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Sesena V. residience Inn by Marriott (BPD) (2017 Cal. Wrk. Comp. P.D. LEXIS  320

The WCJ held an employee was only entitled to one voucher for separate injuries that became permanent and stationary at the same time.

Applicant filed a Petition for Reconsideration which was granted.

The Appeals Board held that an injured employee may be awarded separate vouchers for separate injuries even though they become permanent and stationary the same time.

The WCAB concluded that Labor Code §4658.7 unambiguously listed injury causing permanent disability as the triggering condition for the availability of benefit.

The WCAB found this to statutory language than injured worker is entitled to a separate voucher for each qualifying injury.

The WCAB found that the WCJ erroneously determined the issue by analogy to cases interpreting Labor Code §4657 (c) (which relates to temporary total disability and benefits) and Labor Code §4062.3 (j) (which relates to medical-legal evaluations).

Baker v. Workers’ Compensation Appeals Board (Guerrero) (Court of Appeal, published) 82 C.C.C. 825

The Director of Industrial Relations (in her capacity as administrator of the SIBTF) argued that the Workers’ Compensation Appeals Board erroneously relied on Labor Code §4650, subdivision (b) to determine that SIBTF payments in this case should begin once the employer’s obligation to pay temporary disability benefits ends. Petitioner asserted that the plain language of §4650 indicates it applies only to workers’ compensation benefits payable by employers, and the SIBTF is not an employer.

According to petitioner, it is §4751 that controls when SIBTF benefits must commence, and the proper start date is when the applicant’s injury is declared permanent and stationary. Section 4650, subdivision (b) governs the payment of workers’ compensation benefits for permanent disability. It provides that an employer must begin making permanent disability payments to an employee within 14 days of the date that the employee’s last payment for temporary disability was owed. Even if the employee’s injury has not yet been determined to be permanent and stationary, the employer must start making permanent disability payments once temporary benefits cease. Regardless of whether the extent of permanent disability can be determined at that date, the employer nevertheless shall commence the timely payment required by this subdivision and shall continue to make these payments until the employer’s reasonable estimate of permanent disability indemnity due has been paid.

The Court of Appeal found that the petitioner was correct that §4650, subdivision (b), which states “the employer” must make timely payment of permanent disability benefits, applies only to benefits payable by employers, and that the SIBTF is not considered an employer for purposes of payment of workers’ compensation benefits. Petitioner is also correct that the timing of SIBTF benefit payments is governed by §4751. But petitioner is incorrect that those premises result in a different conclusion than the one reached by the Workers’ Compensation Appeals Board.

Section 4751 provides: “If an employee who is permanently partially disabled receives a subsequent compensable injury resulting in additional permanent partial disability so that the degree of disability caused by the combination of both disabilities is greater than that which would have resulted from the subsequent injury alone, and the combined effect of the last injury and the previous disability or impairment is a permanent disability equal to 70 percent or more of total, he shall be paid in addition to the compensation due under this code for the permanent partial disability caused by the last injury compensation for the remainder of the combined permanent disability existing after the last injury as provided in this article . . .”

Giving the plain language of §4751 a commonsense meaning, the court read the Legislature’s mandate that SIBTF benefits (when an employee qualifies for them) “shall be paid in addition to” permanent disability benefits to mean that the SIBTF is required to commence payments at the same time as an employer’s obligation to make permanent disability payments begins.

To hold otherwise would contravene the requirement of §4751 that whenever an employee qualifies for SIBTF payments, they shall be paid “in addition to” the permanent disability payments made by the employer. The trigger for the start of SIBTF benefits must be the qualifying employee’s entitlement to permanent disability payments from the employer. Once permanent disability payments are required for an employee who also qualifies for SIBTF benefits, the SIBTF is obligated to pay benefits “in addition to” those permanent disability benefits.

The court acknowledged the language prescribing that SIBTF benefits “shall be paid in addition to” permanent disability benefits is amenable to a construction different from the courts, since the statute does not expressly state when the additional SIBTF benefits commence. The court then indicated they must adopt the construction that leads to the most reasonable result, construing the statutory provision in context and harmonizing it with the rest of the statutory framework.

Petitioner argued that under §4751 an applicant is only entitled to SIBTF benefits upon the injury reaching permanent and stationary status (in this case, January 2011, over four years after the employer became obligated to pay permanent disability benefits). However, there was no authority for that proposition. Instead, petitioner argued that payment of SIBTF benefits has “always commenced on the date when the injured worker reached maximum medical improvement and was declared permanent and stationary” by a medical examiner.

The court stated that: “Although an established practice may inform our interpretation, it does not in itself provide a compelling reason to continue the practice, particularly when there has been an intervening change in law as there was here. Sections 4650 and 4656, governing the timing of workers’ compensation disability payments by an employer, were amended in 2004 as part of legislation that made a number of changes to the workers’ compensation system. Significant here, the statutory amendments altered the timing for employer payment of temporary and permanent disability benefits.”

Section 4656 was amended to provide for a 104-week cap on temporary disability benefits. Temporary disability payments were previously paid by the employer until the injured worker either returned to work or the injury was deemed permanent and the worker was therefore unable to return to work. (Department of Rehabilitation v. Workers’ Comp. Appeals Bd. (2003) 30 Cal.4th 1281, 1292.) Under the amended statute, temporary disability payments are now payable for a maximum of 104 weeks.

To avoid a gap in payments to an injured worker whose medical condition is not deemed permanent until after the 104-week maximum temporary disability period, the Legislature concurrently amended section 4650 to provide that permanent disability payments must commence when temporary disability payments stop, even if the injury has not yet been deemed permanent and stationary. (See Baker v. Workers’ Comp. Appeals Bd. (2011) 52 Cal.4th 434, 439.)

The overall effect of these amendments was to change the timing for permanent disability payments to begin, from when the injury was declared permanent and stationary (under the former version of the statutes) to when temporary disability payments ceased (under the current version). As a result, the timing for the start of SIBTF benefits, which under section 4751 must be paid “in addition to” permanent disability benefits, necessarily also changed.

Petitioner argued that the Legislature’s decision to not amend section 4751 when it amended the statutes governing the payment of temporary and permanent disability benefits evidences its intent to not disturb the status quo with regard to SIBTF payments, i.e., that such payments are not required until a finding of permanent and stationary status. The court found that the status quo for payment of SIBTF benefits has not changed. Such benefits were previously payable at the time permanent disability payments commenced, and they remain payable at the time permanent disability payments commence. Had the Legislature intended for SIBTF benefits to be payable only upon a declaration of permanent and stationary status (as petitioner argues) rather than being paid in addition to permanent disability payments from the employer (as the statute reads), it could have changed section 4751 to so provide––but it did not.

The court further found support for this interpretation of the statute in the Supreme Court’s reasoning in Baker v. Workers’ Comp. Appeals Bd., supra, 52 Cal.4th 434. That case involved whether a workers’ compensation statute providing for a yearly cost of living adjustment (COLA) when an applicant becomes entitled to receive permanent disability payments should be calculated beginning when the injury occurred, or when the applicant started receiving the permanent disability payments. The court held the most reasonable construction of the statute is that it requires a COLA increase each year following the date the applicant begins receiving permanent disability payments because that is when the applicant becomes entitled to the payments. Just as the COLAs are connected to permanent disability payments as an increase in those payments, so too are SIBTF benefits connected to permanent disability payments as an amount paid in addition. Consistent with Baker, the court held that the entitlement to SIBTF benefits begins at the time the applicant becomes entitled to permanent disability payments.

Finally, the court stated that even if petitioner’s interpretation of the statute was equally reasonable, it would have the effect of denying injured workers SIBTF benefits (which are payable separate from and in addition to employer-paid benefits) during the gap between the end of the 104 weeks of temporary disability benefits and the date the injury is deemed permanent and stationary. Whenever there are two reasonable interpretations of a workers’ compensation statute, we must adopt the construction of the statute that provides coverage or payments. (Wright v. State of California, 233 Cal.App.4th at p. 1229.) Based on the above reasoning the court indicated they must defer to the Workers’ Compensation Appeals Board’s interpretation of the relevant statutes unless it is clearly erroneous, and concluded that the start date for SIBTF benefit in this case was correctly determined.

The decision of the Workers’ Compensation Appeals Board was affirmed.