Scott M. Tilley, Esq.
WCAB Reinterprets TTD Limitations of Labor Code Section 4656(c)(2)
From the Desk Of: Scott M. Tilley, Esq. Managing Attorney, San Bernardino Certified Specialist, Workers' Compensation Law, The State Bar of California, Board of Legal Specialization
As you might recall, Labor Code section 4656 was amended in 2007 and changed the time limitations for TTD. Previously, for dates of injury between 4/19/2004 and 12/31/2007, TTD benefits were limited to 104 weeks within a two-year period and the period began to run with the first payment of benefits. This was amended in 2007 and Labor Code section 4656(c)(2) provided that for dates of injury after 1/1/2008 the limitation was 104 weeks within a period of five years from the date of injury.
Labor Code section 4656(c)(2) has been widely thought of as having two limitations. One, an applicant was entitled to only 104 weeks of TTD for a single date of injury. Two, the payments had to be made within five years from the date of injury. This was a significant change from the old provisions of LC § 4656(c)(1) which held that the limitation period started to run from the date of first payment.
Despite what appears to be the clear and unambiguous language of LC § 4656(c)(2), the WCAB recently held that an applicant is entitled to TTD benefits beyond five years from the date of injury if the benefits start within the five-year period. In the case of Pike v. County of San Diego (2017 Cal. Wrk. Comp. P.D. LEXIS 321), the applicant was a Deputy Sheriff with the County of San Diego. He sustained injury to his right shoulder on 7/31/2010 and settled the claim with stipulations with request for award on 5/31/2011. He filed a timely petition to reopen his claim on 5/26/2015.
The defendant paid TTD and LC § 4850 benefits up to the five years from the date of injury mark (which fell short of the 104-week mark in total). The issue at trial was the applicant's entitlement to benefits after the five-year mark. Defendants did stipulate that the applicant was TTD but felt they owed no further benefits as they had paid to the five-year mark. The WCJ held that when dealing with a petition to reopen, the Board may award benefits beyond the five-year mark.
The WCAB, in a split decision, agreed with the WCJ and held the applicant was entitled to TTD beyond five years from the date of injury if the benefits started within the five years. The WCAB acknowledged a series of cases that have gone both ways on the issue and held that where "statutory language is susceptible of an interpretation either beneficial or unfavorable to an injured worker," then the issue must be decided in a way most favorable to the applicant (noting LC § 3202).
The WCJ and the majority of the WCAB in the Pike case appear to be confusing the case law regarding LC § 4656(c)(2)'s limitations of TTD to five years from the date of injury and the Board's jurisdiction to award TTD more than five years past the date of injury in cases prior to 1/1/2008. The prior decisions had to do with the Board's jurisdiction to award TTD benefits after five years past the date of injury. This line of older cases had nothing to do with the limitations of LC § 4656 but, rather, they had to do with the Board's jurisdiction to award TTD past the five-year mark. The older line of cases held that where TTD is started before the five-year mark, the Board has jurisdiction to award TTD after the five-year mark. These cases came into being well before the limitations of LC § 4656(c)(2) came to pass. The dissent in Pike picked up on this distinction but the majority, for whatever reason, failed to do so.
The defendant in Pike filed a Petition for Writ of Review on August 18, 2017. I suspect the Court of Appeal will take this case up and find that the limitation of LC § 4656(c)(2) is just that, a limitation to 104 weeks of TTD within five years from the date of injury. Otherwise, LC § 4656(c)(2) means much less than what the legislature and the community thought it to mean. We will keep you updated.