Grossmont Hospital v. Workers' Compensation Appeals Board

In this opinion we address whether a wage increase that occurs after an injury can be considered in calculating temporary total disability benefits due. Thrifty Drug Stores, Inc. v. Workers’ Comp. Appeals Bd. (1979) 95 Cal.App.3d 937 [ 157 Cal.Rptr. 459 ] (Thrifty Drug) holds that upon a proper showing such increases can be considered. The question presented here is whether subdivision (d), added to Labor Code section 4453 in 1989, mandates a different result for workers sustaining injury on or after January 1, 1990. We conclude wage increases that were scheduled or reasonably anticipated at the time of injury and that would occur during the anticipated duration of the disability may be considered in determining the injured worker’s “earning capacity” and ultimately the benefits due. However, where the subsequent change in wages is not scheduled or reasonably anticipated at the time of injury or where it would not occur during the anticipated duration of the disability, it may not be considered.

Background

On April 16, 1995, respondent May R. Kyllonen (Kyllonen), a full-time employee for petitioner Grossmont Hospital (Grossmont), sustained an admitted injury in the…