Friday, January 6, 2012

We're Not Entirely Wacky in CA!

When I posted about the case of the Los Angeles firefighter that secured benefits for incurring an injury while trimming a wisteria plant at his home on Catalina Island the commentary was predictably negative, especially by those who love poking fun of us Californians because of our weather and free loving ways.

Well a Workers' Compensation Appeals Board (WCAB) Panel opinion that was handed down last month does show that we Californians aren't all wacky, and that sometimes logic is not impaired by our early January, clear and sunny, 80 degree days (why am I working???).

In Cubedo v. Leemar Enterprises the WCAB ruled that employers are not liable for temporary total disability benefits when an injured worker's ("applicant" in California work comp adjudication claims) immigration status is the sole reason for not being able to accept an offer of modified work.

Sarahi Cubedo, had suffered a back injury while working as a cashier for a restaurant owned by Leemar Enterprises. The employer had provided her with modified duty until a claims adjuster notified the employer that Cubedo had testified that she was an undocumented worker.

A workers' compensation judge awarded Cubedo temporary disability benefits, but a WCAB panel reversed and remanded the award.

WCAB Commissioner Frank Brass wrote that the TTD award was not consistent with the 2000 2nd District Court of Appeal decision of Del Taco v. WCAB.

In Del Taco, the court ruled that an applicant is not entitled to vocational rehabilitation benefits where the applicant's immigration status is the sole reason for being unable to return to work. The panel concluded that requiring the employer to provide vocational rehabilitation benefits would violate the equal protection clause under the 14th Amendment of the U.S. Constitution.

"With regard to temporary partial disability and pursuant to the holding in Del Taco, we believe that if defendant made a legitimate offer of modified work that applicant could not accept solely because of her residency status, defendant is not alternatively liable for temporary total disability benefits," Brass wrote. He clarified that Cubedo would be entitled to TD benefits if she could show that she was temporarily totally disabled because of medical reasons, and noted that this must be supported by substantial medical evidence. However, Brass and his fellow panelists felt that the evidentiary record was unclear at the time, and remanded for further proceedings.

The case was subsequently settled with Cubedo receiving no TTD benefits for the period of time she was unable to work because of her immigration status according to our report in WorkCompCentral news.

Cubedo is a logical result and confirms that California sunshine has not completely demented rational thought processes. Now, go back to your snow and freezing weather. I have recreation to pursue...

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