Well, well, dear readers, it’s been a minute, hasn’t it?
But as a come-back post, isn’t it fitting to do so on the Jewish New Year? So a very chipper Hag Sameach to my beloved readers. As the kids say now a-days, “new year, new me” so why not new year, new blog post?
Well if you have time to take a break between slices of apple dipped in honey and eating Challah that’s round instead of braided straight, let me throw a bit of workers’ compensation at you.
Now, what better way to start the new year than some sweet, sweet news. In this case, I bring you a report on the published Court of Appeal decision in the case of Renee Skelton v. WCAB. Therein, applicant Skelton sustained two admitted injuries and filed claims for both. The pain point of contention that came before the Court of Appeal was whether applicant was entitled to TD benefits for taking time off work to attend medical treatment appointments.
Applicant proceeded to trial on this issue and the WCJ held that applicant was not entitled to TD benefits for time lost to attend medical treatment appointments. On appeal to the WCAB, a split panel agreed with the WCJ, holding that TD is not owed for doctor visits.
On review by the Court of Appeal, the justices affirmed. Relying on the Supreme Court decision in Lauher, the Skelton opinion reasoned that workers’ compensation does not provide a “make whole” remedy, and some of the burden of an industrial injury falls upon the injured worker. The Lauher case also reasoned that “employees with nonindustrial injuries must follow the same rule and use their sick leave when away from the office attending medical treatment.”
Running with this line of logic, the Court of Appeal held that Renee Skelton was not entitled to wage loss for time taken to attend medical treatment appointments. “Once Skelton recovered sufficiently to return to work full time, she was no longer entitled to TDI … Skelton admits that she returned to work full time after her injuries … Neither Skelton’s time off work nor her wage loss was due to an incapacity to work.” (Emphasis in original).
Ok, so good news, right? Once an employee is P&S or has returned to full duty, the lost time to attend medical appointments does not trigger TTD.
The Court of Appeal also spent some time discussing that time off to attend medical-legal exams warrants TD benefits, but I’ll skip over that point for this blog post.
I know some of my dear readers are thinking “Big deal, humble blogger. Why couldn’t you come back with another blog post about panels? What a waste of time. I want my money back!” But before we all start demanding our subscription fees be returned, let’s think about a possible broader application laid out by the Court of Appeal for us:
If the entitlement to TD is limited to an incapacity to work, don’t we have citeable authority from the Court of Appeal for situations in which there is no incapacity to work, but there’s also no work available?
What happens if the employer could accommodate work restrictions … but for some other reason:
- Legal right to work in the United States?
- Mass lay-off?
- Closing of the business?
- Termination for cause?
So, what do you think, dear readers? If the employer could accommodate work restrictions but for some reason unrelated to the industrial injury, does Skelton hold (and give us binding authority) for the proposition that no TD is owed?
Your humble blogger certainly thinks it does, but, to keep things fair… this is a defense blog after all!