Are Industrial Leave benefits subject to the 2-year T.D. cap?

By Attorneys Richard Felton and Adam Dombchik

Since 2004, injured California workers have been limited to two years of Temporary Disability benefits, regardless of the employee's actual medical status. For injuries before 2008, the 2-year "T.D. time-bomb" exploded two years after the first benefit was paid. Since Jan. 1, the time limit has been extended to two years of benefits within five years of the injury.

There is no consensus on whether the 2-year limit applies to employees entitled to Industrial Leave before receiving T.D. benefits. Different panels of the Workers' Compensation Appeals Board have issued contradictory decisions.

In City of Oakland v. WCAB, one panel held that salary continuation under Labor Code Section 4850 payable to safety officers is not included in the 2-year limit. Similarly, the WCAB held in City and County of San Francisco vs. WCAB that city workers were not subject to the limit because the language of their charter was nearly identical to Labor Code Section 4850.

Two other panel decisions - Rollick v. Mount Diablo Unified School District and Hebbert v. Sequoia Union High School District - also concluded that the limit did not apply to Education Code benefits.

However, a panel held in Salmon v. State of California that State workers' Industrial Leave is equivalent to T.D., and is therefore subject to the 2-year limit. And in the first published decision by an appellate court, the 5th District Court of Appeals ruled in Brooks v. WCAB that the limit does apply to State Industrial Leave benefits. Another appellate court reached a similar conclusion in May in the unpublished Wiley v. WCAB decision.

Published appellate court decisions like Brooks set legal precedent. Panel decisions are limited in their application to future cases.

The Courts are likely to take years before resolving the Industrial Leave issue. Employees should be aware, though, that employers often attempt to terminate benefits under the earliest interpretation under the law.

If you were injured after April 19, 2004, you are subject to the 2-year Temporary Disability limit. If so, you must act quickly. You should begin by considering whether to retain a lawyer who is up to date on the ever-changing law, and who can ensure that you receive prompt medical care and other benefits while they are still available to you.