Apr 27

Working on a Chain Gang? Don’t Drop the Workers’ Comp Soap

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If you can’t do the time, don’t do the crime. If you don’t do the crime, however, you might never get workers’ compensation. That’s because California law entitles a state prisoner to workers’ comp for an injury arising out of and occurring in his assigned employment.1 But an inmate who tries to fake an injury in hopes of scoring some extra cash for the prison canteen better not get his hopes up too high. California law bars him from getting cash benefits for a disability. Fortunately, he can get cash for a pre-incarceration injury upon his release. He just better not drop the workers’ comp soap by working off his sentence. In the world of inmate workers’ comp, sentencing credits are worse than prison food.

Do Not Pass Go, Do Not Collect $200: Why Inmates Can’t Get Cash Benefits in Prison

Even if a con can con the WCAB, he shouldn’t celebrate just yet. Labor Code section 3307(a)(2) provides that an inmate “shall not be entitled to any temporary disability [TD] indemnity benefits” – cash – “while incarcerated in a state prison.”2 Even worse for the inmate, any TD benefits that he otherwise would’ve received during incarceration aren’t payable on his release.3 The statute thus codifies an old rule: “do not pass go; do not collect $200.” The only workers’ comp that an inmate can receive during incarceration is medical care.4 Even then, the DOC may dictate his treatment, except in a “serious” case, where the inmate may request a consulting physician.5 

Of course, ex-cons like Martha Stewart and Robert Downey, Jr. earned high incomes before they went to prison. But an employee loses everything when he goes to prison – including his right to receive cash for a pre-incarceration injury. That’s because Labor Code section 3307(d) provides that Section 3307(a)(2) “shall also” apply when an inmate would otherwise be entitled to TD benefits for a pre-incarceration injury.6 Instead, his pre-incarceration employer must pay TD benefits to the inmate’s dependents or, if he has no dependents, to the State Treasury to the credit of the Uninsured Employers Fund.7 The employer must also forward PD benefits, if any, to the DOC to hold in trust during the inmate’s period of incarceration.8

Inmates who serve out their sentences can begin receiving PD benefits “upon release from incarceration.”9 But just because an inmate serves out his term and goes home doesn’t mean he’s home-free. California’s strong public policy of curbing recidivism means that any ex-con who is “reincarcerated,” whether in jail or prison, immediately forfeits workers’ comp – even if he hasn’t been convicted.10 He can even go to jail for a minor crime (e.g., taking the tag off of a mattress) and lose his benefits. The operative word, however, is “reincarcerated,” so if he has never been a guest of the DOC, he doesn’t forfeit workers’ comp just because he goes to city or county jail.11

Take the Money and Run: Why Sentencing Credits Are Worse than Prison Food

Generally, an employee’s TD rate is two-thirds of his average weekly wage (AWW), subject to minimum and maximum rates.12 In Department of Corrections v. WCAB, 109 Cal.App.4th 1720 (2003), inmate Jerry Stentz found that out the hard way. Stentz, who worked in the prison laundry room, earned sentencing credits instead of wages. After his release, he filed a workers’ comp claim. The minimum AWW at the time was the lesser of $189 per week or 1.5 times an employee’s AWW from all employers. For Stentz, who didn’t earn a wage, the lesser of those two rates – 1.5 times his AWW – happened to be zero. That, in turn, meant his TD rate was also zero.

Displeased, Stentz obtained a hearing and produced evidence that his income for the year before his incarceration was $11,809 per year ($227 per week). The workers’ comp judge (WCJ), however, based Stentz’s AWW on the lesser of $189 and 1.5 times his annual earning capacity ($227 per week), not on the lesser of $189 per week or 1.5 times his AWW (zero). Finding that the lesser of $189 per week and $227 per week was, of course, $189 per week, the WCJ reasoned that Stentz’s TD rate should’ve been two-thirds of his annual earning capacity of $189 per week, i.e., $126 per week – not bad for a laundry room worker who only earned sentencing credits. But the DOC, Stentz’s former employer, petitioned the Court of Appeal for a writ of review.

Unfortunately for Stentz, the Court of Appeal reversed. In doing so, the Court explained that the WCJ erred in basing Stentz’s TD rate on his pre-incarceration earning capacity. Such a standard didn’t apply to those who “removed themselves from the competitive labor market.” The Legislature already determined what an inmate’s earning capacity would be: “not more than the minimum,” which, in Stentz’s case, was “not less than the lesser” of $189 per week or 1.5 times his AWW. The lesser of $189 per week or 1.5 times his AWW of zero was, of course, 1.5 times his AWW. And that meant that Stentz’s TD rate should’ve been two-thirds of zero. Thus, by asking for sentencing credits, Stentz dropped the workers’ comp soap.

  1. Lab. Code §3307(a)(1). 

  2. Lab. Code §3307(a)(2). 

  3. Lab. Code §3307(a)(4). 

  4. Lab. Code §3307(c). 

  5. Id. 

  6. Lab. Code §3307(d). 

  7. Id

  8. Id

  9. Lab. Code §3307(a)(3). 

  10. Id

  11. The Brickman Group v. WCAB, 72 Cal.Comp.Cases 357 (2007). 

  12. Lab. Code §4653.) In determining his TD rate, his AWW is “not more than the minimum.” ((Lab. Code §3370(a)(5). 

Ben Rothman, Esq.

Ben Rothman is a Los Angeles-based attorney practicing in the areas of personal injury, employment, and workers' compensation on a "no recovery, no fee" basis. Call him at (424) 465-2948 for a free, no-obligation consultation.