Opinion
F050414
12-7-2006
SIGNATURE FRUIT COMPANY et al., Petitioners, v. WORKERS COMPENSATION APPEALS BOARD and MARIA BEDOY, Respondents.
Law Office of Joseph Barlupo and Elizabeth McDonald, for Petitioners. No appearance by Respondent Workers Compensation Appeals Board. Frailing, Rockwell & Kelly and Jeffrey R. Duarte, for Respondent Maria Bedoy.
OPINION
THE COURT
Before Ardaiz, P.J., Gomes, J., and Hill, J.
Signature Fruit Company (Signature) petitions for a writ of review from a Workers Compensation Appeals Board (WCAB) decision awarding a seasonal employee temporary disability payments during a period it is undisputed the injured worker would not have been employed. Having recently addressed the issue involving the same employer, we will grant the writ of review forthwith, annul the WCABs decision, and remand the matter to the WCAB to recalculate the employees temporary disability award in light of Signature Fruit Co. v. Workers Comp. Appeals Bd. (Ochoa) (2006) 142 Cal.App.4th 790, review denied November 29, 2006.
BACKGROUND
On July 20, 2004, Maria Bedoy (Bedoy) was working as a seasonal cannery worker for Signature in Modesto when she sustained an admitted industrial injury to her left hip and additional claimed injuries to her left leg, cognitive function, brain, nervous system, psyche, right leg, and left shoulder. Bedoy stipulated that as a seasonal worker, she would have worked in-season from July 10, 2004, through August 28, 2004, with no earnings during her off-season throughout the remainder of the year.
Bedoys treating physician diagnosed her as temporarily totally disabled and the parties submitted her entitlement to off-season temporary disability indemnity to a workers compensation administrative law judge (WCJ) at a November 7, 2005, expedited hearing. Citing a January 1, 2003, amendment to Labor Code section 4453, subdivision (a)(9) establishing a new $189 minimum level of average weekly earnings for injuries occurring in 2004, the WCJ awarded Bedoy temporary disability at the weekly rate of $126 (two-thirds of $189) during her off-season of unemployment. On April 10, 2006, the WCAB issued an Opinion and Order Denying Reconsideration affirming Bedoys temporary disability payments during her off-season, but noted "the identical issue" was pending before this court in Ochoa, supra, 142 Cal.App.4th 790.
Further statutory references are to the Labor Code.
DISCUSSION
Signature argued in Ochoa "that the WCAB misapplied the law, legislative intent, and public policy of the state by awarding [the employee] temporary disability benefits during her off-season of regular unemployment." (Ochoa, supra, 142 Cal.App.4th at p. 795.) After analyzing the amendment to section 4453 establishing a minimum average weekly earnings rate and its relation to calculating temporary disability payments under section 4653, we agreed with Signature and held:
"Consistent with the legislative intent of section 4653, we conclude that temporary disability during a seasonal employees in-season period of regular employment is payable based upon two-thirds of the employees in-season average weekly earnings, subject to the minimum and maximum levels established under section 4453. Where, however, an employee does not have any off-season earnings and does not compete in the open labor market during a portion of the year, the employee is not entitled to temporary disability payments during that season." (Ochoa, supra, 142 Cal.App.4th at pp. 803-804.)
Applying Ochoa, Signature was not required to provide Bedoy temporary disability indemnity during her regular period of unemployment because she admittedly removed herself from the labor market during her off-season.
A WCAB decision is not final until the appellate process has been exhausted. (See Marsh v. Workers Comp. Appeals Bd. (2005) 130 Cal.App.4th 906.) Although Ochoa had not been decided when the WCAB issued its opinion in the present matter, it interprets the Workers Compensation Act in existence at the time of Bedoys 2004 injury. Under Ochoa, the WCABs application of the newly enacted average weekly earnings rate under section 4453 awarding Bedoy temporary disability during her unemployment season was incorrect as a matter of law. Because the WCABs error is apparent on the face of its decision, certification of the record and further briefing would add nothing to the presentation already submitted. (See Goodenough v. Superior Court (1971) 18 Cal.App.3d 692, 697.)
DISPOSITION
Let a writ of review issue forthwith. The WCABs Opinion and Order Denying Reconsideration, filed April 10, 2006, is annulled and the matter is remanded to the WCAB to reconsider its decision in light of Ochoa, supra, 142 Cal.App.4th 790.
Respondent Bedoys request for attorney fees under section 5801 is denied.