Can TTD Go On Forever?
The following article is informational only and is not intended to be an exhaustive discussion, legal position, argument, recommendation or assertion related to any particular case or issue being defended by PKNW. This article should not be considered primary, secondary, citeable or other legal authority and reflects only the individual analysis of its author.
For employers and insurance carriers that are still litigating injuries occurring between January 1, 1979 and April 19, 2004, the issue of temporary disability can be somewhat confusing.
At first glance, Labor Code Section 4656(b) appears to limit temporary disability benefits for injuries occurring during this time to 240 compensable weeks within a period of five years from the date of injury. However, after reading closely, you soon realize this limit is only for temporary partial disability payments.
Employers and insurance companies rely on cases like Fekkers v.WCAB, (67 Cal Comp Cases 45) and Hartsuiker v. WCAB, (12 Cal.App.4th 209), both of which are appellate court cases.
In Fekkers, Applicant sustained an industrial injury to her neck and low back on 11/9/91. The case settled by Stipulated Award on 1/19/94 for 30% permanent disability. On 10/25/94, Applicant filed a Petition to Reopen for new and further disability based on a medical report alleging she was totally temporarily disabled at that time. Further medical discovery determined Applicant was not TTD at the time of her filing of the Petition to Reopen, but did suffer a period of TTD from 10/23/96 through 1/23/97. However, the WCJ stated the WCAB lacked jurisdiction to award temporary disability benefits pursuant to the five year statute of limitations.
Applicant filed a Petition for Reconsideration, contending that because she filed a Petition to Reopen before the running of the statute of limitations, the WCAB had continuing jurisdiction to award TTD.
The WCJ, in his report on reconsideration, agreed that Applicant’s Petition to Reopen was timely, however he noted that in order for the WCAB to have jurisdiction to award TTD benefits, the period of TTD must have arisen prior to the running of the statute of limitations. Writ was denied.
In Hartsuiker, Applicant sustained injury on 11/24/86, which was settled by Stipulations with Request for Award on 10/25/91. Applicant’s award included future medical benefits and future surgery was anticipated. As a part of the Stipulations, the parties requested the judge issue a ruling as to whether or not the Board has the power to reserve jurisdiction over the issue of temporary disability that may be paid in conjunction with possible surgery, which may take place more than five years after the date of injury. The WCJ ruled: “If the file is in a closed status as of November 24, 1991, the Appeals Board will have no jurisdiction to award temporary disability in conjunction with possible surgery which may take place thereafter.”
Applicant filed a Petition for Reconsideration which was denied by the WCAB which stated only in cases of insidious progressive diseases does the Board have continuing jurisdiction to award temporary disability commencing beyond five years from the date of injury.
Subsequent decisions of the WCAB have looked to Nickelsberg v. WCAB, (54 Cal. 3d 288) in interpreting the 1978 Amendment to Labor Code Section 4656 (SB 1851). In Nickelsberg, the California Supreme Court stated, “The amendment to section 4656 was intended to permit an applicant to receive temporary disability for as long as he or she is continuously disabled without an arbitrary cutoff date. These statements, however, do not suggest the Legislature intended to permit an applicant, based on an award of future medical benefits, to be able to invoke the WCAB’s jurisdiction to award temporary total disability benefits whenever he or she requires medical treatment for a previous injury.”
In sharp contrast, the case of CIGA v. Carrigan, (75 Cal Comp Cases 292) comes to a different conclusion, albeit on different facts. In Carrigan, Applicant suffered an admitted industrial injury to her bilateral knees and other body parts on 3/7/00 and 12/4/01. Applicant underwent knee replacement surgery on 11/5/08 for which she claimed temporary disability benefits were owed to her beginning 3/1/07, the date which she agreed to undergo the knee replacement. The issue was litigated at an Expedited Hearing on 3/26/09 after which the WCJ issued a Supplemental Findings and Award, awarding Applicant temporary disability indemnity from 11/5/08 to the present and continuing. The issue of whether Applicant was entitled to TTD from 3/1/07 to the date of surgery was ordered off calendar for further development of the record.
CIGA filed a Petition for Reconsideration and the WCJ filed a report on reconsideration, noting her decision partially relied on CIGA v. WCAB (Venegas), (74 Cal. Comp. Cases 966), finding that she had jurisdiction to award TTD more than five years from the date of Applicant’s injury when there had been no final adjudication of all of the issues. The WCJ also cited Unigard Insurance Co. v. WCAB, (59 Cal. Comp. Cases 966), and Denny’s, Inc. v. WCAB, (71 Cal. Comp. Cases 831), which were factually similar and came to similar conclusions.
To muddy the waters even further, in the case of County of Los Angeles v. Calvillo, (unpublished), the WCJ awarded Applicant TTD benefits beginning more than five years after the date of injury based on the court’s original jurisdiction over the issue, meaning no final determination had been made on all issues. That decision was affirmed by the WCAB on reconsideration. The County petitioned for writ of review and the decision was overturned by the Second District Court of Appeal.
The Appellate Court opinion, although not published nor citable, stated that under Nickelsberg and Hartsuiker, an award for TTD can extend beyond five years after the date of injury only when it commences within the five year period. Accordingly, the WCAB’s decision was reversed and remanded for further proceedings consistent with that opinion.
Therefore, there are a few issues to keep in mind when determining whether temporary disability benefits are due to an Applicant beyond five years from the date of injury (for DOI from 1/1/79-4/1/04 only). First, it is important to know whether or not there has been a final adjudication of all issues (except in insidious progressive disease). If the underlying case has been settled and a timely Petition to Reopen has been filed, TTD may be owed if the need for such arises prior to the expiration of the five year period. If there has not been a final adjudication, TTD may be owed if the need for such arose within five years of the date of injury.
These cases should encourage employers and insurance companies to attempt to procure settlement of the underlying claim prior to the five year statute of limitations running, in order to eliminate further temporary disability exposure that may arise with future medical treatment. Keep in mind, however, that the underlying purpose of temporary disability benefits is to compensate for lost wages. If the Applicant is no longer employed, there may be no lost wages to compensate for.