The following circumstance is the most difficult.   If Patience has elected to take her salary over the course of twelve months is she entitled to receive total temporary disability in addition to her salary during the summer months when she normally does not work for the district?   Because the applicant is entitled to total temporary disability, the workers’ compensation carrier or third party administrator must continue to pay temporary disability at the rate of $670.49 per week.   The issue is whether this temporary disability payment should go directly to Patience or whether it should be paid to the district and the sum deducted from the salary continuation payments. 

To begin with, the California Supreme Court in the case of Herrera v. WCAB, Goleta Lemon Association, (1969) 71 Cal.2d 254, 455 Pac.2d 425, 78 Cal.Rptr. 497, 34 Cal.Comp. Cases 382,  issued its en banc decision finding that where the employer has paid full salary to an injured worker, that payment satisfies the requirement that temporary total disability benefits be provided.   In this case the provision of full salary was voluntary on the part of the employer.  Applicant was arguing that this was a gift.  The court stated that where money is paid there is a presumption that it is owed, thus negating Herrera’s contention that this was intended as a gift from his employer.   Further the court reasoned that since there was no wage loss the payment of temporary disability was satisfied.

In workers’ compensation panel decision, Tootell v. WCAB, State Compensation Insurance Fund (1992) 21 CWCR 138, the employment contract of Mr. Tootell, a college professor provided that his annual salary would be paid in twelve even installments.  However, he only worked for the college ten months of the year and routinely took the summers off or performed work for other entities.   Tootell sustained an injury to his knee that required surgery but allowed him to complete his teaching duties.   However, he claimed that his knee precluded him from working during June and July at a summer job selling anesthesia units.   When college began in the fall, he again was able to perform his usual and customary job activities as a professor.  The issue was whether he was or was not entitled to temporary total disability benefits for June and July.   The WCAB panel (three commissioners) upheld the trial judge’s decision that the continued salary payments made by the college to the professor during the summer months when he was totally and temporarily disabled, satisfied the code and that the professor was not entitled to temporary total disability benefits in addition to his salary.   The trial judge reasoned that the loss of the summer job resulted in a wage loss for which no compensation was owed since applicant’s earnings exceeded the maximum level for payment of temporary disability.    Since this is a panel case it is not binding authority for the determination of the issue.  Moreover, since Professor Tootell had not lost time from his college job it is arguable that the salary continuation was not in lieu of temporary total disability anyway.