California: Medical Appointments and the Obligation to Pay Temporary Disability

Generally, an employee who is unable to work during their recovery process is entitled to receive temporary disability benefits (Labor Code Section 4650 et seq.). However, the analysis of whether the employee is entitled to receive temporary disability once the employee returns to full-time work, but then has to miss time from work due to legitimate and authorized medical treatment appointments, can become very complicated.

Recently, a panel of commissioners with the Workers’ Compensation Appeals Board (W.C.A.B.) concluded that even though the employee’s condition had not yet become permanent and stationary (P&S), and despite the fact that the employee had to miss work so as to attend medical appointments, that the employee was not entitled to receive temporary disability (Skelton v. Department of Motor Vehicles, 2018 Cal. Wrk. Comp. P.D. LEXIS 417). The majority in Skelton relied on the California Supreme Court case, Department of Rehabilitation v. Workers’ Comp. Appeals Bd. (Lauher) (2003) 30 Cal. 4th 1281, for the proposition that the employee cannot receive temporary disability for missed time due to appointments once the employee become permanent stationary. However, Lauher specifically did not address the scenario where applicant was not yet P&S.

Instead of citing to any precedential authority, the panel in Skelton instead cited to a writ denied case, Ward v. Workers’ Comp. Appeals Bd. (2004) 69 Cal. Comp. Cases 1179 (writ den.), arguing that any wage loss after the employee returns back to work full-time is “not compensable”. But this blunt statement only begs the question, why would it not be compensable when Labor Code Section 4654 specifically creates an obligation by the employer to pay temporary partial disability if there is weekly wage-loss caused by an industrial injury prior to the employee becoming permanent and stationary?

Like so many issues related to the worker’s compensation process, this could very well be an issue that the appellate courts will have to clarify. Until that time comes, however, cases like Skelton will make it more difficult for an employee who is not P&S but who has returned to work and has to receive ongoing medical treatment to receive temporary disability benefits.

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