I was less than hopeful that Pike would become a defining decision on the crucial issue of entitlement to temporary total disability five years subsequent to the date of injury.

Joanne M. Thomas

But, County of San Diego v. WCAB (Pike) proved to be my hero. Given what was at stake, it was not surprising that the entire workers' compensation community was holding its breath while awaiting this decision.

Kyle Pike claimed an injury to his right shoulder on July 31, 2010, and the case eventually stipulated permanent disability at 12% in May 2011. On May 26, 2015, applicant petitioned to reopen his award, claiming he sustained new and further disability, asserting in part that his shoulder injury had worsened, requiring further periods of TTD.

Applicant not only sought TD benefits within five years, but also sought TTD from March 29, 2016, through August 18, 2016, clearly beyond the five-year anniversary of the date of injury.

Defendant, County of San Diego, relied on Labor Code Section 4656(c)(2) in arguing against applicant’s entitlement to TTD beyond five years from the date of injury. Labor Code Section 4656(c)(2) provides that “temporary disability shall not extend for more than 104 compensable weeks within a period of five years from the date of injury.”

The trial judge held in favor of applicant and found, “Where [an] applicant has filed a timely petition to reopen, and temporary total disability has commenced prior to five years from the date of the industrial injury, the [board] has continuing jurisdiction to award temporary total disability benefits beyond five years from the date.”

The defendant’s petition for reconsideration was denied after the panel majority found that the workers' compensation judge was “authorized to award temporary disability indemnity within the five-year period, to continue until the 104-week limitation is exhausted.”

Further, the majority found that the statute was open to interpretation, and the board was required to construe the law favorably for an injured worker, per Labor Code Section 3202. The sole dissenter, Commissioner Razo, held that Labor Code Section 4656 (c)(2) was not susceptible to interpretation permitting TTD more than five years after Pike’s DOI.

The WCAB's finding predictably raised eyebrows across the state and was described as “at best puzzling, at worst a flagrant attempt to avoid the Legislature’s clear intent.” However, some of us practitioners have long been accustomed to forewarning our clients that our courts have been known to award TTD post five years, under certain circumstances.

Prior case law held in favor of awarding TTD after five years from the date of injury, as long as the injured worker was temporarily disabled at the time of the five-year anniversary of the DOI. In fact, there was a shortage of optimism that Pike would be any different.

Pike was ultimately heard by the 4th District Court of Appeal. On March 6, 2018, the court issued its opinion, which shocked many to the core. The Court of Appeal explained that the plain language of Labor Code § 4656(c)(2) precludes the WCAB from awarding TD benefits beyond five years from the date of injury.

Further TTD is expressly prohibited by Labor Code Section 4656 (c)(2). The Court of Appeal noted no prior appellate authority addressing the amended regulation, so it relied on the legislative history to support its interpretation and stressed that the lower court’s finding was clearly erroneous, inconsistent and not tenable. This was exactly the rationale and reasoning that was at the heart of disbelief as to how so many years went by, where employers were held accountable in TTD post-five-year anniversary cases.

No doubt a thunderous cheer was heard around the state when this opinion issued. The Pike matter was annulled and remanded to the appeals board to grant defendant’s petition for reconsideration. However, the California Supreme Court decided to not review the case.

Following the decision, California employers everywhere have let out a sigh of relief, and feel reason and logic have been restored, at least as to this single, but very important issue. Significantly, the impact of Pike cannot be understated.

The Court of Appeal’s finding in Pike should be interpreted together to stop (most) applicants' attorneys from wasting judicial resources to litigate the issue. I feel this decision is expected to result in fewer filings for new and further disability, both in cases that remain open within the five-year period, and those where a stipulated award was issued earlier in the case.

I suspect our community will be reveling in this decision for quite some time, while the California Applicants' Attorneys Association works to find another angle upon which to raise further challenges on this important issue. Meanwhile, Stander Reubens Thomas Kinsey is aggressively and affirmatively ensuring that our clients follow Pike, which I affectionately call the “Pike Spike” in the runaway wheel of ever-increasing costs for our California clients.

Joanne Thomas is president, chief executive officer and managing shareholder in workers' compensation defense firm Stander Reubens Thomas Kinsey's Inland Empire office. This blog post is republished, with permission, from SRTK's client newsletter.