Jimenez v. San Joaquin Valley Labor, 012402 CAWC, FRE 0147567

Case DateJanuary 24, 2002
CourtCalifornia
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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