TTD Rate Question (California) (California)

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TTD Rate Question (California) (California)

Postby hkcolby@msn.com on Wed May 13, 2015 6:44 am

Injured worker needs shoulder surgery but there has been a significant delay in getting it scheduled. Thee has been no lost time. In meantime, IW gets higher paying job and is concerned about the TTD rate. Can he get TTD based on his current earnings during his rehab period or is he bound to the DOI rate?
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Re: TTD Rate Question (California) (California)

Postby vampireinthenight on Wed May 13, 2015 7:36 am

Can he get TTD based on his current earnings during his rehab period


Yes.
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Re: TTD Rate Question (California) (California)

Postby steve appell on Wed May 13, 2015 8:45 am

Applicant is bound by the TD rate at DOI until 2 yr post DOI. He would then qualify for the increased rate.
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Re: TTD Rate Question (California) (California)

Postby hkcolby@msn.com on Wed May 13, 2015 12:21 pm

thank you for your replies.
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Re: TTD Rate Question (California) (California)

Postby jpod on Thu May 14, 2015 7:29 am

So which is it? Vampire and Steve do not seem to agree.

Doesn't Grossmont stand for the proposition that while SAWE is defined at DOI AWE is calculated only once in a claim, but that point is when the employee first suffers disability?

I always revert to the public policy behind WC on these types of questions. The public policy is make sure those injured on the job have money to contribute to the economy when they can't earn that money due to injury. The goal is to protect the economical welfare of society as much as the individual.

I certainly believe that if the higher paying job is with the same employer the current AWE applies if no TTD had been paid on the claim.

I'm less clear on if the job is with a different employer but still think Grossmont applies.
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Re: TTD Rate Question (California) (California)

Postby vampireinthenight on Fri May 15, 2015 7:41 am

There is a difference between calculating the AWW and the TD rate. After 2 years the rate can be recalculated (4661.5). This comes into play usually to bump up the max TD if the person is a max earner to begin with.

AWW is calculated at the time of the disability. There are a host of things that can be considered and post-injury earnings is one of them. Others are willingness to work, market availability, etc. Heck, even the season of the year has been considered (Signature Fruit, 71 ccc 1044). Check out good ol' Montana 57 Cal 2d 589 (1962).
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Re: TTD Rate Question (California) (California)

Postby steve appell on Mon May 18, 2015 6:54 am

Vampire hit the nail on the head, and I also agree that "MONTANA" is the case to reference.
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Re: TTD Rate Question (California) (California)

Postby jpod on Tue May 19, 2015 7:57 am

Steve you might want to add the Grossmont case to your list of important cases. Montana is still the hallmark on what factors to include in calculating AWE but Grossmont overturned most of the Thrifty case.

Court of Appeal, Fourth District, Division 1, California. GROSSMONT HOSPITAL, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD and May R. Kyllonen, Respondents. No. D027542. Decided: December 11, 1997 -

Here is a summarizing quote from the decision:

"...Where a dispute arises between the employer and injured worker, the Board must make a two-level analysis to determine what temporary disability benefits are due.   First, it must determine the anticipated duration of the disability based upon the nature of the injury sustained and the normal duration of the disability associated with that injury.   Second, the Board must consider whether, barring the injury, anything would have occurred during the anticipated duration of the disability that would have affected the injured worker's earning capacity in a manner that makes it unreasonable or unfair to use actual wages to calculate temporary disability benefits.   In doing so, the Board should consider only those factors existing at the time of injury or those that could reasonably be anticipated at that time.  Where there is specific demonstrable evidence that such factors exist which would have affected an injured worker's earning capacity other than in a de minimis manner, the Board should consider those factors to calculate one sum that represents a fair and reasonable estimate of average weekly earning capacity for the anticipated duration of the disability.   Once the Board makes an award for temporary disability, the third sentence of section 4453, subdivision (d) mandates it remain constant unless changed pursuant to section 4661.5..."

Cleary in the original post at the time of disability the employee had a higher AWE at the onset of disability than at DOI so earnings at DOI are not controlling with respect to calculating AWE b/c the higher wage was more than anticipated, it was earned and received.
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Re: TTD Rate Question (California) (California)

Postby vampireinthenight on Tue May 19, 2015 9:07 am

Good clarification jpod. "Anticipation" is a funny beast. Everyone anticipates they will receive either a raise or a better paying job in the near future. At least that's how it plays out under oath! :D

The interesting cases are ones of pure anticipation with no actualization of the upcoming 6-figure career.
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