Home > Tactics and Strategy, Temporary Disability > Do Missed Wages for a Medical-Legal Evaluation Trigger 4656?

Do Missed Wages for a Medical-Legal Evaluation Trigger 4656?

A recent writ denied case addressed an issue near and dear to my heart – the 2-year limit of temporary disability payments under Labor Code section 4656(c)(1).  As you might recall, California recently dodged a major bullet with proposed (now vetoed) Assembly Bill 947 which would have extended temporary disability to 240 week (up from our current 104).

The main issue here was whether the payment of lost wages for the time taken to attend a Panel Qualified Medical Evaluation starts the clock on 104 weeks of temporary disability.  The answer, I am sorry to report, is no.

The case is City and County of San Francisco v. Workers’ Compensation Appeals Board.  Maria Miller, the applicant, allegedly sustained a cumulative trauma to her neck and shoulders.  On November 18, 2008, applicant attended a PQME evaluation, and defendant sent her a check for one day of lost wages.

Later she was found to be temporarily disabled and defendant commenced payments on December 18, 2009.  Later still, following surgery, applicant was temporarily disabled again, but defendant raised section 4656, saying the obligation to pay temporary disability ended on November 18, 2010.

The Workers’ Compensation Judge found that the day of lost wages for attending an evaluation does not count as temporary disability benefits, and the TD benefits actually commenced in December of 2009.

Defendant filed a petition for reconsideration, and the Workers’ Compensation Appeals Board adopted and incorporated the WCJ’s report, including the citation to the case of Caldwell v. Workers’ Compensation Appeals Board, holding that the required day’s wages and travel expenses paid to the applicant for attending an evaluation are meant to be in addition to all other benefits, and therefore § 4656(c)(1) is not triggered.

The Court of Appeal denied defendant’s petition for a writ of review.

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