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Meeks Building Center et al v. Workers' Compensation Appeals Board and Salem Najjar

June 26, 2012


ORIGINAL PROCEEDING as to a Workers' Compensation Appeals Board order granting reconsideration and decision after reconsideration. (WCAB No. ADJ4255212)

The opinion of the court was delivered by: Raye , P. J.



In this case, we determine whether the single payment of benefits required by Labor Code section 4600, subdivision (e)(1) for attending a defense requested qualified medical evaluation commences the limitation period for payment of temporary disability benefits under Labor Code section 4656, subdivision (c)(1).*fn1 Finding this is not a payment of temporary disability benefits, but a reimbursement of a medical-legal expense, we conclude it does not.


Applicant and respondent Salem Najjar worked as a paint sales associate at Meeks Building Center through June 12, 2007. In the course of his employment, he sustained a cumulative injury to his low back, neck, and left shoulder. Despite his injuries, Najjar continued to work unrestricted at his usual job activities. Petitioner Zurich American Insurance Company (Zurich) sent Najjar to a qualified medical evaluation with Dr. Anthony Bellomo on September 11, 2007. Pursuant to section 4600, subdivision (e)(1), Zurich paid Najjar temporary disability indemnity of $64.71 to reimburse him for wages lost due to attending this evaluation.*fn2

Dr. Bellomo felt Najjar would benefit from physical therapy and referral to a specialist. He anticipated Najjar would be permanent and stationary within two to three months. Dr. Bellomo did not take Najjar off work or impose work restrictions.

In 2009 Najjar was determined to be temporarily disabled and restricted from work. Accordingly, Zurich began making temporary disability benefit payments. Those payments commenced on March 17, 2009, and continued through September 8, 2009. Zurich ceased temporary disability payments in September 2009, claiming that pursuant to section 4656, subdivision (c)(1), Najjar was not entitled to further temporary disability benefits as the limitations period on those benefits had commenced with the September 11, 2007, temporary disability payment.*fn3 Najjar disputed the termination of temporary disability payments and filed a declaration of readiness to proceed, claiming the first temporary disability payment under section 4656, subdivision (c)(1) was made on March 17, 2009.

Following an expedited hearing, the workers' compensation judge (WCJ) found that temporary disability payments had commenced on September 11, 2007. Therefore, the dictates of section 4656, subdivision (c)(1) precluded Najjar from receiving temporary disability payments after September 9, 2009. The WCJ noted that section 4656, subdivision (c)(1) expressly limits the duration of temporary disability payments to a period not exceeding "'more than 104 compensable weeks within a period of two years from the date of commencement of temporary disability payment.'" The WCJ reasoned that since section 4600, subdivision (e)(1) required Zurich to pay all reasonable expenses related to the qualified medical examination "'together with one day of temporary disability indemnity for each day of wages lost in submitting to the examination [underlining omitted],'" the temporary disability payments to Najjar had commenced on September 11, 2007, and began the running of the limitations period set forth in section 4656, subdivision (c)(1). Accordingly, the WCJ found Najjar was precluded from receiving further temporary disability benefits.

Najjar petitioned the Workers' Compensation Appeals Board (WCAB) for reconsideration of the decision, contending the WCJ had misconstrued section 4656, subdivision (c)(1)'s limitations period. The WCAB concluded that "the mandated payment for attending a [qualified medical evaluation] exam is not the equivalent of commencing temporary disability payments." The WCAB held that the September 11, 2007, payment pursuant to section 4600, subdivision (e)(1) "was not a payment of temporary disability within the meaning of Labor Code section 4656(c)(1) and did not trigger the commencement of the 104 week limitation period." The WCAB granted Najjar's petition for reconsideration and rescinded the findings of fact and order of the WCJ. Because the WCAB could not determine on the record before it when temporary disability payments had in fact commenced, the matter was remanded.

Zurich's petition for a writ of review followed. We granted review and now affirm the WCAB's decision.


In this case, there are no material facts in dispute; the issue presents a pure question of law. While statutory interpretation claims are reviewable by this court de novo, we accord significant respect to the WCAB's conclusions unless they are clearly erroneous. (Department of Rehabilitation v. Workers' Comp. Appeals Bd. (2003) 30 Cal.4th 1281, 1290 (Lauher).) We are also bound by the rule that "[a]s with other workers' compensation provisions, statutes regarding temporary disability are construed liberally in favor of granting benefits to injured workers. (§ 3202; Lauher, supra, 30 Cal.4th at p. 1290.)" (Brooks v. Workers' Comp. Appeals Bd. (2008) 161 Cal.App.4th 1522, 1528 (Brooks).)

When an industrial injury causes an employee to be restricted from working, either totally or partially, the employee may be entitled to receive temporary disability indemnity. (§§ 4650, 4653, 4654, 4655.) The purpose of temporary disability indemnity is to provide interim wage replacement assistance to an injured worker during the period of time he or she is healing and incapable of working. (Livitsanos v. Superior Court (1992) 2 Cal.4th 744, 753 (Livitsanos); Gamble v. Workers' Comp. Appeals Bd. (2006) 143 Cal.App.4th 71, 79 (Gamble).) The employer's obligation to pay temporary disability benefits is tied to the employee's "actual incapacity to perform the tasks usually encountered in one's employment and the wage loss resulting therefrom." (Allied Compensation Ins. Co. v. Industrial Acc. Com. (1963) 211 Cal.App.2d 821, 831 (Allied Compensation).)*fn4 Relatedly, the obligation to pay temporary disability indemnity "ends when the injured employee either returns to work [citations] or is deemed able to return to work [citation], or when the employee's medical condition achieves permanent and stationary status [citations]." (Lauher, supra, 30 Cal.4th at p. 1292; see also Huston v. Workers' Comp. Appeals Bd. (1979) 95 Cal.App.3d 856, 868; § 4651.1.) The rate at which temporary disability indemnity benefits are paid is set by statute. (§§ 4653, 4654, 4655.) The duration of an employer's temporary ...

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