td rate (California)

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td rate (California)

Postby beach7 on Thu Mar 07, 2019 7:54 pm

two distinct CT periods, different employer and carriers, #1 has a TD rate of say 1000 and #2 has rate of 200. The person goes off on TD after #2, and medical evidence says both periods responsible, natural progression from CT 1 and still within TD timeframes, followed by new injury of CT 2, divided 50/50 to each period. what is the proper TD rate?
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Re: td rate (California)

Postby jpod on Fri Mar 08, 2019 8:41 am

How could TD due to the natural progression of the first CT give rise to a second CT? I think the western growers case says what you have is one CT with broken periods of TTD, not two distinct CTs.
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Re: td rate (California)

Postby jpod on Fri Mar 08, 2019 8:49 am

I should add unless there was no TD for the first CT; under LC 5412 the second CT is the only CT bc the DOI under 5412 is the first date of disability.
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Re: td rate (California) (California)

Postby beach7 on Fri Mar 08, 2019 9:32 am

We have CT 1 which was settled by stips. She returns to work with restrictions different occupation. Files for CT 2 and found to have further injury due partially to new and further on CT 1 and partially to new CT2, and TD again based on combination of CT 1 and 2. there is a petition for new and further on #1, and new injury on 2. Medical evidence says TD is due to both 1 and 2, but rates are different. D1 would probably argue TD is solely because of injury 2 and goes at that rate. Does that argument work? there was TD on injury 1, between the two injuries. there are two separate CTs.
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Re: td rate (California)

Postby jpod on Fri Mar 08, 2019 10:56 am

Well the Stip changes things I would think. In western Growers the employee was in the same occupation with the same employer, just different insurers. My initial impression is the change in occupation would work against a finding of new & further for D1 b/c the industrial exposure changed - that is what is new. But I'll defer to the attorneys to address the liability angle.

In terms of your original question there is a formula for calculating TD rate when their are two jobs with different AWEs. There maybe an example in the labor code in the appendix; Herlick's and/or Gwen Hampton's books have examples of how to calculate the rate if the facts you laid out carry the day.
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Re: td rate (California)

Postby steve appell on Sat Mar 09, 2019 8:15 am

$1000 + $200 = $1200 TD rate.
What am I missing?
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Re: td rate (California) (California)

Postby beach7 on Sun Mar 10, 2019 6:48 am

These were not concurrent CTs they were consecutive with TD from #1 in between. Therefore I doubt someone can get the full TD rate on two claims at the same time. The second claim rate of $200 would probably have to be deducted from the $1000 just like any other income. So i think she would get $800 and $200, or she could just take the $1000 and $0, and then D2 would owe D1 $100 per week which would be its 50% of liability.
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Re: td rate (California)

Postby steve appell on Sun Mar 10, 2019 10:10 am

LOL!
And what medical school did you go to? Your post says both CT periods are responsible.
You CAN NOT apportion TD! Therefore both IC/ER are responsible.
Unless you get different medical evidence ….
The TD rate is $1200.00
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Re: td rate (California)

Postby beach7 on Sun Mar 10, 2019 12:58 pm

So under that logic if the TD rates were 1000 each she'd be getting 2000, which is more than any of her regular earnings. Sign everyone up for that deal. You may want to rethink that one.
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Re: td rate (California) (California)

Postby beach7 on Sun Mar 10, 2019 1:10 pm

TD is absolutely apportionable between carriers and multiple work comp claims - happens every day. Another obvious example would be if there was a specific and CT with the same date (as we see often) same employer and the doctor says it's 50/50. You think the carrier pays her full rate 1000 twice?
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