanent and stationary. The applicant argued that she exhausted her vacation and sick time to attend medical appointments and started to have pay deducted for each subsequent appointment until she was unable to afford to attend appointments because her pay was reduced.
Trial Court’s Finding:
At a Trial before the Workers’ Compensation Judge (WCJ) on May 1, 2018, the applicant contended that she was entitled to TTD for wages lost to attend her treatment evaluations and for two medical legal evaluations. In a post-trial brief the applicant cited the Supreme Court decision of Department of Rehabilitation v. Workers’ Comp. Appeals Bd., (Lauher) (2003) 30 Cal. 4th 1281, stating that she is entitled to TTD despite the fact that she returned to work because she was not yet permanent and stationary for all injuries. The WCJ concluded that the applicant was not entitled to TTD per Lauher.
The applicant petitioned for reconsideration. The WCJ recommended granting the Petition in part to award a single day of TTD for each medical-legal evaluation and denying the Petition in part regarding TTD to attend treating evaluations. The WCAB’s majority adopted the WCJ’s recommendations. However, the dissent argued that the applicant was still healing for one of her injuries and as such should be entitled to TTD for treatment during the healing period. Ms. Skelton petitioned for review of the WCAB’s determination.
Appellate Court’s Opinion:
The Court of Appeal reviewed the case law concerning TTD entitlement and noted that according to Lauher an injured worker is entitled to TTD during the healing period for the industrial injury. It cited Houston v. Workers’ Comp. Appeals Bd. (1979) 95 Cal. App. 3d 856, that found TTD to be payable until the worker recovered sufficiently to return to work OR until his/her condition reaches permanent and stationary. The court further stated that per Lauher, the workers’ compensation system “is not intended to provide full and total recompense for any and all consequences of a workers’ injury…” and that as part of the bargain in exchange for a no-fault system, the employee bears some of the burden.
As such, the Court determined that the applicant is not entitled to TTD for wage loss arising from time off work to attend medical treatment evaluations because her time off was not due to an incapacity to work. On the other hand, an employee is entitled to wage loss benefits to attend medical-legal evaluations requested by the employer in order to resolve a claim, noting the distinction between medical-legal expenses and TTD benefits.
WHAT THIS MEANS FOR YOU:
When reviewing a request for wage replacement benefits, it is important to note the difference between attendance at a medical-legal evaluation and attendance for medical treatment. Once an employee has either returned to work or has been declared permanent and stationary, TTD benefits are only required if a medical-legal evaluation is requested by the defendant; the applicant is not entitled to TTD for a medical treatment evaluation.
Amanda Rocha, Esq.
Central Coast Office
Goldman, Magdalin & Krikes, LLP