Henry v. Workers' Compensation Appeals Board

California Court of Appeal Dec 18, 1998 No. No. B116313Published

Before: Gilbert

AI Brief

AI-generated · verify before citing

Holding. A seasonal employee is entitled to only 12 months of cumulative seasonal work to satisfy the vocational rehabilitation requirements of Labor Code section 4644, rather than 12 months of continuous work.

Issues

Whether Labor Code section 4644 requires an employer to offer an injured seasonal employee 12 months of continuous, rather than cumulative, alternative work.

Disposition. denied

Quotations verified verbatim against the opinion

“Here we hold that a seasonal employee is entitled to only 12 months of alternate seasonal work, not to 12 months of continuous work.”

“The words “consecutive” or “continuous” are not in the statute and we may not add such requirements to it.”

“The obligation to furnish a modified job for one year does not require that the period be continuous.”

Opinion

GILBERT, J. Under Labor Code section 4644, subdivision (a)(6)(B), the liability of an employer for an injured employee’s vocational rehabilitation terminates if the employer offers and the employee accepts alternate work lasting 12 months.1

Here we hold that a seasonal employee is entitled to only 12 months of alternate seasonal work, not to 12 months of continuous work.

Jennifer Lee Henry (Henry) injured her back while employed as a seasonal ski instructor at Mammoth Mountain Ski Area (Mammoth Mountain). She could not perform her usual work at Mammoth Mountain. Henry requested vocational rehabilitation. Mammoth Mountain offered her alternative employment as a cashier for the following ski season. (§ 4644, subd. (a)(6).) Henry rejected the offer and petitioned for additional relief through the workers’ compensation and judicial systems.

Henry contended that the offer does not comply with section 4644, subdivision (a)(6)(B) which requires that the employer offer alternative work in a regular position lasting at least 12 months.2 The rehabilitation consultant in the workers’ compensation rehabilitation unit concluded that the offer of alternative work as a seasonal cashier complied with the requirements of the Labor Code. (See §§ 139.5, 4635 et seq. [regarding bona fide offers].)

Henry appealed the consultant’s decision to the workers’ compensation referee. In upholding the consultant’s determination, the referee stated, “the [984]‘cashier’ position will last the same period as that of a ‘ski instructor^]’ the two positions are deemed comparable and thus meet the spirit and intent of [section] 4644 [(a)] (6)[(B)].”

Henry requested reconsideration by the Workers’ Compensation Appeals Board (Board) which also upheld the consultant’s decision. The Board stated, “The obligation to furnish a modified job for one year does not require that the period be continuous. In this case, where the employer [sic] was seasonal, such modified work is only required during the season and the one year requirement may be satisfied by the cumulative periods of seasonal employment.”3

The offer of alternative work as a seasonal cashier satisfies the requirement of section 4644 that a qualified injured worker be provided a job in a regular position lasting at least 12 months. We deny the petition.

Henry v. Workers' Compensation Appeals Board

AI Brief

More from California Court of Appeal

Related research

AI Brief