Elliot
Elliot v. Workers' Compensation Appeals Board
Opinion
Dissenting Opinion
Benson, J.
—The language of Labor Code section 4453, subdivision (c)(2), is clear: “Where the employee is working for two or more employers at or about the time of the injury, the average weekly earnings shall be taken as 100 percent of the aggregate of such earnings from all employments computed in terms of one week; but the earnings from employments other than the employment in which the injury occurred shall not be taken at a higher rate than the hourly rate paid at the time of the injury. “
The record reflects that the petitioner worked part time for the Solano Ambulance Company from January 27, 1985, until her temporary layoff on October 21, 1985. Intermittently she was employed part time by the Murphys from July 9, 1985, to October 31, 1985. Thus 10 days separate her ambulance company employment and the occurrence of the injury while working for the Murphys. During the time frames mentioned she earned $8,334 from the ambulance company and $264 from the Murphys. In my mind these facts constitute “working for two . . . employers . . . about the time of the injury.” Moreover, in my judgment, these facts are clearly representative of the situation the Legislature intended to address when…
Lead Opinion
Kline, J.
—We granted the applicant’s petition for a writ of review to determine whether the Workers’ Compensation Appeals Board (Board), in denying the applicant’s petition for reconsideration, erred in computing her temporary total disability benefits pursuant to Labor Code sections 4453.1 and 4453, subdivision (c).
On October 31, 1985, the applicant (Lana Elliot) fractured her left wrist when she fell from a ladder while trimming a tree for her employers, Mr. and Mrs. William Murphy (Murphys). The parties stipulated that the *1500 applicant’s injury occurred in the course of her part-time employment as a domestic for the Murphys, and that from July 9, 1985, through October 26, 1985, her earnings totaled $264, based on an hourly rate of $4 per hour. Applicant had also been employed as an emergency medical technician (EMT) for Solano Ambulance Company from January 27, 1985, until she was laid off for lack of work on October 21, 10 days before her injury while working for the Murphys. Applicant had earned $8,334.42 while employed by the ambulance company.
After the injury, applicant sought work with a nursing care registry at $7 per hour, but she was unable to accept any job…