It brings me nothing but joy to deliver good news, especially on a Friday, so color me joyful, dear readers!

The conventional wisdom as late at last week was that temporary disability benefits could not start five years from the date of injury, but continue past the five-year mark if the disability began prior to the five year mark.  For example, if applicant undergoes surgery 4 years and 11 months after the date of injury, he might remain TTD (and receive TTD benefits) for well after the five year mark, rather than just the one month mark.

Well, the Court of Appeal issued its ruling in County of San Deigo v. WCAB (Pike) just this past Tuesday.  In its published decision, the Court of Appeal ruled that entitlement of TTD ends five years from the date of injury, even if the TTD period began prior to the 5-year mark.

Mr. Pike sustained an admitted injury on July 31, 2010, and resolve the claim by way of stipulated award.  Applicant then re-opened his claim within the five-year mark (roughly two months shy of five years from the DOI) and demanded TTD and salary continuation benefits.  His employer cut off the gravy-train on July 31, 2015.

Even though the TD had existed and started prior to the five-year mark, defendant’s position was that no TD benefits were owed after five years, relying on Labor Code section 4656 (“Aggregate disability payments for a single injury occurring on or after January 1, 2008, causing temporary disability shall not extend for more than 104 compensable weeks within a period of five years from the date of injury.”) Emphasis giddily added by your humble blogger.

Relying on the conventional practice and interpretation of the law, the WCJ ruled that an applicant can receive TTD benefits more than five years from the date of injury when “temporary total disability has commenced prior to five years from the date of the industrial injury.”  The WCAB offered a split panel decision adopting the WCJ’s conclusion, so it’s off to the Court of Appeal that defendant went!

Now, here’s the fun part – in reaching its conclusion, the Court of Appeal relied on its obligation to use a plain reading of the statute of apply it fairly.  That means that the statute says what it says and it doesn’t say what it doesn’t say, to quote one now-deceased SCOTUS Justice.   The plain reading of Labor Code section 4656(c) provides that five years from the date of injury, all liability for TD benefits expires.

“This text supports the conclusion that the Board is authorized to award a maximum of 104 weeks of temporary disability payments to a worker who suffers an injury on or after January 1, 2008, but also limits payments to periods of disability occurring within five years of the injury.  Neither Pike, nor the amicus brief filed by the CAAA on his behalf, offers any interpretation of section 4656, subdivision (c)(2) that would permit the award of temporary disability benefits for an injury occurring on or after January 1, 2008 for a period more than five years from the date of injury.”  (Just to add a bit of snark, footnote 8 reads: “[i]n fact, neither Pike nor the CAAA provides any interpretation of the text of section 4656, subdivision (c)(2).”

So there you have it folks.  It doesn’t matter if applicant received just a single day of TD benefits – the moment the clock strikes midnight on the five-year mark, the carriage becomes a pumpkin, the horses become mice, and any residual rights to TTD become an employer’s hope of prevailing on a statute of limitations defense in a cumulative trauma case – practically non-existent.

So, check your files, dear readers!  Are you paying TTD on any case more than five years from the DOI?  Then stop!  Are you pretty close to the five-year mark on any of your cases?  Well don’t give a lot of weight to the TD benefits that might start prior to that mark, because they’re not work anything afterwards.

Good news, indeed!  Have a good weekend!