Applicant Is Not Entitled To T. D. After Retirement

An applicant may not be entitled to temporary disability benefits after retirement if the applicant has a zero earning capacity.

The applicant had an industrial injury in May 1995. The applicant had surgery in June 1997. Temporary disability was paid to the applicant up until August 10,1997.  This was the applicant’s 65th birthday and the date on which she intended to retire. The workers’ compensation judge found that the applicant’s average weekly wage for purposes of temporary disability were zero after August 10. The applicant filed a petition for reconsideration and the Appeals Board agreed with the workers’ compensation judge.

The appellate court indicated that temporary disability benefits are two-thirds of the applicant’s average weekly wage. Average weekly wage is determined under Labor Code section 4453. The first three provisions, of section 4453 deal with situations that truly reflect earnings at the time of injury. The fourth provision in 4453 deals with irregular or other situations where the other three provisions of 4453 would not yield a fair result. This provision would require an estimate of earning capacity from all relevant circumstances, not just past earning capacity. The elements of earning capacity include ability to work, willingness to work, and opportunity to work.

The appellate court distinguishes determining the amount of benefit for temporary and permanent disability. For temporary disability you must focus on whether the applicant would have continued working at a given wage for the duration of the disability. Thus, if the employer continues to pay the injured worker in excess of the injured workers temporary disability rate mere is. no wage loss, and thus no temporary disability due the injured worker.  The court indicated that retiring after sustaining a job-related injury does not change the general principles. The question is still earning capacity. The decision to retire implicates the willingness to work in the earnings capacity calculus. The primary factual component of the analysis should be whether the worker is retiring for all purposes, or only from the particular employment. If the applicant is retiring for all purposes, then the worker cannot be said to be willing to work, and earnings capacity would be zero. The main question is whether the injury caused the worker to retire or the injury interfered with the workers plans to continue working elsewhere, then the injured worker cannot be said to be unwilling to work.

The answer would appear to be to pin the applicant down in a deposition. If the applicant indicates that they would have retired irrespective of the industrial injury than temporary disability would not be due after the date of that retirement.

Case: Gonzalez V. W.C.A.B.

Harvey Brown
3501 Jamboree Rd. Suite 602
Newport Beach, CA 92660

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