Here’s one for you…You have an injury AOE/COE denied case that goes to trial. The WCJ finds that the injury is work related and the Applicant is currently temporarily totally disabled and orders Defendant to pay benefits. Defendant files a Petition for Reconsideration which is denied and does not file a writ at the DCA so the Findings and Award is final.
The injury is serious and 104 weeks of TTD will be paid within the next four to six weeks. The claims administrator calls or emails defense counsel and asks: “Do we have to file a Petition to Terminate TTD at the WCAB or do we just stop paying TTD after we have paid 104 weeks?”
Ok, all of you scholars, whatdoyouthink?
Labor Code section 4656(c) states as follows:
4656. (c) (1) Aggregate disability payments for a single injury occurring on or after April 19, 2004, causing 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.
(2) Aggregate disability payments for a single injury occurring on or after January 1, 2008, causing temporary disability shall not extend for more than 104 compensable weeks within a period of five years from the date of injury.
Petitions to terminate TTD orders are in Labor Code sections 4651.1 through 4651.3:
4651.1. Where a petition is filed with the appeals board concerning a continuing award of such appeals board, in which it is alleged that the disability has decreased or terminated, there shall be a rebuttable presumption that such temporary disability continues for at least one week following the filing of such petition. In such case, payment for such week shall be made in accordance with the provisions of Sections 4650 and 4651 of this code.
Where the employee has returned to work at or prior to the date of such filing, however, no such presumption shall apply.
Service of a copy of such petition on the employee shall be made as provided by Section 5316 of this code.
4651.2. No petitions filed under Section 4651.1 shall be granted while the injured workman is pursuing a rehabilitation plan under Section 139.5 of this code.
Yep, this is still in the Labor Code!
4651.3. Where a petition is filed with the appeals board pursuant to the provisions of Section 4651.1, and is subsequently denied wholly by the appeals board, the board may determine the amount of attorney's fees reasonably incurred by the applicant in resisting the petition and may assess such reasonable attorney's fees as a cost upon the party filing the petition to decrease or terminate the award of the appeals board.
In 2002, the WCAB issued the following procedural requirements for filing and opposing a Petition to Terminate Temporary Disability:
§10462. Petition to Terminate Liability; Filing.
A petition to terminate liability for continuing temporary disability indemnity under a findings and award, decision or order of the Appeals Board or a workers' compensation judge shall be filed within 10 days of the termination of the payments or other compensation. Failure to file such a petition within 10 days may affect the right to credit for an overpayment of temporary disability indemnity.
§10464. Contents of Petition to Terminate Liability.
A petition to terminate liability for temporary total disability indemnity shall conform substantially to the form provided by the Appeals Board and shall include:
(a) the correct title and date of filing of the prior order or decision, liability under which is sought to be terminated;
(b) the date upon which it is claimed that liability terminated;
(c) the grounds upon which it is claimed liability should be terminated;
(d) whether permanent disability is being advanced and, if so, the approximate date to which such indemnity will be paid;
(e) whether the employee is presently working, according to information available to the petitioner;
(f) a computer printout showing the dates and the amounts of disability indemnity that have been paid, and the periods covered shall be attached; and
(g) proof of service upon the opposing parties.
All medical reports in the possession of the petitioner that have not previously been served and filed shall accompany the petition. The petition also shall contain a statement, in underlined capital letters, that an order terminating liability for temporary total disability indemnity may issue unless objection thereto is made on behalf of the employee within 14 days after service of the petition.
§10466. Objections to Petition, Hearing, Interim Order.
If written objection to the petition to terminate is not received within fourteen (14) days of its proper filing and service, the Workers' Compensation Appeals Board may order temporary disability compensation terminated, in accordance with the facts as stated in the petition or in such other manner as may appear appropriate on the record. If the petition to terminate is not properly completed or executed in accordance with Section 10464, the Workers' Compensation Appeals Board may summarily deny or dismiss the petition.
Objection to the petition by the employee shall be filed in writing within fourteen (14) days of service of the petition, and shall state the facts in support of the employee's contention that the petition should be denied, and shall be accompanied by a Declaration of Readiness to Proceed to Expedited Hearing. All supporting medical reports shall be attached to the objection. The objection shall also show that service of the objection and the reports attached thereto has been made upon petitioner or counsel.
Upon the filing of a timely objection, where it appears that the employee is not or may not be working and is not or may not be receiving disability indemnity, the petition to terminate shall be set for expedited hearing not less than ten (10) nor more than thirty (30) days from the date of the receipt of the objection.
If complete disposition of the petition to terminate cannot be made at the hearing, the workers' compensation judge assigned thereto, based on the record, including the allegations of the petition, the objection thereto, and the evidence (if any) at said hearing, shall forthwith issue an interim order directing whether temporary disability indemnity shall or shall not continue during the pendency of proceedings on the petition to terminate. Said interim order shall not be considered a final order, and will not preclude a complete adjudication of the petition to terminate or the issue of temporary disability or any other issue after full hearing of the issues.
The only reference to termination of TTD benefits after 104 weeks of payments is buried in Labor Code section 4650:
4650. (b) .... When the last payment of temporary disability indemnity has been made pursuant to subdivision (c) of Section 4656, and regardless of whether the extent of permanent disability can be determined at that date, the employer nevertheless shall commence the timely payment required by this subdivision and shall continue to make these payments until the employer's reasonable estimate of permanent disability indemnity due has been paid, and if the amount of permanent disability indemnity due has been determined, until that amount has been paid.
This section only requires the claims administrator to commence payment of permanent disability advances once the 104 weeks of TTD has been paid.
There is nothing in any Labor Code section or regulation that specifically requires a claims administrator to file a Petition to Terminate Temporary Disability when the 104 weeks of TTD have been paid under a Findings and Award. However, defense counsel should advise a claims examiner that since the payment of TTD was subject to a final Findings and Award, best practices would be to file a Petition to Terminate TTD under Labor Code section 4651.1 anyway just to make sure there are no consequences for failure to do so.
The notice requirements of section 10462 of the regulations will prevent against the waiver of any claim of overpayment of TTD in the event one occurs after the Findings and Award is complied with by the defendant. The process begins with an accurate payment history of TTD commencing from the date of a Findings and Award through the 104 weeks.
Out of an abundance of caution, claims examiners should be aware of the limitations of Labor Code section 4656(c) and to properly administer the claim by terminating TTD through the process required under Labor Code section 4651.1 and California Code of Regulations sections 10462 and 10463.
Failure to do so may result in an audit penalty since the law still provides for Petitions to Terminate TTD after a final Findings and Award ordering payments of TTD.
© 2010 Robert G. Rassp, Esq. All rights reserved. Reprinted with permission.