Awarding TTD Beyond 5 Years From Date of Injury OK

Saturday, June 2, 2007 | 0

By Jake Jacobsmeyer

The 1st Appellate District reversed a Workers' Compensation Appeal Board decision that had in turn reversed a workers' compensation judge's order for payment of temporary total disability for a period beginning more than five years from the date of injury. The circumstances of this case are such that give the current state of the law and the facts as outlined by the court, the decision should not be too surprising.

In Sarabi v. WCAB, the applicant sustained injury in 1999.

Subsequent to an award a Petition for New and Further disability was filed by applicant in 2002, well within the five year limitation of the WCAB and defendant proceeded to pay additional temporary disability benefits from that time until August of 2005.

In the interim there was a request for surgery which was contested by the defendant. An AME in August of 2004 agreed with the need for surgery but the applicant had to put the procedure off several times to obtain treatment for a non-industrial condition. In response to the defendant's request, the AME opined that in the absence of surgery the injured worker was probably P&S in August of 2005. Defendant terminated TTD in November of 2005 and claimed an overpayment of TTD.

At the WCAB, applicant claimed continuing TTD for the surgery that was approved by the AME (it is not clear from the decision whether the applicant had the surgery before decision issued in June of 2006).

Defendant claimed that TTD was not owed because the AME determined the applicant was P&S in August 2005 and that any TTD beyond that date was outside the jurisdictional authority of the WCAB to award. Defendant also argued the Petition to Reopen was "Skeletal."

The trial judge awarded TTD beginning in August of 2005 and continuing until applicant was P&S after surgery. He noted the numerous cases holding that an injured worker could still be TTD while undergoing necessary non-industrial treatment to allow the industrial treatment. The WCJ felt that the injured worker was not yet P&S and therefore since TTD had continued from before the five year jurisdictional limitation period passed his authority to award benefits continued.

The WCAB in a 2-1 decision reversed the WCJ holding that since applicant had not undergone the recommended surgery in the year after the AME exam, that the P&S date of the AME dictated the injured worker was P&S.

The board also noted that the award of TTD beginning in August of 2005 was outside the five year jurisdictional limitation of the WCAB and therefore there was no power to award benefits beginning on that date.

The board noted in its opinion that TTD could have been awarded from August of 2004 as that was within the five years from the date of injury but not August of 2005.

The Appellate Court in a unanimous decision reversed the WCAB holding. The court agreed with the WCJ that the period of TTD actually commenced within the five years and therefore jurisdiction existed to continue the benefit beyond five years;

"... Because Sarabi's disability worsened and further medical treatment in the form of right shoulder surgery became necessary within the five-year period, Sarabi suffered "new and further disability" within the meaning of section 5410 and the Board had jurisdiction to award him additional TTD benefits."

The court also found no difficulty with the award of TTD commencing in August of 2005 as that was the period where the dispute arose.

However, the WCJ's conclusion that Sarabi was entitled to benefits commencing Aug. 17, 2005, and continuing, was supported by the record, as the evidence showed that Sarabi's new and further disability arose within the five-year period, and that benefits were to begin on August 17, 2005, only because that was the date Narsi terminated its voluntary payments.

In fact, the board correctly acknowledged that Dr. Edington's report of Aug. 17, 2004, may have supported an award of additional benefits because it was within the five-year limitations period. Because nothing prior to Aug. 17, 2005, was at issue, there was no need for Sarabi to request, or for the WCJ to award, benefits commencing at any time before that date ..."

The court remanded the case back to the WCAB for reinstatement of the applicant's TTD award.

In many respects this case acknowledges the line of cases holding that the WCAB does not have jurisdiction to award TTD for periods that begin after the five year jurisdictional limitation of the board has been reached.

Rather than challenge that concept that the WCAB can award benefits that commenced after the five years; this court merely held that the WCAB has the power to award benefits that continue beyond the five years.

The critical fact relied upon by the court was the determination that the applicant was still TTD in August of 2005 and had been for a period of time that began over a year earlier.

The Court makes it clear that:

"For an applicant to recover additional temporary disability benefits, he or she must not only have filed a petition to reopen within five years from the date of injury, but must also have suffered a "new and further disability" within that five-year period, unless there is otherwise "good cause" to reopen the prior award. (Ruffin v. Olson Glass Co. (1987) 52 Cal.Comp.Cases 335, 343 (Ruffin).) An injured worker therefore cannot confer jurisdiction on the Board by filing a petition to reopen an award before the five-year period has expired for anticipated new and further disability to occur thereafter"

In this respect the case in additional published authority for the proposition that the WCAB lacks jurisdiction to award TTD beyond the five year jurisdictional limitation under Labor Code Section 5803 and 5410.

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

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