MARIA YOLANDA JIMENEZ, Applicant,
v.
SAN JOAQUIN VALLEY LABOR; and SUPERIOR NATIONAL INSURANCE COMPANY, Defendants.
No. FRE 0147567
California Workers Compensation Decisions
Workers Compensation Appeals Board State of California
January 24, 2002
OPINION AND DECISION AFTER RECONSIDERATION (EN
BANC)
MERLE
C. RABINE, Chairman
On July
21, 2000, the Board granted defendant's petition for
reconsideration of the Findings and Award issued by the
workers' compensation administrative law judge (WCJ) on
April 28, 2000. In essence, the WCJ found that applicant, a
seasonal farm laborer, sustained industrial injury to her
back, spine, and lower extremities on August 24, 1994,
resulting in temporary disability for specified periods and
in permanent disability of 46-1/2%. Based on the parties'
stipulation that applicant's average earnings were $405
per week during the season and $0 (zero) per week during the
off-season, the WCJ further found that applicant's
in-season temporary disability indemnity rate is $270 per
week and that her off-season temporary disability indemnity
rate is $0 (zero) per week. The WCJ, however, found that
applicant is entitled to vocational rehabilitation
maintenance allowance benefits (VRMA) at the rate of $246 per
week, irrespective of whether her participation in vocational
rehabilitation occurs in-season or off-season.
In its
petition, defendant contended that the WCJ erred in awarding
VRMA at $246 per week for all periods of applicant's
vocational rehabilitation, arguing in substance that Labor
Code section 139.5
[1] mandates that VRMA be calculated
based on the employee's earnings and on what he or she
would have received as temporary disability indemnity (up to
$246 per week) and, therefore, applicant should receive VRMA
of $246 per week for her in-season participation in
vocational rehabilitation and $0 (zero) per week for her
off-season participation.
[2] Defendant additionally contended
that it is entitled to credit for certain overpayments of
temporary disability indemnity and that applicant sustained
no permanent disability as result of her August 24, 1994
injury.
Applicant
filed an answer to defendant's petition, asserting in
substance that the WCJ properly awarded VRMA at $246 per
week, even though her participation in vocational
rehabilitation occurred during the off-season, because the
purpose of VRMA is to provide some income to injured workers
during the vocational rehabilitation process so that the
workers "can survive while being retrained into a new
career." Applicant also asserted that defendant is
estopped from seeking credit for its temporary disability
indemnity overpayments and that the 46-1/2% permanent
disability finding was proper.
Because
of the important legal issue presented, and in order to
secure uniformity of decision in the future, the Chairman of
the Board, upon a majority vote of its members, has
reassigned this case to the Board as a whole for an en banc
decision. (Lab. Code, § 115.)
[3] Based on our review of the
relevant statutory and case law, we conclude that an
industrially injured seasonal employee shall be awarded
temporary disability indemnity at two rates: (1) an in-season
rate based on the employee's in-season earnings capacity
and (2) an off-season rate based on the employee's
off-season earnings capacity, taking into consideration such
factors as the employee's earnings history, willingness
and ability to work, age and health, education and skill, as
well as employment opportunities and the general condition of
the labor market. We further conclude, in light of the
language of section 139.5(d)(1),
[4] that where a seasonal employee
receives a two-tiered award of temporary disability
indemnity, the seasonal employee must also receive a
two-tiered award of VRMA at his or her in-season and
off-season temporary disability indemnity rates, subject to
the $246 per week ceiling.
I.
BACKGROUND
The
relevant facts pertaining to the temporary disability
indemnity and VRMA rate issues are essentially
undisputed.
[5]
Applicant
sustained her August 24, 1994 injury while employed as a
seasonal farm laborer. Her job consisted of picking grapes in
the field, packing grapes in boxes, and stacking the boxes on
pallets. The grape-picking season was stipulated to be from
August 16, 1994 through October 25, 1994. It was also
stipulated that applicant's average earnings during the
season were $405 per week.
The
parties further stipulated that applicant had had no
employment in the twelve months preceding the commencement of
the grape-picking season. From the record, it appears that
applicant's last employment had been as a fruit packer
from April 1992 through December 1992.
Following
applicant's injury, defendant paid temporary disability
indemnity and VRMA at various rates and for various periods
but, initially, it paid temporary disability indemnity at the
rate of $269.50 per week, including during off-season
periods.
On
March 3, 1995, defendant sent applicant a letter stating it
was changing her temporary disability indemnity rate to $10
per week because "the season ended at your employer in
October" and, because the season had ended, she
qualified only for "the non-seasonal rate."
On
December 26, 1995, applicant became medically permanent and
stationary.
On
April 16, 1996, applicant began participating in vocational
rehabilitation. She continued to participate through October
25, 1996, when the parties agreed to interrupt vocational
rehabilitation.
[6]
From
April 2, 1997 through August 22, 1997, applicant again
participated in vocational rehabilitation. A plan was
developed (and completed) with a vocational objective of
floral arranging.
It
appears applicant's vocational rehabilitation services
did not result in new employment. On August 12, 1999, she
attempted a return to work as a burrito packer but, after
completing one full eight-hour workday, she was unable to
return because of pain.
II.
DISCUSSION
A.
Temporary Disability Indemnity Rate For Seasonal
Employees
Although
neither party sought reconsideration regarding the specific
issue of applicant's temporary disability indemnity rate,
discussion of that issue is necessary to resolve the dispute
before us regarding applicant's VRMA rate.
Within
statutory limits, the amount of an injured employee's
weekly disability indemnity payment, regardless of its
specie, is based on the employee's "average weekly
earnings" at the time of injury. (Lab. Code,
§§ 139.5(d)(1), 4653, 4658, 4659.) In turn, an
employee's "average weekly earnings" are
computed based on one of four statutory methods. (Lab. Code,
§§ 4453(c)(1) through (c)(4) (formerly, section
4453(a) through (d)); Argonaut Ins. Co. v. Industrial
Ace. Com. (Montana) (1962) 57 Cal.2d 589, 593-594 [27
Cal.Comp.Cases 130, 132].) Ordinarily, the average weekly
earnings of a seasonal employee are computed under section
4453(c)(4) (formerly, section 4453(d)) and are based on the
employee's average weekly earning capacity. (Westside
Produce Co. v. Workers' Comp. Appeals Bd. (Avila)
(1978) 81 Cal.App.3d 546, 552-553 [43 Cal.Comp.Cases 653,
656-657].)
7
In
determining the issue of earnings for purposes of a temporary
disability indemnity award, the essential objective is to
predict what the employee's earnings would have been
during his or her period(s) of temporary disability, but for
the industrial injury. As stated by Montana:
"An estimate of earning capacity is a prediction of what
an employee's earnings would have been had he not been
injured. Earning capacity, for the purposes of a temporary
award, however, may differ from earning capacity for the
purposes of a permanent award. In the former case the
prediction of earnings need only be made for the duration of
the temporary disability. In the latter the prediction is
more complex because the compensation is
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