ordinary meaning of “payment” is “the act of paying or the state of being paid.” Thus, by stating that “temporary disability shall not extend for more than 104 compensable weeks within a period of two years from the date of commencement of temporary disability payment,” the WCAB explained that the Legislature intended that the limitation of 104 weeks within two years begins when temporary disability indemnity is first paid, and not when it is first owed.
Here, temporary disability was first paid to the applicant on May 3, 2005 and the defendant made further payments through July 14, 2006. The first payment included retroactive temporary disability for the period of July 17, 2004 through May 2, 2005. However, none of the retroactive temporary disability indemnity was within the “104 compensable weeks within a period of two years from the date of commencement of temporary disability payment” limitation established by section 4656(c)(1). Instead, the 104-week/two-year limitation began to run on May 3, 2005, the date temporary disability indemnity was first paid to applicant. Basically, by not paying temporary disability timely, the period of exposure for temporary disability grew from two years to almost three! So, in addition to penalties and interest, a defendant in a California workers’ compensation proceeding can be responsible for retroactive temporary disability indemnity outside the cap for however long a period of time temporary disability was owing prior to the first payment. Ultimately, to avoid exposure outside the two year cap on temporary disability, defendants will have to determine if it is cost effective to deny temporary disability while awaiting a medical-legal examination. It may be better to simply commence benefits while awaiting the medical-legal examination, thereafter taking credit for any indemnity paid to the applicant while the applicant was not truly temporarily disabled. |
