ADJ12448965 · June 25, 2021

The Board and WCJ found that the Applicant was entitled to temporary disability benefits despite the employer's inability to provide modified duty due to COVID-19 related business closure, relying on established case law and Labor Code provisions that place the burden on the employer to show availability of suitable work and do not excuse employer liability due to market forces such as a pandemic.

Applicant was temporarily disabled due to an industrial injury to his back on October 18, 2018.

Favours Applicant prevailed

Established the basis for entitlement to temporary disability benefits under workers' compensation law.

Applicant continued working on modified duty until employer shutdown on March 14, 2020 due to COVID-19 pandemic, after which no suitable modified duty was available from employer.

Favours Applicant prevailed

Demonstrated that the lack of available modified duty was due to external market forces, not Applicant's fault, supporting entitlement to temporary disability benefits.

From the decision · page 3At trial on March 12, 2021 the parties stipulated to the following facts: Following his industrial injury, the Applicant continued working on modified duty until March 13, 2020; beginning March 14, 2020 the Applicant's employer shut down following the COVID Pandemic. From March 14, 2020 through present and during all times in question the Applicant has been on modified duty. The Applicant obtained replacement employment beginning September 1, 2020.

Defendant's argument that Applicant was terminated for cause due to the pandemic was rejected as unsupported and inconsistent with workers' compensation law.

Favours Applicant prevailed

Confirmed that Applicant's temporary disability benefits should not be terminated based on employer's pandemic-related business closure.

Labor Code section 4654

Labor Code section 4654 requires evaluation of causes of disability and apportionment of compensation accordingly.

Applied to determine that the Applicant is entitled to temporary disability benefits despite COVID-19 related business closure.

From the decision · page 5An appropriate reading of Labor Code section 4654 leads to the conclusion that an award of temporary disability in the current circumstances is appropriate. In order to determine that an Applicant is not entitled to temporary disability, an evaluation of the causes of disability must be completed by the undersigned. The Court of Appeals has previously held "if some other ascertainable cause other than the injury substantially contributes to his inability to earn wages, such separate cause must be separately evaluated, and only the proportion chargeable to the industrial injury allowed as compensation. In such a case specific findings are required." Hardware Mut. Casualty Co. v. Workers' Comp. Appeals Bd., 253 Cal. App. 2d 62, 66. In Hardware the Court of Appeals determined the Applicant was not entitled to temporary disability benefits because the Applicant was discharged from employment for causes unrelated to his injury. As a matter of public policy, reading Hardware in a manner that awards the Applicant temporary disability is consistent with the Labor Code section 3202 mandate for liberal construction of the law in favor of the Applicant.

Labor Code section 3202

Labor Code section 3202 mandates liberal construction of workers' compensation law in favor of the injured worker.

Applied to reject Defendant's argument that pandemic-related business closure excuses employer liability for temporary disability benefits.

From the decision · page 5In such a circumstances, an employer could avoid liability for temporary disability by asserting market forces of any variety, including a pandemic, but conceivably including but not limited to a landlord's closure of a location or a business failure had required closure of their business; the injured worker in such a circumstance would be unable to apply for unemployment insurance and also not eligible for temporary disability. This reasoning is consistent with the Board's holding in Owens and Bedoya, supra. Labor Code section 3202 dictates against reaching such a conclusion. The undersigned recognizes the COVID-19 crisis is the causal factor of the employer's inability to provide modified duty; the clear history of case law on the issue demonstrates that where the Applicant is not the cause of the inability to work, the employer is liable for payment of temporary disability. As discussed above, nothing makes the COVID-19 related crisis distinguishable.

Applicant's continued work on modified duty until employer shutdown due to COVID-19 pandemic; no misconduct by Applicant to justify termination of temporary disability benefits

From the decision · page 3At trial on March 12, 2021 the parties stipulated to the following facts: Following his industrial injury, the Applicant continued working on modified duty until March 13, 2020; beginning March 14, 2020 the Applicant's employer shut down following the COVID Pandemic. From March 14, 2020 through present and during all times in question the Applicant has been on modified duty. The Applicant obtained replacement employment beginning September 1, 2020.