Q: Must you pay TD for time off due to medical appointments for an employee on mod/alt duty?

A: The Supreme Court in Lauher ruled that workers’ compensation benefits were never intended to provide a “make-whole” remedy to injured workers, and that an employer does not necessarily engage in discrimination when it ”requires an employee to shoulder some of the disadvantages of his industrial injury.” Department of Rehabilitation v. WCAB, 30 Cal. 4th 1281 (Cal. 2003).

With respect to the question of entitlement to TD benefits to compensate for lost time to receive medical treatment after P&S status, the Court emphasized that TD benefits are intended to provide partial compensation for wage loss, and that such benefits are not necessary once the injured worker returns to work. Further, as a general rule, injured workers may not receive temporary disability and permanent disability benefits at the same time.

The problem here is there is wage loss and that is coupled with a medical finding applicant is temporarily totally. This was addressed in Ward v. WCAB, 69 Cal. Comp. Cases 1179.

The Court in Ward found that an employer’s obligation to pay TD ceases when such replacement income is no longer needed. Thus, the obligation to pay TD ends when the injured employee either returns to work, is deemed able to return to work, or when the employee’s medical condition achieves permanent and stationary status. The court disagreed with the argument that TD should be seen as offsetting the associated wage loss an injured worker would incur should he fail to use his sick and vacation leave during his medical treatment appointments. The Court confirmed that although TD is intended as a wage replacement while the injured worker is healing from his 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. TD is a benefit intended to provide wage replacement that logically ends with the injured worker’s return to work and resumption of wages, so the Court concluded that liability for Labor Code section 4850 benefits terminated when the applicant returned to work.

So Lauher confirms that there is no TD payments for medical treatment after the P&S date whereas Ward determined there is no TD payments for medical treatment once injured worker is returned to work.