We sometimes see the case where an applicant quits his job following a work injury for reasons other than their injury. Later the issue of temporary disability will sometime arise and the question is whether or not the applicant is entitled to temporary disability benefits.
Where the applicant quits work for reasons unrelated to their injury, the employer is not liable for temporary partial disability if they can show they have available and would have offered or did offer modified work within the work restriction outlined in the medical report making the applicant temporally partially disabled.
This issue was recently upheld in Nulwala v. WCAB (Cottage Hospital), 2010 Cal. Wrk. Comp. LEXIS 223 when the 2nd District Court of Appeals refused to review a panel decision from the WCAB overturning the Trial Judge’s award of temporary disability. In that case, the WCAB rescinded and deleted the findings and award of temporary disability and substituted in its place an award denying temporary disability benefits for the disputed period.
In this particular case, the applicant agreed that she quit employment to move out of state where her husband’s job transferred him and later applied for temporary disability benefits. It was interesting that the applicant later attempted to claim she quit because of her injury but this was essentially not believed because of her stipulation that she quit to move with her husband.
The defendant in that case contended the applicant was not entitled to temporary disability benefits because her employer offered her modified work immediately after the injury and that they remained ready, willing and able to offer modified work based on the restriction of the panel QME. The WCAB clearly felt this was all that was necessary for the defendant. It is also important to note that because the applicant had quit and moved, the modified work was not actually offered.
The court did distinguish this case from another case where the applicant resigned under duress of an investigation that could lead to termination and criminal charges. In this case, applicant was still awarded temporary disability benefits.
The WCAB also pointed out that it is beyond dispute that even if an injured worker is temporarily medically unable to work at her usual job, she is expected to take suitable work if it is available citing Meyers v. Ind. Accident Comm. (Titsworth) (1940) Cal.App.2d 665.
The important thing to take from this is to always try and get a legitimate offer of modified work for the applicant from the employer and to document the reasons for the applicant quitting employment in order to support a later denial of temporary disability.