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TEMPORARY DISABILITY (TD)

"Temporary disability is incapacity to work that is reasonably expected to be cured or materially improved with proper medical treatment." Chavira v. WCAB (1991) 235 Cal. App. 3d 463.

"Temporary disability indemnity is intended to replace lost wages, and permanent disability indemnity provides compensation for loss of earning capacity or physical impairment." Rivera v. WCAB (2003) 112 Cal.App.4th 1124.

"An employer is under a statutorily imposed duty to pay temporary disability compensation for the period during which an injured employee, while unable to work, is undergoing medical diagnostic procedure and treatment for an industrial injury." Braewood Convalescent Hospital v. WCAB (1983) 34 Cal.3d 159, 168.

When payable: Temporary disability is payable if a worker cannot work due to a work injury or can do modified work but none is available, and the worker is not yet "permanent and stationary." Labor Code §4650 provides: (a) If an injury causes temporary disability, the first payment of temporary disability indemnity shall be made not later than 14 days after knowledge of the injury and disability, on which date all indemnity then due shall be paid, unless liability for the injury is earlier denied." There is a waiting period in Labor Code §4652:

"no temporary disability indemnity is recoverable for the disability suffered during the first three days after the employee leaves work as a result of the injury unless temporary disability continues for more than 14 days or the employee is hospitalized as an inpatient for treatment required by the injury, in either of which cases temporary disability indemnity shall be payable from the date of disability. For purposes of calculating the waiting period, the day of the injury shall be included unless the employee was paid full wages for that day."

How calculated: See Average Earnings and Labor Code §4453. There are two ways that the benefit may be increased: 1) under Labor Code §4661.5 if the worker was maximum for temporary disability, two years have passed since the date of injury, and the rates have increased under Labor Code §4453 or 2) there was a wage increase that was scheduled or reasonably anticipated at the time of injury (see Grossmont Hosp. v. WCAB under Cases below).

When TD ends: Temporary disability ends when the worker returns to work or is declared permanent and stationary. “Permanent and stationary status” is the point when the employee has reached maximal medical improvement, meaning his or her condition is well stabilized, and unlikely to change substantially in the next year with or without medical treatment. It also ends by operation of law after a certain number of payments with some exceptions (see LC §4656). There are 9 exceptions to the weeks limitations for injuries on or after April 19, 2004, allowing 240 compensable weeks within a period of five years from the date of the injury. 

Once TD has ended, if the employee has permanent disability for which continuing care is needed, the employer does not need to pay temporary disability to compensate the worker for time off from work while pursuing that treatment: See Supreme Court decision Dept. of Rehab. v. WCAB (Lauher) (2003) 30 Cal.4th 1281.

Overpayment of TD: Credit for alleged overpayment of temporary disability may be allowed, depending on the facts, but it is up to the Workers' Compensation Appeals Board. Unilateral taking of credit by the adjuster can result in penalties and/or sanctions under Labor Code §§5814 and 5813. See Credit

Label Item Links Comments
Labor Code Temporary disability statutes

Labor Code §4656 has changed over the years so it is important to check it for the date of injury
LC §4650-4657

LC §4656
 
  "Benefits payable on account of an injury shall not be affected by a subsequent statutory change in amounts of indemnity payable under this division, and shall be continued as authorized, and in the amounts provided for, by the law in effect at the time the injury giving rise to the right to such benefits occurred."

"Notwithstanding any other provision of this division, when any temporary total disability indemnity payment is made two years or more from the date of injury, the amount of this payment shall be computed in  accordance with the temporary disability indemnity average weekly earnings amount specified in Section 4453 in effect on the date each temporary total disability payment is made unless computing the payment on this basis produces a lower payment because of a reduction in the minimum average weekly earnings applicable under Section 4453."
LC §4453.5






LC §4661.5
 
Note that temporary partial disability payments "shall be reduced by the sum of unemployment compensation benefits and extended duration benefits received by the employee during the period of temporary partial disability." LC §4654  
Regulations/Rules  
Cases  In Grossmont Hosp. v. WCAB (1997) 59 Cal. App. 4th 1348 the Court of Appeal concluded "wage increases that were scheduled or reasonably anticipated at the time of injury and that would occur during the  anticipated duration of the disability may be considered in determining the injured worker's "earning capacity" and ultimately the benefits due." Grossmont Hosp. v. WCAB  
Forms Primary Treating Physician’s Progress Report (Pr-2) PR-2 Note 45 days after last report a new report must issue. Adjuster may suspend TD if no report.
Websites DWC rates chart DWC Chart  
Practice Tips Check Labor Code §4656 for date of injury LC §4656  
Magazine Articles
 
Roundtable    
Miscellaneous      

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