Temporary disability is a workers’ compensation benefit that acts as a substitute for lost wages, replacing what the employee would have earned if the occupational injury had not occurred. These benefits are only paid if the insurance company agrees that the injury is work-related. If the injury is found to have occurred outside the scope of employment, no benefits will be provided by the insurance company.
In a workers compensation case, temporary disability benefits are:
- Determined by work restrictions given by your doctor
- Given for a limited amount of time
- Calculated based on your weekly earnings
- Paid on a set schedule
There are specific steps you can take if you believe you have unfairly been denied temporary disability benefits.
This article will explain:
- 1. What are temporary disability benefits?
- 2. How Long do Temporary Disability benefits last?
- 3. How to calculate temporary disability
- 4. What if there is a dispute regarding temporary disability?
- 5. How can I get the temporary disability benefits I am due?
Temporary disability benefits are only paid if the insurance company agrees that your injury is work-related. If the injury is denied, no benefits will be provided by the insurance company. However, you may still be able to receive disability benefits from the Employment Development Department, or EDD. EDD benefits are paid for a non-work-related injury that causes you to miss work.2
To get California temporary disability benefits, a doctor must say that you cannot work or are limited in the kind or amount of work that you can do.3 4
Your employer must decide if it has any modified work that you can do that complies with the doctor’s work restrictions.5
Your treating physician will see you every 45 days and make recommendations about your work restrictions and the ability to work.6
Example: Jessica works in an office as an administrative assistant and sustains a cumulative trauma injury to her wrists. Her treating doctor examines her and says that she is restricted from doing repetitive work with her hands. She informs her employer of her work restrictions. Since the employer does not have any work for her with those restrictions, she becomes entitled to temporary disability.
Example: Adam works in a warehouse and injures his back. His doctor says he can’t lift more than ten pounds. Adam’s employer tells Adam to work in the warehouse office filling out forms. He can work because the employer has work where Adam is lifting less than ten pounds. Adam will not receive temporary disability.
Example: Josh works in an office. He injured his back lifting a box. His doctor says that Josh can’t do any kind of work for the next six weeks because of his back. Josh is entitled to temporary disability.
Example: Emily works as a police officer. She injures her shoulder chasing a suspect. Her doctor says that she can only work four hours a day instead of eight. In a police officer workers comp case, Amy is entitled to temporary partial disability for the hours she cannot work.
Payments of temporary disability are made every two weeks.7 The first payment should be made by the insurance company within 14 days of receipt of the medical report stating you cannot work at all or cannot work the number of hours you previously did.8
If your temporary disability payment is late, you will receive an additional 10%.9
Example: Melissa has been receiving temporarily disability checks every two weeks for $1,400. The insurance company makes a mistake and does not send the check on time. The insurance company now has to send Melissa a check for $1,400 and a check for $140 for the late payment penalty.
For a more detailed discussion, please see our page on penalties for late payment of workers comp benefits in California.
California temporary disability is determined based on work restrictions given by your doctor and whether your employer is able to accommodate those restrictions. In addition, there are limits that the state of California has placed on how long you can receive temporary disability.
Temporary disability will end when:
- you return to work
- a doctor advises that you can return to work, or
- your condition stabilizes, and you become eligible for permanent disability benefits.10
California temporary disability is limited to 104 weeks within a five-year period from the date of injury.11 This does not affect permanent disability benefits in California.
However, if you have one of the following conditions, you can receive up to 240 weeks of temporary disability. Those conditions are:
- Acute and chronic hepatitis B
- Acute and chronic hepatitis C
- Severe burns
- Human immunodeficiency virus (HIV)
- High-velocity eye injuries
- Chemical burns to the eyes
- Pulmonary fibrosis
- Chronic lung disease12
Example: Monica is injured on January 15, 2013. She immediately goes off work and gets temporary disability benefits for 52 weeks. She goes back to work, but her case is still open. She has surgery for her injury on March 1, 2018. Even though Monica has 52 weeks of temporary disability left, she is beyond the five years. She cannot get temporary disability when she is off work for her surgery.
If you are unable to work at all, you will receive temporary total disability. The amount of temporary total disability you receive is two-thirds of your average weekly wage (AWW).13 The average weekly wage is calculated depending on your work situation:
- work more than 30 hours and five days a week: your average weekly wage is the earnings per day times days worked per week.14
- paid by commission or earn different amounts each week: you can take the average weekly earnings over one year.15
- none of the above: you can determine another method to get a fair idea of your weekly wage.16
If you can work part-time, you will receive temporary partial disability. Temporary partial disability amounts are calculated on the wages that you are losing from the hours you are not working.17
After you calculate your temporary disability rate, you must check to see if it is below the minimum or above the maximum level set by the state.
The maximum and minimum amount of temporary disability you can receive changes each year based on a calculation of what California employers are paying their employees.18 For example, based on the state average weekly wage (SAWW) calculation for 2018, California’s maximum temporary disability rate increased approximately $40 over the previous year to $1,215.27.19 20
This data is available on the Department of Industrial Relations website.
Example: Jessica’s injury took place in 2016. She earned $1,800 a week. Two-thirds of her weekly earnings is $1,200. However, the maximum temporary disability rate for 2016 is $1,128.43. Jessica will receive $1,128.43 per week in temporary disability.
Example: Christopher’s injury also took place in 2016. He earned $1,200 a week. Two-thirds of this is $800. Christopher will receive $800 per week.
Example: Hannah earned $900 a week. She is only working part-time due to her injury, from eight hours a day to just four. She is entitled to temporary partial disability for the time she is missing. As she is only working 50% of the time, she is missing out on $450 a week. She gets two-thirds of $450, or $300 a week. She will end up with a total of $750, which is $450 for working and $300 in disability.
If you are off work for less than 14 days, the first three days are considered a waiting period and you will not be paid temporary disability for those days.21
Example: Susie is injured and misses ten days of work. Due to the three-day waiting period, Susie will only receive temporary disability for seven days.
If you are injured on a job and you only work during part of the year, you are only entitled to temporary disability benefits for that part of the year.22
Example: Eric works between April and September each year on a fishing boat. He doesn’t work the rest of the year. He is injured on June 15th. He is only entitled to temporary disability benefits through the time he would normally work in September. Because Eric doesn’t work until the next April, he has not lost any wages between October and March and does not get temporary disability.
There may be times when you feel that you should be entitled to temporary disability, but you are not receiving it. Depending on the situation, there are different options to pursue. This includes appealing any adverse decision by the workers compensation board.
You may believe that you can’t work or that your doctor’s restrictions are incorrect. If that happens, you can request that a different doctor evaluates you and determines your temporary disability status.23
This doctor is called a Qualified Medical Evaluator (QME) or Agreed Medical Evaluator (AME). They will examine you and give an opinion on your temporary disability status.24
The insurance company can also disagree with the opinion of your treating doctor regarding your temporary disability status and can also request a second opinion. This process is called utilization review.
Example: Nicole’s treating doctor says that she can go back to work as a security guard. Nicole believes that she is still in too much pain to go back to work. Nicole can request a second opinion from a QME to determine if she can go back to work.
If Nicole’s treating doctor says that she can’t work, the insurance company can request a second opinion based on their belief that Nicole can work.
Sometimes even with a medical report saying that you are temporarily disabled or if there are medical reports with opposite opinions, an insurance company will not pay temporary disability benefits.
At this point, you can request that a judge make the decision as to whether you are entitled to those benefits.
This requires filing an Application for Adjudication of Claim, if one has not already been filed, and then a Declaration of Readiness to Proceed To Expedited Hearing.
You will receive notice of your hearing date. At that time, you can testify and submit medical reports showing that you should be receiving temporary disability benefits.
Obtaining temporary disability benefits is a combination of understanding how your doctor determines work restrictions based on your injury and whether your employer is able to accommodate those restrictions.
You also need to understand how to file a workers’ compensation claim in California.
It may require someone knowledgeable in the field to put these factors together to get you the benefits you need to pay bills and recover from your injury.
For help and representation with California worker’s compensation claims, contact us here at Shouse Law Group. For cases in Nevada, please see our page on temporary disability in Nevada’s workers’ compensation cases.
- Signature Fruit Co. v. Workers’ Comp. Appeals Bd., 142 Cal. App. 4th 790, 801
- Cal. Lab. Code § 4658.7
- Cal. Lab. Code § 6409
- Cal. Lab. Code § 4658.7
- Cal. Code Regs., tit. 8, § 9785(f)
- Cal. Lab. Code § 4650(c)
- Cal. Lab. Code § 4650(a)
- Cal. Lab. Code § 4650(d)
- Signature Fruit Co. v. Workers’ Comp. Appeals Bd., supra.
- Cal. Lab. Code § 4656
- Cal. Lab. Code § 4656(C)(3)
- Cal. Lab. Code § 4653
- Cal. Lab. Code § 4656(c)(1)
- Cal. Lab. Code § 4656(c)(2)
- Cal. Lab. Code § 4656(c)(4)
- Cal. Lab. Code § 4657 4654
- Cal. Lab. Code § 4453(a)(10)
- Cal. Lab. Code § 4652
- Signature Fruit Co. v. Workers’ Comp. Appeals Bd., supra.
- Cal. Lab. Code § 4062
- Cal. Lab. Code § 4062.3(j)