A recent writ denied case discussed (and erroneously concluded) that delayed and un-guaranteed income from past employment does not affect temporary disability benefits.

In the case of Ralphs Grocery Company v. Workers’ Compensation Appeals Board (Matthew Boyd), applicant alleged a cumulative trauma injury which was denied by the defendant.  One of the issues in the case was that of temporary disability.

As it happens, applicant was, at one time, in the real estate industry.  After real estate values plunged into a nose dive and took many of its participants with it, applicant went back to work for Ralph’s as a store manager.

After leaving the industry, applicant still referred potential clients to his former colleagues/competitors and, after the alleged injury resulted in a surgery, applicant’s former colleagues/competitors finally paid “finder’s fees” in the amount of $32,000.00.

The question is – does this income in any way offset the temporary disability benefits defendant would otherwise be required to pay?  The answer, at least in this case, is no.

Defendant’s claim for credit for TD up to $32,000.00 was rejected for many reasons, and sadly I can’t find too much fault with the Workers’ Compensation Judge or the Workers’ Compensation Appeals Board.

It appears the issue of credit for TD was not raised at the Mandatory Settlement Conference or at Trial, nor did the defendant seek to establish some sort of record as to when the money was “worked for.”

If your humble author were told, during a deposition or otherwise, that an applicant had found a quarter while on TD, follow-up questions would have issued post-haste as to where, when, and why, if the applicant is healthy enough to go around finding quarters, he couldn’t be back to work and off TD.

That being said, should it matter?  If applicant can make referrals from a surgery recovery room, should it matter that he may have physically made the referral before?  Furthermore, since the world of California Workers’ Compensation is so fond of presumptions and burden shifting, shouldn’t proof that money was earned, or at least collected, during a period of TD shift the burden to the applicant to prove when and how he earned it?  After all, the burden is infinitely lighter on an employee to prove when he was paid and for what than for a defendant to prove the same.

In any case, no profit comes from wringing my poor-lawyer’s hands about such situations.  But there is profit in all of us seeing such a thing coming.