Grinberg: TD Due When Modified Duty Ended in COVID Shutdown

Thursday, December 3, 2020 | 0

Lest we all forget that coronavirus not only dogs our steps out in the real world, allow me to remind you that COVID-19 also casts a long shadow over the workers' compensation world.

Gregory Grinberg

Not only is the risk of contracting the virus an issue for all of us as people and not only is the risk of contracting the virus a possible basis for a workers’ compensation case, but the non-industrial impact on the world at large also has a footprint on claims that has nothing to do with a positive COVID test.

What better way to illustrate that point by bringing you the case of Corona v. California Walls Inc., a recent WCAB panel decision?

Applicant Mr. Corona sustained an accepted industrial orthopedic injury, and temporary disability benefits were paid. He then returned to modified duty shortly before facing the same thing that countless workers in California, the United States and the world continue to face: Shelter-in-place orders resulted in a work stoppage and applicant being out of work.

So, here’s the question: Does defendant owe temporary disability benefits when, as a result of the shelter-in-place order, it no longer could accommodate applicant’s work restrictions?

The defendant’s position is reasonable, in my estimation. It’s California that’s barring you from collecting a paycheck, not your employer. Take it up with the guv. Likewise, the tax-free temporary disability benefits that applicant is claiming are not available to workers injured on a non-industrial basis or who are not injured at all. Those workers have to seek their benefits elsewhere. 

The proposal to require an employer to pay temporary disability benefits caused by the State of California’s shelter-in-place guidance puts an industrially injured worker in a better situation than the non-injured co-workers.

The judge ruled in favor of applicant, finding defendant owed TTD for the period after shelter-in-place required the stoppage of work.

On appeal, the Workers' Compensation Appeals Board affirmed. Among other authority cited, the WCAB relied on the holding in Dennis. In the Dennis case, the WCAB held, en banc, that defendant-prison did not make a “bona fide” offer of regular, modified or alternative work when applicant-prisoner had been released from incarceration and thus could not accept the job. 

Of course, the instant Corona case applies this reasoning to the issue of obligation to provide TD benefits, whereas Dennis had to do with a voucher. 

But, of course, the same concerns I expressed about the holding in Dennis apply here as well:

• Applicant truck driver lost his driver’s license due to a DUI? Too bad, pay TD.
• Applicant registered nurse lost her license due to failure to keep up with continuing legal education? Too bad, pay TD.
• Applicant deported? Too bad, pay TD.

Of course, the burden of this policy falls on the employer and its insurer, which in turn falls on all of us. Every time any Californian is frustrated with getting fewer goods or services for the same amount of money, one of the reasons is going to be the cost of bringing that good to market. 

I hope now, as when the opinion in Dennis was issued, that we soon get some binding, higher authority that benefits such as TD and a voucher are NOT due when the lack of return to work is not related to the industrial injury.

Gregory Grinberg is managing partner of Gale, Sutow & Associates’ S.F. Bay South office and a certified specialist in workers’ compensation law. This post is reprinted with permission from Grinberg’s WCDefenseCA blog.