There are very few things that can ruin a good, sunny, end-of-the-week Friday.  One of them is, of course, realizing that it’s only Tuesday (which is fortunately avoided today).  Another, is finding a case where yet another defendant receives an unfortunate result from rolling the dice at trial.

The case is that of Randall Salcido v. California Department of Corrections and Rehabilitation (a panel decision).  Applicant was employed as a vocational teacher earning $1,584.80 per week ($1,839.60 without furloughs).  Five months prior to his injury, he had been informed that he would be transferred to the position of warehouse supervisor, which would have paid $744.17 per week ($876.40 without furloughs).

Naturally, applicant has considerable interest in having his benefits rate based on the vocational teacher position rather than that of warehouse supervisor.  On the other hand, the defense is perfectly right in expecting that indemnity should be set at the rate that they would have been if not for the injury.  So, which earnings control: those of the 52 weeks prior, or those that he would have been earning had he not been injured?

The workers’ compensation Judge found that applicant was entitled to an earnings rate based on applicant’s prior employment as a teacher, rather than his planned employment as a warehouse supervisor.  The WCAB concurred, relying in part on the Court of Appeal opinion in Grossmont Hospital  v. Workers’ Compensation Appeals Board¸ applying the two-part analysis for when there is a planned wage change.

Now, imagine, dear readers, if the tables were turned.  Applicant is told five months before his injury that the employer will be promoting him from a warehouse supervisor position to a vocational teacher position.  The promotion will include a 100% increase in wages.  Two days prior to the planned promotion, applicant sustains an injury.  What result in a dispute over what the indemnity benefits should be?

The policy, it appears, is to provide temporary disability benefits reflective of an applicant’s “productive capacity” rather than actual earnings.  The WCAB also expressed concern that “to hold that applicant’s temporary disability rate should be decreased due to applicant’s loss of income based upon his employer’s determination to demote him would create an incentive for employers to downsize their workforce to reduce their liability for temporary disability.”  The WCAB was not equally concerned with workers faking or intentionally sustaining injuries to avoid the decrease in income associated with planned and scheduled transfers.

For the sake of your continued good health, my dear readers, your humble blogger can only hope you have no scheduled demotions on the horizon.