Stephen L. Kline, Esq.
Armstrong Law Firm
stephenk@arm-law.com
In a published decision the Third District Court of Appeals, answered the question, what happens to the 104 week limitation if there are multiple incidents of specific injuries, does TTD run concurrently or consecutively?
The applicant was injured at work in two separate incidents in February
and April 2005. Both injuries contributed to applicant's temporary disability.
A workers’ compensation judge (WCJ) concluded the applicant was
entitled to two separate periods of temporary disability indemnity under
section 4656(c)(1) for his injuries running consecutively.
The WCAB on reconsideration disagreed with the WCJ and said there should be two periods, but that they should run concurrently.
The Third District granted the Writ of Review and affirmed the WCAB’s decision in the case, Foster v WCAB, 73 Cal Comp Cases ---- (April, 2008)
The Court said, “the WCAB’s construction of section 4656(c)(1) in this case is not clearly erroneous or unauthorized. In fact, its construction accords with the language, context, and evident legislative purpose of the statute.”
They continued, the applicant “was not entitled to receive a double amount of temporary disability benefits. He was entitled to only one amount to substitute for his lost wages. However, under the facts here, the temporary disability benefit he received was due to each of his injuries because they both caused his temporary disability. … There is nothing in the language of section 4656(c)(1) suggesting the limitations period for a single injury causing temporary disability should be tolled for any period during which a worker is entitled to temporary disability benefits based on another injury. There is no language in the statute suggesting the limitations period will not run concurrently where multiple injuries cause an overlap, either partial or complete, during periods of temporary disability.”
There are some open questions with this opinion, but the overall message seems to be that WCAB’s opinion weighs heavy when they are strictly interpreting the law without additions to the legislature’s directive.
In an unpublished decision, involving another temporary disability issue the First District Court of Appeals upheld the WCAB’s reversal of a San Francisco WCJ by denying the Writ of Review. Baltazar v WCAB, 73 Cal Comp Cases ---- (March 24, 2008). The question here was if the lawful actions of the defendant delays surgery, can that toll the 104 week limit for TTD?
On 3/15/2005, Mr. Baltazar injured both knees in the course and scope of his employment at the One Market Restaurant. He was paid TTD from 3/15/05 until 8/31/2006 with the first payment on 3/22/07.
In December, 2006 the primary treating physician recommended knee surgery. After a Panel QME agreed, the surgery was performed on 4/11/2007. The applicant sought TTD from that date until 6/13/2007. In seeking the TTD for beyond the 104 weeks, the applicant argued that the defendants were estopped from asserting the limits, had waived the statute and the time limit was tolled because of the defendant’s delay in approving the surgery. At an Expedited Hearing, the Judge agreed and ordered TTD paid for that period.
The defendants sought reconsideration that the time awarded exceeded the 104-week limitation of Labor Code §4656. The WCAB agreed with the defense by ruling that in line with its en banc decision, Hawkins v Amberwood Products, (2007) 72 Cal Comp Cases 807, the 104 started at the date of first payment. The WCAB then wrote, “None of the proposed theories -- estoppel, tolling, and waiver -- justifies an extension of applicant's temporary disability benefits beyond two years from first payment. Moreover, ''[c]ourts are usually reluctant to develop new forms of equitable relief in a field normally assigned to legislative policy.'' The Panel comprised of Brass, Cuneo, and Caplane reversed the Judge and the Court of Appeals summarily denied the writ of review and allowed the insurer to seek its costs from the Workers Compensation Judge.
With both of these decisions, there is new clarity and certainty taking hold with the TTD issues.
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