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  2/7/2008 2007 CASES ON TEMPORARY DISABILITY One of the big issues in 2007 was Labor Code § 4656(c)(1) and how to interpret the limitations on temporary disability benefits. Labor Code § 4656(c)(1) limits an applicant to 104 weeks of compensable temporary disability within two years of the commencement of temporary disability benefits. The big questions became–when does the two years start? And, how can an applicant extend the two year period? In Hawkins v. Amberwood Products (2007) 72 CCC 807, the WCAB, en banc, held the two year period contemplated in Labor Code § 4656(c)(1) begins on the date when temporary disability is first paid, not when it is first owed. Therefore, it doesn’t matter if the first payment pays the applicant retroactively for one week, one month, or even one year or more. The defendant will still owe 104 compensable weeks beginning on the date of that first payment. Although the case was appealed, the Court of Appeal denied the writ (Amberwood Products v. WCAB (Hawkins) (2007) 72 CCC 1644). It has been held that the two year limitation does not apply to Labor Code § 4850 benefits (City of Long Beach v. WCAB (Weber) (2007) 72 CCC 837 (writ denied), as those benefits are distinct from temporary disability–they are not defined as temporary disability, are payable after the applicant is permanent and stationary, and entitles the employee to full salary. It was further held that state disability benefits paid by EDD are not counted as part of the 104 weeks. (Amerisource/Bergen Corp. v. WCAB (Dupard) (2007) 72 CCC 1500 (writ denied)). The court held that these benefits are not the equivalent of temporary disability, and are often paid at a different rate and for different reasons than temporary disability. Finally, UCD benefits do not count toward triggering the provisions of Labor Code § 4656(c)(1). (Pacific Gas & Electric v. WCAB (Smith) (2007) 72 CCC 1257 (writ denied)). Conversely, in Salmon v. WCAB (2007) 72 CCC 1042 (writ denied), the court held that industrial disability payment under Gov. Code § 19870(a) are considered temporary disability, and therefore, are included in the time limitation for temporary disability under Labor Code § 4656(c)(1). See also Seidman v. WCAB (2007) 72 CCC 1530 (writ denied). Applicant’s have also attempted to argue equitable estoppel–meaning the limitation should not apply based upon a delay of treatment. This argument was not allowed in Medeiros v. WCAB (2007) 72 CCC 857 (writ denied), as there was no evidence of detrimental reliance or other factors to support an equitable estoppel claim. In Casazza v. WCAB (2007) 72 CCC 1657 (writ denied), the WCJ initially found that the period of delay in medical treatment, while defendant followed utilization review procedures, was not to be counted toward the 104-week limitation. On reconsideration, the WCAB disagreed and held that defendant’s exercise of rights granted by statute did not support in imposition of equitable estoppel. Alternatively, equitable estoppel did not apply because there was no evidence that defendant provided erroneous information to the applicant or that applicant relied on representations by defendant to her detriment. The WCAB further held that Labor Code § 4656(c)(1) does not require defendant to summarily approve requests for medical treatment before that statute’s limiting provisions apply. Can an applicant receive two consecutive periods of temporary disability under Labor Code § 4656(c)(1)? This issues was addressed in Casazza v. WCAB (supra). Applicant filed a specific and cumulative injury to the neck. Applicant argued that he should be entitled to two consecutive 104-week periods of temporary disability, one for each injury. The WCAB found that evidence did not support that the two injuries causes successive periods of temporary disability, but instead that both caused a period of temporary disability beginning on the same date, so that Labor Code § 4656(c)(1) provision runs concurrently for both injuries. Perhaps one of the most novel arguments involved getting an injury to fall outside of the limitation of Labor Code § 4656(c)(1), by getting it to fall within one of the exceptions in Labor Code § 4656(c)(2)–specifically by attempting to argue that a spinal surgery involving removal of part of a disc qualified as an amputation. In Cruz v. Mercedes-Benz (2007) 72 CCC 1281, the WCAB, in an en banc decision, defined an amputation as the severance or removal of a limb, part of a limb or other body appendage. The back surgery did not constitute an amputation and applicant was not entitled to temporary disability beyond that allowed in Labor Code § 4656(c)(1). Finally, when faced with a Constitutional challenge, a court of appeal denied applicant’s writ of review and held that the limitation of Labor Code § 4656(c)(1) does not violate the mandate of Cal. Const. Art. XIV §4 as there is no constitutional mandate to provide temporary disability benefits for any specific period of time as part of the workers’ compensation system. In fact, there is no requirement that temporary disability benefits be paid at all. (Guzenhauser v. WCAB (2007) 72 CCC 1087 (writ denied)). 2007 CASES ON TEMPORARY DISABILITYOne of the big issues in 2007 was.pdf | ||
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