HAYES v. WORKERS COMPENSATION APPEALS BOARD

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Court of Appeal, Second District, Division 6, California.

Nancy H. HAYES, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD and Santa Barbara School District, Respondents.

No. B036080.

Decided: September 01, 1989

Hourigan, Finestone & Schumaker and Joyce M. Lohmann, for petitioner. Richard W. Younkin, William B. Donohoe and Neil P. Sullivan, for respondent Workers' Compensation Appeals Board. Stockwell, Morris, Anderson & Harris and Mark A. Yabrof, for respondent Santa Barbara School District.

We review a decision of respondent Workers' Compensation Appeals Board (Board) disallowing temporary disability indemnity during periods in which applicant was paid wages less than the statutory minimum for calculation of temporary disability indemnity.

We conclude the Board erred in failing to award temporary disability indemnity at the statutory minimum rate.

On December 3, 1984, applicant sustained an industrial injury to her left knee during her employment as a teaching assistant by the Santa Barbara School District.   At the hearing the parties stipulated applicant remained temporarily disabled.

From December 4, 1984, through June 15, 1985, the employer paid applicant her salary of $367.13 per month, with payroll deductions, but provided no temporary disability indemnity.   From June 16, 1985, through July 4, 1985, the employer provided temporary disability indemnity at the statutory minimum rate of $112 per week.  (Lab.Code, §§ 4453, 4653.)   From July 5, 1985, through August 31, 1985, the employer provided neither salary payments nor temporary disability indemnity.   Beginning on September 1, 1985, the employer paid applicant a new salary of $388.16 per month, with payroll deductions, but did not provide any temporary disability indemnity.

The workers' compensation judge (WCJ) concluded that the employer should have paid applicant temporary disability indemnity at the statutory minimum rate throughout the temporary disability period and awarded temporary disability indemnity at the statutory minimum rate from December 4, 1984.

The employer petitioned for reconsideration.

In a three-to-two in bank decision after reconsideration, the Board majority determined that applicant is not entitled to temporary disability indemnity during those periods in which she received full wages and awarded temporary disability indemnity only for the July 5, 1985, through September 1, 1985, period.   The dissenting Board members concluded, and applicant contends, that she was entitled to temporary disability indemnity at the statutory minimum rate throughout the temporary disability period.

 The employer and Board maintain applicant may not be awarded temporary disability indemnity for any period in which she was provided her full salary as a teaching assistant because wage loss is necessary for temporary disability indemnity to be payable.   The employer also contends Education Code section 45192 precludes payment of temporary disability indemnity to a classified employee who is paid full salary.   The Board asserts that, regardless of whether applicant was a classified or certificated employee, the Education Code precludes recovery of temporary disability indemnity in excess of full wages provided during the temporary disability period.

Labor Code section 4650 requires that if an injury causes temporary disability, a disability payment shall be made “as wages.”  Labor Code section 4653 provides:  “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.”  Labor Code section 4453, subdivision (a), reads in pertinent part as follows:  “Except as provided in Section 4453.1, in computing average annual earnings for the purposes of temporary disability indemnity and permanent total disability indemnity only, the average weekly earnings shall be taken at:  ․ [¶] (2) Not less than one hundred sixty-eight dollars ($168) nor more than three hundred thirty-six dollars ($336), for injuries occurring on and after January 1, 1984.”

Labor Code section 4453.1 is not applicable as that section merely explains how to compute average weekly earnings of residential employees and newspaper vendors.   Applicant's salaries of $367.13 and $388.16 per month were less than the minimum average weekly earnings figure of Labor Code section 4453, subdivision (a)(2).

In Herrera v. Workmen's Comp. App. Bd. (1969) 71 Cal.2d 254, 78 Cal.Rptr. 497, 455 P.2d 425, the court held temporary disability indemnity was properly denied for a period during which the applicant received full wages and explained that ordinarily an injured worker should not receive greater compensation than the wages to which he would have been entitled had he not been injured.  (Id., at pp. 259–260, 78 Cal.Rptr. 497, 455 P.2d 425.)   Because the employee's salary in Herrera exceeded the statutory minimum for average weekly earnings (id., at p. 256, 78 Cal.Rptr. 497, 455 P.2d 425;  Stats.1961, ch. 1621, § 2, p. 3515), the court did not discuss whether temporary disability indemnity may be required if the employee receives a salary less than the statutory minimum during the temporary disability period.

In City etc. of San Francisco v. Workmen's Comp. App. Bd. (1970) 2 Cal.3d 1001, 88 Cal.Rptr. 371, 472 P.2d 459, the applicants were provided salary payments in lieu of temporary disability benefits.  (Id., at p. 1006, 88 Cal.Rptr. 371, 472 P.2d 459.)   The Supreme Court cited Herrera with approval, stating that, absent an agreement between employer and employee regarding discharge and satisfaction of disability benefits, payment of full wages by a private employer during temporary disability discharges the employer's liability for workers' compensation.  (City etc. of San Francisco, supra, 2 Cal.3d at pp. 1011–1012, 88 Cal.Rptr. 371, 472 P.2d 459.)   In that case, however, unlike the present case, there was no contention the salary payments were less than the statutory minimum for temporary disability indemnity.   Rather, the issue was whether the applications were timely filed.

Recently, in MacDonald v. Western Asbestos Co. (1982) 47 Cal.Comp.Cases 365 (in bank), the Board held temporary disability indemnity could be awarded to a retired worker.  (Id., at pp. 366–368.)   Explaining that wage loss is not necessary for an applicant to be entitled to temporary disability indemnity, the Board concluded temporary disability indemnity may be awarded if the applicant is physically unable to work or his earning capacity is impaired.  (Id., at p. 367.)

Here it is undisputed applicant was unable to work following her industrial injury and thus was temporarily totally disabled.   To preclude an employee from receiving temporary disability indemnity because the employer paid wages at less than the statutory minimum would abrogate the requirement of Labor Code section 4453 that the specified minimum average weekly earnings figure be used to calculate temporary disability indemnity.   Because applicant's salaries were less than the statutory minimum for average weekly earnings, she was entitled to temporary disability indemnity at the statutory minimum rate throughout her temporary total disability.  (MacDonald v. Western Asbestos Co., supra, 47 Cal.Comp.Cases at p. 367.)   The employer, however, is entitled to credit for wage payments made to applicant during this period.  (See Herrera v. Workmen's Comp. App. Bd., supra, 71 Cal.2d at p. 259, 78 Cal.Rptr. 497, 455 P.2d 425.)

 Neither Education Code section 44984 nor Education Code section 45192 precludes an award of temporary disability indemnity during the periods applicant received full wages.

Education Code section 44984 requires school districts to establish regulations providing as follows:  “When a certificated employee is absent from his duties on account of an industrial accident or illness, he shall be paid such portion of the salary due him for any month in which the absence occurs as, when added to his temporary disability indemnity under Division 4 or Division 4.5 of the Labor Code, will result in a payment to him of not more than his full salary;  [¶] The phrase ‘full salary’ as utilized in this subdivision shall be computed so that it shall not be less than the employee's ‘average weekly earnings' as that phrase is utilized in Section 4453 of the Labor Code.   For purposes of this section, however, the maximum and minimum average weekly earnings set forth in Section 4453 of the Labor Code shall otherwise not be deemed applicable.”  (Ed.Code, § 44984, subd. d.)

Education Code section 45192 requires school districts to establish regulations providing that for classified employees “[p]ayment for wages lost on any day shall not, when added to an award granted the employee under the workers' compensation laws of this state, exceed the normal wage of the day.”   (Ed.Code, § 45192, subd. (d).)

It need not be determined whether applicant was a classified employee or a certificated employee.  Education Code sections 44984 and 45192 both address the amount of wages, if any, to be added to temporary disability indemnity, but neither section provides that temporary disability indemnity shall be less than required by the Labor Code.  Education Code section 45192 is silent as to how much temporary disability indemnity shall be paid, and Education Code section 44984 expressly recognizes that Divisions 4 and 4.5 of the Labor Code govern payment of temporary disability indemnity.  Labor Code sections 4650, 4653, and 4453 are in Division 4 of the Labor Code and require that applicant be paid temporary disability indemnity at the statutory minimum rate throughout the period of her temporary total disability.

Because the employer failed to provide temporary disability indemnity during the December 4, 1984, through June 15, 1985, period and the temporary disability period commencing September 1, 1985, the Board's decision must be annulled.

The June 23, 1988, decision of respondent Workers' Compensation Appeals Board after reconsideration is annulled, and the matter is remanded for proceedings consistent with the views expressed herein.

STEVEN J. STONE, Presiding Justice.

GILBERT and ABBE, JJ., concur.