Elliot v. Workers' Compensation Appeals Board

Opinion

KLINE, P. J. —We granted the applicant’s petition for a writ of review to determine whether the Workers’ Compensation Appeals Board (Board), in denying the applicant’s petition for reconsideration, erred in computing her temporary total disability benefits pursuant to Labor Code sections 4453.1 and 4453, subdivision (c).1

On October 31, 1985, the applicant (Lana Elliot) fractured her left wrist when she fell from a ladder while trimming a tree for her employers, Mr. and Mrs. William Murphy (Murphys). The parties stipulated that the [1500]applicant’s injury occurred in the course of her part-time employment as a domestic for the Murphys, and that from July 9, 1985, through October 26, 1985, her earnings totaled $264, based on an hourly rate of $4 per hour. Applicant had also been employed as an emergency medical technician (EMT) for Solano Ambulance Company from January 27, 1985, until she was laid off for lack of work on October 21, 10 days before her injury while working for the Murphys. Applicant had earned $8,334.42 while employed by the ambulance company.

After the injury, applicant sought work with a nursing care registry at $7 per hour, but she was unable to accept any job offers because she could not lift patients as a result of her wrist injury. On April 1, 1986, the ambulance company called the applicant back to work as an EMT, but her wrist injury prevented her from returning to work. Additional evidence of her prior earnings showed that in 1982, while employed by Pacific Telephone Company, she earned $12,546.30, and through September 1983 she had earned $10,217.85. After September 1983 and during 1984, she worked little because she was attending school for training as an EMT.

The workers’ compensation judge (WCJ) concluded that the applicant was an employee within the meaning of Labor Code section 3351, subdivision (d), and that her temporary total disability indemnity must be based on Labor Code section 4453.1. The WCJ found, however, that her temporary total disability benefits from the time of injury (Oct. 31, 1985) to April 1, 1986, were limited to her actual loss of earnings while employed by the Murphys, and thérefore her témporary total disability benefits were limited to $20.35 per week (1.2 times actual loss of earnings). The WCJ also found that applicant would have returned to part-time employment by the ambulance company on April 1, 1986, had she not been injured, and therefore, based on her higher earning capacity as an EMT for the ambulance company, her temporary total disability benefits after April 1, 1986, should increase to $112 per week, the minimum under section 4453, subdivision (a)(2). The WCJ further found a permanent disability rate of $128.22 per week. In denying the applicant’s petition for reconsideration, the Board adopted the findings and recommendation of the WCJ.