CA Supreme Court, TTD, Treatment, and 132a

Sunday, July 6, 2003 | 0

The California Supreme Court has decided that the law does not require payment of temporary disability indemnity to an injured worker for time off work for medical appointments after he has become permanent and stationary. The Court also ruled that, while the failure to pay temporary disability for time off for medical treatment was a "detriment" to the employee, it was not a violation of Labor Code section 132a.

In State of California Department of Rehabilitation v. Workers' Compensation Appeals Board (Lauher), the applicant argued that, under Labor Code sections 4600 through 4621, the employer had an obligation to object or pay the injured worker for transportation, temporary disability, and meal or lodging expense incurred to obtain medical treatment or evaluation within 60 days of receiving such a request. Therefore, Lauher argued, temporary disability indemnity was mandated by the Legislature while pursuing medical treatment for an industrial injury that has become permanent and stationary. The Court analyzed those statutes and in particular administrative rule 10111.1 (a) clause by clause. The Court noted that temporary disability was to be paid with respect to medical evaluations under Labor Code section 4600 when requested by the employer. There was no similar authorization for temporary disability while the injured worker sought treatment.

The Court noted the term "temporary disability" in rule 10111.1 (a) (4) but it was used in reference to both medical evaluations and medical treatment. "The mere use of the term in this clause on penalties should not be construed to be a statutory authorization," wrote the Court. It was "unlikely that the administrative director, exercising delegated legislative powers, intended to authorize payment of temporary disability indemnity to replace wages an employee loses while pursuing medical treatment for a permanent and stationary injury absent any statutory authorization for such a benefit." The Court concluded, "Once the employee's injury is permanent and stationary and - as here the employee returns to work - he is no longer entitled to TDI [temporary disability indemnity]."

The Court next turned to Mr. Lauher's claim that the employer's requirement that he use sick leave or vacation time when he was absent from work due to medical treatment for an industrial injury, constituted an unlawful action under Labor Code section 132a. The Court noted that previous decisions on the issue of "detriment" were "analytically incomplete." In Smith v. WCAB the court had held that any action that is detrimental to the industrially injured worker is a violation of Section 132a short of re-employing employees no longer qualified, or for whom no position is available. The Supreme Court endorsed the decision of the Court of Appeal in the instant case in its expansion of what the employee must show in presenting a prima facie case of unlawful discrimination in violation of Section 132a. The employee must show that he or she suffered some adverse result as a consequence of some action or inaction by the employer that was triggered by the industrial injury. The claimant must also show that he or she had legal right to receive or retain the deprived benefit or status and that the employer had a corresponding legal duty to provide or refrain from taking away that benefit or status.

By attorney David J. Schmit of the Schmit Law Office in Oakland, Ca. David Schmit can be reached at (510) 893-4111, or by e-mail at mailto:dschmit@schmitlaw.com.