TIME LOSS COMPENSATION (RCW 51.32.090)
Attending physician's recommendation against return to work
A worker who refrains from engaging in gainful employment on the advice of his attending physician is entitled to time loss compensation even though the attending physician's advice is later determined to be in error. ....Charles Hindman, 32,851 (1970) [dissent]
Certification by vocational rehabilitation counselor
A vocational rehabilitation counselor's certification of a worker's inability to work will support payment of time loss compensation under RCW 51.32.090. ....David Potts, 88 3822 (1989)
Certification for available light work (RCW 51.32.090(4))
To constitute a valid light duty job offer, the offered employment must be within the worker's relevant labor market, which requires the job be within a reasonable commuting distance. A job offer that required a roundtrip commute of 136 miles with the worker required to pull to the side of the road six times and walk for five minutes during the drive because of physical limitations imposed by the industrial injury, was not a valid light duty job offer because it was not within a reasonable commuting distance. ….Richard Gramelt, 09 21629 (2011)
[Editor's Note: The Board's decision was appealed to superior court under Klickitat County Cause No. 11-2-00221-2.]
RCW 51.32.090(4) establishes an odd-lot doctrine for temporary total disability like that developed through case law for permanent total disability. If a worker is unable to perform light or sedentary work of a general nature, then the burden shifts to the Department or the self-insured employer to prove that there is some special type of work which the worker can perform and which is actually available. ....Larry McBride, 88 0882 (1989)
The employer cannot benefit from the provisions of RCW 51.32.090(4) unless the attending physician certifies the worker's ability to do available light work. A forensic examiner's certification will not suffice. ....O. C. Thompson, 60,203 (1983)
The employer cannot benefit from the provisions of RCW 51.32.090(4) where it did not provide the attending physician with a statement describing the available work in terms that would enable him to relate the physical activities of the job to the worker's disability and where the attending physician did not communicate his release to the worker. ....Carol Rose, 49,894 (1978)
Compensation
RCW 51.08.178(1) through (4) does not authorize the Department to average profit and loss of a sole proprietor's business over a 12-month period in order to calculate a monthly wage. ....Roy Hall, 07 12838 (2008) [Editor's Note: The Board's decision was appealed to superior court under King County Cause No. 08-2-24266-9KNT.]
Eligibility
A worker may be eligible for time-loss compensation benefits or loss of earning power benefits from the date of manifestation of an occupational disease. ....Rick Yost, Sr., 01 24199 (2003)
Eligibility where capable of performing light work
A permanent long time worker temporarily unable to perform his regular job while undergoing treatment, but capable of performing some type of light duty employment, was not precluded from receiving time loss compensation where it was anticipated that he would return to his prior job and the employer had not offered an alternative job within the worker's capabilities. ....Larry Washington, 65,450 (1984) [dissent]
Eligibility while attending medical evaluation
A physical capacities evaluation conducted relative to a medical condition is considered a medical evaluation for purposes of RCW 51.32.110, which allows for reimbursement of lost wages while attending a medical evaluation. ....Linda Robinovitch, 01 24949 (2003)
Eligibility while undergoing vocational rehabilitation (RCW 51.32.095(3))
When time loss compensation benefits are ordered under RCW 51.32.095(3) as part of a vocational rehabilitation plan, the standard of review is abuse of discretion. ….Michael Pinger, 97 2210 (1998) [Editor's Note: The Board's decision was appealed to superior court under Grays Harbor County Cause No. 98-2-01511-6]
A worker cannot, as a matter of law, receive time loss compensation benefits under RCW 51.32.095(3) unless he is undergoing a formal program of vocational rehabilitation. ....David Potts, 88 3822 (1989)
Entitlement beyond date condition becomes fixed
A worker's condition is not legally fixed until the Department first issues an order which classifies the worker's condition as fixed and permanent. No time loss compensation or loss of earning power payments are payable beyond that date unless the medical evidence establishes that the worker's condition was not fixed at that time (following In re Douglas Weston, BIIA Dec., 86 1645 (1987)). ....Maria Chavez, 87 0640 (1988) [Editor's Note: The Board's decision was appealed to superior court under Yakima County Cause No. 88-2-02121-9]
Intermittent employment
General laboring work on construction-type projects for 40 to 60 hours a week which is generally available on a continuous basis is full time employment rather than part-time or intermittent. ....Deborah Guaragna (Williams), 90 4246 (1992) [dissent] [Editor's Note: The Board's decision was appealed to superior court under Clark County Cause No. 92-2-01080-5.]
No presumption of continued eligibility
Determinations that the worker was temporarily totally disabled for periods immediately prior and subsequent to the period for which time loss compensation is claimed create no presumption that the worker was temporarily totally disabled during the interim period. ....Mark Billings, 70,883 (1986)
Orders void ab initio
Department orders setting the wage without inclusion of the value of worker's health care benefits are not void ab initio. Time-loss compensation orders entered with personal and subject matter jurisdiction are not void. To the extent that prior Board significant decisions, In re Dennis Roberts, BIIA Dec., 88 0073 (1989) and In re Rod Carew, BIIA Dec., 87 3313 (1989), do not reflect the law post Marley v. Department of Labor & Indus.,125 Wn.2d 533 (1994), they are overruled.....Clement McLaughlin, 02 18933 (2003) [dissent] [Editor's Note: The Board's decision was appealed to superior court under King County Cause No. 03-2-41325-9SEA.]
Time loss compensation orders based on a legally incorrect computation method are void ab initio and a party may challenge the correctness of the amount of time loss compensation even though the statutory time limitation for filing an appeal or request for reconsideration has passed. ....Rod Carew, 87 3313 (1989); Dennis Roberts, 88 0073 (1989) [Editor's Note: Consider impact of Marley v. Department of Labor & Indus., 125 Wn.2d 533 (1994)]
Provisional time loss compensation (RCW 51.32.190(3) and RCW 51.32.210)
That the Department may recoup provisional time-loss compensation benefits if a claim is ultimately rejected does not extinguish its responsibility to pay provisional time-loss compensation for any period in which the worker is certified as unable to work prior to a determination of claim allowance. ....Kirtley Gardiner, 05 12349 (2006)
Orders of the Department paying provisional time loss compensation, entered prior to the issuance of an order rejecting or allowing the claim on its merits, are not final orders of the Department under RCW 51.52.050 and .060. Until the Department issues a determinative order either rejecting or allowing the claim, the payment of provisional time loss compensation cannot be challenged by an appeal to the Board. ....Ruth Logan, 89 0189 (1989)
Provisional time loss compensation must be paid despite the subsequent rejection of the claim. ....Melvin Oshiro, 67,112 (1985); Lynnette Murray, 42,296 [dissent] (1974) [See later statutory amendment of RCW 51.32.240(2) allowing recovery of provisional time loss overpayment where claim subsequently rejected.]
Provisional time loss compensation was not payable for the period prior to the filing of the claim where the worker delayed filing the accident report until after he had returned to work, the employer contested the claim promptly, and the claim was ultimately rejected. ....Jeff Howe, 67,308 (1985)
Provisional time loss compensation is payable until the Department issues a determinative order of allowance or rejection of the claim. ....Sandra Lucille Walster (I), 43,049, (10/73) [dissent]; Florence Irene Reid, 43,052 (1973) [dissent]
Recovery of overpayment of benefits (RCW 51.32.240(1))- See DEPARTMENT Authority to recoup overpayment of benefits
Res judicata - See RES JUDICATA Wages at time of injury
If the Department issues two orders determining the worker's wage in order to calculate time-loss compensation benefits, the last order issued that becomes final is the determinative order setting the worker's wage. ….Stephen Everhart, 09 14820 (2010)
Scope of review - See SCOPE OF REVIEW Time loss compensation
Seasonal employment - See also Wages - Intermittent/seasonal, full time or other usual wages
A worker, whose work transcends the seasons and is not defined by the seasons, cannot have such work classified as exclusively seasonal in nature. ....Alfredo Lomeli, 90 4156 (1992)
The term "seasonal" equates to the actual seasons of the year. Thus, a worker's employment which is based on a 180-day school year cannot be classified as exclusively seasonal in nature. ....Mary Ann Minturn, 90 3572 (1992) [dissent] [Editor's Note: The Board's decision was appealed to superior court under Pierce County Cause No. 92-2-26355-2]
Simultaneous loss of earning power and time-loss compensation
A worker who suffers an industrial injury causing a loss of earning power and subsequently suffers another industrial injury causing temporary total disability is not precluded from simultaneously receiving loss of earning power compensation and time loss compensation. ....Lloyd Larson, 86 0479 (1988)
Sporadic employability
When a worker is undergoing active treatment, making attempts to return to work with the employer at the time of injury and experiencing exacerbations of his condition which require him to miss work, that worker is not capable of reasonably continuous gainful employment. The law does not require such a worker to seek temporary employment in the general labor market during times of temporary improvement in his condition. ....Kevin Francis, 89 0483 (1990) [Editor's Note: The Board's decision was appealed to superior court under Stevens County Cause No. 90-2-00333-5.]
Termination from modified position
An injured worker who is terminated from a modified position for cause is not barred from receiving time-loss compensation benefits if the worker is otherwise entitled to the benefits. ....Jennifer Soesbe, 02 19030 (2003) [Editor's Note: The Board's decision was appealed to superior court under Thurston County Cause No. 03-2-02077-7.]
When a worker is terminated from a modified position for disciplinary reasons, it is not necessary that the self-insured employer reinstate time-loss compensation if the disciplinary termination was administered for reasons unrelated to the industrial injury and the discipline would have been administered to other employees in similar circumstances. ….Chad Thomas, 00 10091 (2001) [Editor's Note: The Board's decision was appealed to superior court under Kitsap County Cause No. 01-2-02478-9.]
Wage at time of injury - See RES JUDICATA Wages at time of injury
Wage continuation precludes time loss compensation (RCW 51.32.090(6))
A worker who is employed for nine months out of the year but has salary pro-rated over a 12-month period is not receiving continuation of wages during the three-month interim. The worker is entitled to time-loss compensation if unable to work during the three month interim. ....Frances Wareing, 02 11829 (2003)[Editor's Note: The Board's decision was appealed to superior court under Thurston County Cause No. 03-2-01526-9.]
Payment of shared leave benefits under RCW 41.04.665 does not constitute wage continuation and therefore time loss compensation benefits are also payable. Citing In re Frank Serviss, BIIA Dec., 57,651 (1981). ….Carla White, 96 3129 (1998) [dissent] [Editor's Note: The Board's decision was appealed to superior court under Pacific County Cause No. 98-2-00255-9, Employer; Pacific County Cause No. 98-2-00268-1, Department.] [Reversed in part. Affirmed as to status of shared leave benefits. South Bend School Dist. No. 18 v. White 106 Wn. App. 309 (2001).]
A poll worker employed by the county for one day, two or three times per year, was considered to have a monthly wage at the time of her injury equal to $59.95 -- her daily rate of pay. The employer's continued payment of such wages precludes payment of time loss compensation. ....Pauline Sandstrom, 85 2110 (1987)
The receipt of holiday pay at the regular salary rate does not preclude the worker from receiving time loss compensation for the same period of time. ....Harold MacIsaac, 66,169 (1985) [dissent] [But see, South Bend School Dist. No. 18 v. White 106 Wn. App. 309 (2001).]
Sick leave paid at the regular salary rate, which is not paid as a continuation of "wages," does not preclude the worker from receiving time loss compensation for the same period. The employer is not prevented, however, from establishing a policy for recouping sick leave paid during a period of temporary total disability. ....Frank Serviss, 57,651 (1981) [dissent] [Holding rejected, South Bend School Dist. No. 18 v. White 106 Wn. App. 309 (2001).]
Sick leave pay received by a city employee pursuant to a municipal ordinance which provides that a person in sick leave status shall receive his "regular salary," precludes the concurrent payment of time loss compensation. ....H. B. Whiteside, 17,144 (1962)
Wages (RCW 51.08.178) - Compensation
Where the worker was paid an additional $9.00 per hour for 'zone pay' due to a remote work site, the Department should have included the 'zone pay' in the wage calculation because the 'zone pay' compensated the worker for housing and boarding. ….Richard Gramelt, 09 21619 (2011)
[Editor's Note: The Board's decision was appealed to superior court under Klickitat County Cause No. 11-2-00221-2.]
The cost of an employer's contribution for a worker's healthcare benefit is included in the worker's wages; it is irrelevant whether the worker had worked sufficient time to be entitled to receive the healthcare benefits themselves. ....William Granger, 02 17611 (2004) [Editor's Note: The Board's decision was appealed to superior court under Skagit County Cause No. 04-2-00236-5; Court of Appeals 10/27/04.]
Employer contributions pursuant to a union contract, earmarked for health and welfare benefits, need not be included in the wage calculation so long as the benefit continues. ....Fred Jones, 02 11439 (2003) [dissent] [Editor's Note: The Board's decision was appealed to superior court under Clark County Cause No. 03-2-04618-7.]
Pension benefit contributions made by an employer are not critical to the workers health and survival. Therefore, those contributions should not be included in the wage calculation because they are not a core, non-fringe benefit, such as food, shelter, fuel and health care critical to protecting the worker's basic health and survival. Citing In re Cockle v. Department of Labor and Indus., 142 Wn.2d 810 (2001). ….Ronald Tucker, 00 11573 (2001) [Editor's Note: The Board's decision was appealed to superior court under Benton County Cause No. 01-2-01239-5.]
Life insurance contributions paid by an employer are not critical to the worker's health and survival. Therefore, those contributions should not be included in the wage calculation because they are not a core, non-fringe benefit, such as food, shelter, fuel and health care critical to protecting the worker's basic health and survival. Citing In re Cockle v. Department of Labor and Indus., 142 Wn.2d 810 (2001). ….Douglas Jackson, 99 21831 (2001)
While working for one employer the worker was paid two hourly rates, depending on the day of the week worked. The wages at the time of the injury should be calculated as if the worker held jobs with two different employers at two different wages. A worker who averaged more than 36 hours of work a week is not essentially part-time within the meaning of RCW 51.08.178(2). The wage should be calculated using RCW 51.08.178(1). ….Kay Shearer, 96 3384 (1998)[Editor's Note: The Board's decision was appealed to superior court under King County Cause No. 98-2-15876-OKNT]
The worker was injured in the course of his employment as an owner of a convenience store. He did not formally collect wages but took "draws" out of the store's monthly gross profit. His wages could not be fairly determined in this circumstance. As a result, time-loss calculation should be determined pursuant to RCW 51.08.178(4), using the usual wage paid other employees in like or similar occupations. ….Jerry Uhri, 93 6908 (1995) [Editor's Note: The Board's decision was appealed to superior court under Cowlitz County Cause No. 95-2-00555-2.]
The daily service fee paid to a juror is included as "wages" for purposes of computing time loss compensation, but mileage fees are not since they are no more than an incidental travel reimbursement. ....Bjorn Viking Bolin (II), 91 0873 (1992) [Editor's Note: The Board's underlying determination that a juror was not a covered worker under the Act was reversed in Bolin v. Kitsap County, 114 Wn.2d 70 (1990).]
Per diem paid to a worker while in travel status is included as "wages" for purposes of computing time loss compensation. ....James Young, 89 3233 (1991) [dissent] [Editor's Note: The Board's decision was appealed to superior court under Spokane County Cause No. 91-2-02377-2.]
The 1988 amendments to RCW 51.08.178, which permit the averaging of wages to determine a worker's time loss rate, do not apply to a claim for an injury which occurred prior to the time the amendments took effect. ....Diana Stephens, 89 0717 (1990)
RCW 51.08.178 requires the Department to base the calculation of time loss compensation on the worker's monthly wage at the time of injury. The pre-1988 statute does not permit the averaging of wages over a several month period in order to determine the "monthly wage." ....Ubaldo Antunez, 88 1852 (1989) ; Rod Carew, 87 3313 (1989); Dennis Roberts, 88 0073 (1989); Jeanetta Stepp, 87 2734 (1989)
The only averaging permitted by RCW 51.08.178 (before 1988 amendments) is in determining the number of hours per day or days per week the worker was "normally employed" at the time of injury. ....Ubaldo Antunez, 88 1852 (1989) ; Jeanetta Stepp, 87 2734 (1989)
RCW 51.08.178 does not allow the Department to calculate a seasonal worker's rate of time loss compensation on the basis of the worker's "average monthly wage" for the year prior to the date the injury occurred. The statute requires that the time-loss compensation rate be based upon a monthly wage, which is the product of the daily wage at the time of the injury and the statutory multiplier associated with the number of days per week the worker is normally employed. The only "averaging" possibly permitted by statute would relate to the number of hours per day or days per week which the worker was "normally" employed. ....Teresa Johnson, 85 3229 (1987) [special concurrence] [See later statutory amendment of RCW 51.08.178, Laws of 1988, ch. 161, § 12, p. 699]
Meals supplied by the employer are "wages" for purposes of computing the rate of time loss compensation. ....Lisa Soden, 85 2993 (1987)[Editor's Note: The Board's decision was appealed to superior court under King County Cause No. 87-2-05759-3.]
The cost of a prisoner's room and board does not constitute "wages" for purposes of computing time loss compensation. ....Jeffrey Rose, 69,983 (1986) [Affirmed Rose v. Department of Labor & Indus., 57 Wn. App. 751 (1990) review denied 115 Wn.2d 1010 (1990)]
Wages - Intermittent/seasonal, full time or other usual wages paid others; RCW 51.08.178(1), (2), or (4)
When wages are not fixed or cannot be reasonably and fairly determined under RCW 51.08.178(1), the method for determining wages is specified under RCW 51.08.178(4), which requires the Department to calculate the wage paid other employees in like or similar occupations where the wages are fixed. If the similar wage is an hourly wage, the Department may then use subsection (1) to calculate the appropriate monthly wage. ....Roy Hall, 07 12838 (2008) [Editor's Note: The Board's decision was appealed to superior court under King County Cause No. 08-2-24266-9KNT.]
The worker did not have a recent work history that allowed for calculation of a fair and reasonable wage under RCW 51.08.178(2). Calculation under subsection (2) would result in a wage substantially less than the actual wages. Calculation under subsection (1) would result in a wage calculation significantly higher than the wage the worker would have earned had the worker not been injured. Under the circumstances, subsection (4) should be applied to determine the wage based on the usual wages paid others engaged in similar occupations. ....Janet Papson, 01 15138 (2003)
Where the worker had a work history and pattern of employment demonstrating an intermittent attachment to the labor market and had been hired as a temporary but full-time worker the employment is essentially that of a defined duration and matches the definition of "intermittent employment" contained in RCW 51.08.178(2). Citing School Dist. No. 401 v. Minturn, 83 Wn. App. 1 (1996) and Double D Hop Ranch v. Sanchez, 82 Wn. App. 350 (1996). ….Yong Gable, 95 4228 (1997) [dissent] [Editor's Note: The Supreme Court reversed Double D Hop Ranch v. Sanchez on the interpretation of "seasonal" worker. Double D Hop Ranch v. Sanchez, 133 Wn.2d 793 (1997). The Board's decision was appealed to superior court under Spokane County Cause No. 97-2-02309-7.]
Where a worker is characterized as "temporary" but was on call every day of employment and worked a substantial number of hours and drove many miles for the employer, the worker was a full-time employee and should be paid time-loss compensation accordingly. ....Lucian Saltz, 92 4309 (1993)
Factors to determine whether a worker is a part-time or intermittent worker within the meaning of RCW 51.08.178(2) include the type of work performed, the worker's relationship to the work as evidenced by the employment situation at the time of injury and the parties' intent. Thus, a worker who engaged in general laboring work for a temporary services agency and whose work history was essentially full time and who intended to continue full time employment is a full time employee entitled to wage calculation under RCW 51.08.178(1). ....Deborah Guaragna (Williams), 90 4246 (1992) [dissent] [Editor's Note: The Board's decision was appealed to superior court under Clark County Cause No. 92-2-01080-5.]
Factors to determine whether a worker is a seasonal worker within the meaning of RCW 51.08.178(2) include the type of work performed, the worker's relationship to the work as evidenced by the employment situation at the time of injury and the parties' intent. Thus, a worker who engaged in general farm labor and whose work history was essentially full time and who intended to continue full time employment is a full time employee entitled to wage calculation under RCW 51.08.178(1). ....Alfredo Lomeli, 90 4156 (1992)
Factors to determine whether a worker is a part-time, intermittent or seasonal worker within the meaning of RCW 51.08.178(2) include the type of work performed, the worker's relationship to the work as evidenced by the employment situation at the time of injury and the parties' intent. Thus, a worker who operated a school bus 5.5 hours per day, routinely worked extra hours for other school activities and whose 180-day contract assured renewal for each succeeding school year is a full time employee entitled to wage calculation under RCW 51.08.178(1). ....Mary Ann Minturn, 90 3572 (1992) [dissent] [Reversed, sub nom School District No. 401 v. Mary Ann Minturn, 83 Wn. App 1 (1996)]
Wages – RCW 51.08.178(1), (2), or (4)
Averaging hours worked per day pursuant to RCW 51.08.178(1) should only be used in limited circumstances. Minor variations in hours worked should be considered self‑correcting rather than representative of a change in full‑time status. Averaging is the exception rather than the norm when establishing the number of hours worked. ….Maggie Stedman, 09 22981 (2010)
[Editor's Note: The Board's decision was appealed to superior court under Snohomish County Cause No.10-2-00039-6.]
Court of Appeals 6950-8-7.]An intermittent worker, as contemplated by RCW 51.08.178(2), engaged in duties on the date of manifestation which were clearly related to contracted, but not commenced, full-time employment should have wages determined under RCW 51.08.178(4) when using subsection (2) would result in a wage that does not reflect lost earning capacity. ….Wendy Zimmerman, 08 19330 (2009)
In making a determination whether wages should be paid under RCW 51.08.178(1) or (2), the focus must be on the worker's relationship to employment, not merely the worker's relationship to the employer. A school teacher who works for the school district under a nine-month contract and continues employment as an educator during the summer has established a relationship to employment that requires wages be calculated pursuant to subsection (1).....Glenda Frost-Kaczynski, 05 15420 (2006) [Editor's Note: The Board's decision was appealed to superior court under Kitsap County Cause No. 06-2-01542-0.]