Goooood morning, dear readers!
The days are cold, the nights are long, and Old St. Nick is trying to figure out how to go from house to house without spreading Covid-19 related death and illness. In short, all is just as it should be.
Lest we all forget that Corova Virus not only dogs our steps out in the real world, allow your humble blogger to remind you that Covid19 also casts a long shadow over the workers compensation world. Not only is the risk of contracting the virus an issue for all of us as people, not only is the risk of contracting the virus a possible basis for a workers’ compensation case, but the non-industrial impact on the world at large also has a footprint on claims that has nothing to do with a positive Covid test.
What better way to illustrate that point by bringing you the case of Corona v. California Walls Inc., a recent WCAB panel decision?
Applicant Mr. Corona sustained an accepted industrial orthopedic injury and temporary disability benefits were paid. He then returned to modified duty shortly before facing the same that countless workers in California, the United States, and the world continue to face: shelter-in-place orders resulted in a work stoppage and applicant being out of work.
So, here’s the question: does defendant owe TD benefits when, as a result of the shelter-in-place order, it no longer could accommodate applicant’s work restrictions?
The defendant’s position is reasonable, in your humble blogger’s estimation – It’s California that’s barring you from collecting a paycheck, not your employer. Take it up with the Guv. Likewise, the tax-free temporary disability benefits that applicant is claiming are not available to workers injured on a non-industrial basis or who are not injured at all. Those workers have to seek their benefits elsewhere.
The proposal to require an employer to pay temporary disability benefits caused by the State of California’s Shelter-in-Place guidance puts an industrially injured worker in a better situation than the non-injured co-workers.
The WCJ ruled in favor of applicant, finding defendant owed TTD for the period after shelter-in-place required the stoppage of work.
On appeal, the WCAB affirmed. Among other authority cited, the WCAB relied on the holding in Dennis. In the Dennis [the menace] case, the WCAB held, en banc, that defendant-prison was not make a “bona fide” offer of regular, modified, or alternative work when applicant-prisoner had been released from incarceration and thus could not accept the job.
Of course, the instant Corona case applies this reasoning to the issue of obligation to provide TD benefits, whereas Dennis had to do with a voucher.
But, of course, the same concerns that your humble blogger expressed about the holding in Dennis apply here as well:
- Applicant truck-driver lost his driver’s license due to a DUI? Too bad, pay TD.
- Applicant Registered Nurse lost her license due to failure to keep up with CLE? Too bad, pay TD.
- Applicant [generic profession; take your pick, dear readers] deported? Too bad, pay TD.
Of course, the burden of this policy falls on the employer and its insurer, which will then in turn falls on all of us. Every time any Californian is frustrated with getting less goods or services for the same amount of money, one of the reasons is going to be the cost of bringing that good to market.
Your humble blogger hopes now, as when the opinion in Dennis issued, that we soon get some binding, higher authority that benefits such as TD and a voucher are NOT due when the lack of return to work is not related to the industrial injury.
See you on Friday, dear readers!