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March 9, 2018

104 weeks of Temporary Disability Indemnities

By: Vic R. Redula

Summary of Material Facts: (based on the Appeal Court's decision)

Kyle Pike, a deputy sheriff for the County of San Diego sustained admitted injury to his right shoulder on July 31, 2010. He received a few weeks of Labor Code 4850 benefits. The case was then settled by Stipulations for 12% permanent disability in May, 2011.

Within 5 years from the date of the injury, Pike filed a Petition to reopen for new and further disability on May 26, 2015.

It looks like the parties stipulated that all Labor Code section 4850 and temporary disability indemnities through July 31, 2015 were paid by the County. I presume some were paid after the Petition to Reopen was filed.

Pike sought addition LC 4850 benefits from September 15, 2015 through March 28, 2016 and additional temporary disability indemnities from March 29, 2016 through August 18, 2016 for a total 104 weeks.

The case went to trial. The Trial Judge held that, "Where an applicant has filed a timely petition to reopen and temporary disability has commenced prior to five years from the date of the industrial injury, the Board has continuing jurisdiction to award temporary total disabiity benefits beyond five years from the date of the industrial injury."

Pike was awarded the additional LC 4850 benefits and temporary disability indemnities for a total of 104 weeks.

Defendant appealed.

The Board (WCAB) denied the appeal in a split decision. The dissenting member concluded that Labor Code section 4656 cannot be interpreted to permit an award of temporary disability more than five years from the date of the injury.

Defendant filed a Petition for Writ of Review.

The Appeal Court issued a writ of review. It now holds that the Board (WCAB)'s conclusion that it ma award Pike temporary disability benefits for a period more than 5 years after his injury is clearly erroneous.

Writer's Comments

This case again demonstrated that the 104-week limit on temporary disability benefits is horribly unfair to the injured workers who sustained severe injury that did not fall within the exceptions in LC 4656(c)(3). Even for those injuries covered by the exceptions, the longer 240-week cap is still unfair.

Most of the time, an injured worker will postpone recommended surgeries. Most injured workers will only agree with surgical procedure/s if pain becomes unbearable or he/she becomes incontinent. By that time, it will probably be close if not more than 5 years from the date of the injury.

 This law must be repealed.

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