Dual Employment TTD Rate

Saturday, March 10, 2007 | 0

By Jake Jacobsmeyer

The 3rd Appellate District upheld a WCAB decision awarding temporary total disability at maximum rates to an State Compensation Insurance Fund attorney who sustained injury while on jury duty.

The applicant in this case was an attorney making more than $7,900 per month. While on jury duty he sustained a specific injury to his back which ultimately resulted in surgery with a period of temporary disability and partial permanent disability.

While on jury duty, the applicant received a check for the princely sum of $5 which was promptly turned over to his employer as his salary continued for his attendance at jury duty (he never actually served on a jury and was released on the first day of his duty).

The county took the position that applicants earnings were set based upon Labor Code Section 4453, subdivision (c)(2).

Section 4453, subdivision (c) states: "(c) Between the limits specified in subdivisions (a) and (b), the average weekly earnings, except as provided in Sections 4456 to 4459, shall be arrived at as follows:

(2) Where the employee is working for two or more employers at or about the time of the injury, the average weekly earnings shall be taken as the aggregate of these earnings from all employments computed in terms of one week; but the earnings from employments other than the employment in which the injury occurred shall not be taken at a higher rate than the hourly rate paid at the time of the injury.

This section would have entitled the applicant to benefits at minimum rates as the rate at the time of injury was based on his $5 check from the county for one day of employment.

The applicant asserted that his earnings should be calculated based on Labor Code Section 4453 subdivision (c)(4):

"(4) Where the employment is for less than 30 hours per week, or where for any reason the foregoing methods of arriving at the average weekly earnings cannot reasonably and fairly be applied, the average weekly earnings shall be taken at 100 percent of the sum which reasonably represents the average weekly earning capacity of the injured employee at the time of his or her injury, due consideration being given to his or her actual earnings from all sources and employments."

The WCJ, WCAB and Court of Appeal all agreed with applicant on this issue. The court held that the first three sections of Labor Code Section 4453 (c) apply to permanent full time employees and usually would result in:

"Nevertheless, with respect to permanent employees, application of the first three statutory methods will generally result in a determination of earning capacity that is equivalent to the worker's actual earnings. As the Supreme Court explained in Goytia, supra, "the Legislature deliberately established earning capacity as the test for the fourth subdivision as distinguished from the actual earnings for the other three subdivisions. Section 4453 provides for the computation of both temporary and permanent disability indemnity. Subdivisions (a), (b), and (c) relate to full-time employees, employees working for two or more employers, and employment at an irregular rate, such as piecework or work on a commission basis. Each of those subdivisions provide for computation of 'average annual earnings for purposes of permanent disability indemnity' based upon earnings prior to the injury." (1 Cal.3d at p. 894, fn. omitted.)

By contrast, the fourth method, formerly subdivision (d) of section 4453 (Stats. 1939, ch. 308, Section 2, p. 1581), now codified in subdivision (c)(4), provides that when "employment is for less than 30 hours per week, or where for any reason the foregoing methods of arriving at the average weekly earnings cannot reasonably and fairly be applied, the average weekly earnings shall be taken at 100 percent of the sum which reasonably represents the average weekly earning capacity of the injured employee at the time of his or her injury, due consideration being given to his or her actual earnings from all sources and employments."

The purpose of this fourth method "is to equalize for compensation purposes the position of the full-time, regularly employed worker whose earning capacity is merely a multiple of his daily wage and that of the worker whose wage at the time of injury may be aberrant or otherwise a distorted basis for estimating true earning power." (Montana, supra, 57 Cal.2d at p. 594 [construing former subd. (d)].)"

The court's result in this case is not terribly surprising.

While at first blush, Subdivision (c)(2) would seem to apply, the injured worker did not really have two separate employments. The stint at jury duty hardly counts as "employment," especially since the applicant turned over his check to the State Fund when received.

"As stated, that provision is applicable when "the employment is for less than 30 hours per week, or where for any reason the foregoing methods ... cannot reasonably and fairly be applied ..."

James Davis satisfies both predicates. First, he worked for the county for less than 30 hours, three hours to be exact. Second, as the board found, it would be unreasonable, unfair, and inconsistent with relevant case law to ignore Davis' earnings capacity as an attorney for State Fund and limit him to the nominal $5 daily stipend paid for short-term temporary work. Clearly, Davis's earning capacity is better reflected by his work as an attorney at State Fund before and after his injury than by the nominal payment made by the county for his three hours of jury service.

This case would seem to have very limited applicability to other dual employments where the injured worker is actually holding down two jobs and is injured in the lower paying where subdivision (c)(2) would ordinarily apply.

Similar arguments were made to apply the limited earnings to permanent disability and those were rejected equally soundly by the court.

The case is County of San Joaquin v. WCAB (Davis).

Richard "Jake" Jacobsmeyer is a partner in the firm Shaw, Jacobsmeyer, Crain & Claffey and can be reached at jakejacobsmeyer@shawlaw.org.

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