No, no, dear readers, you haven’t overslept.  It’s not Friday, but feeling wretched on denying by beloved followers a proper update on legal developments as they happen, I have elected to provide a post today rather than tomorrow.

The Workers’ Compensation Appeals Board has issued an en banc opinion (consisting of five commissioners, given the two vacancies remaining on the Board) in the case of Warren Brower v. David Jones Construction.

The basic facts are simple enough: applicant sustained an injury in December of 2005 and was on temporary total disability for the 104 week maximum provided by Labor Code section 4656(c)(1).  It appeared very clear, very early on, based on the opinions of the AME, that this would be a total permanent disability case.

After paying more than 104 weeks of temporary total disability, defendant began paying permanent disability advances at a rate of $270 per week.  Ultimately, applicant was found totally permanently disabled, but that wasn’t until October of 2011.

So the issues rear their ugly heads quiet clearly: is applicant entitled to the difference between his life pension paid at the temporary total disability rate, as per Labor Code section 4659(b), and the $270 per week advanced during the four-year period prior to being found P&S?  Does COLA apply after the P&S date or on January 1 after the last temporary disability payment was made?

The WCAB held that an applicant found to be totally permanently disabled is entitled to retroactive payments from the last day of temporary disability benefits.  Additionally, COLA kicks in on January 1 after TTD funds are exhausted.

Now, some of you might be scratching your heads and thinking about a Supreme Court case by the name of Baker v. WCAB.  In that 2011 case, the Supreme Court held that “the Legislature intended that COLA’s be calculated and applied prospectively commencing on the January 1 following the date on which the injured worker first becomes entitled to receive, and actually begins receiving, such benefit payments, i.e., the permanent and stationary date in the case of total permanent disability benefits.”

The Brower opinion considers this as well, but also notes that the Baker decision specifically limits its holding to pre-4/19/2004 injuries.

So, dear readers, what’s to be done?  Well, you might get sneaky and think that you can just keep paying temporary total disability, even past the 104 week period, to avoid triggering COLA increases.  Your humble blogger advises against this.

Section 4656 specifically states that “aggregate disability payments for a single injury … shall not extend for more than 104 compensable weeks.”  In other words, the defendant has no right to waive 4656 and must start making PD advances.

Additionally, because TTD benefits are of a different species than Permanent Disability benefits, an aggressive applicant’s attorney could argue that all the temporary disability benefits paid in this matter are overpayments, and should not be credited against the retroactive permanent disability.

In this case, the defendant actually overpaid TTD by several weeks, with the last payment being in late January of 2008.  The WCAB allowed defendant credit for the overpayment, but held that the COLA would kick in on January 1 after the 104 weeks of TTD were exhausted, rather than the actual last day of TTD paid.

SCIF, the insurer in this case, may appeal, but to your humble blogger the reasoning of the WCAB is fairly solid.  This applicant was found by the AME to have suffered an injury far more debilitating than most workers sustain, and opined that he was completely incapable of ANY employment.

How would you like to be in his condition: in pain, heavily medicated, and incapable of providing for yourself, and then told you have to survive on $270 per week for four years, until there is a P&S report?