Things have been a bit slow in the appellate arena with very few cases of relevance to the WC community whether published or unpublished. However, the following case is one with very pragmatic implications to the California WC community and represents a significant advance in our understanding of the impact of one of the important provisions of SB 899.

The 3rd District Court of Appeal has upheld a W.C.A.B. decision holding that periods of TTD for separate injuries may run concurrently for purposes of Labor Code § 4656(c). In Foster v W.C.A.B., the board had reversed a trial decision awarding TTD benefits for separate injuries as consecutive periods thereby allowing the injured worker to obtain in excess of 104 weeks of benefits even though the evidence clearly showed that the IW was TTD for both injuries for concurrent periods of time, that involved both separate and overlapping parts of the body.

The applicant sustained two separate injuries, one in Feb 2005 to the right shoulder and a second injury on 4/13/05 to the same shoulder, head, neck and right elbow. The first injury did not cause immediate disability but the IW was off work immediately after the second injury.

The carrier commenced TTD immediately. An AME opinion in March of 2007 found the right shoulder and elbow conditions stationary as of September 2006, but the neck required surgery and would not be P & S until after that treatment occurred or an election not to have surgery was made. TTD was stopped on the two year anniversary of the commencement of TTD and the issue was joined.

The trial judge awarded TTD through Sept, 25 2006, for the injury of Feb 2005 and continuing TTD for the second injury beginning Sept 26, 2006, holding that the applicant could not be paid TTD at the same time for two separate injuries, that TTD was owed for both injuries and therefore the benefits could not run concurrently. The W.C.A.B. on Reconsideration agreed with the WCJ that applicant was entitled to 2 periods of TTD and that only one TTD benefit was payable at a time.

However the W.C.A.B. disagreed with the conclusion that for purposes of Labor Code § 4656(c) the benefits could not run concurrently and limited the period to TTD to and ending date of April 14, 2007.  

In its analysis the Court noted its obligation to "ascertain the intent of the Legislature so as to effectuate the purpose of the law" as well as the W.C.A.B.'s expertise in assisting the appellate courts in that effort.

The Court did not find this issue to be particularly complex or difficult to understand:
"There is nothing in the language of section 4656(c)(1) suggesting the limitations period for a single injury causing temporary disability should be tolled for any period during which a worker is entitled to temporary disability benefits based on another injury.
There is no language in the statute suggesting the limitations period will not run concurrently where multiple injuries cause an overlap, either partial or complete, during periods of temporary disability.... In fact, the history of section 4656 demonstrates a clear legislative intent to provide a reliable, defined time limit on an employer's liability for temporary disability indemnity."The Court also noted the intent of SB 899 and the amendments to Labor Code § 4656 were intended to result in a significant limitation on TTD and the WCJ's analysis would not have that effect: "If we were to accept the interpretation of the WCJ, however, the employer's responsibility, through its workers' compensation insurance carrier, for temporary disability indemnity could be extended unpredictably for an undefined number of payments and years in situations where multiple independent injuries result in staggered or overlapping periods of temporary disability. We do not believe such consequence was intended by the Legislature."

The holding in this case resolves an ongoing issue for calculation of TTD where there are multiple injuries. The application to individual cases will be dependent on the factual information developed in each case.  This holding does not necessarily mean TTD for 2 or more injuries always runs concurrently, but that it will if the evidence shows the applicant is temporarily disabled at the same time for the multiple injuries.  If there are multiple injuries, and only some of those claims result in TTD for a given period of time, the remaining injuries can still be eligible for TTD in the future. Claims administrators will have to be careful to not let the evidence of TTD in multiple claims become stale or inconclusive as later events may then dictate separate periods of TTD. For injuries on or after 1/1/08 the 104-week TTD limitation does not run within a 104-week (2 year) window period. This statutory change could result in some differing interpretations of how to apply the 104-week TTD cap. 

Certainly this would create the potential to parse periods of TTD between separate injuries with a little more flexibility than under the pre-1/1/08 statutory language. However, the principle that TTD can run concurrently should still apply to multiple claims occurring after the most recent statutory changes.

With the removal of the 104-week window period for payment of TTD benefits, it is certainly easier to comprehend situations where there can be broken periods of TTD exposure for different injuries that extend access to TTD in multiple injury cases.

-- By Richard M. Jacobsmeyer
Shaw, Jacobsmeyer, Crain, Claffey & Nix LLP