Labor Code Section 4653: If the injury causes temporary total disability, the disability payment is two-thirds of the average weekly earnings during the period of such disability, consideration being given to the ability of the injured employee to compete in an open labor market.
In the case of Zinke v. WCAB January, 2013 The WCAB limited the applicant to 104 weeks of temporary disability even if the applicant showed that the defendants delayed medical treatment which was not sufficient to establish equitable estoppel or totaling of the relevant time period so as to prevent defendant from asserting the 104 week limit on temporary disability payments.
The latest “reform” to California Workers’ Compensation legislation was signed into law on September 18, 2012 by Governor Jerry Brown. Senate Bill 863 is intended to increase benefits to injured workers (primarily Permanent Disability Benefits) and reduce costs for California employers. What is not entirely clear is how much those savings will be and how long it will take to realize those savings. The number of changes this bill brings to the Labor Code are vast and though it receives wide support from Insurance Companies and Employers, many of those changes may result in a loss of access to benefits and medical treatment for the injured worker.
Although it purports to increase Permanent Disability (PD) compensation, SB 863 would actually make it more difficult for many injured workers to qualify for the disability ratings necessary to receive the increased compensation. Prior to January 1, 2013, Labor Code Section 4650(b) required that PD payments begin within 14 days of the last payment of Temporary Disability, and be paid until a “reasonable estimate” of PD was paid. This often meant that PD payments would be made even after an injured worker returned to work and before there was a settlement in the case. As of January 1, 2013, for all dates of injury, the law now states that in some instances, PD advances will not be paid until there is a final settlement (Findings & Award or Stipulation) in the case.
Senate Bill 863
1. Permanent Disability “advances” DO NOT have to be made IF the employer has offered the injured worker a job paying at least 85% of his or her earnings at the time of injury,
2. OR the injured worker has obtained a job with another employer paying 100% or more of his or her earnings at the time of injury.
Permanent Disability will be paid only when there is a final settlement (Findings & Award or Stipulation), however, PD will be paid retroactively from the date of the end of Temporary Disability benefits, or from the time the injured worker is declared Permanent & Stationary (P&S) or Maximum Medical Improvement (MMI), whichever is earlier. This means that the injured worker will still receive PD, but will have to wait for a final settlement to be reached if he or she has returned to work.
SB 863 has also affected Supplemental Job Displacement Benefits (Vocational Re-Training Voucher). For dates of injury (DOI) on or after January 1, 2013, the maximum amount of the voucher will be $6,000.00, regardless of Permanent Disability Rating. The voucher can no longer be settled for a lump sum of cash. This is drastically different from the “old law” which allowed for voucher funds to be distributed based on percentage of Permanent Disability. For example; An injured worker with a DOI prior to January 1, 2013 and a PD Rating of 50% or higher would qualify for a Supplemental Job Displacement Voucher in the amount of $10,000.00 and the ability to settle the voucher for a lump cash sum.
Another big change to the legislation limits the use of a Vocational Expert as an Expert Witness.
The new law states that no live testimony from a Vocational Expert will be admissible, unless showing a good cause. It also goes on to state that only reports will be admissible if the expert certifies, under penalty of perjury, that his/her opinion is based on personal knowledge, experience, education and skills.