Can TTD Go On Forever?
Monica E. Thissen
The following article is informational only and is not
intended to be an exhaustive discussion, legal
position, argument, recommendation or assertion
related to any particular case or issue being defended
by PKNW. This article should not be considered
primary, secondary, citeable or other legal authority
and reflects only the individual analysis of its
For employers and insurance carriers that are still
litigating injuries occurring between January 1, 1979
and April 19, 2004, the issue of temporary disability
can be somewhat confusing.
At first glance, Labor Code Section 4656(b) appears to
limit temporary disability benefits for injuries
occurring during this time to 240 compensable weeks
within a period of five years from the date of injury.
However, after reading closely, you soon realize this
limit is only for temporary partial disability
Employers and insurance companies rely on cases like
Fekkers v.WCAB, (67
Cal Comp Cases 45) and
Hartsuiker v. WCAB, (12 Cal.App.4th 209), both
of which are appellate court cases.
In Fekkers, Applicant
sustained an industrial injury to her neck and low
back on 11/9/91. The case settled by Stipulated Award
on 1/19/94 for 30% permanent disability. On 10/25/94,
Applicant filed a Petition to Reopen for new and
further disability based on a medical report alleging
she was totally temporarily disabled at that time.
Further medical discovery determined Applicant was not
TTD at the time of her filing of the Petition to
Reopen, but did suffer a period of TTD from 10/23/96
through 1/23/97. However, the WCJ stated the WCAB
lacked jurisdiction to award temporary disability
benefits pursuant to the five year statute of
Applicant filed a Petition for Reconsideration,
contending that because she filed a Petition to Reopen
before the running of the statute of limitations, the
WCAB had continuing jurisdiction to award TTD.
The WCJ, in his report on reconsideration, agreed that
Applicant’s Petition to Reopen was timely, however he
noted that in order for the WCAB to have jurisdiction
to award TTD benefits, the period of TTD must have
arisen prior to the running of the statute of
limitations. Writ was denied.
Applicant sustained injury on 11/24/86, which was
settled by Stipulations with Request for Award on
10/25/91. Applicant’s award included future medical
benefits and future surgery was anticipated. As a part
of the Stipulations, the parties requested the judge
issue a ruling as to whether or not the Board has the
power to reserve jurisdiction over the issue of
temporary disability that may be paid in conjunction
with possible surgery, which may take place more than
five years after the date of injury. The WCJ ruled:
“If the file is in a closed status as of November 24,
1991, the Appeals Board will have no jurisdiction to
award temporary disability in conjunction with
possible surgery which may take place thereafter.”
Applicant filed a Petition for Reconsideration which
was denied by the WCAB which stated only in cases of
insidious progressive diseases does the Board have
continuing jurisdiction to award temporary disability
commencing beyond five years from the date of injury.
Subsequent decisions of the WCAB have looked to
Nickelsberg v. WCAB,
(54 Cal. 3d 288) in interpreting the 1978 Amendment to
Labor Code Section 4656 (SB 1851). In
California Supreme Court stated, “The amendment to
section 4656 was intended to permit an applicant to
receive temporary disability for as long as he or she
is continuously disabled without an arbitrary cutoff
date. These statements, however, do not suggest the
Legislature intended to permit an applicant, based on
an award of future medical benefits, to be able to
invoke the WCAB’s jurisdiction to award temporary
total disability benefits whenever he or she requires
medical treatment for a previous injury.”
In sharp contrast, the case of
CIGA v. Carrigan, (75
Cal Comp Cases 292) comes to a different conclusion,
albeit on different facts. In
suffered an admitted industrial injury to her
bilateral knees and other body parts on 3/7/00 and
12/4/01. Applicant underwent knee replacement surgery
on 11/5/08 for which she claimed temporary disability
benefits were owed to her beginning 3/1/07, the date
which she agreed to undergo the knee replacement. The
issue was litigated at an Expedited Hearing on 3/26/09
after which the WCJ issued a Supplemental Findings and
Award, awarding Applicant temporary disability
indemnity from 11/5/08 to the present and continuing.
The issue of whether Applicant was entitled to TTD
from 3/1/07 to the date of surgery was ordered off
calendar for further development of the record.
CIGA filed a Petition for Reconsideration and the WCJ
filed a report on reconsideration, noting her decision
partially relied on CIGA v.
WCAB (Venegas), (74 Cal. Comp. Cases 966),
finding that she had jurisdiction to award TTD more
than five years from the date of Applicant’s injury
when there had been no final adjudication of all of
the issues. The WCJ also cited
Unigard Insurance Co. v.
WCAB, (59 Cal. Comp. Cases 966), and
Inc. v. WCAB, (71 Cal. Comp. Cases 831), which were
factually similar and came to similar conclusions.
To muddy the waters even further, in the case of
County of Los Angeles v. Calvillo, (unpublished), the
WCJ awarded Applicant TTD benefits beginning more than
five years after the date of injury based on the
court’s original jurisdiction over the issue, meaning
no final determination had been made on all issues.
That decision was affirmed by the WCAB on
reconsideration. The County petitioned for writ of
review and the decision was overturned by the Second
District Court of Appeal.
The Appellate Court opinion, although not published
nor citable, stated that under
Hartsuiker, an award for TTD can extend beyond five
years after the date of injury only when it commences
within the five year period. Accordingly, the WCAB’s
decision was reversed and remanded for further
proceedings consistent with that opinion.
Therefore, there are a few issues to keep in mind when
determining whether temporary disability benefits are
due to an Applicant beyond five years from the date of
injury (for DOI from 1/1/79-4/1/04 only). First, it is
important to know whether or not there has been a
final adjudication of all issues (except in insidious
progressive disease). If the underlying case has been
settled and a timely Petition to Reopen has been
filed, TTD may be owed if the need for such arises
prior to the expiration of the five year period. If
there has not been a final adjudication, TTD may be
owed if the need for such arose within five years of
the date of injury.
These cases should encourage employers and insurance
companies to attempt to procure settlement of the
underlying claim prior to the five year statute of
limitations running, in order to eliminate further
temporary disability exposure that may arise with
future medical treatment. Keep in mind, however, that
the underlying purpose of temporary disability
benefits is to compensate for lost wages. If the
Applicant is no longer employed, there may be no lost
wages to compensate for.