Lost Time For Treatment May Not Be Compensable

The Court of Appeal has ruled that the grand bargain underpinning the workers’ compensation system does not envision paying indemnity for medical appointments taking place without temporary disability. Renee Skelton v. Workers’ Compensation Appeals Board (Filed 9/5/19; Certified for Publication 9/16/19), the Court of Appeal for the 6th District of California opined that an employee injured at work is not entitled to temporary disability benefits while attending medical appointments, unless the employee is incapacitated from work.

Skelton sustained two separate injuries in 2012 and 2014 while working for the Department of Motor Vehicles. Despite her injuries she was able to continue to work at modified duty while receiving medical treatment. However, while attending medical appointments for the injury, Skelton was required to miss time from work, though no physician placed her off work as a result of her injuries. Skelton utilized her accrued sick and vacation time while attending the appointments to avoid loss of earnings. Eventually she exhausted her accrued sick and vacation time forcing her to miss appointments with her physician or go without pay. Skelton sought temporary disability indemnity benefits from the State Compensation Insurance Fund (SCIF) for her lost time and for reinstatement of her sick and vacation time from the DMV.

Skelton cited Department of Rehabilitation v. WCAB and Lauher (2003) in support of her claim, asserting that an industrially injured worker is entitled to temporary disability for time lost from work, unless he/she has returned to work and has been declared permanent and stationary. Skelton further argued that denying her reimbursement for her lost wages chilled her access to the medical care she was entitled to receive under the Workers’ Compensation scheme. SCIF cited the same case to assert that Skelton was precluded from receiving temporary disability indemnity in order to attend medical appointments. The WCJ ruled that Skelton was not entitled to temporary disability while attending medical appointments, except for lost time to attend evaluations with a Qualified Medical Evaluator, which is specifically allowed in the Labor Code. The WCAB agreed with the WCJ citing the writ denied opinion in Department of Rehabilitation and Ward v. WCAB (2004).

The Court of Appeal agreed with the Board. Per the court, the primary purpose of temporary disability is to replace lost wages while there is an incapacity to work. The obligation to provide temporary disability only arises when there is an actual inability to perform work and there is resulting wage loss, until maximum medical improvement is reached. The Skelton opinion specifically noted that the goal of the Workers’ Compensation system is not to make the injured worker whole, but to prevent him/her from becoming a public charge during a period of disability. Skelton’s lost time was not associated with an inability to work, but an inability to schedule medical appointments which accommodated her work schedule.

Skelton is a reminder that the purpose of workers’ compensation is not to completely make whole those who suffer injuries at work, but to ensure an ability to recover and return to the labor market. Participation in the system comes at a cost to both employers and employees, both of which share the burden of the grand bargain negotiated so many years before.

This document is intended to provide you with information about workers’ compensation related developments.The contents of this document are not intended to provide specific legal advice. If you have questions about the contents of this alert, please contact the authors below. This communication may be considered advertising in some jurisdictions.

October 3, 2019