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Workers' Compensation

California: Applicant Entitled to Payment of TTD Benefits During COVID-19 Stay-at-Home Orders

In the era of the COVID-19 pandemic, it is no surprise that case law is beginning to emerge that began as a routine legal issue that is complicated by an outside force. The context of the peri-pandemic cases begins with Governor Newsom’s stay-at-home order on March 18, 2020 in EO-N-33-20.

The question presented in the recent Noteworthy Panel Decision of Corona v. California Walls, Inc., 2020 Cal. Wrk. Comp. P.D. LEXIS 256, is whether an employer is responsible to pay temporary total disability benefits (TTD) when an employee is released to modified work, does in fact return to modified work, but the employer is shut down due to the stay-at-home order by the Governor.

Applicant was employed as a warehouse worker when, on February 19, 2020, he sustained an admitted injury to his knees and claimed to injure his right shoulder and lumbar spine. The employer accommodated the Applicant’s work restrictions for approximately one month until the stay-at-home orders went into effect.

Applicant claimed TTD benefits from March 17, 2020 through May 10, 2020 during the stay-at-home orders of both the governor and the local county’s health order. The defendant employer contended its obligation to pay TTD ended when the Applicant returned to work with modified duties and the Applicant’s inability to work was caused by the COVID-19 stay-at-home orders and not the industrial injury. The trial judge, along with the Appeals Board panel, held that the Applicant is entitled to payment of TTD benefits during the stay-at-home orders because his wage loss was due in part to his work-related injury.

The Appeals Board cited a line of cases where an employee sustains an admitted work-related injury, is deemed temporarily totally disabled, but a non-industrial factor occurs that arguably interrupts the TTD status. In this line of case law, the TTD status that concurrently occurs with an intervening non-industrial factor resulted in the court mandating continuing payment of TTD benefits even though the disability status is concurrent with a non-industrial factor.

The Appeals Board cited and stated it is instructed by a prior case: McFarland USD v. WCAB (McCurtis) (2015) 80 Cal. Comp. Cases 199, 2015 Cal. Wrk. Comp. LEXIS 8 (writ denied) (referred to by the Appeals Board in its opinion as “McCurtis”), where the employee was entitled to continuing TTD benefits when he was temporarily partially disabled and offered modified work until he was terminated. In McCurtis, the Applicant’s termination of employment was not for cause. The Appeals Board in Corona quoted the WCJ’s report and recommendation in McCurtis wherein the WCJ cited Labor Code Section 4657, which pertains to temporary partial disability—the weekly loss in wages shall consist of the difference between the injured worker’s average weekly wage and the weekly amount which the injured worker will probably be able to earn during the disability, due regard to be given to the ability of the injured worker to compete in the open labor market. In McCurtis, the Applicant was unable to compete in the open labor market when he was terminated because of his concurrent temporary partial disability status. McCurtis’s medical status still required modified duties due to his industrial injury and he continued to suffer wage loss as a result.

The Appeals Board in Corona also cited Manpower Temporary Services v. WCAB (Rodriguez) (2006) 71 Cal. Comp. Cases 1614, 2006 Cal. Wrk. Comp. LEXIS 349 (writ denied) (employer was ordered to pay TTD after employee was terminated for cause but at the time of termination, applicant was able to continue to perform modified work and the termination was without prior reprimand or warning; employer failed to meet its burden of proving good cause or misconduct by Applicant that warranted his termination and disqualification from receiving TTD]; and Butterball Turkey Co. v. WCAB (1999) 65 Cal. Comp. Cases 61, 1999 Cal. Wrk. Comp. LEXIS 5159 (writ denied) (employer has burden of proving it does not have liability for TTD due to Applicant’s termination for cause).

The Appeals Board in Corona simply concluded that an employer’s inability to accommodate a temporarily disabled employee’s work restrictions does not release it from its obligation to pay TTD benefits, citing Dennis v. State of CA (2020) 85 Cal. Comp. Cases 389, 2020 Cal. Wrk. Comp. LEXIS 19 (Appeals Board en banc decision) wherein an employer’s inability to offer regular, modified, or alternative work does not release the employer from its obligation to provide an SJDB voucher. The Appeals Board in Corona concludes that payment of TTD is no different—the burden is on the employer to provide the modified work or pay TTD.

The Appeals Board in Corona stated: “Here, Applicant was TTD due to an industrial injury and there is no misconduct on the part of the Applicant to justify the termination of TTD. The Applicant is entitled to TTD regardless of whether the defendant is able to provide modified work—the fact that the defendant is not able to release itself from paying TTD because of its inability to provide modified work [due to the stay-at-home orders] is inconsequential.”

The Appeals Board’s decision in Corona was filed on September 25, 2020 and the time for a writ of mandate runs on November 9, 2020. It appears that in the era of COVID-19, liberal construction pursuant to Labor Code Section 3202 is applicable where there are concurrent industrial and non-industrial reasons why an injured worker cannot return to work and the employee is entitled to TTD benefits due to both factors.

Noteworthy panel decisions are not binding authority.

Practitioners should check the subsequent history of any cases before citing to them.

Any information or opinions contained in this commentary are not necessarily endorsed by LexisNexis® or its affiliates.

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