Filed 9/5/19; Certified for Publication 9/16/19 (order attached)




               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SIXTH APPELLATE DISTRICT


 RENEE SKELTON,                                                     H046249
                                                                   (W.C.A.B. Nos. ADJ10307625,
          Petitioner,                                               ADJ10307786)

          v.

 WORKERS’ COMPENSATION
 APPEALS BOARD et al.,

          Respondents.



                                              I. INTRODUCTION
         Petitioner Renee Skelton petitions for review of a determination by respondent
Workers’ Compensation Appeals Board (WCAB or the Board) that she is not entitled
to receive temporary disability indemnity (TDI) for time lost from work to attend
appointments for medical treatment following her return to work. For the reasons stated
below, we will affirm the WCAB’s decision.
                                               II. BACKGROUND
         Skelton sustained an injury to her ankle in July 2012, and an injury to her shoulder
in July 2014, while working for respondent Department of Motor Vehicles (DMV). In
the latter incident, she also claimed to have sustained an injury to her neck. Skelton filed
separate applications for workers’ compensation benefits for her injuries.
(ADJ10307625, ADJ10307786.) The DMV’s adjusting agency was State Compensation
Insurance Fund (SCIF).
      The parties disputed whether Skelton was entitled to TDI for wage loss for time
missed at work to attend medical appointments. Skelton sought to be reimbursed for her
wage loss for time missed at work for medical treatment and for medical evaluations.
SCIF contended that under Department of Rehabilitation v. Workers’ Comp. Appeals Bd.
(2003) 30 Cal.4th 1281 (Department of Rehabilitation), Skelton was not entitled to TDI
to compensate her for taking time off from work for medical treatment, but it
acknowledged that Skelton was entitled to compensation for wage loss for attending
medical-legal evaluations.
      A hearing on Skelton’s two cases was held before the workers’ compensation
judge (WCJ) on May 1, 2018. Without objection by the DMV, Skelton made the
following offer of proof. Skelton continued working after each injury and, based on her
work restrictions, was placed on modified work in approximately May 2017. She missed
work to attend appointments with her treating physicians and to attend two visits with the
panel qualified medical evaluator (QME). Skelton’s work hours were not flexible, and
she could not visit her doctors on weekends. She initially used her sick and vacation
leave, but eventually her paycheck was reduced for missed time at work. She was then
“forced to miss doctors’ appointments because [she could not] afford to attend.”
Skelton’s shoulder injury was found permanent and stationary on November 30, 2017.
Her ankle injury was not yet permanent and stationary at the time of the hearing.
      The parties stipulated at the hearing that DMV records would be filed within
20 days showing Skelton’s use of sick and vacation leave relevant to the issue of wage
loss to attend medical appointments. The parties further stipulated that the documents
would “be received into evidence 10 days after receipt of [them], there being no




                                            2
objections.” The record reflects that Skelton’s time sheets from the DMV were filed on
May 9, 2018. 1
       In a posttrial brief, Skelton contended that under Department of Rehabilitation, an
employee is entitled to TDI unless the employee has returned to work and the employee’s
injury is permanent and stationary. Because her injury was not permanent and stationary,
Skelton argued that she was entitled to compensation, including “full reimbursement of
sick and vacation time used,” for time spent attending medical treatment with her treating
physicians and medical evaluations with the QME.
       The WCJ issued a joint findings and order, concluding that Skelton was not
entitled to TDI to attend medical treatment based on Department of Rehabilitation.
       Skelton petitioned for reconsideration, arguing that she was entitled to TDI for all
medical appointments after she exhausted her sick and vacation credits and until she was
declared permanent and stationary. She contended that, after returning to work full time
with restrictions, she had to attend appointments with her primary doctors and the QME.
Skelton missed work to attend the appointments, and her paycheck was being reduced
because she had exhausted her sick and vacation leave. She could no longer afford to
attend medical appointments. Skelton argued that denying reimbursement for lost time
could in effect preclude her from receiving medical treatment, contrary to the intent of
the workers’ compensation system.
       In an answer to the petition for reconsideration, SCIF, on behalf of the DMV,
contended that Skelton was not entitled to TDI under Department of Rehabilitation
because she had returned to work, and therefore the WCJ’s findings and order should be
sustained.




       1
        In a later report and recommendation on petition for reconsideration, the WCJ
appears to have mistakenly stated that “no records from the DMV were filed.”

                                             3
        In his report and recommendation on the petition, the WCJ stated that under
Labor Code section 4600, subdivision (e)(1), 2 an employee who attends a medical-legal
evaluation, but not an appointment for medical treatment, is entitled to receive one day of
TDI for each day of wage loss in submitting to the evaluation. The WCJ acknowledged
that he did not make a finding on Skelton’s loss of time to attend the QME evaluations.
The WCJ stated, however, that the parties did not provide any earnings information or
documentation showing actual wage loss to attend the QME evaluations. If Skelton
incurred actual wage loss to attend the evaluations by the QME, then she was entitled to
receive TDI. The WCJ stated that the petition for reconsideration should be granted for
the limited purpose of making a general award of one day of TDI for each day of wage
loss Skelton incurred to attend the two QME evaluations, subject to adjustment by the
parties as to the amount, if any, of wage loss actually incurred by Skelton to attend those
evaluations, and without regard to any vacation or sick leave used by Skelton. The WCJ
reiterated that Skelton was not entitled to TDI for wage loss to attend medical treatment
appointments following her return to work, and therefore the petition for reconsideration
should be denied in that regard.
        In its opinion and order granting reconsideration and decision after
reconsideration, a majority of the WCAB adopted the reasons stated in the WCJ’s report.
The majority stated that Skelton was entitled to TDI for wage loss to attend medical-legal
evaluations, but that based on Department of Rehabilitation and Ward v. Workers’
Compensation Appeals Bd. (2004) 69 Cal.Comp.Cases 1179 (Ward) [writ denied], she
was not entitled to TDI for wage loss to attend medical treatment following her return to
work.
        The dissent believed that Skelton was entitled to TDI for wage loss for attending
medical-legal evaluations, as well as for attending necessary medical treatment. The


        2
            All further statutory references are to the Labor Code.

                                                4
dissent observed that TDI provides wage replacement assistance while the injured worker
is healing. The dissent reasoned that an injured worker who is receiving medical
treatment in order to achieve permanent and stationary status is still healing, regardless of
whether he or she has returned to work. According to the dissent, when injured workers
are “receiving necessary medical treatment during their healing period and experiencing
wage loss, they should be compensated.” The dissent believed that contrary language in
Department of Rehabilitation was dicta, as the worker’s injury in that case was already
permanent and stationary.
                                     III. DISCUSSION
       A. The Parties’ Contentions
       Skelton contends that although she has returned to work full time, she still suffers
from an injury that is not permanent and stationary. Under these circumstances, she
argues that she is entitled to TDI for wage loss to attend appointments for medical
treatment.
       The DMV and SCIF contend that once Skelton returned to work full time, she was
not entitled to TDI for attending medical treatment appointments. The DMV and SCIF
also argue that the issue is “moot” because Skelton’s wage loss occurred after her
shoulder injury became permanent and stationary, and more than five years after the date
of her ankle injury (see § 4656, subd. (c)(2)). 3
       Because we conclude that Skelton was not entitled to TDI after she returned to
work full time, we do not reach the other issues raised by the DMV and SCIF.




       3
         Section 4656, subdivision (c)(2) states: “Aggregate disability payments for a
single injury occurring on or after January 1, 2008, causing temporary disability shall not
extend for more than 104 compensable weeks within a period of five years from the date
of injury.” (Italics added.)

                                               5
       B. The Standard of Review
       Our review of a WCAB decision is limited. “As to findings of fact, we defer to
the Board’s findings if supported by substantial evidence. [Citations.] While we accord
‘ “significant respect” ’ to the Board’s interpretation of statutes in the area of workers’
compensation [citation], we subject the Board’s conclusions of law to de novo review
[citations].” (Department of Rehabilitation, supra, 30 Cal.4th at p. 1290.)
       With the standard of review in mind, we recognize that “issues of compensation
for injured workers ‘shall be liberally construed by the courts with the purpose of
extending their benefits for the protection of persons injured in the course of their
employment.’ ” (Department of Rehabilitation, supra, 30 Cal.4th at p. 1290, quoting
§ 3202.) “Even a liberal interpretation, however, will not extend temporary disability
benefits where they are not authorized. [Citation.]” (Signature Fruit Co. v. Workers’
Comp. Appeals Bd. (2006) 142 Cal.App.4th 790, 795 (Signature Fruit).)
       C. General Principles Regarding Temporary Disability Indemnity
       A disability in the workers’ compensation context connotes an inability to work.
(Herrera v. Workers’ Comp. Appeals Bd. (1969) 71 Cal.2d 254, 257.) In the workers’
compensation context, a disability “is a composite of two principal elements that,
although distinct, generally coincide in greater or lesser degree but need not necessarily
do so, i.e., (1) actual incapacity to perform the tasks usually encountered in one’s
employment and the wage loss resulting therefrom, and (2) physical impairment of the
body that may or may not be incapacitating.” (Allied Compensation Ins. Co. v. Industrial
Acc. Com. (1963) 211 Cal.App.2d 821, 831.)
       “Temporary disability is incapacity to work that is reasonably expected to be
cured or materially improved with proper medical treatment. [Citations.]” (Chavira v.
Workers’ Comp. Appeals Bd. (1991) 235 Cal.App.3d 463, 473.) In contrast, “[a]
disability is considered permanent when the employee has reached maximal medical
improvement, meaning his or her condition is well stabilized, and unlikely to change

                                              6
substantially in the next year with or without medical treatment.” (Cal. Code Regs., tit. 8,
§ 10152.) “Temporary disability may be total (incapable of performing any kind of
work), or partial (capable of performing some kind of work). [Citation.]” (Huston v.
Workers’ Comp. Appeals Bd. (1979) 95 Cal.App.3d 856, 868, italics omitted (Huston).)
       “Two of the types of benefits available to the worker injured on the job are
temporary disability indemnity, or TDI, and permanent disability indemnity, or PDI.
Although both take the form of financial benefits, ‘. . . temporary disability indemnity
and permanent disability indemnity were intended by the Legislature to serve entirely
different functions. Temporary disability indemnity serves as wage replacement during
the injured worker’s healing period for the industrial injury. [Citation.] In contrast,
permanent disability indemnity compensates for the residual handicap and/or impairment
of function after maximum recovery from the effects of the industrial injury have been
attained. [Citation.] Permanent disability serves to assist the injured worker in his [or
her] adjustment in returning to the labor market. [Citation.]’ [Citations.]” (Department
of Rehabilitation, supra, 30 Cal.4th at p. 1291.)
       “In general, temporary disability indemnity is payable during the injured worker’s
healing period from the injury until the worker has recovered sufficiently to return to
work, or until his/her condition reaches a permanent and stationary status. [Citation.]”
(Huston, supra, 95 Cal.App.3d at p. 868.) “The purpose of temporary disability
indemnity is to provide interim wage replacement assistance to an injured worker during
the period of time he or she is healing and incapable of working. [Citations.]” (Meeks
Building Center v. Workers’ Comp. Appeals Bd. (2012) 207 Cal.App.4th 219, 224, italics
added (Meeks); see Department of Rehabilitation, supra, 30 Cal.4th at p. 1291.) “The
employer’s obligation to pay temporary disability benefits is tied to the employee’s
‘actual incapacity to perform the tasks usually encountered in one’s employment and the
wage loss resulting therefrom.’ [Citation.]” (Meeks, supra, at p. 224, italics added,
fn. omitted; accord, Livitsanos v. Superior Court (1992) 2 Cal.4th 744, 753 (Livitsanos)

                                              7
[temporary disability benefits “are a substitute for lost wages during a period of
temporary incapacity from working”]; Signature Fruit, supra, 142 Cal.App.4th at p. 795
[“temporary disability is intended as a substitute for lost wages during a period of
transitory incapacity to work”].) The duty to pay TDI “continues during the period in
which an injured worker, while unable to work, is undergoing medical diagnostic
procedure and treatment for an industrial injury. [Citation.]” (J.C. Penney Co. v.
Workers’ Comp. Appeals Bd. (2009) 175 Cal.App.4th 818, 824, italics added (J.C.
Penney); accord, Braewood Convalescent Hospital v. Workers’ Comp. Appeals Bd.
(1983) 34 Cal.3d 159, 168 (Braewood).)
       “That TDI is intended as wage replacement is inferable from section 4653, which
requires temporary total disability be calculated as ‘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.’ Because ‘[t]emporary
disability indemnity is intended primarily to substitute for the worker’s lost wages, in
order to maintain a steady stream of income’ [citations], an employer’s obligation to pay
TDI to an injured worker ceases when such replacement income is no longer needed.
Thus, the obligation to pay TDI ends when the injured employee either returns to work
[citations] or is deemed able to return to work [citation], or when the employee’s medical
condition achieves permanent and stationary status [citations].” (Department of
Rehabilitation, supra, 30 Cal.4th at pp. 1291-1292.)
       Regarding the amount of the disability payment, “[i]f 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.” (§ 4653, italics added.) “If the injury
causes temporary partial disability, the disability payment is two-thirds of the weekly
loss in wages during the period of such disability.” (§ 4654, italics added; see also
§ 4657 [defining “weekly loss in wages”].)

                                              8
       Significantly, “our system of workers’ compensation does not provide a make-
whole remedy. ‘The Workers’ Compensation Law is intended to award compensation
for disability incurred in employment. “The purpose of the award is not to make the
employee whole for the loss which he [or she] has suffered but to prevent [the employee]
and his [or her] dependents from becoming public charges during the period of [the
employee’s] disability.” ’ [Citation.] ‘The purpose of [workers’] compensation is to
rehabilitate, not to indemnify, and its intent is limited to assuring the injured [worker]
subsistence while he [or she] is unable to work and to effectuate his [or her] speedy
rehabilitation and reentry into the labor market.’ [Citation.] Consistent with this view,
for example, section 4653 provides that payment for temporary total disability is only
‘two-thirds of the average weekly earnings during the period of such disability.’ ”
(Department of Rehabilitation, supra, 30 Cal.4th at p. 1300.)
       D. Department of Rehabilitation v. Workers’ Comp. Appeals Bd. (2003)
          30 Cal.4th 1281
       In Department of Rehabilitation, the California Supreme Court addressed whether
an employee who had suffered an industrial injury was entitled to TDI to compensate the
employee for taking time off from work for continuing medical treatment. (Department
of Rehabilitation, supra, 30 Cal.4th at p. 1286.) The employee had returned to work after
a determination that his injury was permanent and stationary. (Id. at pp. 1286, 1292.)
The California Supreme Court concluded that the employee was not entitled to TDI under
the circumstances. (Id. at p. 1286.) The court explained that the employee “had passed
out of the healing period (for which TDI serves as a wage replacement) and had agreed to
a stipulation compensating him for his diminished ability in the workplace due to a
permanent and stationary injury. Because [the employee] had begun collecting PDI, he
was no longer entitled to TDI.” (Id. at pp. 1292-1293.)
       The California Supreme Court rejected the employee’s argument that there was a
“ ‘chilling effect on the injured workers’ ability to obtain medical treatment’ ” if the

                                              9
injured worker loses wages from attending necessary treatment. (Department of
Rehabilitation, supra, 30 Cal.4th at p. 1294.) The court explained that “although TDI is
intended as a wage replacement while the injured worker is healing from his [or her]
injury, once the injury becomes permanent and stationary and/or the employee returns to
work, any future benefits authorized by the workers’ compensation scheme are not
intended as wage replacement.” (Ibid.) The court observed that the employee “is
provided medical benefits . . . during the healing period in order to enable him [or her] to
return to productive employment and to prevent him [or her] from becoming a public
charge. Once [the employee] returns to work, in addition to the wages he [or she] earns,
[the employee] is also compensated in the form of PDI for the permanent diminution of
his [or her] abilities caused by his [or her] industrial injuries. The system of workers’
compensation is not intended to provide full and total recompense for any and all
consequences of a worker’s injury, but instead represents a compromise between the
interests of workers and those of employers. . . . ‘ “[I]n compensation practice day in and
day out employees are totally uncompensated for wages lost while attending to medical
treatment during their work day. It has long been considered that in exchange for that
blanket coverage of compensation without regard to fault, the employee bears some of
the burden.” ’ ” (Ibid.) Moreover, presumably “employees with nonindustrial injuries
must follow the same rule and use their sick leave when away from the office attending
medical treatment.” (Id. at p. 1301.)
       The WCAB has interpreted Department of Rehabilitation to preclude TDI for
work missed to attend medical appointments for an employee who has returned to work
full time, regardless of whether the employee’s injury is permanent and stationary. The
WCAB has reasoned that an employee, by returning to work full time, no longer suffers
from a wage loss coupled with an incapacity to work. Rather, the employee has restored
his or her earning capacity, which eliminates the income replacement rationale
underlying TDI. (Ward, supra, 69 Cal.Comp.Cases at p. 1182 [writ denied]; see Smith v.

                                             10
Workers’ Comp. Appeals Bd. (2000) 79 Cal.App.4th 530, 537, fn. 2 [writ-denied
summaries of decisions by the WCAB may be cited to show the “the contemporaneous
interpretation and application of the workers’ compensation laws by the” WCAB, but
“have no stare decisis effect in an appellate court”].)
       E. Lost Wages for Requested Medical Examinations
       In contrast, if an employee is requested to submit to a medical examination to
resolve a compensation claim, and the request is by the employer, the employer’s insurer,
or another statutorily specified entity, then under section 4600 the employee is entitled to
“one day of temporary disability indemnity for each day of wages lost in submitting to
the examination.” (§ 4600, subd. (e)(1); see Department of Rehabilitation, supra, 30
Cal.4th at p. 1294.) However, “this benefit is in the nature of a medical-legal benefit,
reimbursing the employee for his [or her] time when requested to submit to a medical
examination to resolve a compensation claim.” (Department of Rehabilitation, supra, at
p. 1295; see § 4620, subd. (a).) “Medical-legal expenses are distinct from temporary
disability indemnity benefits. [Citation.]” (Meeks, supra, 207 Cal.App.4th at p. 226.)
Unlike TDI, “[t]here is no requirement that an employee be disabled in order to qualify
for medical-legal benefits. There need not even be a finding of an industrial injury for
the worker to qualify for these benefits, as even ‘an unsuccessful claimant for workers’
compensation benefits may recover medical-legal costs.’ [Citations.] . . . Medical-legal
expenses are litigation expenses for the purpose of resolving a contested claim, not
substitute wages during a period of incapacity. [Citations.]” (Ibid.)
       F. Analysis
       We determine that Skelton is not entitled to TDI for wage loss arising from her
time off from work to attend appointments for medical treatment. The DMV’s
“obligation to pay temporary disability benefits is tied to [Skelton’s] ‘actual incapacity to
perform the tasks usually encountered in [her] employment and the wage loss resulting
therefrom.’ [Citation.]” (Meeks, supra, 207 Cal.App.4th at p. 224, italics added,

                                             11
fn. omitted; accord, Livitsanos, supra, 2 Cal.4th at p. 753 [temporary disability benefits
“are a substitute for lost wages during a period of temporary incapacity from working”];
Signature Fruit, supra, 142 Cal.App.4th at p. 795 [“temporary disability is intended as a
substitute for lost wages during a period of transitory incapacity to work”]; see
Braewood, supra, 34 Cal.3d at p. 168 [employer has a duty to pay temporary disability
compensation while the injured employee is “unable to work” ]; J.C. Penney, supra, 175
Cal.App.4th at p. 824 [same].) Once Skelton recovered sufficiently to return to work full
time, she was no longer entitled to TDI. (Department of Rehabilitation, supra, 30 Cal.4th
at p. 1292; Huston, supra, 95 Cal.App.3d at p. 868.) In this case, Skelton admits that she
returned to work full time after her injuries. She subsequently took time off from work
because she could not schedule medical treatment during nonwork hours. She apparently
began to suffer wage loss after using all her sick and vacation time. Neither Skelton’s
time off from work nor her wage loss was due to an incapacity to work. Rather, these
circumstances were due to scheduling issues and her employer’s leave policy. Because
Skelton’s injuries did not render her incapable of working during the time she took off
from work and suffered wage loss, Skelton was not entitled to TDI for that time off or
wage loss.
       Skelton contends that once an employee exhausts sick and vacation time, “the
burden must shift back to the employer to pay [temporary partial disability benefits] for
medical treatment . . . so that both parties share the burden.” Skelton fails to provide
persuasive argument or legal authority as to why she is entitled to TDI after exhausting
her sick and vacation time in this case. “ ‘ “[I]n compensation practice day in and day
out employees are totally uncompensated for wages lost while attending to medical
treatment during their work day.” ’ ” (Department of Rehabilitation, supra, 30 Cal.4th
at p. 1294.)




                                             12
                            IV. DISPOSITION
The decision after reconsideration is affirmed.




                                     13
                              BAMATTRE-MANOUKIAN, J.




WE CONCUR:




ELIA, ACTING P. J.




MIHARA, J.




Skelton v. Workers’ Compensation Appeals Board
H046249
Filed 9/16/19
                          CERTIFIED FOR PUBLICATION


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                            SIXTH APPELLATE DISTRICT


 RENEE SKELTON,                                    H046249
                                                  (W.C.A.B. Nos. ADJ10307625,
          Petitoner,                               ADJ10307786)

          v.                                       ORDER CERTIFYING OPINION
                                                   FOR PUBLICATION
 WORKERS’ COMPENSATION
 APPEALS BOARD et al.,

          Respondents.



THE COURT:
        The opinion in the above-entitled matter filed on September 5, 2019, was not
certified for publication in the Official Reports. Respondents Department of Motor
Vehicles and State Compensation Insurance Fund have requested the opinion be certified
for publication. Under California Rules of Court, rule 8.1105(c), the opinion is ordered
published.



                                   BAMATTRE-MANOUKIAN, J.



                                   ELIA, ACTING P. J.



                                   MIHARA, J.
Attorneys for Petitioner:                Ian D. McFarren
Renee Skelton                            Russell D. Jacobson
                                         Rucka, O’Boyle, Lombardo & McKenna


Attorney for Respondent:                 Allison Jane Fairchild
Workers’ Compensation Appeals Board


Attorneys for Respondents:               Joseph Morris Rozowski
Department of Motor Vehicles and State   Lisa Anne Stolzy
Compensation Insurance Fund




Skelton v. Workers’ Compensation Appeals Board
H046249
