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Temporary Disability Rate Calculated Based on Employees Earnings as of Date Temporary Disability Commenced222

SPELLINGS vs. PACIFIC PULMONARY SERVICES

(2015) 2015 Cal. Wrk. Comp. P.D. Lexis 731

 

Applicant sustained injury to her low back on July 6, 2010. She missed no time from work until June 12, 2014 when her treating physician found her to be temporarily disabled.

The applicant’s earnings on the date of injury were $623.79, resulting in a temporary disability indemnity rate of $415.86. Her earnings as of the date she was declared temporarily disabled were $610.80 from Pacific pulmonary services, plus an additional $182.70 from In-Home Support Services for caring for a member of her family, for a total of $793.50. This resulted in a temporary disability indemnity rate of $529.00.

Defendant paid temporary disability indemnity at the rate of $415.86 beginning as of June 12, 2014. However, it argued that the applicant was not entitled to temporary disability more than five years from the date of injury. Applicant contended that she was entitled to ongoing temporary disability payments (up to 104 weeks) at the rate of $529.00 per week.

The trial judge awarded temporary disability at the rate of $529.00 and ordered that the payments were to continue until the applicant reached maximum medical improvement or had reached 104 weeks of payments. The defendant filed a Petition for Reconsideration.

The Commissioners agreed with the Workers’ Compensation Judge’s analysis. First, the applicant was entitled to ongoing temporary disability payments because the disability commenced within five years of the date of injury and the Board was exercising its original jurisdiction over the claim.

With regard to the temporary disability rate, the board cited Bodnar vs. WCAB for the proposition that the temporary disability rate should reflect the employee’s earnings at the time the disability commenced. Since temporary disability indemnity is intended to serve as a substitute for wages lost due to the industrial injury, the rate should accurately reflect those lost wages.