In Merritt v. Bigge Crane & Rigging and Safety National Casualty Co., 2025 Cal. Wrk. Comp. P.D. LEXIS 38, the WCAB held that an applicant may establish entitlement to temporary disability benefits after retirement based on a demonstration of intent to work after retirement.

The applicant sustained compensable injuries to her shoulders, neck, and upper extremities on July 25, 2022. Prior to the date of injury, the applicant had submitted paperwork to the employer indicating an intent to retire on September 1, 2022. The applicant, who was deposed on April 19, 2023, testified that she planned on traveling after retirement, and that she had not thought about going back to work.

In terms of the medical evidence of disability, it was established that the applicant’s primary treating physician had found the applicant temporarily totally disabled started June 8, 2023, and continued through May 16, 2024. The panel QME found applicant temporarily totally disabled and continued per the QME report dated December 5, 2023.

Defendants paid temporary disability benefits from September 1, 2022 to April 26, 2023. On May 9, 2023, the defendant issued notice that benefits were terminated due to retirement from employment. Defendants also asserted an overpayment of benefits for the entire period paid.

The disputed issue of liability for temporary disability proceeded to trial. At trial the applicant testified that she was willing to return to work but for the injury. The trial court issued a Findings, Award, and Order and Opinion on Decision reflecting that the paperwork applicant submitted for retirement established intent to remove herself from the labor market and that the applicant was not entitled to temporary disability indemnity.

The applicant filed a Petition for Reconsideration contesting that the WCJ erred in finding intent to remove herself from the labor market given her trial testimony. The WCAB found the applicant was entitled to temporary total disability for the period of September 1, 2022 to April 26, 2026, and ongoing.

Defendants thereafter sought reconsideration. Defendants asserted the applicant’s trial testimony did not establish the applicant’s burden of proofing an intent to work after retirement because the testimony was inconsistent and vague.

The WCAB disagreed with the defendant. The WCAB reasoned that at the time of the deposition, the applicant was still recovering from surgery and that it was reasonable for the applicant to have felt differently then, but had since then had expressed a desire to return to work. The WCAB reasoned that in establishing a right to temporary total disability indemnity the applicant did not have to prove that she had retained earning capacity after her retirement. The WCAB concluded that the applicant’s trial testimony supported entitlement to temporary disability benefits.