This workers’ compensation benefit was the subject of a limited discussion in one of our previous articles. This article will further expound on this very important entitlement of an injured worker.
A job injury may or may not result in disability to go back to work either totally or partially. If no disability results, the injured worker must have to go back to work.
If he does not, he would not be entitled to any disability benefit. What is worse is that this could be a reason for his termination from work.
On the other hand, a work injury may result in total or partial disability. Total disability is one which renders the injured employee incapable of doing any kind of work. Such an employee is entitled to receive temporary total disability (TTD) benefits the entire time that he is incapable or working.
If the resulting disability is partial, the employee is entitled to receive temporary partial disability (TPD) benefits.
There are also instances when an injured employee can go back to work with certain restrictions such as no lifting more than 10 pounds, repetitive bending, stooping, etc. If the employer has no work available with these restrictions, the injured employee should not go back to work and is entitled to be paid temporary disability benefits.
As to whether an employee is disabled and the kind of disability he has (total or partial) all depends on the treating doctor who must certify to such disability.
Unless the treating doctor orders the employee off work or on modified work, he will not be entitled to temporary disability benefit. If the employee believes however that he has a disability to work because of his job injury and the treating doctor refuses to order him off or on modified work, the employee may question this refusal by going to a qualified medical evaluation (QME).
Duration of Temporary Total Disability
Before April 19, 2004 temporary total disability benefits are payable for as long as the injured employee is off work upon doctor’s order.
After April 19, 2004 disability payments last only for 104 weeks (2 years) from the time payments began. Note that the 104 weeks start from the date of firs payment of disability benefits, so that if payment started only after one year the disability started, the 104 weeks should start from that date not from the date the disability started. To illustrate: Rey was declared by his treating doctor temporarily totally disabled on January 1, 2005. The employer (or insurance carrier) however started paying him only on January 1, 2006. Rey’s benefit payment should continue until January 1, 2008. The employer cannot claim that payments should end on January 1, 2007. Remember, the date the 104 weeks start is the date payment was first made not the date when TTD started or declared by the doctor.
For date of injury after December 31, 2007 TTD payments are payable for 104 weeks within 5 years from the date of injury. Following our previous example, if Rey was injured on January 1, 2008 he can only receive a maximum of 104 weeks of TTD payments until January 1, 2013. Thus, if his TTD payments started on November 1, 2012 such payments will continue only up to January 1, 2013 even if he has received only 3 months of TTD payments.
The 104 weeds TTD payment limitations discussed above end, at any rate, when any of the following occurs:
1. When the treating doctor certifies that the employee has regained his ability to work.
2. When the treating doctor declares the employee to be permanent and stationary (P&S) or has reached maximal medical improvement (MMI).
This article has been prepared for educational and general information only, and not intended as specific legal advice or legal opinion on any specific matter. If you have any question, contact the Law Office of Sol D. Bello at (408) 297-9088 for a free legal consultation.
Mr. Sol Bello’s and Mr. Ken Nakata’s areas of law practice are limited to Workers’ Compensation claims (work related injures) and Personal Injury. (car accident/slip and fall) Mr. Bello is fluent in Ilocano and Tagalog. The Law Office of Sol D. Bello is located at 111 N. Market Street, Suite 415, San Jose, CA 95113.
A job injury may or may not result in disability to go back to work either totally or partially. If no disability results, the injured worker must have to go back to work.
If he does not, he would not be entitled to any disability benefit. What is worse is that this could be a reason for his termination from work.
On the other hand, a work injury may result in total or partial disability. Total disability is one which renders the injured employee incapable of doing any kind of work. Such an employee is entitled to receive temporary total disability (TTD) benefits the entire time that he is incapable or working.
If the resulting disability is partial, the employee is entitled to receive temporary partial disability (TPD) benefits.
There are also instances when an injured employee can go back to work with certain restrictions such as no lifting more than 10 pounds, repetitive bending, stooping, etc. If the employer has no work available with these restrictions, the injured employee should not go back to work and is entitled to be paid temporary disability benefits.
As to whether an employee is disabled and the kind of disability he has (total or partial) all depends on the treating doctor who must certify to such disability.
Unless the treating doctor orders the employee off work or on modified work, he will not be entitled to temporary disability benefit. If the employee believes however that he has a disability to work because of his job injury and the treating doctor refuses to order him off or on modified work, the employee may question this refusal by going to a qualified medical evaluation (QME).
Duration of Temporary Total Disability
Before April 19, 2004 temporary total disability benefits are payable for as long as the injured employee is off work upon doctor’s order.
After April 19, 2004 disability payments last only for 104 weeks (2 years) from the time payments began. Note that the 104 weeks start from the date of firs payment of disability benefits, so that if payment started only after one year the disability started, the 104 weeks should start from that date not from the date the disability started. To illustrate: Rey was declared by his treating doctor temporarily totally disabled on January 1, 2005. The employer (or insurance carrier) however started paying him only on January 1, 2006. Rey’s benefit payment should continue until January 1, 2008. The employer cannot claim that payments should end on January 1, 2007. Remember, the date the 104 weeks start is the date payment was first made not the date when TTD started or declared by the doctor.
For date of injury after December 31, 2007 TTD payments are payable for 104 weeks within 5 years from the date of injury. Following our previous example, if Rey was injured on January 1, 2008 he can only receive a maximum of 104 weeks of TTD payments until January 1, 2013. Thus, if his TTD payments started on November 1, 2012 such payments will continue only up to January 1, 2013 even if he has received only 3 months of TTD payments.
The 104 weeds TTD payment limitations discussed above end, at any rate, when any of the following occurs:
1. When the treating doctor certifies that the employee has regained his ability to work.
2. When the treating doctor declares the employee to be permanent and stationary (P&S) or has reached maximal medical improvement (MMI).
This article has been prepared for educational and general information only, and not intended as specific legal advice or legal opinion on any specific matter. If you have any question, contact the Law Office of Sol D. Bello at (408) 297-9088 for a free legal consultation.
Mr. Sol Bello’s and Mr. Ken Nakata’s areas of law practice are limited to Workers’ Compensation claims (work related injures) and Personal Injury. (car accident/slip and fall) Mr. Bello is fluent in Ilocano and Tagalog. The Law Office of Sol D. Bello is located at 111 N. Market Street, Suite 415, San Jose, CA 95113.
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