Preventing Employee Abuse of Temporary Disability Provisions

The provision of temporary disability (TD) is intended to be mutually beneficial to the employer and to the employee. The employee is entitled to funds during the period of medical rehabilitation following an industrial injury, and the employer can reasonably expect this individual — in whom a substantial amount of training and experience were invested — to return to work. (Chavira v WCAB (1991) 235 Cal. App. 3d 463 and W.M. Lyles Co. v WCAB (Butz) (1969) 3 Cal. App. 3d 132)

However, few benefits in the workers’ compensation scheme are subject to greater abuse than temporary disability. This point is illustrated by the recent panel decision of Reynoso v Lusamerica Foods 2018 Cal. Wrk. Comp. P.D. LEXIS 134.

Mr. Reynoso was employed less than two months prior to his industrial injury. During that time, he was subject to several notices of disciplinary action based on numerous transgressions, including job abandonment, tardiness, failure to perform his job in an acceptable fashion, failure to follow instructions and insubordination. Despite a plethora of excuses for these transgressions, he was ultimately fired ten days after his admitted injury. He received treatment from an army of physicians, none of whom imposed any work restrictions for a six month period following the injury.

At the time of trial on the sole issue of his entitlement to TD, Mr. Reynoso attempted to justify, explain and rationalize his behavior. The employer offered the testimony of several managerial individuals (some of whom were not even employed at the time of the events in question) to support its contention that the applicant was not entitled to any TD. The employer claimed that the employee was subject to several disciplinary actions and was within the initial three months of employment, justifying his termination. The Trial Judge, with notable sympathy, bought the employee’s version of events, and proceeded to award him TD benefits from the date of injury until the present and continuing.

The Defendant’s Petition for Reconsideration was granted by the Workers’ Compensation Appeals Board (WCAB). Clearly, the Award of TD for the initial six month period was erroneous because no physician had declared the employee’s condition to be temporarily totally or temporarily partially disabling. However, the WCAB rejected the defendant’s contention that the termination of the employee exculpated the employer from any TD liability. In so holding, the WCAB noted that the employer failed to offer substantial evidence (Escobedo v Marshalls (2005) 70 Cal. Comp. Cases 604) regarding the circumstances underlying the termination, or whether the employer would have provided modified work to Mr. Reynoso had he not been fired. It was the employer’s burden, pursuant to Labor Code Sections 5705 and 3202.5, to prove that the loss of wages was due to the termination based on cause, as opposed to the effects of the industrial injury. (Hardware Mut. Casuality Co. v WCAB (1967) 132 Cal. Comp. Cases 291.) Thus, Mr. Reynoso was awarded TD benefits from the expiration of the six month period until he returned to work, was declared to have reached Maximum Medical Improvement (MMI), or at the expiration of the two year time frame as set forth in Labor Code Section 4656.

As one can imagine, this was not welcome news to the defense counsel. Although counsel could attempt to impose responsibility for this miscarriage of justice on the liberal system, this would still not appease the employer — the result could have been avoided, and a different approach could have been adopted by a more prepared and strategic lawyer.

  1. A file does not merely consist of a number of pages; it’s a chronology of human events. After becoming familiar with the facts of the case, use your experience as a lawyer to find the thread that weaves through the entire story. With this thread, develop empathy for your client in order to best present their version of events at the time of trial. Mr. Reynoso was a sub-optimal, disgruntled, irresponsible individual who damaged the employer’s business operation —  use your creativity to demonstrate the logical incongruity of rewarding such an individual.
  2. Know the law and the manner in which it applies to your case. The defense counsel in Reynoso apparently had a strategy of flinging as much mud on the wall as possible and hoping that some would stick. Because only a “for cause” termination would have insulated the employer from TD liability, expressing evidence that the employee’s termination occurred because he was in his probationary period signified an “at will” termination, and thus was completely counterproductive.
  3. Take the time necessary to meet and communicate with the employer’s witnesses (after receiving the appropriate authorization). Ensure that they are crystal clear in their version of events, that their proposed testimony is competent and that they were, in fact, percipient. If an individual was not present at the time of the events in question, his/her testimony will be speculative, and should not be offered. If the claims adjustor or the employer wants to propound the testimony of such an individual, your duty as a lawyer is to carefully explain the manner by which such a tactic would be detrimental to the case. Do not argue; rather, speak assertively and from a place of experience.

Adopting this approach will not only prevent animosity with the client, but will provide the employer with a basis for placing trust and confidence in you and referring future cases.