Understanding Temporary Disability Benefits

Temporary disability benefits are payments you receive while recovering from an industrial injury under the certification of a physician. If you have been injured on the job you can be entitled to temporary disability benefits if a workers compensation physician determines you have to miss work for three or more days. These disability benefits are paid bi-weekly and are limited to 104 weeks per injury.

How to calculate temporary disability benefits?

A general rule is that temporary disability benefits amount to two-thirds of the gross wages you would have earned if you were not injured in the workplace. Gross wages are the total amount you are normally paid before any taxes, deductions, and payroll withholdings. The maximum weekly amount of temporary disability benefits is capped by law and there is also a set minimum weekly amount. In 2018 the minimum weekly rate is $182.29 per week and the maximum weekly rate is $1,215.27 per week. Temporary disability benefits are not subject to state, federal or local income taxes and you do not have to pay Social Security taxes, retirement fund contributions or other taxes on the benefits.

Each workers’ compensation case is unique and there are factors which can make the process of calculating temporary disability benefits more complicated. Some of these factors include: if your you had seasonal work, whether you had more than one employer at the time of injury, if you also earned other income such as tips, bonuses or other benefits, etc. Do not blindly accept the employer’s or insurance carrier’s calculation of average weekly wages. Housing allowances, car allowances, and per diem allowances can be used to increase one’s average weekly wages. It is helpful to keep and scan wage statements and W-2 forms to use as evidence to increase the average weekly wages.

How to calculate temporary partial disability?

If you are able to return to work but only for a limited amount of hours or limited duties at a lower wage, you may be entitled to temporary partial disability or wage loss. Usually TPD benefits are equal to two-thirds of your lost wages, subject to your maximum TD rate. Your lost wages are the difference between your average weekly wages and the amount you are earning by working part-time.

What happens if you were working more than one job at the time of injury?

Calculate your average weekly wage by adding your wages from all jobs. The rate will be equal to two-thirds of the wages from all jobs combined. Keep in mind that your gross income includes all jobs that are affected by your inability to work based on the advice of your treating physician.

How to obtain temporary disability benefits?

If an employee sustains an industrial injury, certification by a primary treating physician is a critical first step in determining eligibility for temporary disability benefits. In the current system, employees must select a primary treating physician off of the employer’s Medical Provider Network. If the primary treating physician determines the injured worker cannot return to work, due to the effects of their injury, they are entitled to temporary disability benefits. In order to receive ongoing benefits the injured worker must submit ongoing certification from the physician every 45 days. If the physician indicates the injured worker is able to return to work with restrictions, and the employer cannot accommodate these restrictions, then the injured worker is entitled to temporary disability benefits.

The first payment for temporary disability benefits must begin within 14 days after the employer learns that you have a job related injury and that your doctor has stated you are temporarily disabled.

Since 2004, there is a two year limit on the receipt of temporary disability benefits for each injury and the benefits must accrue within five years of the date of the work injury.

Temporary disability benefits cease once a doctor certifies the injured worker as having reached Maximum Medical Improvement (MMI) status.

Denied claims

If the industrial claim is denied by the employer or its workers’ compensation carrier, the State of California provides an alternative benefit through the Employment Development Department (EDD). The rate of EDD benefits is often similar to the rate of TTD benefits had the claim been accepted. A treating physician must certify the injured worker for benefits and the EDD form must be transmitted to the EDD for processing. EDD benefits can last up to one year. EDD places a lien on the injured worker’s workers’ compensation case and seeks reimbursement from the workers’ compensation carrier if the claim is ultimately accepted or determined by a WCAB Judge to be industrial.

Are you entitled to temporary disability benefits for time missed from work to attend doctor appointments, depositions, medical-legal evaluations?

The analysis of whether the employee is entitled to receive temporary disability once the employee returns to full-time work, but then has to miss time from work due to legitimate and authorized medical treatment appointments, can become very complicated.

Recently, a panel of commissioners with the Workers’ Compensation Appeals Board concluded that even though the employee’s condition had not yet become permanent and stationary and despite the fact that the employee had to miss work so as to attend medical appointments, that the employee was not entitled to receive temporary disability (Skelton v. Department of Motor Vehicles, 2018 Cal. Wrk. Comp. P.D. LEXIS 417). The majority in Skelton relied on the California Supreme Court case, Department of Rehabilitation v. Workers’ Comp. Appeals Bd. (Lauher) (2003) 30 Cal. 4th 1281, for the proposition that the employee cannot receive temporary disability for missed time due to appointments once the employee become permanent stationary. However, Lauher specifically did not address the scenario where applicant was not yet P&S.

Instead of citing to any precedential authority, the panel in Skelton cited to a writ denied case, Ward v. Workers’ Comp. Appeals Bd. (2004) 69 Cal. Comp. Cases 1179 (writ den.), arguing that any wage loss after the employee returns back to work full-time is “not compensable”. But this blunt statement only begs the question, why would it not be compensable when Labor Code Section 4654 specifically creates an obligation by the employer to pay temporary partial disability if there is weekly wage-loss caused by an industrial injury prior to the employee becoming permanent and stationary?

Like so many issues related to the worker’s compensation process, this could very well be an issue that the appellate courts will have to clarify. Until that time comes, however, cases like Skelton will make it more difficult for an employee who is not P&S but who has returned to work and has to receive ongoing medical treatment to receive temporary disability benefits.

If you do have to miss time from work to attend a deposition, under Labor Code Section 5710(b)(2) you are entitled to reimbursement for any loss of wages incurred during attendance at the deposition.

If you need to miss time from work to attend a medical-legal evaluation such as a Panel QME or an Agreed Medical Evaluation (AME) you are entitled to temporary disability benefits for the time you missed from work due to the evaluation under Labor Code Section 4600.

Unfortunately, unless you are off work and certified as temporarily disabled by a physician, you will not be entitled to temporary disability benefits for the time you take off work to attend hearings at the WCAB.