Recent Case Law Updates Regarding Temporary Disability

By Thu Do and Brent Daub

There are two recent California Workers’ Compensation cases relating to Temporary Disability that practitioners should review. The Clark v. City of Los Angeles (2017) panel decision provides some clarification on questions of Temporary Disability benefits for aggravation of pre-existing injuries. The Pike v. County of San Diego, (2017) decision answers questions about the interplay within the 104 week cap and the five year limit on Temporary Disability.

AGGRAVATION OF PRE-EXISTING INJURY AND TTD

The Applicant in Clark v. City of Los Angeles was awarded benefits when a temporary flare-up of pre-existing injury resulted in increased symptoms, medical treatment, and Temporary Disability as an aggravation of pre-existing injury.

In Clark v. City of Los Angeles, applicant had a chronic, pre-existing industrial back issue. He later had a flare up of the back symptoms with a resulting need for medical treatment and a period of temporary disability. Defendant took the position that this was not a new injury, but just a flare up and so, there was no obligation to provide benefits such as medical care or TD. The WCJ ruled in favor of applicant and the WCAB affirmed.

The underlying injury occurred when applicant was doing push-ups as part of his physical for the police department, and hurt his back.  He exhausted his modified/light duty and resigned his employment.  In pursuing his claim, applicant was examined by an AME who ultimately found that this was not a new injury. The AME reasoned that applicant’s condition had improved so much that this could not have been a new injury.

With that opinion in hand, defendant proceeded to trial and was likely surprised by this result. The issue was, if the applicant has returned to baseline, how could the WCAB find a new industrial injury. The commissioners drew a distinction between permanent disability and a new injury.  Specifically, even if an applicant’s new permanent disability was 0%, this was an incorrect basis upon which to find no new injury.  Because the contribution of work activities made applicant unable to work, this was a new injury and therefore the applicant was entitled to benefits.

The take away from the holding on this claim is that, defendants should be particularly aware of this for the sake of mitigating exposure on active claims.  Applicants can aggravate their existing injuries, even when there is a finding of 0% PD, and thus put defendants on the hook for benefits from a prior claim.

TD BENEFITS END AT THE 104-WEEK MARK, OR THE FIVE-YEAR MARK, WHICHEVER COMES FIRST

Applicants recently suffered a huge blow when the Board overruled the WCAB decision finding that they may award TD Benefits More Than 5 Years From The date of injury, if Aggregate Amount Doesn’t Exceed 104 Weeks. Pike v. County of San Diego, (2017) Cal. Wrk. Comp. P.D. LEXIS 32.

On March 6, 2018, the Appellate Court found the WCAB erred when it affirmed a decision by a WCJ to award temporary disability benefits to applicant, Kyle Pike, more than five years after his right shoulder injury. The court found that the WCAB's interpretation was contrary to the plain meaning of Labor Code Section 4656.

The WCAB decided that applicant’s timely petition to reopen his claim against San Diego County for new and further disability gave it continuing jurisdiction and authorization to award benefits outside the five-year cap.

The applicant and the County, in May 2011, stipulated to a 12% permanent disability for an injury he sustained to his shoulder on July 31, 2010, while working as a deputy sheriff for San Diego County.

In May 2015, the applicant filed a petition to reopen his claim, arguing that his shoulder injury worsened. He requested salary continuation benefits under Labor Code Section 4850, which allows peace officers and other first responders to receive up to one year of full pay in lieu of TD.  He requested additional temporary disability benefits at the standard rate of two-thirds of his pre-injury wages.

The County paid additional temporary disability benefits through July 31, 2016, but the applicant requested Labor Code 4850 benefits covering Sept. 11, 2015, through March 28, 2016, and requested TD for the period from March 29, 2016, through Aug. 18, 2016.

The WCJ concluded that when an applicant files a timely petition to reopen in a case where payment of TD started within five years of the date of injury, the WCAB has continuing jurisdiction to award temporary total disability benefits beyond five years from the injury date.

At the WCJ level, it is clear that the court was mindful of the requirement to construe work comp statutes liberally and in favor of the applicant. However, at the appellate level we see that such liberal construction cannot be used to defeat the overall statutory framework and fundamental rules for interpreting law. 

Pike and its amicus CAAA advocated the position that, under Labor Code sections 5410, 5803, and 5804, the WCAB had jurisdiction to award benefits beyond five years from the date of injury. The appellate court in Pike was unpersuaded by this position. Citing Nickelsberg v. Workers’ Comp. Appeals Bd. (1991) 54 Cal.3d 288, it emphasized that the California Supreme Court made clear that the jurisdictional limitations in sections 5410, 5803, and 5804 are separate and distinct from the substantive law limiting an award of temporary disability benefits in section 4656. Thus, even though the WCAB had jurisdiction to determine benefits more than five years from the date of injury, it lacked the power under the expressed limitation in the statute. Simply stated, the court concluded that, in order to award benefits, the WCAB “must have jurisdiction to act, and the law must entitle the worker benefits.” (Emphasis in original.)

Lastly, the court noted that there was no reason to evaluate Labor Code section 4850 benefits any differently than temporary disability. The court recognized that in County of Alameda v. Workers’ Comp. Appeals Bd. (Knittel) (2013) Cal.App.4th 278, the Court of Appeals held that Labor Code section 4850 benefits are disability benefits within Labor Code section 4656(c)(2) for purposes of the 104-week cap on TTD benefits. Therefore, the court reasoned that it could see no reason, and Pike provided none, as to why the five-year limitation would not apply with equal force.

To the benefit of defendants, the appellate court’s decision is that an applicant’s entitlement to TD benefits ends at the 104-week mark, or the five-year mark, whichever comes first, which is the a strict interpretation and the legislative intent of Labor Code Section 4656

Thu Do is the Managing Attorney of Gilson Daub’s San Fernando Valley office. Brent Daub is the Senior Partner at Gilson Daub.

Jon Phillips

Gilson Daub, Inc., 34270 Pacific Coast Highway, Dana Point, CA, 92629