Temporary Disability - Appeals Board Reporter

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Temporary Disability
Temporary Disability

TEMPORARY DISABILITY - Industrial Disability Leave (IDL) paid to certain state employees constitutes temporary disability indemnity for the purpose of the Labor Code §4660(d) 104-week/two-year limitation on aggregate temporary disability payments. Virginia Brooks v. Workers' Compensation Appeals Board, California Department of Corrections and Rehabilitation 10 WCAB Rptr. 10,137 ___Cal.App.4th___

TEMPORARY DISABILITY - Limitations on payment of temporary disability benefits–Labor Code §4656(c)(1) as two separate parts: (1) An injured worker may not receive more than 104 weeks of temporary disability indemnity for a single injury, and (2) temporary disability may not be paid beyond two years from the date of commencement of temporary disability payment. (See Hawkins v. Amberwood Products (2007) 9 WCAB Rptr. 10,208.) [Writ Denied]

TEMPORARY DISABILITY - Limitations on payment of temporary disability benefits–Labor Code §4656(c)(1)–The two-year period for payment of temporary disability cannot be tolled by the doctrines of equitable estoppel or waiver. Juan Baltazar v. Workers' Compensation Appeals Board, One Market Restaurant 10 WCAB Rptr. 10,126 [Writ Denied]

TEMPORARY DISABILITY - Labor Code §4656(c)(1)– When independent injuries result in concurrent periods of temporary disability, the 104-week/two-year limitation likewise runs concurrently. Donald Foster v. Workers' Compensation Appeals Board, Overaa Company & Company 10 WCAB Rptr. 10,121 ___Cal.App.4th___

TEMPORARY DISABILITY - Did the Appeals Board err when it awarded temporary total disability indemnity for a new period of temporary disability that begins more than five years from the date of injury? Los Angeles County Department of Parks and Recreation v. Workers' Compensation Appeals Board (Merrell Calvillo) 10 WCAB Rptr. 10,094 [Writ Granted]

TEMPORARY DISABILITY - When there has been a final determination that the employer is not liable for further temporary disability benefits, the applicant's subsequent request for additional temporary disability constitutes a new request for benefits, the timeliness of which is measured from the date of injury and not from the date of the petition to reopen. David Radley v. Workers' Compensation Appeals Board, Fontana Steel, Inc. 10 WCAB Rptr. 10,077 [Writ Denied]

TEMPORARY DISABILITY - 104-week limitation–Labor Code §4556(c)(1)–A compensable consequence injury is not a new and separate industrial injury and therefore the injured worker is not entitled to a new 104 compensable weeks within a two-year period of temporary disability indemnity. Slobodan Divjakinja v. Workers' Compensation Appeals Board, State Compensation Insurance Fund 10 WCAB Rptr. 10,030 [Writ Denied]

TEMPORARY DISABILITY Labor Code §4656(c)(1)–When there are two periods of entitlement to temporary disability, do the periods run concurrently if the applicant is temporarily disabled from the two injuries at the same time? Donald Foster v. Workers' Compensation Appeals Board, Overaa Company & Company 10 WCAB Rptr. 10,008 [Writ Granted]

TEMPORARY DISBILITY - Time limit on the payment of temporary disability–Labor Code §4656(c)(1)–Aggregate disability payments for a single injury causing temporary disability shall not extend more than 104 compensable weeks within a period of two years from the date of commencement of temporary disability payment. The "date of commencement of temporary disability payment" as used in Labor Code §4656(c)(1) is the date on which temporary disability indemnity is first paid, not the date when temporary disability is first owed. [See Hawkins v. Amberwood Products (2007) 9 WCAB Rptr. 10,208 (en banc).] [Writ Denied]

TEMPORARY DISBILITY - Time limit on the payment of temporary disability–Labor Code §4656(c)(1) applies to single injuries to more than one body part. The statute does not distinguish between injuries to one body part and injuries to multiple body parts. [In this case, applicant sustained a single cumulative injury to his back and bilateral knees.] Editor's note: This panel decision was issued prior to the Court of Appeal opinion in Genlyte Group v. WCAB (Zavala) summarized in this edition at page 10,.003. Editor's note: This panel decision was issued prior to the Court of Appeal opinion in Genlyte Group v. WCAB (Zavala) summarized in this edition at page 10,.003. The Pacific Lumber Company v. Workers' Compensation Appeals Board (Stanley Holcomb, Jr.) 10 WCAB Rptr. 10,011 [Writ Denied]

TEMPORARY DISABILITY - A period of temporary disability commencing more than five years from the date of injury is not compensable pursuant to Labor Code §5410. Kalvin Briggs v. Workers' Compensation Appeals Board, De Miranda Management, Inc. 9 WCAB Rptr. 10,364 [Writ Denied]

TEMPORARY DISABILITY - 104-week limitation on payment of temporary disability-Labor Code §4656(c)(1)-The 104-week limit on the payment of temporary disability indemnity begins with the first temporary disability indemnity payment, even when the payment includes retroactive benefits. (See Hawkins v. Amberwood Products (2007) 9 WCAB Rptr. 10,208.) [In this case, the injured worker had received extensive sick leave and unemployment benefits prior to the first payment of temporary disability.] Pacific Gas and Electric Company v. Workers' Compensation Appeals Board (Veta Smith) 9 WCAB Rptr. 10,362 [Writ Denied]

TEMPORARY DISABILITY - Does Industrial Disability Leave (IDL) paid to certain state employees constitute temporary disability indemnity for the purpose of the Labor Code §4656(c)(1) limitation on aggregate temporary disability payments? Virginia Brooks v. Workers' Compensation Appeals Board, California Department of Corrections and Rehabilitation 9 WCAB Rptr. 10,357 [Writ Granted]

TEMPORARY DISABILITY - Maximum period for temporary disability payments–Labor Code §4656(c)(1)–Aggregate disability payments for a single injury causing temporary disability shall not extend more than 104 compensable weeks within a two-year period from the date of commencement of temporary disability payments. This means when temporary disability indemnity is first paid, not the date for which temporary disability indemnity is first owed. (See Valeri Hawkins v. Amberwood Products (2007) 9 WCAB Rptr. 10,208 [en banc].) Amerisource/Bergen Corporation v. Workers' Compensation Appeals Board (Dametrius Dupard) 9 WCAB Rptr. 10,349 [Writ Denied]

TEMPORARY DISABILITY - Total temporary disability–There is no time limit on total temporary disability payments to workers who were injured on or after January 1, 1979 and before April 19, 2004. HCI/Lombardy Holdings, Inc. v. Workers' Compensation Appeals Board (Jerome Kimbel) 9 WCAB Rptr. 10,350 [Writ Denied]

TEMPORARY DISABILITY - Maximum period for payment of temporary disability–Labor Code §4656–Industrial Disability Leave paid to certain state employees who sustain industrial injuries is the equivalent to temporary total disability. (See Government Code §19870(a); see also State of California v. Workers' Comp. Appeals Bd. (Ellison) (1996) 44 Cal.App.4th 128.) Therefore, Industrial Disability Leave benefits paid to an injured worker apply toward the 104-week limitation pursuant to Labor Code §4656. Victoria Seidman v. Workers' Compensation Appeals Board, State of California Department of Parks & Recreation 9 WCAB Rptr. 10,346 [Writ Denied]

PERMANENT DISABILITY - Prophylactic restrictions–An employee is entitled to be rated for permanent disability on the basis of a physician's prophylactic restrictions. This is true even if the employee may be physically able to perform the prohibited activity. (See State Compensation Insurance Fund v. Workers' Comp. Appeals Bd. (Stapp) (1978) 81 Cal.App.3d 586.) [In this case, applicant's QME concluded prophylactic restriction from exposure to chemicals causing hand rashes he had been exposed to in his employment.] E & J Gallo Winery v. Workers' Compensation Appeals Board (Dennis Blackwood) 9 WCAB Rptr. 10,348 [Writ Denied]

TEMPORARY DISABILITY - Credit for overpayment of temporary disability-When there is an overpayment of temporary disability caused by the payment at the incorrect rate, is the granting of credit for overpayment of temporary disability discretionary? Genlyte Group, LLC v. Workers' Compensation Appeals Board (Maria Zavala) WCAB Rptr. 10,295 [Writ Granted]

TEMPORARY DISABILITY - Two-year/104-week cap–Labor Code §4656(c)(2)(C)–The word "amputation" as used in Labor Code §4656(c)(2)(C) means the severance or removal of a limb, part of a limb, or other body appendage, including both traumatic loss in an industrial injury and surgical removal during treatment of an industrial injury. [This case involves the anterior L5-S1 diskectomy, partial L5-S1 fusion with a graft from the iliac crest bone, bilateral L4-L5 laminotomy, and decompression of L5 nerve roots bilaterally, which was determined by the Appeals Board not to constitute an "amputation" within the meaning of Labor Code §4656(c)(2)(C).]Paul Cruz v. Mercedes-Benz of San Francisco, and Auto Dealers Compensation of California administered by Intercare Insurance Company 9 WCAB Rptr. 10,285 [en banc decision]

TEMPORARY DISABILITY - Credit for overpayment–An employer should be encouraged to keep paying temporary disability indemnity until it receives a permanent and stationary report and therefore should be credited for a good faith overpayment of temporary disability. (See Arroyo v. Workers' Comp. Appeals Bd. (1997) 62 Cal.Comp.Cases 950 [writ denied]. Allowance of a credit is discretionary. (See Herrera v. Workers' Comp. Appeals Bd. (1969) 71 Cal.2d 254. [Under the circumstances of this case the credit against permanent disability was larger than the amount of permanent disability indemnity and the Appeals Board did not require any reimbursement from the applicant.] Alex Sanchez v. Workers' Compensation Appeals Board, Home Depot 9 WCAB Rptr. 10,284 [Writ Denied]

TEMPORARY DISABILITY -104-week maximum entitlement–Labor Code §4656–The maximum two-year temporary disability indemnity period under Labor Code §4656 is lawful and constitutional. Donald Gunzenhauser v. Workers' Compensation Appeals Board, State Compensation Insurance Fund 9 WCAB Rptr. 10,256 ___Cal.App.4th___

TEMPORARY DISABILITY - To the extent that the employer can establish it paid wages during the period that the injured worker was found to be temporarily disabled, the injured worker is not entitled to a double recovery and the employer is entitled to credit for wages paid during the period of temporary disability. [Writ Denied]

TEMPORARY DISABILITY - Labor Code §4661.5 applies to any payment of temporary disability made more than two years after the date of injury, the injured worker is entitled to payment at the rate in effect as of the date of payment. Oz Optics, Ltd. v. Workers' Compensation Appeals Board (Faramarz Ghassemi) 9 WCAB Rptr. 10,269[Writ Denied]

TEMPORARY DISABILITY - Two-year limitation for payment–Labor Code §4656(c)–Salary continuation benefits paid pursuant to San Francisco City Charter to injured members of the police and fire departments are not subject to the two-year limitation for payment of temporary disability. City and County of San Francisco v. Worker's Compensation Appeals Board (Nick Bryant) 9 WCAB Rptr. 10,227 [Writ Denied]

TEMPORARY DISABILITY - Limit of 104 weeks of benefits–Labor Code §4656 two-year limitation on temporary total disability does not apply to Labor Code §4850 when a police officer has not used the full year of 4850 benefits. City of Long Beach v. Workers' Compensation Appeals Board (Michael Weber) 9 WCAB Rptr. 10,193 [Writ Denied]

TEMPORARY DISABILITY - Payments beyond five years of date of injury-Labor Code §4656(a)-The Appeals Board has jurisdiction to order additional temporary total disability benefits when a timely petition to reopen is filed and the new and further disability commenced within five years of the date of injury. (See General Foundry Service v. Workers' Comp. Appeals Bd. (1970) 3 Cal.3d 324.) Mike Sarabi v. Workers' Compensation Appeals Board, Narsi's Hofbrau 9 WCAB Rptr. 10,183___Cal.App.4th___

TEMPORARY DISABILITY - Salary in lieu of temporary disability for public safety officers–Labor Code §4850–Salary in lieu of temporary disability for public safety officials paid more than two years or more from the date of injury is not increased to the salary level in effect for a similarly held position at the time those payments are made. Roger Nustad v. Workers' Compensation Appeals Board, City of San Buenaventura 9 WCAB Rptr. 10,176 [Writ Denied]

TEMPORARY DISABILITY - Permanent and stationary status–An injured worker's refusal to accept treatment recommendations or keep medical appointments can be a factor in the conclusion that the worker is permanent and stationary and no longer eligible for temporary disability indemnity. (See Sisco v. Workers' Comp. Appeals Bd. (1977) 42 Cal.Comp.Cases 973 [writ denied], see also Pierce v. Workers' Comp. Appeals Bd. (1991) 56 Cal.Comp.Cases 603 [writ denied].) [In this case, the injured worker refused the treating physician's treatment recommendations, was non-compliant with physical therapy treatment, and refused to be examined by a neurosurgeon.] Titus Rucker v. Workers' Compensation Appeals Board, Allegis Group/Maxim Healthcare Services 9 WCAB Rptr. 10,136[Writ Denied]

TEMPORARY DISABILITY - An injured worker may be entitled to temporary disability indemnity while undergoing medical treatment for nonindustrial obesity, if such treatment is a necessary precondition to the treatment of the industrial injury. (See Perry v. Workers' Comp. Appeals Bd. (1977) 66 Cal.App.3d 887.) [In this case, there was significant evidence that the injured worker might never achieve the requisite weight loss to make it possible to obtain the knee replacement surgery that could cure or relieve the effects of the industrial injury and that the injured worker was capable of working in a semi-sedentary capacity.] Larry McCray v. Workers' Compensation Appeals Board, Laidlaw Transit 9 WCAB Rptr. 10,114 [Writ Denied]

TEMPORARY DISABILITY - No award more than five years after date of injury–Labor Code §5410–The five-year limitations period of Labor Code §5410 bars any claim for new and further temporary disability arising more than five years after the date of injury, regardless of whether the petition to reopen was timely filed. (See Hartsuiker v. Workers' Comp. Appeals Bd. (1993) 12 Cal.App.4th 209.) [In this case, the WCJ found that the temporary disability for the new and further disability did not occur within the five-year period, although the petition to reopen was filed within the five-year period.] James Duran v. Workers' Compensation Appeals Board, Brighton Gardens Santa Rosa 9 WCAB Rptr. 10,095 [Writ Denied]

TEMPORARY DISABILITY - Credit for overpayment of temporary disability-An employer is entitled to credit for overpayment or temporary disability against permanent disability, when the overpayment of temporary disability payments occurred solely due to the delay of the Agreed Medical examiner in preparing and serving his report that found the injured worker permanent and stationary. Geralyn Sandin v. Workers' Compensation Appeals Board, Hewlett-Packard 9 WCAB Rptr. 10,079 [Writ Denied]

TEMPORARY DISABILITY - Labor Code §4453(c)(4)–When the employee is working for two employers at the time of the injury, the average weekly earnings may be calculated using the earnings from the employment other than the employment in which the injury occurred. [The worker in this case was a State Fund attorney injured while serving as a juror. The average weekly earnings were calculated based on his earnings as an attorney, not on the per diem as a juror.] County of San Joaquin v. Workers' Compensation Appeals Board (James A. Davis) 9 WCAB Rptr. 10,071 ___Cal.App.4th___

TEMPORARY DISABILITY - Two-year limitation on temporary disability payments-Labor Code-4656-Payment of Labor Code §4850 benefits [paid leave of absence for specified public safety employees] are paid in lieu of temporary disability indemnity and are not subject to the limitations of Labor Code §4656 [temporary disability payments are limited to 104 weeks within a period of two years from the date of commencement of temporary disability benefits]. City of Oakland v. Workers' Compensation Appeals Board (Felicia Aisthrop) (Johnna Watson) 9 WCAB Rptr. 10,061 [Writ Denied]

TEMPORARY DISABILITY - Injured worker incarcerated in county jail-Labor Code §3370 applies only to inmates of a state penal or correctional institution. An injured worker's dependents are entitled to temporary disability when the injured worker is confined to a county jail except where a state prison inmate is released from incarceration and then is re-incarcerated in a city or county jail. The Brickman Group v. Workers' Compensation Appeals Board (Enrique Martinez) 9 WCAB Rptr. 10,062 [Writ Denied]

TEMPORARY DISABILITY - Labor Code §4453–Earning capacity is a prediction of what the employee's earnings would have been but for the injury. For temporary disability, such prediction must be made for the duration of the disability. In making such prediction, the Appeals Board should consider all relevant facts, including the applicant's ability to work, his age and health, his willingness and opportunities to work, his skill and education, the general condition of the labor market, and employment opportunities for persons similarly situated. (See Argonaut Ins. Co. v. Industrial Acc. Com. (Montana) (1962) 57 Cal.2d 569.) Select Personnel Services v. Workers' Compensation Appeals Board (Maria Olga Cardenas) 8 WCAB Rptr. 10,372 [Writ Denied]

TEMPORARY DISABILITY - Seasonal worker–Labor Code §4453–A seasonal worker is not entitled to temporary disability during the off-season where the parties stipulated that the injured worker did not have any off-season earnings. Signature Fruit Company v. Workers' Compensation Appeals Board (Eva Ochoa) 8 WCAB Rptr. 10,285 ___Cal.App.4th___

TEMPORARY DISABILITY-Labor Code §4453(c)(2)–When the employee is working for two employers at the time of the injury, should the average weekly earnings be calculated using the earnings from the employment other than the employment in which the injury occurred? County of San Joaquin v. Workers' Compensation Appeals Board (James A. Davis) 8 WCAB Rptr. 10,257 [Writ Granted]

TEMPORARY DISABILITY-Petition to decrease or terminate–Labor Code §4651.1–When a petition is filed concerning a continuing award of temporary disability in which it is alleged that the disability has decreased or terminated, there is a rebuttable presumption that such temporary disability continues for at least one week following the filing of such petition. Bentley Ashley v. Workers' Compensation Appeals Board, California Day Fresh Goods 8 WCAB Rptr. 10,246 [Writ Denied]

TEMPORARY DISABILITY-When it is determined that the injured worker needed a weight loss program before he could have knee surgery, the injured worker's condition is considered permanent and stationary until he has the surgery. Pending the weight loss sufficient to permit the surgery, the injured worker's condition is stable until the surgery and the disability would not change during the interim period. (See Beckett v. Workers' Comp. Appeals Bd. (2003) 5 WCAB Rptr. 10,018 [writ denied].)Enrique Hernandez v. Workers' Compensation Appeals Board, County of Ventura8 WCAB Rptr. 10,243 [Writ Denied]

TEMPORARY DISABLITY-When an employer provides modified work and continues to do so until terminated for cause, no temporary disability is owed. It is the defendant's burden to show that they do not have liability for medically indicated temporary disability payments, due to defendant having terminated applicant for misconduct. The issue is whether applicant's own misconduct created the lack of ability to return to the modified work. (See Drews v. Workers' Comp. Appeals Bd. (2004) 6 WCAB Rptr. 10,223 [writ denied].) KSL Desert Resorts, Inc. v. Workers' Compensation Appeals Board (Rocio Villegas) 8 WCAB Rptr. 10,230 [Writ Denied]

TEMPORARY DISABILITY-An injured worker who is undergoing diagnostic testing and treatment and is unable to work is considered temporarily disabled. (See Braewood Convalescent Hospital v. Workers' Comp. Appeals Bd. (Bolton) (1983) 34 Cal.3d 159.) [In this case, the treating physician found the injured worker to be permanent and stationary but recommended further surgery. The WCJ found that the injured worker was no longer at the maximal medical improvement when the further surgery was recommended.] Parsec Inc. v. Workers' Compensation Appeals Board (Lonnie Blazer) 8 WCAB Rptr. 10,164 [writ denied]

TEMPORARY DISABIITY- Labor Code 4850–Salary in lieu of temporary disability–An injured public safety member is entitled to be maintained on full salary throughout his participation in the vocational rehabilitation process up to the completion of one year of 4850 benefits. (See City of Martinez v. Workers' Comp. Appeals Bd. (Bonito) (2000) 85 Cal.App.4th 601, 3 WCAB Rptr. 10,004.) City of Oceanside v. Workers' Compensation Appeals Board (Salvatore Gambino) 8 WCAB Rptr. 10,134 [Writ Denied]

TEMPORARY DISABILITY INDEMNITY- State penal or correction institution inmates–Labor Code §3370(a)(9)(d)–Temporary disability benefits that otherwise would be payable to an inmate of a state penal or correctional institution during incarceration based on an injury sustained prior to incarceration shall be paid to inmate's dependents. If the inmate has no dependents, temporary disability benefits that otherwise would be payable during inmate's incarceration shall be paid to the State Treasury to the credit of the Uninsured Employer's Fund. Redwood City Electric v. Workers' Compensation Appeals Board (Kenneth Burns) 8 WCAB Rptr. 10,038 [Writ Denied]

TEMPORARY DISABILITY– Permanent and stationary is a status in which the injured worker had made a full recovery from his injury as much as he is likely to make. (See Estrada v. Workers' Comp. Appeals Bd. (1997) 58 Cal.App.4th 1458.) (In this case, decedent sustained a psychiatric injury as a compensable consequence of his admitted physical injuries. His psychiatric condition had not stabilized and was not permanent and stationary prior to his suicide, and the WCJ properly awarded temporary disability indemnity up to the time of his death.) California Insurance Guarantee Association v. Workers' Compensation Appeals Board (Derek Johnson) 7 WCAB Rptr. 10,364 [Writ Denied]

TEMPORARY DISABILITY– Permanent and stationary is a status in which the injured worker had made a full recovery from his injury as much as he is likely to make. (See Estrada v. Workers' Comp. Appeals Bd. (1997) 58 Cal.App.4th 1458.) (In this case, the decedent sustained a psychiatric injury as a compensable consequence of his admitted physical injuries. His psychiatric condition had not stabilized and was not permanent and stationary prior to his suicide and the WCJ properly awarded temporary disability indemnity up to the time of his death.) California Insurance Guarantee Association v. Workers' Compensation Appeals Board (Derek Johnson) 7 WCAB Rptr. 10,347 [Writ Denied]

TEMPORARY DISABILITY– If the injured worker is temporarily totally disabled at the time she timely files a petition for new and further disability, the worker is entitled to receive temporary disability indemnity beyond the five-year period described in Labor Code §5410. (See Franchise Tax Board v. Workers' Comp. Appeals Bd. (Schultz) (2004) 6 WCAB Rptr. 10,077 [writ denied].) AC Transit District v. Workers' Compensation Appeals Board (Lillian Harris) 7 WCAB Rptr. 10,286 [Writ Denied]

TEMPORARY DISABILITY– Labor Code §4453(c)(4) – Where the employment is for less than 30 hours per week, the average weekly earnings should be taken at 100% of the sum that reasonably represents the average weekly earning capacity of the injured worker at the time of his or her injury, due consideration being given to his or her actual earnings from all sources and employments. Lumbermen's Mutual Casualty Company and Hank Londoner v. Workers' Compensation Appeals Board (Robert Hipp) 7 WCAB Rptr. 10,268 [Writ Denied]

TEMPORARY DISABILITY– Labor Code §4062(b) provides that the employer is not liable for medical treatment costs for a disputed surgical procedure or for periods of temporary disability resulting from the surgery, if the disputed surgical procedure is performed prior to the completion of the second-opinion process required by Labor Code §4062. [In this case, the WCJ properly awarded further medical treatment that did not include the disputed surgery and awarded temporary disability that existed independently of the surgery.] Travelers Property Casualty Company of America v. Workers' Compensation Appeals Board (Matthew Shuman) 7 WCAB Rptr. 10,248 [Writ Denied]

TEMPORARY DISABILITY– Labor Code §4850 benefits– In the absence of temporary disability eligibility, but with permanent and stationary status and no release to return to full duties and no return to scheduled modified duty, the actual receipt of disability pension payments or advanced disability pension payments are the only disqualifying events under Labor Code §4850. County of San Bernardino v. Workers' Compensation Appeals Board (Marilyn Reed) 7 WCAB Rptr. 10,243 [Writ Denied]

TEMPORARY DISABILITY– Payment of temporary disability indemnity more than five years post injury– May the parties by stipulation confer jurisdiction on the Appeals Board to make an increased award of indemnity for a period of disability more than five years after the date of injury, where the applicant's injury is orthopedic and stems from a specific industrial accident and does not involve an insidious progressive disease? John Finley v. Workers' Compensation Appeals Board, Pacific Steel and Engineering 7 WCAB Rptr. 10,238 [Writ Granted]

TEMPORARY DISABILITY– An injured worker's opinion as to his physical ability to return to work to perform his regular work duties does not constitute substantial evidence the employee is no longer temporarily disabled. Medical evidence must support a finding of permanent and stationary status. (See Huston v. Workers' Comp. Appeals Bd. (1979) 95 Cal.App.3d 856.) Mark Borges v. Workers' Compensation Appeals Board, Quality Terminal Services 7 WCAB Rptr. 10,163

TEMPORARY DISABILITY– Permanent and stationary status–Until all reasonable healing modalities have been attempted and all reasonable diagnostic testing has been completed, an injured worker cannot be deemed permanent and stationary. (See Sweeney v. Ind.Acc. Comm. (1951) 107 Cal.App.2d 155.) Cherne Contracting Corporation v. Workers' Compensation Appeals Board (Tony Wallace) 7 WCAB Rptr. 10,142

TEMPORARY DISABILITY– In determining temporary disability benefits, does an injured worker have no earning capacity in the United States because of her illegal-alien status? Preferred Personnel v. Workers' Compensation Appeals Board (Alma Marroquin) 7 WCAB Rptr. 10,134

TEMPORARY DISABILITY– Earning capacity affected by retirement–The elements of earning capacity include the ability to work, willingness to work and opportunity to work. (See Gonzales v. Workers' Comp. Appeals Bd. (1998) 68 Cal.App.4th 843.) Although a voluntary retirement could reduce earning capacity to zero and negate the right to temporary disability benefits, part of the analysis must address whether the decision to retire was a function of the job-related injury. If the injury causes the worker to retire, or interferes with plans to continue working, then the worker cannot be said to be unwilling to work, and would have an earning capacity diminished by the industrial injury and would be entitled to temporary disability benefits despite the fact that he/she retired. Bay Area Rapid Transit District v. Workers' Compensation Appeals Board (Kathleen Heppler)7 WCAB Rptr. 10,127

TEMPORARY DISABILITY– Does an injured worker's opinion as to his physical ability to return to work to perform his regular work duties constitute substantial evidence the employee is no longer temporarily disabled? Mark Borges v. Workers' Compensation Appeals Board, Quality Terminal Services 7 WCAB Rptr. 10,108

TEMPORARY DISABILITY– Labor Code §4453–In this case, after the industrial injury, applicant continued to perform work in excess of his work restrictions. His condition progressively worsened and the treating physician opined that it was inappropriate for applicant to be performing even light duty. It was within the treating physician's purview to place applicant on total temporary disability. Double Tree Hotel v. Workers' Compensation Appeals Board (Jose Mercado) 7 WCAB Rptr. 10,078

TEMPORARY DISABILITY– Labor Code §4453–When an injured worker is terminated for cause and a light-duty position was available and would have been offered, the trier of fact can conclude that this is an implied or constructive refusal to accept such employment and temporary disability will not be owed. [In this case, the injured worker was terminated after the employer's independent investigation concluded that the worker violated safety rules and had driven a company vehicle in an unsafe manner resulting in his injury.] Juan Campos v. Workers' Compensation Appeals Board, Sierra Pacific Industries 7 WCAB Rptr. 10,061

TEMPORARY DISABILITY– Labor Code §4653–Temporary disability indemnity serves as wage replacement during the injured worker's healing period for an industrial injury. (See Maples v. Workers' Comp. Appeals Bd. (1980) 111 Cal.App.3d 827.) An employee is no longer entitled to temporary disability indemnity payments when: (1) the employee returns to work; (2) the employee is deemed medically able to return to work; or (3) the employee's condition becomes permanent and stationary. Frank Enoch v. Workers' Compensation Appeals Board, Summit Logistics, Inc. 7 WCAB Rptr. 10,052

TEMPORARY DISABILITY BENEFITS– Labor Code §4850–A correctional officer working in a county jail was entitled to benefits as provided by the provisions of Labor Code §4850. (See Biggers v. Workers' Comp. Appeals Bd. (1999) 69 Cal.App.43th 431.) County of Sutter v. Workers' Compensation Appeals Board (Tracy Kehoe) 7 WCAB Rptr. 10,043

TEMPORARY DISABILITY– Offer of modified work–An employer may avoid liability for the payment of temporary disability indemnity while an employee is temporarily partially disabled, if the employer can establish that modified work within the employee's work restrictions was available, but the employee chose not to perform the modified work. (See Transit Indemnity Company v. Industrial Accident Commission (Cooper) (1958) 157 Cal.App2d 542.) Tereas Maskoka v. Workers' Compensation Appeals Board, Sutherland Group, Ltd. and Royal & Sun Alliance 7 WCAB Rptr. 10,045

TEMPORARY DISABILITY– Labor Code 4850–An injured public safety member is entitled to separate and independent period of 4850 benefits involving a continuing trauma and a specific injury, even if the injuries involve the same or different body parts. See City of Montclair v. Workers' Comp. Appeals Bd. (Leone) (2001) 3 WCAB Rptr. 10,204.) City of Long Beach v. Workers' Compensation Appeals Board (David R. Edwards) 7 WCAB Rptr. 10,046 TEMPORARY DISABILITY– Labor Code §4600–An employer must pay temporary disability indemnity benefits for the period an injured employee, while unable to work, is undergoing medical diagnostic procedure and treatment for an industrial injury. (See Granado v. Workmen's Comp. Appeals Bd. (1968) 69 Cal.2d 399.) [In this case, the injured worker had every intention of continuing to work and retired only because he was physically unable to perform his employment duties.] Quinn Company v. Workers' Compensation Appeals Board (Eddie Coble, Jr.) 6 WCAB Rptr. 10,339

TEMPORARY DISABILITY–This case involved a claim for temporary disability benefits under the City of Los Angeles Administrative Code, which incorporated the provisions of the Labor Code and provided that the benefits under the City Administrative Code would be administered in accordance with WCAB decisions. In the workers' compensation proceeding, the WCJ found that the applicant suffered an industrial injury to her psyche but that the injury was caused by a good-faith personnel action, and therefore no temporary disability benefit under the City Code was due. Sherry M. Ray v. City of Los Angeles 6 WCAB Rptr. 10,328

TEMPORARY DISABILITY–When an injured worker is terminated for cause and a light–duty position was available and would have been offered, the trier of fact can conclude that this is an implied or constructive refusal to accept such employment and temporary disability is not owed. (See Ventura Regional Sanitation District v. Workers' Comp. Appeals Bd. (Deavenport) (2001) 3 WCAB Rptr. 10,173 [writ denied].) Juan Campos v. Workers' Compensation Appeals Board, Sierra Pacific Industries 6 WCAB Rptr. 10,336

TEMPORARY DISABILITY– Salary in lieu of temporary disability payments– Labor Code §4850– The defendant's liability for Labor Code 4850 benefits (the equivalent of temporary disability indemnity for a deputy sheriff) terminated when the applicant returned to full shift, modified duty, because there was no wage loss coupled with an incapacity to work. (See California Department of Rehabilitation v. Workers' Comp. Appeals Bd. (Lauher) (2003) 30 Cal.4th 1281, 5 WCAB Rptr. 10,203.) Kenneth Ward v. Workers' Compensation Appeals Board, San Joaquin County Sheriff's Office 6 WCAB Rptr. 10,268

TEMPORARY DISABILITY– Labor Code §4453– Regardless of which statutory provision is used to determine temporary disability benefits, earnings capacity remains the benchmark for calculating average weekly earnings at the time of injury. (See Pham v. Workers' Comp. Appeals Bd. (2000) 78 Cal.App.4th 262, 2 WCAB Rptr. 10,100.) Earning capacity is composed of the ability to work, the willingness to work and opportunity to work. (See West v. Industrial Accident Commission (1947) 79 Cal.App.2d 711.) Universal Sodexho v. Workers' Compensation Appeals Board (Michael Sullivan) 6 WCAB Rptr. 10,271

TEMPORARY DISABILITY– Decision to retire implicates the element of "willingness to work" in the earnings capacity calculus, and the primary factual component of the analysis must be whether the worker is retiring for all purposes, or only from the particular employment. If the former, then the worker cannot be said to be willing to work, and earnings capacity would be zero. If the latter, then it would be necessary to determine an earning capacity from all the evidence available. Con J. Franke v. Workers' Compensation Appeals Board (Bill Alexander) 6 WCAB Rptr. 10,222

TEMPORARY DISABILITY– Modified or alternative work–When an employer provides modified work and would continue to do so but for termination for cause, no temporary disability is owed. (See Vittone v. Workers' Comp. Appeals Bd. (2001) 3 WCAB Rptr. 10,093 [writ denied].) Shelley Drews v. Workers' Compensation Appeals Board, Walgreens 6 WCAB Rptr. 10,223

TEMPORARY DISABILITY– Seasonal Workers– Labor Code §4453– An industrially injured seasonal employee shall be awarded temporary disability indemnity at two rates: (1) an in-season rate based on the employee's in-season earnings capacity and (2) an off-season rate based on the employee's off-season earnings capacity, taking into consideration such factors as the employee's earnings history, willingness and ability to work, age and health, education and skill, as well as employment opportunities and the general condition of the labor market. (See Jimenez v. San Joaquin Valley Labor (2002) 4 WCAB Rptr. 10,048.) Hortencia Acosta v. Workers' Compensation Appeals Board, Basic Vegetable Products. 6 WCAB Rptr. 10,115

TEMPORARY DISABILITY INDEMNITY– Calculation of Average Weekly Wages– Labor Code §4663– Within statutory limits, the amount of an injured employee's weekly disability indemnity payment is based on the employee's 'average weekly earnings' at the time of injury. Ordinarily, the average weekly earnings of a seasonal employee are computed under Labor Code §4453(c)(4) and are based on the employee's average weekly earning capacity. In this case, the applicant was a seasonal worker as a mosquito control technician and received income from a partnership with her husband who operated a plumbing and mechanical underground utilities contractor. No actual evidence was presented that the decrease in the applicant's personal efforts to the partnership due to her industrial injury resulted in added expense or diminished profit for the partnership. Lake County Vector Control District v. Workers' Compensation Appeals Board (Jan Sanders) 6 WCAB Rptr. 10,067

TEMPORARY DISABILITY– Duration of Temporary Disability– An injured worker is considered temporarily disabled while unable to work because of the effects of the industrial injury and is undergoing a healing period during which medical treatment may effect improvement or cure. (See Braewood Convalescent Hospital v. Workers' Comp. Appeals Bd. (Bolton) (1983) 34 Cal.3d 159.) [In this case, the employer could not complain that the applicant's temporary disability lasted too long when the employer had refused to furnish applicant medical treatment.] San Mateo County Transit District v. Workers' Compensation Appeals Board (Lillian Bumagat) 6 WCAB Rptr. 10,058

TEMPORARY DISBILITY– When an injured worker takes retirement, whether or not this affects his entitlement to temporary disability, depends on whether he intended to remove himself for the work force or not. (See Gonzales v. Workers' Comp. Appeals Bd. (1999) 68 Cal.App.4th 843.) [In this case, the WCJ found that applicant's testimony that she did not intend to retire, that she took her service-connected retirement based upon her physical condition, showed that she intended to work in the future and was therefore entitled to temporary disability.] Los Angeles Unified School District v. Workers' Compensation Appeals Board (Liddie Bailey-Marshell) 6 WCAB Rptr. 10,047

TEMPORARY DISABILITY– Determining Actual Earnings– Labor Code §4453(c)(4)– The purpose of calculating earning capacity is to determine what applicant would have earned had the injury not occurred. (See Pascoe v. Worker' Comp. Appeals Bd. (1975) 46 Cal.App.3d 146.) All facts relevant and helpful to make the estimate of earning capacity must be considered, including employee's ability to work, her age and health, her willingness and opportunities to work, her skill and education, the general condition of the labor market, and employment opportunities for persons similarly situated. (See Argonaut Ins. Co. v. Industrial Acc. Com. (Montana) (1962) 57 Cal.2d 589.) [In this case, the WCJ found that whether applicant would have obtained employment in law enforcement had she not sustained an industrial injury was entirely too speculative to find her earning capacity to be maximum.] Nancy K. Brakensiek v. Workers' Compensation Appeals Board, Lodi Unified School District. 6 WCAB Rptr. 10,044

TEMPORARY DISABILITY– Should an employer be entitled to a credit against temporary disability liability for reimbursement paid by the employer's voluntary plan to EDD? [In this case, the employer contends that it is entitled to the credit because (1) applicant would otherwise be unjustly enriched, (2) the employer could not have complied with the notice requirements of Cal. Code of Regs. Title 8 §9814 when EDD was administering the benefits at the time of payment, and (3) the payments by EDD were the functional equivalent and the same general character as temporary disability under Labor Code §4650(g)(1) and (2).] Kelley Temporary Services, Continental Casualty Co. v. Workers' Compensation Appeals Board (Shari Ringleb) 6 WCAB Rptr. 10,038

TEMPORARY DISABILITY– Average Weekly Earning Capacity– Labor Code §4453– An estimate of earning capacity is a prediction of what an employee's earnings would have been had he not been injured. Earning capacity, for purposes of a temporary disability award, may differ from the earning capacity for purposes of permanent disability award. In the former, the prediction of earnings need be made only for the duration of temporary disability. (See Argonaut Ins. Co. v. Industrial Acc. Com. (Montana) (1962) 57 Cal.2d 589.) [In this case, although the applicant was working part time, a finding of a 40-hour week was justified by applicant's earnings history, which showed full-time work for many years and his testimony that he intended to return to full-time work.] State Compensation Insurance Fund v. Workers' Compensation Appeals Board (Thomas D. Miller, Jr.) 6 WCAB Rptr. 10,027

TEMPORARY DISABILITY– Odd lot doctrine– The odd lot doctrine applies when the worker's capacity for gainful employment is so reduced by temporary partial disability that the worker is fit only for very special uses, leaving the worker an 'odd lot' upon the labor market. The burden is then on the employer to show that such special work is really available to the employee. When the evidence indicates that no work of a sort that the partially disabled worker was able to perform was available to him or her during the period of disability, disability for all practical purposes is total. The wage loss is treated as total and the award is the same as for total temporary disability. Doubletree Golf Resort v. Workers' Compensation Appeals Board (Amado Martinez) 6 WCAB Rptr. 10,009

TEMPORARY DISABILITY– Credit for income/earnings during period of temporary disability– In this case, the WCJ awarded the defendant credit for the days applicant worked in his own business to be applied to the period for which temporary disability indemnity was awarded, but denied defendant's request for discovery to obtain evidence to support the quantum of this self-employment income. County of Los Angeles v. Workers' Compensation Appeals Board (Jeffery Hedwall) 5 WCAB Rptr. 10,355

TEMPORARY DISABILITY INDEMNITY– Calculation of Average Weekly Wages– Labor Code §4663– Within statutory limits, the amount of an injured employee's weekly disability indemnity payment is based on the employee's 'average weekly earnings' at the time of injury. Ordinarily, the average weekly earnings of a seasonal employee are computed pursuant to Labor Code §4453(c)(4) and are based on the employee's average weekly earning capacity. Was it erroneous as a matter of law when award of temporary disability included income from a separate and distinct partnership? [In this case, the applicant was a seasonal worker as a mosquito control technician and also received income from a partnership with her husband who operated a plumbing and mechanical underground utilities contractor.] Lake County Vector Control District v. Workers' Compensation Appeals Board (Jan Sanders) 5 WCAB Rptr. 10,335

TEMPORARY DISABILITY– Determination of average weekly earnings– Labor Code §4453– An industrially injured seasonal worker is awarded temporary disability indemnity at two rates: (1) an in-season rate based on the employee's in-season earning capacity and (2) an off-season rate based on the employee's off-season earnings capacity, taking into consideration such factors as the employee's earnings history, willingness and ability to work, age and health. (See Jimenez v. San Joaquin Valley Labor (2002) 4 WCAB Rptr. 10,048 [en banc].) [In this case, the injured worker had a long-standing practice of working during the strawberry season and drawing unemployment during the off-season. Since unemployment benefits cannot be used in calculating earnings, applicant demonstrated no earning capacity during the off-season.] Maria Guadalupe Fernandez v. Workers' Compensation Appeals Board, Yamaoto Ranches, Inc. 5 WCAB Rptr. 10,227

TEMPORARY DISABILITY– State prison inmates– Earning capacity at the time of injury is the touchstone of average earnings determination, but that standard does not apply to state prison inmates who have removed themselves from the competitive labor market and the legislature has determined that they have a minimum earning capacity. [Labor Code §3370 provides that when a state prison inmate is released from incarceration and is still temporarily totally disabled, in determining temporary disability indemnity benefits, the average weekly earnings "shall be taken at not more than the minimum amount set forth in section 4453."] State of California, Department of Corrections v. Workers' Compensation Appeals Board (Jerry Stentz) 5 WCAB Rptr. 10,219

TEMPORARY DISABILITY– When an employee's industrial injury has become permanent and stationary, the employee is not entitled to temporary disability indemnity to compensate for time off work while pursuing continuing medical treatment for that permanent injury. State of California, Department of Rehabilitation v. Workers' Compensation Appeals Board (Ronald Lauher) 5 WCAB Rptr.10,203

TEMPORARY DISABILITY– Determining average weekly earnings– Labor Code §4454– In determining average weekly earnings within the limits fixed by Labor Code §4453, overtime and the market value of board, lodging, fuel and other advantages received by the injured employee are included as part of his remuneration. [In this case, the housing accommodation was valued in accordance with federal standards for national forests. In addition, the value of a food discount on food purchased in the concession cafeteria was properly included in calculating applicant's average weekly earnings.] James Montgomery v. Workers' Compensation Appeals Board, Yosemite Concession Services. 5 WCAB Rptr. 10,188

TEMPORARY DISABILITY– Credit for overpayment of temporary disability– Labor Code §4909 may be the basis for awarding a credit to the employer for overpayment made as a result of clerical error or payment made when it was not then due and payable. If the applicant had been receiving his disability pension and then received a payment of temporary disability indemnity, section 4909 would permit a credit because the compensation was not then due and payable. [In this case, section 5909 did not support a credit because the payments received by applicant were due and payable. Here the defendant sought a retroactive invalidation of temporary disability indemnity that were valid when paid.] County of Santa Clara v. Workers' Compensation Appeals Board (Anthony Dupree) 5 WCAB Rptr. 10,183

TEMPORARY DISABILITY– Temporary disability benefits are paid until an injured worker's condition becomes permanent and stationary. (See Industrial Indemnity Exchange v. Ind. Acc. Comm. (Riccardi) (1949) 90 Cal.App.2d 99.) A disability is permanent after the employee has reached maximum improvement, or his condition has been stationary for a reasonable period of time. [In this case, the applicant was declared permanent and stationary nine years after the date of injury but was in need of future treatment for back pain that prevented him from working.] Don Starr v. Workers' Compensation Appeals Board, Ralphs Grocery Company. 5 WCAB Rptr. 10,164

FULL SALARY IN LIEU OF TEMPORARY DISABILITY INDEMNITY– Labor Code §4850– Salary for purposes of Labor Code §4850 benefits does not include overtime mandated by the Fair Labor Standards Act when the overtime is not actually worked by the injured worker. James Fenn v. Workers' Compensation Appeals Board, City of Anaheim. 5 WCAB Rptr. 10,139

TEMPORARY DISABILITY– Petition to terminate temporary disability– Cal.Code of Regs. Title 8, §10642 requires a defendant to file its petition to terminate temporary disability indemnity within 10 days of the date the applicant is found to be permanent and stationary. [In this case, the defendant did not file its petition to terminate TD for more than a year, but began paying VRMA on the day after the permanent and stationary date and applicant's objection to termination of retroactive TD was properly denied because to grant the objection would permit recovery of TD simultaneously with VRMA.] Noe Estrada v. Workers' Compensation Appeals Board, Pacific Coin Company. 5 WCAB Rptr. 10,084

TEMPORARY DISABILITY– Labor Code §4653– Employees who are temporarily unable to work, during the period of medical recovery after an industrial injury, are entitled to temporary disability indemnity. (See Livitsanos v. Superior Court (1992) 2 Cal.4th 744.) An employee who refuses modified work without giving a good reason may be estopped from claiming temporary disability indemnity. [In this case, the applicant stopped work over a request for performance of work exceeding his then modified work restriction and therefore was entitled to temporary disability.] California Insurance Guarantee Association v. Workers' Compensation Appeals Board (Gonzalo Garcia-Anaya) 5 WCAB Rptr. 10,071

TEMPORARY DISABILITY– Labor Code §4453– An applicant is not entitled to temporary disability on a wage loss basis if the applicant's average weekly wage exceeds the statutory maximum for average weekly earnings. (See Mazer v. Industrial Acc. Comm. (1944) 9 Cal.Comp.Cases 255.) [In this case, the applicant's earnings always exceeded the maximum and he was not entitled to temporary disability indemnity on a wage loss basis.] James Hardy v. Workers' Compensation Appeals Board, A. Hardy Landscaping. 4 WCAB Rptr. 10,345

TEMPORARY DISABILITY– Average weekly earnings of police officer for injury after termination of active service– Labor Code §4458.5– Average weekly earnings for purposes of determining temporary disability benefits are to be taken at the maximum rate irrespective of any remuneration for post retirement service, for injuries sustained after termination of active service as a police officer, if the injury occurs within the time prescribed in labor Code §3212.5. City of Covina v. Workers' Compensation Appeals Board (Daniel Alvarez) 4 WCAB Rptr. 10,234

TEMPORARY DISABILITY– Inmate applicant– Labor Code §3370– In determining temporary and permanent disability indemnity benefits for the inmate, the average weekly earnings shall be taken at not more than the minimum amount set forth in Labor Code §4453. Once the applicant is released from prison and is temporarily totally disabled, he is entitled to temporary disability indemnity at the minimum rate of $126 per week or temporary disability indemnity based on his earning capacity. [In this case, the applicant's earning capacity was substantiated by applicant's Social Security records relating to his earnings in the year prior to his injury. Jose Luis Sanchez v. Workers' Compensation Appeals Board, Norcal Crosetti Foods, Inc. 4 WCAB Rptr. 10,204

TEMPORARY DISABILITY– Calculation of earnings– Labor Code §4453– The standard for earning capacity is not a static test, and requires an examination of the worker's general overall capability and productivity. (See Goytia v. Workers' Comp. Appeals Bd. (1986) 186 Cal.App.3d 1550.) [In this case, a ski patrol member's earnings properly included reimbursement of ski rental equipment, employer provided complimentary ski lift tickets, art income for painting murals and the applicant's share of a full funded eco-challenge competition.] Snow Summit Ski Corporation v. Workers' Competition Appeals Board (Alyson Denk) 4 WCAB Rptr. 10,172

TEMPORARY DISABILITY– Labor Code §4453(d)– The determination of average weekly earning capacity requires a prediction of earning during the temporary disability period and Labor Code §4453(d) provides for calculation of the rate within the limits of that section which in the appropriate case could be multiple rates of indemnity. Muriel Elaine Johnson v. Workers' Compensation Appeals Board, J.B. Hunt. 4 WCAB Rptr. 10,136

TEMPORARY DISABILITY– Determining average weekly wages– Labor Code §4454– Health and welfare, pension and annuity fringe benefits are not wages within the meaning of Labor Code §4454. (See Morrison-Knudsen v. Director, Workers' Compensation Programs (1983) 461 u.s. 624, 76 L.Ed. 2d 194.) Norman Crampton v. Workers' Compensation Appeals Board, LTM Construction 4 WCAB Rptr. 10,069

TEMPORARY DISABILITY– FULL SALARY IN LIEU OF TEMPORARY DISABILITY INDEMNITY FOR FIREMEN– Labor Code §4850– A firefighter recruit who is injured during mandatory training program prior to completion of the program is not entitled to the additional benefit provided to firefighters by Labor Code §4850 of full salary in lieu of temporary disability. City of Sacramento v. Workers' Compensation Appeals Board (Eric Saylors) 4 WCAB Rptr. 10,019

TEMPORARY DISABILITY– Labor Code §4454Determination of average weekly wages deduction for special expenses provided the employee by nature of the employment– In determining average weekly earnings to be included in the calculation is overtime and the market value of board, lodging, fuel and other advantages received by the injured employee as part of his remuneration, which can be estimated in money, but average weekly earnings shall not include any special expenses provided the employee by the nature of his employment. To be special expenses and therefore not included in wages, the portion of the employee's wages must be in fact linked with specificity to special expenses actually incurred. (See Postal Telegraph Cable Company v. Industrial Acc. Com. (Mahret) (1934) 1 Cal.2d 730.) American Protection Insurance Company v. Workers' Compensation Appeals Board (Eric Tillman) 3 WCAB Rptr. 10,360

TEMPORARY DISABILITY– Labor Code §4453(c)– Determination of average weekly earnings– The method of computation of average weekly earning is provided in Labor Code §4653(c) based on the type of employment. Regardless of which formulae provided in that section is used, "earning capacity" remains the benchmark for calculating average weekly earnings at the time of injury. (See West v. Industrial Acc. Com (1947) 79 Cal.App.2d 711.)

TEMPORARY DISABILITY– Labor Code §4453(c)(4)– Determination of average weekly earnings for irregular employment– The purpose of calculating earning capacity is to determine what the injured worker would have earned had the injury not occurred. (Pascoe v. Workers' Comp. Appeals Bd. (1975) 46 Cal.App.3d 146.)

TEMPORARY DISABILITY– Labor Code §4453(c)(4)– Determination of average weekly earnings for irregular employment– Where employment is less than 30 hours per week, or where for any reason the other formulae in Labor Code §4452(c) cannot reasonably and fairly applied, Labor Code §4453(c)(4) provides that average weekly earnings shall be taken at 100 percent of the sum which reasonably represents the average weekly earning capacity of the injured worker at the time of injury. All facts relevant and helpful to make the estimate of earning capacity must be considered including the employee's ability to work, age and health, willingness and opportunities to work, skill and education, the general condition of the labor market, and employment opportunities for persons similarly situated. (See Argonaut Ins. Co. v. Industrial Acc. Com. (Montana) (1962) 57 Cal.2d 589.)

TEMPORARY DISABILITY INDEMNITY– Is an injured worker who has returned to work, whose medical condition is permanent and stationary, and who is receiving on-going medical treatment entitled to receive temporary disability indemnity as compensation for wages lost during the time the worker is absent from work receiving such medical care? Ronald Lauher v. Workers' Compensation Appeals Board, State of California Department of Rehabilitation 3 WCAB Rptr. 10,336

TEMPORARY DISABILITY– Labor Code §4850– An employer of a public safety employee has a duty to provide a full year of benefits pursuant to Labor Code §4850 before giving the employee a disability retirement. The exception to this obligation is if the employee consented to the disability retirement, there is no further obligation to provide section 4850 benefits. Frank Lima v. Workers' Compensation Appeals Board, American River Fire District 3 WCAB Rptr. 10,267

TEMPORARY DISABILITY– Average earning capacity-Labor Code §4453 (c)(4)-The purpose of determining average earning capacity is to make a prediction of what an injured worker's earnings would have been absent the injury. If a sporadic work history would not provide an accurate gauge for this determination, other factors may be taken into consideration, including ability to work, age and health, willingness and opportunities to work. (See Grossmont Hospital v. Workers' Com. Appeals Bd.( Kyllonen) (1997) 59 Cal.App.4th 1348.) Manuel Garza v. Workers' Compensation Appeals Board, California Indemnity Ins. Co. 3 WCAB Rptr. 10,275

TEMPOARY DISABILITY– RETITION FOR RECONSIDERATION– Labor Code §5900– On reconsideration a party may not raise for the first time issues and objections that were not preserved at trial. See Sonoma County Office of Education v. Workers' Comp. Appeals Bd. (1998) 63 Cal.Comp.Cases 877 (writ denied).) South Coast Air Quality Management District v. Workers' Compensation Appeals Board (Christy M. Zapfel) 3 WCAB Rptr. 10,275

TEMPORARY DISABILITY– Labor Code §4850– The language of Labor Code §4850 is interpreted broadly to include police officers engaged in active law enforcement, but who are not specifically enumerated in that section. [In this case, a San Diego Unified School District patrol officer who was a sworn peace officer under Penal Code §830.32 was found to be entitled to 4850 benefits. San Diego Unified School District v. Workers' Compensation Appeals Board (Joseph Elmore) 3 WCAB Rptr. 10,262

TEMPORARY DISABILITY INDEMNITY– An injured worker who has returned to work, whose medical condition is permanent and stationary, and who is receiving on-going medical treatment is not entitled to receive temporary disability indemnity as compensation for wages lost during the time the worker is absent from work receiving such medical care. State of California Department of Rehabilitation v. Workers' Compensation Appeals Board (Ronald Lauher) 3 WCAB Rptr. 10,251

TEMPORARY DISABILITY– AVERAGE WEEKLY EARNINGS-Labor Code 4453(c)(4) is used to determine earnings for irregular employment or other situations when other methods do not yield a fair result and require an estimate of earning capacity from all relevant circumstances, not just past earning history or actual earnings at the time of injury. The elements of earning capacity include the ability to work, willingness to wrok, and opportunity to work. (See Gonzales v. Workers' Comp. Appeals Bd. (1998) 68 Cal.App.4th 843.) Raul Duran v. Workers' Compensation Appeals Board, R.A. Whaley Construction. 3 WCAB Rptr. 10,260

TEMPORARY DISABILITY– STATE PRISON INMATES– CONSTITUTIONAL CHALLENGE REJECTED– Labor Code §3370(a)(5)– In this case, the Court rejected a state prison inmate's constitutional challenge to Labor Code §3370(a)(5) which sets state prison inmate's average weekly earnings for indemnity benefits at the minimum level allowed by law. (See generally Meredith v. Workers' Comp. Appeals Bd. (1977) 19 Cal.3d 777.) Michael Lapp v. Workers' Compensation Appeals Board, Avenal Prison 3 WCAB Rptr. 10,260

TEMPORARY DISABILITY– Disability indemnity benefits for state prison inmates– Labor Code §3370(a)(5)– In determining temporary and permanent disability indemnity benefits for inmates, the average weekly earnings shall be taken at not more than the minimum amount set forth in Labor Code §4453. [For injuries occurring after July 1, 1996, Labor Code §4453(a)(7) provides that in computing average annual earnings for purposes of temporary disability indemnity, the average weekly earnings shall be taken at not less than the lesser of $189 or 1.5 times the employee's average weekly earnings.] Gary Jernigan v. Workers' Compensation Appeals Board, State of California, Department of Corrections 3 WCAB Rptr. 10,200

TEMPORARY DISABILITY INDEMNITY– Determination of earnings– Labor Code §4653– In this case substantial evidence supported the WCJ's finding that a retired schoolteacher's post-retirement earning capacity was maximum for purposes of her temporary disability rate. Garden Grove Unified School District v. Workers' Compensation Appeals Board (Bertha Elaine Walters) 3 WCAB Rptr. 10,186 Monclair v. Workers' Compensation Appeals Board (Vincent Leone) 3 WCAB Rptr. 10,204

TEMPORARY DISABILITY– FULL SALARY IN LIEU OF TEMPORARY DISABILITY BENEFITS– Labor Code §4850– A public safety employee is entitled to full salary in lieu of temporary disability indemnity for a period of one year pursuant to Labor Code §4850. In this case, the police officer suffered an industrial injury for which he was paid 4850 benefits. Before being declared permanent and stationary, he returned to work on a trial basis and sustained a second industrial injury for which he was entitled to a second period of 4850 benefits. City of Monclair v. Workers' Compensation Appeals Board (Vincent Leone) 3 WCAB Rptr. 10,204

FULL SALARY IN LIEU OF TEMPORARY DISABILITY INDEMNITY FOR FIREMEN– Labor Code §4850– Is a firefighter recruit who is injured during mandatory training program prior to completion of the program entitled to the additional benefit provided to firefighters by Labor Code §4850 of full salary in lieu of temporary disability? City of Sacramento v. Workers' Compensation Appeals Board (Eric Saylors) 3 WCAB Rptr. 10,168

TEMPORARY DISABILTIY– In this case, temporary disability was properly awarded. Applicant sustained an admitted injury, three physicians reported that he was temporarily totally disabled during the period of time for which he claimed to be temporarily disabled and there was no evidence applicant had been offered modified or alternative work. Ventura Regional Sanitation District v. Workers' Compensation Appeals Board (Carol Deavenport) 3 WCAB Rptr. 10,173

TEMPORARY DISABILITY INDEMNITY– Labor Code §4453 (c)(2)– In this case applicant claimed earnings on the date of injury based on employment by two employers. When the applicant sought an increase in the rate of indemnity based on her claim of higher wages, applicant had the burden of providing verification in the form of evidence to prove that her earnings exceeded the stipulated rate. It was error for the WCJ to accept applicant's testimony without further verification. Sharon Nelson v. Workers' Compensation Appeals Board, Republic Indmnity Co. 3 WCAB Rptr. 10,078

TEMPORARY DISABILITY INDEMNITY– Determining average weekly earnings– Labor Code §4453(c)– A school teacher who is paid a yearly salary and did not work during the summer vacation period is considered a full-time employee and was properly awarded temporary disability during the summer vacation. (See Torrence Unified School District v. Workers' Comp. Appeals Bd.(Buck) (1997) 63 Cal.Comp.Cases 112.) Sebastopol Unified School District v. Workers' Compensation Appeals Board (Jerry Hertz) 3 WCAB Rptr. 10,077

TEMPORARY DISABILITY– Labor Code §4650– The treating physician considered the workers' status to be temporarily totally disabled until the worker completed a recommended pain management program. Since the defendant failed to authorize the participation in the pain management program, the applicant remained temporarily totally disabled. Orange County Food Service v. Workers' Compensation Appeals Board (Antonia Lopez Pinedo) 3 WCAB Rptr. 10,062

TEMPORARY DISABILITY– Labor Code §4650– Temporary disability benefits are a substitute for lost wages during a period of temporary incapacity from work. (See Livitsanos v. Superior Court (1992) 2 Cal.4th 744, Western Growers Ins. Co. v. Workers' Comp. Appeals Bd. (Austin) (1993) 16 Cal.App.4th 227. If the employer cannot establish that there is work available that an employee can perform, then the employer must pay the employee temporary disability indemnity. (See Transport Indemnity Co. v. Industrial Acc. Comm. (Cooper) (1958) 157 Cal.App.2d 542.) Natomas Unified School District v. Workers' Compensation Appeals Board (Stephanie Franklin) 3 WCAB Rptr. 10,062

TEMPORARY DISABILITY INDEMNITY– Determination of average weekly earnings– Labor Code §4453– An estimate of earning capacity is a prediction of what an employee's earnings would have been had he not been injured. In making a permanent award, long-term earning history is a reliable guide in predicting earning capacity, although in a variety of factual situations earning history alone may be misleading. All relevant to making the estimate must be considered– the applicant's ability to work, his age and health, his willingness and opportunities to work, his skill and education, the general condition of the labor market, and employment opportunities for persons similarly situated are all relevant. (See Argonaut Ins. Co. v. Industrial Acc. Com. 1962) 57 Cal.2d. 589.) Fireman's Fund Insurance Company v. Workers' Compensation Appeals Board (Mark Moore) 3 WCAB Rptr. 10,051

TEMPORARY DISABILITY– A change in symptoms and functional capacity with new treatment indicates that further improvement can reasonably be expected and such a showing is sufficient to support the award of temporary disability. Regency Health Services v. Workers' Compensation Appeals board (Charlene Ahmad) 3 WCAB Rptr. 10,028