When it comes to seasonal workers’ entitlement to temporary disability, a review of relevant case law shows that an employer’s obligation lies in its duty to protect the individual injured worker’s lost wages, and not necessarily in finding the applicant alternative or modified work.
On its face, it is fair to question of seasonal workers entitlement to temporary total disability for the next season, especially when their employment status is informal and they are not necessarily guaranteed to come back to the same employer.
Because there is no guarantee of future work, it is easy to fall into a common logical trap: if the employer wouldn’t have had work for the employee anyway, why should they have to pay temporary total disability simply because they cannot accommodate the worker’s medical restrictions?
The apparent unfairness comes from treating “failure to accommodate” as if it independently created the temporary-disability liability. It does not.
The first question and central question is still whether there is industrial-injury-caused wage loss to replace. In other words, if the work-related injury caused wage loss, then the employer will owe it if the applicant is temporarily disabled or has unaccommodated work restrictions during the next employer-specific season.
WHAT THE CASE LAW SAYS
In Granado v. Workmen’s Comp. Appeals Bd. (1968), the Supreme Court wrote that “[t]he primary element of temporary disability is wage loss,” that “temporary disability payments [are] a substitute for lost wages,” and that “[temporary disability] benefits are based . . . directly on lost wages.” Hawkins v. Amberwood Prods. (2007).
In Signature Fruit Co. v. Workers’ Comp. Appeals Bd. (Ochoa) (2006), the Court of Appeal observed that “[t]he essential purpose of temporary disability indemnity is to help replace the wages the employee would have earned, but for the injury, during his or her period(s) of temporary disability” and that “temporary disability is intended as a substitute for lost wages during a period of transitory incapacity to work.”
It is interesting to note that the employer is not mentioned once in any of those descriptions. The inquiry isn’t whether, but for the employer’s lack of available positions, they would have hired the injured worker. The true inquiry is whether, but for the injury, the worker would have been earning wages.
It is also useful to read §4653 of the Labor Code. If the injury causes temporary total disability, the disability payment is two-thirds of the average weekly earnings during the period of such disability, consideration being given to the ability of the injured employee to compete in an open labor market.
Once again, no reference is made to the employer. Relying on the Supreme Court’s decision in Argonaut Ins. Co. v. Industrial Acc. Com. (1962) (Montana), the WCAB in Jimenez v. San Joaquin Valley Labor (2002) reasoned that the essential objective in determining earnings for purposes of a temporary disability award “is to predict what the employee’s earnings would have been during his or her period(s) of temporary disability, but for the industrial injury.” The court went on to further state that the applicant’s ability to work, his age and health, his willingness and opportunities to work, his skill and education, the general condition of the labor market, and employment opportunities for persons similarly situated are all relevant.
The central inquiry in Signature Fruit was specific to the particular applicant, Ms. Ochoa, and her earnings history and capacity. Under Jimenez, this would be highly fact-specific litigation. This part of the litigation was simplified to a very large extent in Signature Fruit because the parties had stipulated that Ms. Ochoa did not have any off-season earnings and implied that she did not compete in the open labor market during the off season.
The Supreme Court in Department of Rehabilitation v. Workers’ Comp. Appeals Bd. (2003) (Lauher) has explained that, because temporary disability serves to replace lost wages, “an employer’s obligation to pay [temporary disability insurance] to an injured worker ceases when such replacement income is no longer needed.”
CONCLUSION
In conclusion, an employer’s obligation lies in his duty to protect the individual injured worker’s income, not necessarily in finding the applicant alternative or modified work.
Ishraq Aziz is an associate attorney at Bradford and Barthel’s Sacramento location. Before joining B&B, Ishraq served as a deputy district attorney and prosecuted cases with complex evidentiary challenges. If you have questions about workers’ compensation defense issues, feel free to contact Ishraq at (916) 569-0790 or at iaziz@bradfordbarthel.com.
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