Multiple DOI TD Caps Run Concurrently

Foster v. Workers’ Comp. Appeals Bd. (2008) 161 Cal.App.4th 1505 [73 Cal. Comp. Cases 466]:  The Court of Appeal, Third District has rejected an effort by applicant’s attorneys to avoid the two year cap on temporary disability set forth in Labor Code section 4656, subdivision (c)(1).

In this matter the injured worker suffered two separate injuries.  The first occurred in February 2005 and involved the right shoulder.  The second occurred in April 2005 and involved the neck, right elbow and right shoulder. Both injuries resulted in medical temporary disability beginning on April 14, 2005.  Temporary disability benefits were first paid (commenced) on April 26, 2005.  The shoulder injury became permanent and stationary in September 2006.  The neck injury kept the injured worker on temporary disability status past April 2007.

The trial judge awarded two consecutive temporary disability caps.  The first for the February 2005 injury to run April 14, 2005 - September 2006.  The second for the April 2005 injury to run September 2006 – September 2008.   The WCAB and Court of Appeal both disagreed.

The Court explicitly adopted the WCAB’s interpretation of the statute and held:  “Where independent injuries result in concurrent periods of temporary disability the 104 week/2 year limitation likewise runs concurrently.”  The Court did however caution “the evidence must be examined to determine whether any period of temporary disability are distinct and independent, staggered, or entirely overlapping.”  In other words, sometimes the caps may overlap, sometimes they may not.

Workers’ Compensation professionals should carefully review all temporary disability claims in the cap era.  They should also remember that this case and Hawkins only apply to dates of injury between April 19, 2004 and December 31, 2007.  For dates of injury on or after January 1, 2008 the law has changed.

Opinion filed April 17, 2008.

To learn more about how we can help you with your case, please contact us today!

Message

Heggeness, Sweet, Simington & Patrico, A P.C.
.........................................
Locations:

San Diego
7071 Convoy Court
Suite 200
San Diego, CA
92111-1023
Phone (858) 874-2100

Riverside
6180 Quail Valley Court
Suite 110
Riverside, CA
92507-0757
Phone (951) 656-1944

Santa Ana
600 West Santa Ana Boulevard
Suite 700
Santa Ana, CA
92701-4555
Phone (714) 550-1133

Bay Area
1633 Bayshore Highway
Suite 360
Burlingame, CA
94010-1537
Phone (650) 350-1908