Court Determines No Temporary Disability for Missed Time During Medical Appointments

CAN YOU RECEIVE TEMPORARY DISABILITY FOR ATTENDING MEDICAL APPOINTMENTS AFTER YOU HAVE RETURNED TO WORK? 

In an unpublished opinion, the Court of Appeal for the 6th District of California ruled that Skelton was not entitled to TD after she returned to work full time. 

Renee Skelton worked for the California Department of Motor Vehicles. She suffered an injury to her ankle while at work in July 2012.

Two years later, in July 2014, she suffered an injury to her shoulder.

Skelton continued working after each injury, but she missed work to attend appointments with her treating physicians and to attend two visits with the panel qualified medical evaluator.

She initially used her sick and vacation leave to cover the time she missed from work, but eventually her paycheck was reduced because of her absences.

Skelton filed separate claims for workers’ compensation benefits based on both injuries. Skelton sought temporary disability indemnity benefits (TD) to reimburse her wage loss for the time she missed from work.

A workers’ compensation judge found that Skelton was not entitled to reimbursement for the time she spent attending medical appointments and evaluations, pursuant to the rule from Department of Rehabilitation v. WCAB (Lauher).

In the Lauher case, the California Supreme Court ruled that an injured worker was not entitled to TD for the time he missed from work for medical treatment after his condition had become permanent and stationary.

Skelton sought reconsideration, arguing that her condition was not yet permanent and stationary, so the rule from Lauher ought to be inapplicable to her.

She also contended that she could no longer afford to attend medical appointments, since she was losing pay, and that denying reimbursement for lost time could in effect preclude her from receiving medical treatment, contrary to the intent of the workers’ compensation system.

A majority of a Workers’ Compensation Appeals Board (WCAB) panel upheld the WCJ’s ruling, finding Skelton was not entitled to TD in the way of wage loss to attend medical treatment following her return to work.

Dissenting Commissioner Marguerite Sweeney argued that Skelton was entitled to TD for wage loss for attending medical-legal evaluations, as well as for attending necessary medical treatment.

Sweeney opined that the contrary language in the Lauher case was dicta and not part of the Supreme Court’s holding.

The Court of Appeal explained that temporary disability benefits are compensation for an incapacity to work that is reasonably expected to be cured or materially improved with proper medical treatment. TD is, therefore, payable during the injured worker’s healing period — from the date of injury until the worker has recovered sufficiently to return to work — or until her condition reaches permanent and stationary status, the court said.

The court further noted that the WCAB has interpreted Lauher to preclude temporary disability for work missed to attend medical appointments for an employee who has returned to work full time, regardless of whether the condition is permanent and stationary.

“The WCAB has reasoned that an employee, by returning to work full time, no longer suffers from a wage loss coupled with an incapacity to work,” the court said. Under this logic, the return to work has restored the worker’s earning capacity, which eliminates the income replacement rationale for awarding temporary disability.

The court agreed that Skelton was not entitled to temporary disability for wage loss arising from her time off work to attend appointments for medical treatment.

“Once Skelton recovered sufficiently to return to work full time, she was no longer entitled to TDI,” the court said. Though she began to suffer wage loss after using all her sick and vacation time, the court said that neither Skelton’s time off from work nor her wage loss were due to an incapacity to work. Rather, these circumstances were due to scheduling issues and her employer’s leave policy.

“Because Skelton’s injuries did not render her incapable of working during the time she took off from work and suffered wage loss, Skelton was not entitled to TDI for that time off or wage loss,” the court said.

I could not disagree more with the Court of Appeal decision.  Marguerite Sweeney had it right.  Fortunately this opinion is not citeable since it is unpublished.  However, it doesn’t bode well for any future cases that the court interpreted Lauher to prohibit TD for attending medical appointments after the injured worker has returned to work.

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