The 4th District of the Court of Appeals has reversed a puzzling Workers' Compensation Appeals Board decision that had awarded total temporary disability benefits beyond five years from the date of injury, ignoring the plain language of Labor Code 4656(c)(2).

Richard "Jake" Jacobsmeyer

In County of San Diego v W.C.A.B. (Pike), the appellate court had little difficulty in reading the rather straightforward statutory language to firmly reverse the workers' compensation judge and WCAB decisions awarding TTD beyond the five-year jurisdictional limit set by statute.

The applicant, Kyle Pike, sustained injury to his right shoulder in July 2010 while employed as a deputy sheriff for the County of San Diego. He was awarded a 12% permanent disability benefit in May 2011.

On May 26, 2015, within the five-year jurisdictional time to reopen his case, he filed a petition for new and further disability seeking TTD and Labor Code 4850 benefits. He received his 4850/TTD benefits through July 31, 2015, at which time benefits were terminated.

At trial, the WCJ awarded benefits on a continuing basis, determining that though Labor Code 4656 was clear regarding benefits payable within the five-year jurisdictional time frame in the statute, it was silent as to what benefits could be provided after five years from the date of injury. 

On reconsideration the WCAB, in split decision, affirmed the WCJ’s award.

The Appellate Court had little difficulty in seeing through the WCJ and WCAB’s construct:

"This interpretation of section 4656, subdivision (c)(2), is not tenable. As discussed above, section 4656, subdivision (c)(2), clearly and unambiguously provides that temporary disability benefits 'shall not extend for more than 104 compensable weeks within a period of five years from the date of injury.' (§ 4656, subd. (c)(2).)  Thus, contrary to the board's decision, the relevant statutory language does provide that all periods of temporary disability for which payments are made must occur within five years of date of the injury.”

The court also pointed out if the WCJ/WCAB analysis were correct, even the 104-week limitation would not exist after the five-year limitation, in effect, eliminating any limitation on TTD beyond five years while providing limitations within five years — hardly a logical result.

"Such inconsistent reasoning further demonstrates the fallacy of the WCJ's interpretation.”

The Appellate Court also pointed out that all of the authorities cited by the applicant attorney, amicus for applicant and the WCAB were interpretations of Labor Code 4656 prior to the amendments limiting TTD to the period within five years from the date of injury.

The court further noted that, in the one decision it found where similar language was included in the statute, the Appellate Court had limited the receipt of TTD to within the five-year statutory time frame.

The court reversed the WCAB decision, remanding the case back to the board to grant the petition for reconsideration of the petitioner, the County of San Diego.

Comments and conclusions

The WCAB’s decision is at best puzzling, at worst a flagrant attempt to avoid the Legislature’s clear intent. It is difficult to conceive of how this statute could be tortured into an interpretation the allowed TTD to be paid beyond the statutory limitation.

The analysis be the WCJ, adopted by the majority of the WCAB, was patently inconsistent and required a tortured reading of the statute to reach the final result.

If the WCJ/board analysis had been upheld, all that an injured worker would have to do to obtain additional TTD is file a petition within five years from the date of injury and wait till after the five-year date to claim additional TTD.

That's hardly a result the Legislature intended and one that even the WCAB would have a hard time justifying with a straight face.

Richard M. "Jake" Jacobsmeyer is a founding partner of the Shaw, Jacobsmeyer, Crain and Claffey workers' compensation defense law firm, based in Oakland.