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Temporary Disability Benefits in the Workers' Compensation System

In California, temporary disability benefits are meant to be a partial substitute for lost wages by replacing in part what the employee would have earned if the occupational injury they suffered had not occurred. These benefits are only paid for work-related injuries and require a finding by a doctor that you either cannot work or are limited in the kind or amount of work you can do.

Temporary disability benefits: teacher getting advice from doctor

            For example, if an employee who works in an office as a receptionist sustains a cumulative, repetitive trauma injury to their wrists is told by their doctor that they can no longer do any kind of repetitive work with their hands, they would be entitled to temporary disability if their employer doesn't have any work that complies with those restrictions.

However, if an employee worked in a warehouse and injured their back, resulting in their doctor saying that they could work but could not lift more than ten pounds, and if the employer can accommodate this limitation, then the injured worker would not be entitled to temporary disability given that the alternative assignment does not require lifting over ten pounds.

How Long Can I Receive Benefits?

California temporary disability benefits are determined by the work restrictions given by your doctor and what your employer can do to accommodate those restrictions. Additionally, California has put into place a few limitations on how long you can receive temporary disability benefits.

Temporary disability benefits can will end if you fully return to work, your doctor advises that you are able to return to work with limitation and the employer can accommodate that limitation, or your condition stabilizes to where you are eligible for permanent disability benefits.

In most cases, temporary disability benefits are limited to a total of 104 weeks within a five year period from the date of injury and must be paid within that five year period. However, if you have any of the following conditions, you can receive up to 240 weeks of temporary disability benefits:

  • Acute and chronic hepatitis B or C
  • Amputations
  • Severe burns
  • HIV
  • High-velocity eye injuries
  • Chemical burns to the eyes
  • Pulmonary Fibrosis
  • Chronic Lung Disease

What is Labor Code 4661.5?

When an employee is determined to be eligible for temporary disability benefits, the rate at which they get benefits is calculated according to the limits established by the Labor Code based on the date of their injury. The statutory, legal minimums and maximums for determining the temporary disability rate established by the Labor Code are used to determine the amount of benefits due and that amount remains unchanged for the duration of the disability, with one execption.

The Labor Code has carved out an exception to this rule in LC § 4661.5, which states that when a temporary disability payment is made two years or more from the date of the injury, the amount of the payment is calculated in accordance with the rate specified in the Labor Code on the date each payment is made, unless that results in a lower payment.   In order to receive this increased rate, you must have earnings (or the right to increased earnings) that would support the increased temporary disability rate.

This often occurs when an employee gets injured and goes through periods where they are on modified work, taken off of work completely, resume work, and then finally have surgery over two years later. If this occurs and during those two years you got a raise, your earning capacity increased, or your union negotiated a raise as the result of a collective bargaining agreement between your injury and the date on which you are paid after those two years, you are still entitled to that increased temporary disability rate.  Certainly, you are a union employee, it is likely that you will benefit from this exception.

Doctor reviewing injuries

Supplementing Your Temporary Disability with Other Benefits

It is important to note that temporary disability payments are not meant to be a full wage replacement benefit. Your weekly temporary disability payment rate is based on two-thirds of your average weekly wage on the date of your injury and cannot exceed the maximum rate established by the labor code for that year.

While this rate is likely to change every year based on inflation, a two-thirds rate is still going to be lower than what you were previously making, especially for high-earning employees. However, you can still supplement your temporary disability benefits up to an amount that approximates your full salary by working with your employer to utilize accrued leave credits such as vacation or sick time. This helps to close the gap between what your wages should be and what you are missing from only receiving temporary disability.

Other Monetary Benefit Considerations

There are also certain situations where you may be entitled to more than the state rate or additional benefits. One of the most common situations is when an employee is part of a union that negotiates contractual terms entitling them to more than the state rate.

Additionally, the Education Code carves out the ability for additional benefits for both certificated (teachers and certain administrators) and classified (teaching assistants, aids, custodians, etc.) school district employees. While most employees receive only temporary disability benefits, a school district employee may receive full pay while off work due to an industrial injury.

This is because the Education Code provides for special payments that include the normal workers' compensation benefits as well as 60 days of industrial accident/illness leave, sick leave, vacation leave, paid holidays, and a form of leave called "differential leave". That means that a school district employee is allowed up to 60 days of full salary replacement and then temporary disability payments supplemented by use of the employee's sick, vacation, and holiday leave.

Differential leave allows a school district employee who is absent from his or her duties for five months or fewer to have the amount deducted from their salary not exceed what was paid to the employee who substituted to fill their position.

Most public safety employees also can receive additional benefits under the Labor Code (Section 4850). These specified public safety and fire personnel are paid their full salary following an industrial injury rather than the normal two-thirds rate for a period not exceeding one year. After than year, they are then given temporary disability payments at the normal rate for the remainder of their disability.

What About State Disability Insurance Benefits from EDD?

During a period of delay or dispute regarding entitlement to temporary disability benefits in your workers' compensation case, and if you have paid into the EDD (California Employment Development Department) State Disability Insurance (SDI) program, you may apply for and obtain these benefits.  If at a later date, workers' compensation is in fact responsible for paying benefits when SDI was paid, workers' compensation will pay SDI back at no expense to you.  In rare cases, if your SDI rate is greater than your workers' compensation temporary disability rate, you may be able to receive monies from both sources at the same time.  If you remain disabled and after you have exhausted your two years of workers' compensation payments, you may still be able to apply for and obtain up to a year of SDI payments.

Our team of attorneys at Gordon, Edelstein, Krepack, Grant, Felton & Goldstein (GEKLAW) helps workers in California do just that and guide you through the legal process so that you are informed of your rights regarding payment of temporary disability benefits for a work related injury.

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