WCAB En Banc TTD Payment Commences 2 Year TTD Window

Saturday, June 16, 2007 | 0

By Jake Jacobsmeyer

The WCAB issued it first in what will undoubtedly be a number of decisions involving interpretation of Labor Code Section 4656 and the two-year cap on temporary total disability that was added as part of Senate Bill 899.

In this first decision the WCAB has decided one of the most controversial issues for that section; when the two-year/104 week period commences.

The WCAB in a 6-1 decision ruled:

"We hold that 'the date of commencement of temporary disability payment' as used in Section 4656(c)(1) means the date on which temporary disability indemnity is first paid, and not the date for which temporary disability indemnity is first owed. The decision of the WCJ is affirmed."

In Hawkins v. Amberwood Products the applicant sustained injury on July 26, 2004. Liability was disputed and EDD paid benefits from July 26, 2004 to March 31, 2005, which was later reimbursed by SCIF. TTD was paid for the remainder of the period from March 31, 2005 to July 17, 2006 when SCIF stopped payment as a pursuant to the two-year/104-week limitation period. Applicant filed for a hearing alleging that TTD should continue and the issue of when the period for calculation of the two-year window period for TTD was joined.

At trial the WCJ determined that the first payment of TTD was made on May 3, 2005, covering the period from July 14, 2004 to May 2, 2003 (EDD had not paid for the first week of TTD so that was included when liability was picked up by defendant). The parties also stipulated that applicant continued to be TTD after July 18, 2006. The judge awarded additional TTD after July 17, 2006, holding that the two-year period commenced with the first payment not the period covered by the payment.

Defendant appealed and the WCAB granted for further study en banc. The WCAB found no ambiguity in this language that suggested any different result was intended by the Legislature.

"Here, the language of Section 4656(c)(1) is clear and unambiguous. It provides that "temporary disability shall not extend for more than 104 compensable weeks within a period of two years from the date of commencement of temporary disability payment." The plain and commonsense meaning of "commencement" is "beginning." (The American Heritage Dictionary of the English Language, Fourth Edition. Houghton Mifflin Company, 2004.) The usual and ordinary meaning of "payment" is "[t]he act of paying or the state of being paid." (Ibid.) Thus, by stating that "temporary disability shall not extend for more than 104 compensable weeks within a period of two years from the date of commencement of temporary disability payment," the Legislature clearly and specifically expressed its intention that the limitation of 104 weeks within two years begins on the date on which temporary disability indemnity is first paid, and not on the date for which it is first owed."

The WCAB also noted that there were strong public policy arguments to support this particular interpretation of Labor Code Section 4656(c)(1).

"... By encouraging timely action, section 4656(c)(1) advances the purpose of temporary disability indemnity, which is to promptly replace wages lost by the injured employee during the period of disability. (Labor Code Sections 4650-4657 and 4661-4661.5.) This purpose of temporary disability indemnity has been repeatedly emphasized by the appellate courts. In Nickelsberg v. Workers' Compensation Appeals Board (1991) 54 Cal.3d 288 [56 Cal.Comp.Cases 476], the Supreme Court said, "[t]emporary disability indemnity is intended primarily to substitute for the worker's lost wages, in order to maintain a steady stream of income.

... "Because Section 4656(c)(1)s limitation of 104 weeks within two years does not begin to run until "the date of commencement of temporary disability payment," there is a strong inducement to promptly start paying temporary disability indemnity. Prompt payment helps ensure that the injured employee and his or her dependents receive some replacement of the employee's lost wages and a means of subsistence during the period of temporary disability."

The WCAB made it clear that even though there is a continuing TTD award (and the WCAB decision issued beyond the two-year period after the first payment) the continuing award itself does not impose liability beyond the two-year window period and it is not necessary for the WCJ to indicated a termination date in the award. As pointed out by the WCAB at the time of the original decision the injured worker could have become P&S prior to the May 3, 2007 cut-off date.

The case resolves, for now, the issue of when the TTD period commences. Certainly it would not be surprising if SCIF appeals this issue further and at some point an appellate court might be willing to take a look at this issue. However the WCAB opinion appears to this author to be firmly rooted in both legislative intent and public policy and in my opinion is likely to hold up to further review.

The next decisions on TTD issues under this section will very likely deal with two additional issues. The first is what qualifies as an "amputation" to trigger Labor Code Section 4656(c)(2)(C) to extend the window to 240 weeks. Pending cases on appeal have determined at the trial level that spine surgery, shoulder resection and meniscus surgery all qualify as amputations and extend the TTD period to 240 weeks. Contrary decisions also have been issued. As yet I am unaware of any WCAB decisions on that issue and presumably an en banc decision on this issue is also pending.

The second issue that will need to be addressed is the impact of delays in medical care and the allegation of "estoppel" to assert the two-year limitation when a defendant has denied medical care that is ultimately awarded. As yet this author is aware of only one writ denied case on this issue where a WCJ refused to extend the time limit solely due to delays in medical care that was ultimately awarded.

The WCAB adopted the WCJ opinion and did not extend the window period because of the delay. This case is Medeiros v. WCAB 72 CCC ____ (case issued May 15, 2007 but no citation is available yet.). In that case the WCAB determined that none of the requirements for "equitable estoppel had been met." Applicant in that case is also arguing the constitutionality of Labor Code Section 4656(c)(1) but the 6th District Court of Appeal declined to review that issue. We can certainly anticipate additional challenges to this decision over the next year or so until some more definitive appellate authority exists. The dissenting opinion of Commissioner Brass ably points out the contrary arguments on this issue and will very likely be the arguments presented for further appellate review.

Attorney Richard "Jake" Jacobsmeyer is a partner in the firm Shaw, Jacobsmeyer, Crain, Claffey & Nix and can be reached at jakejacobsmeyer@shawlaw.org.

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