Authorities as the decision cited them, with how this panel applied each one.
Lab. Code 4653
Temporary disability indemnity replaces wages lost due to industrial injury, based on two-thirds of average weekly earnings and ability to compete in open labor market (Lab. Code 4653).
Applicant must prove extent of earning capacity after retirement to qualify for temporary disability benefits.
From the decision · page 1Temporary disability indemnity is intended to replace wages lost on account of an
industrial injury, the amount being "two-thirds of the average weekly earnings during the period
of such disability, consideration being given to the ability of the injured employee to compete in
an open labor market." (Lab. Code § 4653.) As the party seeking an award of temporary disability,
Lab. Code 5705
Applicant bears burden to prove intent to continue working after retirement to establish earning capacity (Lab. Code 5705).
Applicant did not demonstrate willingness or efforts to return to work after retirement.
From the decision · page 2applicant carries the burden of proof to demonstrate the extent of his earning capacity subsequent
to his retirement by establishing his intent to continue to work after he retired. (Lab. Code, § 5705.)
Gonzales v. Workers' Comp. Appeals Bd. (1998) 68 Cal.App.4th 843
A retired injured worker who unequivocally denies interest in further employment is not entitled to temporary disability indemnity due to lack of lost earnings (Gonzales v. Workers' Comp. Appeals Bd. (1998)).
Applicant's voluntary retirement and lack of efforts to return to work led to denial of temporary disability benefits.
From the decision · page 2"[I]n making an award for temporary disability, the focus is on `whether an applicant would
have continued working at a given wage for the duration of the disability.' [citation omitted]....
An employee unwilling to work cannot be deemed to have an earnings capacity." (Gonzales v.
Workers' Comp. Appeals. Bd. (1998) 68 Cal.App.4th 843 [63 Cal.Comp.Cases 1477, 1481].) "The
elements of earning capacity include ability to work, willingness to work, and opportunity to
work." (Id. at p. 1478.) If an injured worker voluntarily removes him or herself from the job
market and did not retire because of the disability from the industrial injury, there may be no
evidence of a willingness to work and or lost wages to be replaced.