td rate (California)

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Re: td rate (California)

Postby steve appell on Mon Mar 11, 2019 11:40 am

First, TD is maxed out at about $1250 per week, so no IW can get more than that TD amount. Next, you are 100% wrong about td being apportionable. You say it happens everyday, but I don't care what happens to YOU everyday. I care about the law, and I challenge you to find one statute or case law that says you can apportion TD. However giving you the benefit of the doubt, maybe you are referring to contribution between carriers? Your post does not ask about that, so I did not address contribution. Last, I sincerely hope you do your own research rather than tell me what happens every day. I'm sure you will come to same understanding as the rest of us: CONTRIBUTION IS NOT APPORTIONMENT!
LATE!
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Re: td rate (California) (California) (California) (California)

Postby beach7 on Mon Mar 11, 2019 1:15 pm

Let's breakdown this one, now you're suggesting someone can add up multiple TD rates on different claims so long as it doesn't exceed one single max? So if someone's total AWW is 600 and she has three claims and she's on TD due to all three she gets 400 x 3 = 1200? It's under the max, so she should get that right? is that what you think she should get?
Last edited by beach7 on Mon Mar 11, 2019 2:16 pm, edited 6 times in total.
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Re: td rate (California) (California) (California)

Postby beach7 on Mon Mar 11, 2019 1:54 pm

Getting back to my question, nope, this is not contribution. You're just not familiar with the situation or the issue, don't worry about it, happens to everyone at times.
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Re: td rate (California)

Postby steve appell on Mon Mar 11, 2019 5:03 pm

Who me worry? Nahhhhhh…
Nevertheless, The TD rate is based on earning capacity, and you CAN NOT apportion TD. Therefore, I recommend you look up the Montana Case which is still good law. I think the cite is Argonaut Ins. Co. v. Industrial Acc. Com. , 57 Cal.2d 589 (Montana). Good Luck!
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Re: td rate (California)

Postby vampireinthenight on Tue Mar 12, 2019 8:32 am

lol, I'm staying out of this one! :lol:
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Re: td rate (California)

Postby mytwocents on Wed Mar 13, 2019 1:35 pm

When two defendants are liable for TD, one can pay and seek contribution from the other or the WCAB can apportion the liability between the two in terms of percentages and each can pay its share. Generally, the TD rate is determined by the second injury because that’s where the wage loss is. However, the Labor Code allows calculation based on earning capacity where an injustice would otherwise be done. So, the defendants would have to come to an agreement with the applicant on the average weekly wage or they’d each make their arguments and the WCAB would have to decide. There’s a general theme running through the law that it’s not good public policy to let people collect more for being disabled than what they could earn if they were working. That’s why Social Security takes an offset when worker’s comp plus SSDI is more than 80% of earnings. So the TD rate will be determined according to actual earnings or earning capacity but not what he was earning on both jobs combined.
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Re: td rate (California)

Postby jpod on Wed Mar 13, 2019 1:56 pm

And before that the applicant needs to prove N&F to get passed the Stips that settled TD and PD with D1. I'm not saying it can't be done just that if there isn't N&F as to D1 there is no TD due so agreement on a TD rate seems pre-mature unless D1 has reason to believe there is substance to the claim of N&F liability.
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Re: td rate (California)

Postby mytwocents on Thu Mar 14, 2019 8:12 am

You raise an interesting point. If the AME said TD 50/50 and a timely N & F petition was filed, there’s clearly substance to the claim. However, if D1 has already paid almost 104 weeks of TD or if almost 5 years have elapsed since the date of the first injury, D2 is going to end up with almost all of the liability for TD provided Western Growers doesn’t apply and there really is a second CT. If there isn’t, the applicant will only get what’s left of the 104 weeks/five years at the stipulated TD rate.
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Re: td rate (California)

Postby vampireinthenight on Thu Mar 14, 2019 8:15 am

The rate is $1000 because the medical evidence implicates D1 as at least partially responsible. Now, D2 cannot be ordered to pay $1000/wk because the labor code does not permit prior earnings to be used to calculate an AWW in D2's case.

Therefore, it would make no sense to order the TD payable by D2. What a WCJ would likely do (if the defendants are too incompetent to figure it out on their own), is to order the TD to be paid by D1 and the defendants can work out the contribution/reimbursement between them. If it helps, you can think of D2 essentially getting a "credit" for the TD paid by D1, which they need to resolve with D1.

The interesting part is deciding how much D2 must reimburse D1. $100/wk or $200/wk? I would lean toward $100/wk. Although D1 is paying much more than half of the TD under either scenario, the only reason the IW is getting so much to begin with is because of D1's AWW.
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Re: td rate (California)

Postby jpod on Thu Mar 14, 2019 12:22 pm

Wouldn’t Grossmont control the analysis as to D2? TTD rate for D1 is already established – dare I say it – as the law of the case - since there were stips that presumably locked in TTD rate and TTD due.

What gets tricky is if the anticipated duration of TTD due to injury #2 extends beyond the 104 week cap as to D1 – what does the WCJ do if D1’s liability for TTD ends as a matter of law well within the anticipated length of disability that results from the 2nd injury? Could D2 be forced to pick up the same rate once D1’s TTD liability terminates under the cap?

Quoting Grossmont below which I think is controlling but maybe not; maybe it goes back to Montana.

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

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.
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