Seasonal Workers TD And VRMA Rates May Differ

The Worker’s Compensation Appeals Board (WCAB) recently issued an en banc decision. The case defines what rate should be paid for temporary disability (T.D.) and vocational rehabilitation maintenance allowance.

The applicant was employed as a seasonal farm laborer when she sustained an industrial injury. The applicant’s earnings were $405.00 per week during the growing season and zero in the off-season. The applicant had no work history in the year proceeding the job on which she was injured.

The defendant paid T.D. at one rate during the growing season and at a different rate when the season was over. After the applicant became permanent and stationary the applicant participated in vocational rehabilitation.

The Workers’ Compensation Judge (WCJ) awarded applicant T.D. at one rate for the in-season earnings and at zero for the non-season earnings. The WCJ awarded the vocational rehabilitation maintenance allowance at the maximum rate.

On a petition for reconsideration the WCAB found that two different compensation rates was allowed for seasonal employees.

The Board reviewed other cases to determine that temporary disability rate is predicated on what the applicant would have earned during the temporary disability period. The object of temporary disability is to replace lost income. If there is no lost income this must be taken into consideration.

The Board concluded that” where the earnings history and reasonably anticipated future earnings of a seasonal employee establish that he or she has two separate and distinct average weekly earnings capacities (i.e., on average weekly earning capacity for the in-season and another for the off-season), it is proper to find two different temporary disability indemnity rates.”

The Board stated mat if the person had no prior work history you should not take the prior year’s earnings and divide by 52 to arrive at the non-season earnings. It is acceptable to award zero in that situation when there is no history of prior earnings.

The vocational rehabilitation maintenance allowance was remanded to the WCJ to determine what the applicant would have received as continuing temporary disability. The Board believed that finding zero for this was an incorrect determination.  Thus, it would appear that the vocational rehabilitation maintenance allowance may be awarded for in-season and non-season rates also.

Case: Jimenez V. San Joaquin Valley Labor

Harvey Brown
3501 Jamboree Rd. Suite 602
Newport Beach, CA 92660

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