07 Sep 2017

California: Temporary Disability Benefits Limit for Post 1/1/08 Injuries

For Post 1/1/08 Injuries, Are Temporary Disability Benefits Limited to Five Years From the Date of Injury?

In a recent Workers’ Compensation Appeals Board (WCAB) panel case, Pike v. County of San Diego, 2017 Cal. Wrk. Comp. P.D. LEXIS 321, a divided panel of three commissioners addressed the appropriate application of Labor Code section 4656(c)(2). Though there was no dispute in Pike that an injured worker is limited to 104 weeks of cumulative TD in accordance with this section, the panel specifically addressed a different and what could come to be a very important aspect of this section.

Specifically, the panel addressed Labor Code section 4656(c)(2)’s language that temporary disability (TD) payments shall not extent beyond a “period of five years from the date of injury”. The specific question that the panel addressed was what does this language mean where the case was resolved by way of Stipulations with Request for Award and a timely petition to reopen was filed? Can the injured worker receive TD benefits more than five years from the date of injury where the WCAB is exercising its continuing jurisdiction under Labor Code section 5410?

The majority concluded, as did the underlying Worker’s Compensation Judge (WCJ), that the WCAB’s continuing jurisdiction under Labor Code section 5410 and the ability to award continuing benefits under that section effectively took precedence over the language that such benefits must be paid “within a period of five years from the date of injury”. The dissenting opinion in Pike, on the other hand, emphasized that the statute is clear, for injuries after January 1, 2008, no TD is payable more than five years from the date of injury.

There are now cases, at least on the panel level, coming to different conclusions on this question. The contention that the WCAB’s continuing jurisdiction under Labor Code section 5410 takes some sort of precedence over the clear language of Labor Code section 4656(c)(2) seems a bit tenuous, even in the face of Labor Code section 3202. However, this is something that will have to be clarified in future decisions. For the present time, there is at least an argument that section 4656(c)(2)’s “within a period of five years from the date of injury” limitation does not really mean what it says where a timely petition to reopen has been filed.