The California Workers’ Compensation Appeals Board “judicially rewrote” a statutory cap on temporary disability duration by awarding benefits to an injured worker for a period more than five years after he was injured, the California Workers’ Compensation Institute argues in an amicus brief filed with the 4th District Court of Appeal.

CWCI filed its brief in support of the County of San Diego, which is appealing a WCAB order that allowed sheriff’s Deputy Kyle Pike to receive temporary disability benefits for an admitted July 31, 2010, injury to his right shoulder during the period between Sept. 15, 2015, to Aug. 18, 2016.

The county says the appeals court needs to weigh in because there are no precedential decisions defining what lawmakers meant when they enacted Labor Code Section 4656(c)(2) limiting TD benefits for workers injured on or after Jan. 1, 2008, to “104 compensable weeks within a period of five years from the date of injury.”

The law was passed more than 10 years ago.

A WCAB panel in July split 2-1 in support of a workers’ compensation judge who said in cases such as Pike’s involving a timely Petition to Reopen for New and Further Disability, the board has continuing jurisdiction and can award temporary disability benefits more than five years from the date of injury so long as the applicant has not received more than 104 weeks of payments.

Commissioners Marguerite Sweeney and Frank M. Brass said that because the statutory language does not expressly disallow the payment of benefits more than five years from the date of injury, the trial judge correctly concluded that the Legislature did not intend to prohibit temporarily disabled workers from receiving the full 104 weeks of benefits.

“Additionally, where the statutory language is susceptible of an interpretation either beneficial or unfavorable to an injured worker, Labor Code Section 3202 requires that we construe the statutory language in a manner most beneficial to the injured worker,” the majority opinion says.

Commissioner Jose H. Razo dissented, saying he would have granted the county’s request to rescind the order allowing Pike to receive benefits. He said he does not believe the Labor Code language is open to interpretation.

“I believe our ability to award temporary disability indemnity is constrained by the statutory language in Labor Code Section 4565(c)(2), which expressly limits such an award to five years from the date of injury for injuries on or after Jan. 1, 2008,” he said.

San Diego County, in its opening brief filed with the 4th DCA in August, said the WCAB exceeded its powers in issuing an unreasonable decision that was not supported by the facts.

“The issue can be simply stated as follows: For dates of injury after Jan. 1, 2008, are there any circumstances in which Labor Code Section 4656(c)(2) would permit an award of temporary disability for periods exceeding five years after the date of injury?” the court said.

With no precedential cases interpreting the statute, the county said this is an important matter needing clarification from the appellate court.

The county disputed the claim that the Labor Code is silent about what happens with TD benefits after five years, and an interpretation to the contrary would render the actual language of the law superfluous.

“Had the Legislature intended that 104 weeks of payments be available regardless of the passage of time since the date of injury, the Legislature would have had no reason to include a date limitation within the statute,” the county argues. “Instead, a common-sense reading of the statute reveals two separate and distinct limitations: First, temporary disability payments cannot exceed 104 aggregate weeks; second, the five-year limitation is stated in absolute language.”

The California Workers’ Compensation Institute in an amicus brief filed Monday said the legislative history surrounding the five-year cap supports the county’s interpretation. Michael A. Marks of Allweiss & McMurty in Tarzana writes in the brief that the clear legislative intent behind AB 338 ought to prohibit the WCAB from engaging in liberal construction to defeat the statutory framework for the Labor Code section.

Prior to 2004, injured workers were limited to 240 weeks of temporary disability benefits within five years of the date of injury. Lawmakers changed that as part of the reforms in Senate Bill 899, which allowed workers to receive 104 weeks of TD benefits during a two-year period that starts with the first payment.

The language in the Labor Code section as it currently reads was enacted with AB 338 in 2007.

Marks said the legislative history for AB 338 demonstrates the intent of lawmakers to change the date that the window for receiving TD started from the date of first payment, to the date of injury. And he said the change was made to avoid penalizing injured workers who make an unsuccessful attempt to return to work or need surgery and remain temporarily disabled more than two years after the first benefit payment was made.

“Judicially rewriting the statute to conform to a contrived interpretation, unsupported by the legislative history, is abhorrent, (and) should not be condoned,” Marks writes in the CWCI amicus brief. “The appeals board's decision below, which would extend the temporary disability period beyond the permissible five-year time frame, directly violates both the language of the statute and the express legislative intent, and should be reversed.”

Matt Hill, a solo practitioner in Irvine who is representing Pike, on Wednesday said he doesn’t consider the case an attempt to eviscerate the five-year limit on TD duration for all claims. Instead, he said, he views it as being limited to a specific set of facts involving a timely petition to reopen a claim for further disability on a stipulated injury in which benefits that were being paid were cut off after the five-year limit was reached.

“We don’t intent to create a massive, blanket rule,” Hill said. “That’s not what this is. Rather, it’s under these facts and circumstances, they cut off benefits based on their interpretation of what a single statute reads without credence to the remaining facts and the rest of the law.”

Hill said he thinks the workers’ compensation judge was correct and reached a decision that was “right and fair.” And the fact that the WCAB panel affirmed the judge’s decision bolsters his belief that the decision was correct, he said.

Hill said he has not thoroughly reviewed the CWCI amicus brief to be able to comment in the institute’s arguments.

The 4th DCA set a Nov. 2 deadline for him to file a response to CWCI.

The California Applicants’ Attorneys Association intends to file a brief in support of Pike, according to William Herreras, who serves as co-chairman of CAAA’s amicus committee.

The attorneys who are drafting CAAA’s brief were not immediately available for comment Wednesday.