Defendants risk overlooking temporary disability (TD) exposures by focusing solely on whether an injured worker has “retired.” California law does not eliminate an injured worker’s right to TD benefits simply because an employee has retired. Instead, the critical question is whether the applicant can establish that the industrial injury caused a compensable wage loss, not retirement.

A recent Workers’ Compensation Appeals Board panel decision, Jacobowitz v. ProCare Pharmacy, LLC (ADJ19532643, May 18, 2026), serves as a reminder that retirement alone is not determinative.

To establish a right to TD post-retirement, an applicant bears the burden of proving continued entitlement to TD benefits by demonstrating:

1. An attachment to the labor market; and
2. A loss of earning capacity was caused by the industrial injury.

In Jacobowitz the applicant was awarded TD post-retirement by establishing an attachment to the labor market.

The WCAB relied upon evidence that the applicant:

• intended to continue working as a pharmacist after leaving her employer;
• maintained and renewed her professional license;
• searched for employment opportunities;
• received and declined a job opportunity because of her industrial injury; and
• credibly testified that she intended to return to work once medically able.

When a worker voluntarily withdraws from the labor market for reasons unrelated to the injury, there may be no compensable wage loss and therefore no entitlement to TD. Conversely, if the industrial injury prevented the worker from continuing employment or pursuing other employment opportunities, TD benefits may still be appropriate.

The court in Gonzales v. WCAB (1998) 63 CCC 1477, instructs that the retirement analysis turns on earning capacity and wage loss. It sets forth a framework for evaluating earning capacity by evaluating three components:

• the ability to work;
• the willingness to work; and
• the opportunity to work.

The central inquiry in determining the element of willingness to work is whether the applicant retired from employment altogether or merely retired from a particular employer. This distinction frequently determines whether TD remains payable.

From a defense perspective, Jacobowitz also illustrates how the record can determine the outcome. The defendant relied heavily upon a deposition admission in which the applicant agreed she intended to retire from the labor force. However, the deposition contained little follow-up questioning exploring her future employment intentions, licensing status, or plans to seek alternative employment. At trial, the applicant explained that she had misspoke and intended only to retire from CVS—not from employment generally. The WCJ accepted that explanation and found that the testimony showed a “willingness to work.” The Board declined to disturb the credibility determination.

Defense attorneys and claims professionals should therefore develop a comprehensive factual record addressing issues such as:

• whether the retirement was planned before the injury;
• whether the employee intended to work elsewhere;
• whether the employee sought post-retirement employment;
• whether professional licenses or certifications were maintained;
• whether the applicant received or pursued employment offers;
• whether Social Security retirement benefits were being collected; and
• whether objective evidence corroborates or contradicts the applicant’s testimony.

Because credibility frequently controls these cases, developing these facts during discovery is critical.

Retirement is not an automatic defense to TD. The dispositive question remains whether the applicant has proven an actual loss of earning capacity caused by the industrial injury.

Jacobowitz reinforces that applicants who demonstrate a continuing willingness to work and who establish that the industrial injury prevented future employment may remain entitled to TD benefits after retirement. The decision illustrates the importance of thorough factual development and cautions that retirement changes the TD risk analysis—it does not end it.