Temporary disability

• Pages: 359-406
• Author: David L. Pollak,Roger A. Tolman, Jr.,Monika R. Reyes

TEMPORARY

DISABILITY

7-1

CHAPTER 7

TEMPORARY DISABILITY

I. GENERAL POINTS

§7:01 Definition

II. CONTINUED WAGE PAYMENTS

A. Wage Loss Is a Pre-Requisite for TD

§7:10 The Herrera Case

§7:11 Minimum Rate per LC §4453

§7:12 No TD Where Retirement From the Entire Workforce Is Proven

§7:13 Continued Outside Income

B. Employer’s Right to Lien or Credit

§7:20 Lien Rights

§7:21 Credit for Sums Paid in Lieu of Wage for Disability

§7:22 Overpayment of TD, Credit Rights Against PD

§7:23 Credit Against TD for Severance Package

III. PERIOD OF DISABILITY

§7:29 Statutory Time Limits Prior to 4/19/04

§7:30 Statutory Time Limits After 4/19/04

§7:31 Temporary Disability Beyond Five Years — Limits on Board Jurisdiction

§7:32 New and Temporary Disability

§7:33 TD Periods Generally, and Burden of Proof on Ending Them

§7:34 Three-Day Waiting Period

§7:35 Liability for Ongoing Temporary Disability and Petition to Terminate

§7:36 Lay Evidence Sufficient — Cordes

§7:37 Effect of Receipt of SDI/UCD From EDD

§7:38 Reserved

§7:39 Compare Gradual Worsening: Insidious Disease Process

§7:40 Effect of Missing Time From Work for Medical Treatment

§7:41 Status During Diagnostic Procedures

§7:42 Refusal of Treatment or Employment

§7:43 Ability to Return to Modified Work or Activities

§7:44 Return to Sporadic Work — The “Odd-Lot” Doctrine — Titsworth, Stroer

§7:45 Effect of Retirement: Public Officers

§7:46 Effect of Incarceration

§7:47 Retroactive TD Owed Where Medical Treatment Unreasonably Denied

IV. COMPUTATION OF INDEMNITY: COMPENSATION RATES

§7:70 General Discussion

§7:71 Statutory TTD Maximums

§7:72 Statutory TTD Minimums

§7:73 Current Rate Applicable to Payment Two Years After Injury

TEMPORARY

DISABILITY

California Workers’ Compensation 7-2

§7:74 Special Compensation Rate: Newsboys and Household Workers

§7:75 Special Compensation Rates for Law Enforcement and Firefighting Personnel

§7:76 Special Compensation Rates for State Civil Servants and Officers

§7:77 Other Special Compensation Rates

V. EARNING CAPACITY: “AVERAGE WEEKLY EARNINGS”

§7:90 General

§7:91 General Statutory Purpose — Montana

§7:92 Overtime and Fringe Benefits Included in Calculation of AWE

§7:93 Selection of Method

§7:94 Estimated Length of Employment

§7:95 Multiple Employment

§7:96 Elements of Earning Capacity

§7:97 Explained Low Earnings

§7:98 Short Time Employee

§7:99 Seasonal Employee

§7:100 Earnings History

§7:101 Employer Testimony — Arguello

§7:102 Different Factors in Temporary and Permanent Disability Rates

§7:103 Time of Injury

§7:104 Post-Injury Developments, Raises — Kyllonen

§7:105 Minors and Students

§7:106 Incarcerated Inmates

VI. TEMPORARY DISABILITY INDEMNITY

§7:120 Commencement of Liability

§7:121 Administrative Duties Upon First Payment of Temporary Disability Indemnity

§7:122 10% Increment for Payment After 14 Days of Knowledge of Injury and Disability

§7:123 Payment by Appropriate Instrument

§7:124 Forgery No Excuse

§7:125 Not to Attorney or Agent

VII. TEMPORARY PARTIAL DISABILITY

§7:130 Computing Temporary Partial Disability Indemnity

§7:131 Compare Apportionment

§7:132 Compare No Employment Offer and “Odd-Lot” Employment

VIII. APPORTIONMENT OF TEMPORARY DISABILITY

§7:140 No Apportionment of Disability — Granado

§7:141 Compare Apportionment of Liability

IX. TERMINATION OF TEMPORARY DISABILITY BENEFITS

§7:150 Continuing TD Awards — Maples

§7:151 Petitions to Terminate

§7:152 Board Action Without Objection

§7:153 Board Action Upon Objections — Expedited Hearings

§7:154 “Interim Orders”

§7:155 Constitutionality of Board Procedures

§7:156 Fee Award on Denial of Petition to Terminate

§7:157 Employer’s Duties Upon Termination of Temporary Disability

FORM (ON DIGITAL ACCESS ONLY)

7.1 Petition to Terminate Liability for Temporary Disability Indemnity (DWC WCAB Form 46)

TEMPORARY

DISABILITY

7-3 Temporary Disability §7:11

I. GENERAL POINTS

§7:01 Definition

The term “temporary disability” (TD) refers to the healing period directly following an industrial injury during which

the employee is o work temporarily and is unable to perform the job while recovering from and being treated for the

immediate eects of an industrial injury. The purpose of temporary disability is to provide a cushion from the immediate

eects of an industrial injury, that is, to provide indemnity against wage loss during the time the employee is o work.

Temporary disability relates to a healing period with the award to compensate for wage loss during that period. [Allied

Comp. Ins. Co. v. IAC (Etkins), 211 CA2d 821, 28 CCC 11, 17 (1963).] This contrasts with permanent disability where

the question of disability in the sense of “bodily impairment” becomes of much greater moment.

Eli Welch, former Chief of what was then known as the Permanent Disability Rating Bureau, succinctly sums up the

distinction between temporary and permanent disability as follows:

“Temporary disability payments are based solely upon loss of wages during the healing period. Unless there is

actual wage loss, there is no basis for payment of temporary disability, no matter how gravely injured the workman

may be or extensive his injury. The purpose of temporary disability compensation payment is to cushion the eect

of actual wage loss incurred by the employee during the period of his treatment and healing. As to permanent dis-

ability payments, however, the concept is entirely dierent. They are based upon a prospective loss or impairment

of earning power.”

[Welch, “Permanent Disability Evaluation,” 82 California Medicine, pp. 35-38.]

The applicable statute reads as follows: “If the injury causes temporary total disability, the disability payment is two-

thirds of the average weekly earnings during the period of such disability, consideration being given to the ability of the

injured employee to compete in an open labor market.” [LC §4653.]

[§§7:02-7:09 Reserved]

II. CONTINUED WAGE PAYMENTS

A. Wage Loss Is a Pre-Requisite for TD

§7:10 The Herrera Case

The fact of an actual wage loss is elemental to the employer’s liability for temporary disability. Thus, the Supreme

Court in Herrera v. WCAB, 71 CA2d 254, 34 CCC 382 (1969), held that there is no liability for temporary disability

where the employer continues to pay the employee’s wages during the period that the employee is o work and deemed

medically unable to perform any work. The Court rejected the employee’s contention that the continued wage payments

were, in eect, gifts, and sustained the Board’s nding that the payments during the period of actual temporary disability

were “non-gratuitous wage payments” for which the carrier should be allowed credit under LC §4909. As to the employee,

the Court upheld the Board’s action in denying any temporary disability indemnity. The Board applied the Herrera case in

Tootell v. SCIF, 21 CWCR 138 (BPD-1992), to disallow a claim for temporary disability to a college professor who was

paid full salary during the summer even though he did not work during that period. Applicant had established that his injury

did in fact cause him wage loss because he was not able to perform the summer job in which he was usually engaged. The

Board concluded nevertheless that the wage loss was non-compensable because under Herrera he was paid full wages by

the employer with whom the injury had occurred, and thus he had no compensable temporary disability.

§7:11 Minimum Rate per LC §4453

For injuries between January 1, 1991, and December 31, 2002, there is no oor for the minimum compensation rate,

so that if an employee’s actual wages were below $126, the minimum compensation rate consists of all of the employee’s

earnings under that gure, no matter how low the earnings the employee was receiving. [See generally, §7.90 .] The

Legislature designated extremely low actual earnings as the temporary disability rate, so that payment of the actual wage

in this situation would satisfy the liability for temporary disability indemnity.