FIRST DISTRICT COURT OF APPEAL, DIVISION ONE REJECTS CONSTITUTIONAL CHALLENGE TO 104-WEEK MAXIMUM ENTITLEMENT
TO TEMPORARY DISABILITY
By Brian S. Grosenbach

Kovco v. Workers’ Comp. Appeals Bd. 2008) 10 WCAB Rptr. 10,019

In a recent decision by the First District Court of Appeal, Division One, it rejected applicant’s contention that the 104-week limitation on temporary disability indemnity is unconstitutional.

In this particular case, the applicant sustained an admitted back injury while working as a roofer on May 2, 2005. Further, as the injury was accepted, temporary disability was paid to the applicant. Subsequently the employer terminated temporary disability in accordance with Labor Code Section 4656 (c) (1) after 104 weeks from the commencement of temporary disability. Eventually the applicant had back surgery on March 23, 2007. On July 25, 2007 a hearing was held on the issue of whether the termination of temporary disability pursuant to Labor Code Section 4656 violated the constitutional requirement of adequate benefits. The applicant also submitted an offer of proof that among other things after surgery he had not returned to work, was on extensive narcotic medication for pain, was currently receiving permanent disability advances and some Social Security benefits, was receiving partial support from his parents and sister, and was not eligible for state disability because he was a recent resident in the state.

The WCJ found that the applicant was temporarily disabled. However, the WCJ also found that the Appeals Board lacked the proper jurisdiction to find that Labor Code Section 4656 violated the California Constitution. Reconsideration of this issue was also denied.

Of course the applicant appealed the denial of reconsideration. Further, the applicant argued that the constitutional requirements that the legislature provide “adequate benefits” for the “comfort, health and safety, and general welfare, of injured workers” had never been tested because there had never been a substantial decrease in benefits and that therefore there was no legal precedent on the requirements of the legislature to make “adequate benefits”.

In a victory for defendant employers and carriers the First District Court of Appeal, Division One, summarily denied the applicant’s Petition for Wrist of Review. The basis for this decision was predicated upon the reasoning in an unpublished opinion by the First District Court of Appeal, Division Five, in Donald Gunzenhauser v. Workers’ Comp. Appeals Bd. (2007) 9 WCAB Rptr. 10,256.

Please keep in mind for dates of injury for January 1, 2008 and thereafter, at this point temporary disability indemnity benefits can be paid up to 104 weeks within a period of five (5) years from commencement of said benefits. However, please note this rule is not retroactive to dates of injury prior to January 1, 2008.