Parker, Kern, Nard & Wenzel
Legal Updates


The 104 Week-Rule: Understanding the Distinction between
LC 4656(c)(1) and LC 4656(c)(2)

By
Brian L. Duncan

Recently I have confronted issues on several files relating to the application of LC 4656(c)(2) and its limit on temporary disability benefits. On each occasion, I believe the client or applicant’s attorney was misapplying the rule as a result of confusion by LC 4656(c)(1), a similar but not identical subsection dealing with claims for earlier injury dates. I think the subtle distinction between these subsections of the statute warrants addressing.

LC 4656(c)(1) applies to injuries occurring between April 19, 2004 and December 31, 2007. It reads:

Aggregate disability payments for a single injury, causing temporary disability shall not extend for more than104 compensable weeks within a period of two years from the date of commencement of temporary disability payment.

LC 4656(c)(2) applies to injuries occurring on or after January 1, 2008. It reads:

Aggregate disability payments for a single injury causing temporary disability shall not extend for more than 104 compensable weeks within a period of five years from the date of injury.

Now, we all know LC 4656(c)(1) limits temporary disability to104 weeks beginning from the commencement of temporary disability payments. We have all confronted the issue of a denied claim being determined compensable at some later date causing a retroactive temporary disability payment. And we know Hawkins v. Amberwood Products (2007) 72 Cal. Comp. Cases 807 (Appeals Board en banc opinion) held that the "commencement of TTD was determined to be the date of first actual payment rather than the first date of entitlement." A reimbursement to the EDD does not allow us to go back and use the first EDD payment as "the date of commencement of TTD" since EDD benefits are something different than TTD given "they are paid for different reasons and often at a different rate" than TTD." (Amerisource/Bergen Corporation v. WCAB (Dupard) (2007) 72 Cal. Comp. Cas 1500 (writ denied).

So in sum, for cases involving injuries of April 2004 to December 2007, a defendant owes 104 weeks of TTD from the first date TTD was actually paid. But what about cases for injuries of 2008 and later? A reading of LC 4656 allows for "104 compensable weeks within a period of 5 years from the date of injury."  That subsection omits any reference to "commencement of temporary disability payment."  Rather it’s simply a 104 week cap within a 5 year period.  

In the case where a 2008 denied claim is later found compensable, an employer or carrier’s obligation is capped at 104 compensable weeks of TTD regardless of the commencement date. Further, I believe that in those cases where the EDD has provided benefits and is later reimbursed by the employer or carrier, defendant is entitled to a credit and reduction of the 104 weeks by the amount and periods of EDD benefits paid.