Renee Skelton sustained an injury to her ankle in July 2012, and an injury to her shoulder in July 2014, while working for the Department of Motor Vehicles. She filed separate applications for workers’ compensation benefits for her injuries.

The parties disputed whether Skelton was entitled to TDI for wage loss for time missed at work to attend medical appointments.

Skelton sought to be reimbursed for her wage loss for time missed at work for medical treatment and for medical evaluations. Skelton continued working after each injury. She missed work to attend appointments with her treating physicians and to attend two visits with the panel qualified medical evaluator (QME). Skelton’s work hours were not flexible, and she could not visit her doctors on weekends. She initially used her sick and vacation leave, but eventually her paycheck was reduced for missed time at work. Her ankle injury was not yet permanent and stationary at the time of the hearing.

SCIF contended that under Department of Rehabilitation v. Workers’ Comp. Appeals Bd. (2003) 30 Cal.4th 1281 (Department of Rehabilitation), Skelton was not entitled to TDI to compensate her for taking time off from work for medical treatment, but it acknowledged that Skelton was entitled to compensation for wage loss for attending medical-legal evaluations.

Skelton contended that under Department of Rehabilitation, an employee is entitled to TDI unless the employee has returned to work and the employee’s injury is permanent and stationary. Because her injury was not permanent and stationary, Skelton argued that she was entitled to compensation, including “full reimbursement of sick and vacation time used,” for time spent attending medical treatment with her treating physicians and medical evaluations with the QME.

The WCJ issued a joint findings and order, concluding that Skelton was not entitled to TDI to attend medical treatment based on Department of Rehabilitation. After reconsideration, a WCAB majority in a split panel decision stated that Skelton was entitled to TDI for wage loss to attend medical-legal evaluations, but that based on Department of Rehabilitation and Ward v. Workers’ Compensation Appeals Bd. (2004) 69 Cal.Comp.Cases 1179 (Ward) [writ denied], she was not entitled to TDI for wage loss to attend medical treatment following her return to work.

The Court of Appeal concluded that Skelton was not entitled to TDI after she returned to work full time in the published case of Skelton v Department of Motor Vehicles.

“Neither Skelton’s time off from work nor her wage loss was due to an incapacity to work. Rather, these circumstances were due to scheduling issues and her employer’s leave policy. Because Skelton’s injuries did not render her incapable of working during the time she took off from work and suffered wage loss, Skelton was not entitled to TDI for that time off or wage loss.”