4th DCA: WCAB Erred in Awarding TD More Than Five Years After Injury
Wednesday, March 7, 2018 | 3482 | 2 | 38 min read
There is no wiggle room in the five-year statutory cap on the duration of temporary disability benefits, California’s 4th District Court of Appeals said in a decision published Tuesday.
The appellate court found the Workers’ Compensation Appeals Board erred when it affirmed a decision by a workers’ compensation judge to award temporary disability benefits to Kyle Pike for a period that spanned more than five years after the date he injured his right shoulder. The court found that the WCAB's interpretation was contrary to the plain meaning of Labor Code Section 4656.
The WCAB had decided that Pike’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 statute clearly says that, for an injury occurring on or after Jan. 1, 2008, temporary disability benefits ‘shall not extend for more than 104 compensable weeks within a period of five years from the date of injury,” the court said in its decision. “This text supports the conclusion that the board is authorized to award a maximum of 104 weeks of temporary disability payments to a worker who suffers an injury on or after Jan. 1, 2008, but also limits payments to a period of disability occurring within five years of the injury.”
Ellen Sims Langille, general counsel for the California Workers’ Compensation Institute, said she didn’t think the decision was even a close call.
“The Legislature could hardly have been more clear in its drafting of the statutory language, although neither the WCJ nor the WCAB seemed to pay much attention,” she said.
Applicants’ attorney Alan Gurvey said the appellate court’s decision adheres to the letter of the law, but in so doing, it creates undue hardship and injustice to the relatively small group of injured workers to which it would apply. Situations in which an injured worker runs into the five-year cap on duration of TD is rarer than cases in which a worker collects the maximum 104 weeks of temporary benefits allowed by law, Gurvey said.
Bernie Baltaxe, a partner at Smith & Baltaxe in San Francisco and co-chairman of the Amicus Committee for the California Applicants’ Attorneys Association, said he was disappointed with the decision and thought at least part of the court’s ruling was incorrect.
Pike 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, Pike 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. And 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 Pike requested 4850 benefits covering Sept. 11, 2015, through March 28, 2016, and requested TD for the period from March 29, 2016, through Aug. 18, 2016.
A workers’ compensation judge 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.
A WCAB panel split 2-1 in favor of the trial judge.
Commissioners Marguerite Sweeney and Frank M. Brass said the Labor Code section limiting injured workers to 104 weeks of TD benefits within a five-year period didn’t expressly prohibit the payment of TD more than five years after the injury. Sweeney and Brass noted a lack of consistency in previous panel decisions on the question.
When statutory language is open to an interpretation that is either favorable or unfavorable to an injured worker, the commissioners said, they are required to construe the law in the way most beneficial to the injured worker.
Commissioner Jose H. Razo dissented, saying he didn’t find any ambiguity in the statute that “expressly limits such an award to five years from the date of injury.”
The 4th District Court of Appeal in San Diego v. WCAB (Pike) agreed that the law was clear and said the legislative history of the statute demonstrates that lawmakers intended to cut off benefits five years after the date of injury.
Prior to SB 899, injured workers were allowed to receive up to 240 weeks of TD within a five-year period. SB 899 changed that to 104 weeks of TD within two years, starting from the first payment. In 2007, the Legislature passed AB 338, restoring the five-year window for temporary disability benefits starting with the date of injury.
An Assembly floor analysis of AB 332 said the measure “extends the ‘window period’ during which an injured worker can receive up to 104 weeks of temporary disability benefits, from two years to five years,” the court noted.
And while there are not appellate decisions dealing directly with Labor Code 4656, the court said there is case law on the previous statute limiting workers to 240 weeks of benefits within a five-year period. In Radesky v. City of Los Angeles, the 3rd DCA ruled that a claim for benefits more than five years after the injury was barred by statute.
The Pike court said it was mindful of the requirement to construe work comp statutes liberally and in favor of the applicant. But it said liberal construction can’t be used to defeat the overall statutory framework and fundamental rules for interpreting law.
Langille, with CWCI, which filed an amicus brief in support of the county, said the appellate court clearly explained why decisions of the WCAB and the trial judge were wrong. She said the legislative intent of the statute and statutory language are unambiguous.
Langille said “the simple fact is that the employee’s entitlement to TD benefits ends at the 104-week mark, or the five-year mark, whichever comes first.”
Baltaxe, who helped draft the amicus brief CAAA filed in support of Pike, said he was disappointed that the appellate court applied a narrow interpretation of the five-year limit and the statutory scheme as a whole.
“The court’s opinion is wrong that Mr. Pike and amicus did not present an alternative view to their strict interpretation,” he said. “Our simple alternative view is that if the TD starts within the five-year period and a petition to reopen is filed, the TD is capped by the 104 weeks and not the five years from date of injury.”
That interpretation is consistent with the broader statutory scheme extending jurisdiction of the WCAB, Baltaxe said.
He said the court rejected the jurisdictional arguments and focused solely on a plain reading of the statute. The plain language certainly allowed for the court to reach the decision it did, “But it also allows for a more broad interpretation, which we think is supported by the statutory scheme as a whole,” he said.
Baltaxe said the five-year cap is an arbitrary cutoff date, and he thought state courts generally disapproved of arbitrary laws. At the same time, he noted, the Legislature has absolute power to create a workers’ compensation system and said the duration limit is something lawmakers might need to reconsider.
Applicants’ attorney Gurvey, a partner with Rowen, Win & Gurvey in Sherman Oaks, said the statutory limit on TD benefits creates hardships for injured workers. A good cause exception to the rule might allow more cases to go through, but it could also lead to more litigation on whether the injured worker qualified for the exception, he said.
Gurvey said the 104-week limit on TD is the harsher law of the benefit limits, saying the “arbitrary cost-cutting limitation” is “one of the greatest injustices in our system.
“The Pike case would then just be a rarer injustice affecting far less injured workers than the 104-week TTD cap,” he said. “So many of my clients remain TTD after 104 weeks and are being starved out unceremoniously, which is indeed a sad commentary on our provision of benefits system.”
Pike’s attorney, solo practitioner Matt Hill in Irvine, a spokesperson and senior deputy counsel for San Diego County did not respond to requests for comment Tuesday.