TTD Benefits (California)

[darkside]

Date of injury in 2003. Applicant declared P&S in 2005. AME states Applicant needs surgery on an industrial basis for a condition which developed as a compensable consequence of original orthopedic injury. There has been no Stip, F&A, etc. Original case has never settled, and remains open. My understanding of the Acosta case is that TTD is due under these circumstances, as this issue has not previously been decided, notwithstanding that five years has elapsed following the date of injury.

However, one of the Judges that the Van Nuys WCAB recently told me that TTD was not due in this circumstance in accordance with recent case law that WCAB jurisdiction to award TTD is terminated after 5 years from the date of injury pursuant to LC 4656. Even though that section clearly references temporary partial disability, recent case law has applied this section to TTD. The Judge could not remember the case name.

I cannot find any recent case law in support of this proposition. Am I missing something?

[jakelast@aol.com]

No you are not missing anything.

If you look hard enough I am pretty sure there is at least one writ denied or panel decision within the last year that allowed TTD in circumstances such as yours.

Unless the WCJ can find the case, stand your ground.

[jpod]

Glad to hear that I hadn't missed anything either.

While this isn't partof the facts in this post, the question I am confused on is the following:

If there had never been an applicaton filed and the employee was sent a notice that they had no PD and no current need for treatment after they were declared P&S by PTP and the applicant was advised of the one year and 5 year stautes (and right to QME etc) could that have a bearing on whether there is jurisdiction to award TTD more than 5 years from the DOI? Or is the rule still that since there was no finding of PD then the 5 years can not run regardless of whether an application had been filed?

[jakelast@aol.com]

The right to file an application in a case where there has been provision of benefits is based on the right to pursue new and further benefits. Failure to file for new and further within 5 years from the date of injury will bar the right to collect benefits.

In the very limited scenario you present, there is a good argument that any application is not timely and therefore barred. If the applicantion is determined to be timely, benefits can be obtained as the wcab's jurisdictional limitation has not been invoked.

If there is no TTD or PD and no hospitalization, there is no obligation to notify an employee of the time limits (so called Reynold's notice) and the statute of limitations is running regardless of notice.