Managing Employee Injuries and Disability and Occupational Safety

(See Chapter on Penalties). The amount may be decreased by credits for wages or other benefits received, or by reason of the employee’s serious and willful misconduct.

8. D URATION OF T EMPORARY D ISABILITY P AYMENTS /L ABOR C ODE S ECTION 4850 B ENEFITS For injuries from January 1, 1979 to April 19, 2004, temporary total disability is of unlimited duration. For injury after April 19, 2004, there is a 104 week limit paid within five years of the date of injury. Labor Code Section 4656.

The two year time limit starts on the date of the first payment, not the date payment is first due. 40 The two year limit may run concurrently for separate injuries. 41

A compensable consequence of an injury does result in a new two year period. 42 Industrial Disability leave for state employees is subject to the two year limit. 43 Education Code Section 44043, salary is subject to the two year limit. 44 Labor Code Section 4850 benefits are subject to the two year limit. 45

9. F ORMULA

a. Temporary Total Disability When a compensable injury causes temporary total disability, the disability payment is two- thirds of the average weekly earnings during the period of disability. b. Average Earnings The basic factor in determining the sum payable as compensation is the “average earnings” of the employee. The workers’ compensation statute prescribes the method of determining the average earnings of an employee. Ordinarily this sum is 100% of the actual wages payable, including overtime, market value of board, lodging, fuel, and other benefits received by the employee which can be estimated in cash up to the maximum established by statute. Labor Code Section 4454. Benefits payable during periods of disability are calculated on the basis of 66 2/3% of average weekly earnings. The average weekly earnings for purposes of temporary or permanent disability have minimum and maximum limits. c. Temporary Disability If an injured employee is temporarily disabled more than two years after the date of injury, and the law has been amended to increase the rate of temporary disability, then the employee will be paid temporary disability benefits at the higher rate if his earnings are sufficient. Labor Code Section 4661.5.

Managing Employee Injuries, Disability and Occupational Safety ©2019 (s) Liebert Cassidy Whitmore 36