More help from Maurice…
The End of Temporary Disability Benefits
Frequently the on-the-job injury requires the Injured Worker [IW] to be off work, undergoing active medical treatment, and (hopefully) to be in a process of recovery. This off-work time is usually referred to as “Temporary Disability” (TD).
As of April 19, 2004 (the Schwarzenegger Reform), the IW was limited to two (2) years or 104 weeks of TD. Such a two-year period began to run from the date of first payment of TD benefits. If the IW received his or her first TD payment on 2-1-05, then those benefits would stop on 2-1-07–even if the IW returned to work for part of that 2-year period of time.
Note: If the IW’s date of injury was before April 19, 2004, he or she could potentially receive TD benefits for an unlimited time… as long as there was medical evidence supporting the status of continued Temporary Disability. I have had some injured workers–with dates of injury before April 19, 2004–who received TD benefits for more than 10 years. Those, however, were extreme cases.
Effective January 1, 2008, the law on the two (2) years / 104 weeks of TD benefits was changed so that the IW would have up to five (5) years from the date of injury to collect all two (2) years of TD benefits. In other words, the IW who was injured on 2-1-08 could be off for a short period of time (possibly delaying a surgery until a later time), have the surgery in 2010, and collect TD benefits up to 2012. As long as the total time of TD payments did not exceed two (2) years, the IW had until 2-1-13 to collect his or her two years of TD benefits.
What to do when the Primary Treating Physician (PTP) says you are still Temporarily Disabled but you have exhausted all two (2) years of TD benefits?
Many of the cases I have handled since “The Terminator’s” Reform of 2004 have ended up in this unwelcome predicament. This is how we usually advise our clients:
1. Before the second anniversary of their date of injury, frequently at the time we are retained on the case, we recommend to the client that they apply for State Disability benefits through the Employment Development Department–otherwise known as EDD-SDI or, simply, SDI. Some of the personnel at EDD-SDI district offices will say something like:
“But this is a Workers’ Comp case… Workers’ Comp should be paying you, not State Disability.”
Actually, that is not quite correct. State Disability stands second in line and obligation to pay for persons (who are entitled to SDI benefits because they and their employer have paid into that system) who are so disabled they cannot continue performing their usual and customary employment. First in line is Workers’ Compensation. But if WC will not pay (they are delaying to investigate, they have denied the case, or, as in our example, TD benefits have been exhausted and you still cannot go back to work), the SDI must step up and provide benefits for up to one year. For most wage earners, SDI benefits are very similar in weekly rate to TD benefits.
2. If the IW has any Long Term Disability insurance plans, we urge them to apply for those benefits at their earliest opportunity.
Note: We do not normally help with applications for LTD benefits. That is a specialty in its own right. However, we will provide copies of medical evidence which will likely facilitate the application process.
3. Depending on the severity of the injuries, the age of the Applicant, and other factors, we will sometimes recommend that the IW apply for Social Security Disability Insurance benefits [SSDI], a federal benefit. (For those who have insufficient work credits to qualify for SSDI, we may recommend that the IW apply for Supplemental Security Income [SSI], also a federal welfare-type of benefit.)
Note: We are not currently representing applicants for either SSDI or SSI–but we can refer you to counsel who are specialists in these aspects.
It’s important to understand that there are some cases that have needs or limits that simply do not lend themselves to easy solutions. But, we always try our best for our clients. Most of the time, our efforts result in a positive outcome.
Watch For Part 2
In the second part of “’Fiscal Cliffs’ in Workers’ Compensation,” I will discuss the transition from the wage-loss replacement benefits (TD, SDI, SSDI, SSI) to the Award or Settlement of the case–and the concerns that arise during that phase of the case.
NOTICE: Making a false or fraudulent Workers Compensation claim is a felony subject to up to 5 years in prison or a fine of up to $50,000 or double the value of the fraud, whichever is greater, or by both imprisonment and fine.