A lot of the Workers' Compensation Appeals Board panel decisions that come along seem like small-ball stuff.
But every once in a while there are big-deal issues. So it is with a July 10, 2017, WCAB panel decision, Kyle Pike v. County of San Diego (ADJ 7811907).
In a nutshell, the issue in Pike was whether a worker who had not drawn 104 weeks of temporary disability payments could draw additional temporary total disability benefits after the five-year anniversary of his injury.
There was no dispute as to Pike’s medical disability status, but rather a dispute as to the legal entitlement to TD payments in light of Labor Code section 4656(c), which states that:
“Aggregate disability payments for a single injury occurring on or after Jan. 1, 2008, causing temporary disability shall not extend for more than 104 compensable weeks within a period of five years from the date of injury.”
Agreeing with the ruling of the trial judge, a panel majority of Commissioners Brass and Sweeney said that Pike could draw payments after the five years, since there had been a timely petition to reopen before the expiration of the five years following the injury. Commissioner Razo dissented.
Noting the liberal construction mandate under Labor Code section 3202, the panel majority analyzed it in this fashion:
“The WCJ concluded his exercise of jurisdiction was appropriate to award temporary disability benefits for a period of temporary disability that commenced within five years of the date of applicant’s injury. Where such benefits are initiated within five years of the date of injury and do not exceed the 104-week limitation on receipt of such benefits, the WCJ held that applicant is entitled to receive the full amount of benefits notwithstanding the language that such benefits must be paid 'within a period of five years from the date of injury.' Because the statutory language does not provide that no temporary disability benefits may be paid more than five years from the date of injury, the WCJ concluded that the Legislature did not intend to prohibit otherwise temporarily disabled injured workers from receiving the full 104 weeks of benefits where such temporary disability occurs within five years from the date of injury.”
This is an issue of great significance, since it is not uncommon for workers to have surgeries or medically destabilized periods after five years from the injury. And often workers have not drawn a full 104 weeks of TD before the five years.
The issue is now pending at the California Court of Appeal, 4th District.
As noted in a recent WorkCompCentral article by reporter Greg Jones, San Diego County has filed an opening brief. An amicus brief was filed by California Workers’ Compensation Institute, and the California Applicants’ Attorneys Association will be filing a brief.
I’ll provide more coverage of this issue as the briefing and argument proceeds.
Julius Young is a claimants' attorney for the Boxer & Gerson law firm in Oakland. This column was reprinted with his permission from his blog, www.workerscompzone.com.
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