ADJ20546432 · August 7, 2026

State Disability Insurance payments are not temporary total disability payments by the carrier; thus, Labor Code §4661.5 applies and the rate must be calculated as of the date of payment.

From the decision · page 6It is determined that Applicant testified credibly, that Applicant's retirement was not voluntary, and as such he is entitled to temporary total disability after his retirement. Secondly, Defendant contends that Labor Code §4661.5 is inapplicable in this matter. Labor Code §4661.5 provides that that when temporary total disability indemnity payments are made two years or more from the date of injury, the rate in effect at the time of payment applies. Defendant's contention is essentially that because EDD paid state disability benefits to Applicant within 2 years of the industrial injury dated stipulated to by the parties, that Labor Code §4661.5 in not applicable.

Applicant credibly testified that retirement was not voluntary but due to physical inability to work, and no evidence contradicted this; thus, Applicant is entitled to temporary total disability benefits after retirement.

From the decision · page 5First, Defendant contends that Applicant is not entitled to temporary total disability benefits after Applicant retired having submitted his paperwork for retirement in February of 2025 with apparently an effective retirement date of March 25, 2025. Defendant correctly references the controlling case regarding entitlement to temporary total disability after retirement which is Gonzalez v. WCAB (1998) 63 CCC 1477, which provides that to determine whether an employee is entitled to temporary total disability following retirement, the employer must assess whether the employee is retired from the labor market in total or just from the occupation held at the time of the injury and whether the decision to retire was truly voluntary or was the decision to retire related to the industrial injury. Applicant credibly testified that he did not want to retire at the time he did and only did so because he was physically unable to work. Defendant failed to present any testimony or evidence that the

Applicant testified credibly that retirement was not voluntary but due to physical inability to work.

Favours Applicant prevailed

This established entitlement to temporary total disability benefits after retirement.

From the decision · page 6applicant could have continued working but chose to retire for reasons unrelated to the industrial injury. The credibility determinations of the workers' compensation judge are entitled to great weight and should not be-disturbed when they are supported by substantial evidence because the judge has the opportunity to observe the demeanor of witnesses and weigh their statements with their manner in testifying. San Diego Transit v. WCAB (2006) 71 CCC 445; Garza v. Workers' Comp. Appeals Bd. (1970) 3 Cal. 3d 312, 35 CCC 500. The Appeals Board must accept as true a witness's testimony if it is both uncontradicted and unimpeached. McAllister v. WCAB (1968) 33 CCC 660,662; Levesque v. WCAB (1970) 35 CCC 16, 26; Lamp v. WCAB (1974) 39 CCC 310,314; Western Electric Co. v. WCAB (Smith) (1979) 44 CCC 1145, 1153.

Labor Code §5909

Petition for reconsideration must be acted upon within 60 days from the date a trial judge transmits a case to the appeals board.

The Appeals Board acted on the petition within the 60-day period, thus timely denying the petition.

From the decision · page 1We have considered the allegations of the Petition for Reconsideration and the contents of the report of the workers’ compensation administrative law judge (WCJ) with respect thereto. Based on our review of the record, and for the reasons stated in the WCJ’s report, which we adopt and incorporate, we will deny reconsideration. Former Labor Code 1 section 5909 provided that a petition for reconsideration was deemed denied unless the Appeals Board acted on the petition within 60 days from the date of filing. (Lab. Code, § 5909.) Effective July 2, 2024, section 5909 was amended to state in relevant part that: (a) A petition for reconsideration is deemed to have been denied by the appeals board unless it is acted upon within 60 days from the date a trial judge transmits a case to the appeals board.

Gonzalez v. WCAB (1998) 63 CCC 1477

To determine entitlement to temporary total disability after retirement, assess if retirement was voluntary or due to industrial injury and if retired from labor market or just occupation.

Applicant's retirement was found not voluntary but due to physical inability to work, entitling him to temporary total disability benefits after retirement.

From the decision · page 5First, Defendant contends that Applicant is not entitled to temporary total disability benefits after Applicant retired having submitted his paperwork for retirement in February of 2025 with apparently an effective retirement date of March 25, 2025. Defendant correctly references the controlling case regarding entitlement to temporary total disability after retirement which is Gonzalez v. WCAB (1998) 63 CCC 1477, which provides that to determine whether an employee is entitled to temporary total disability following retirement, the employer must assess whether the employee is retired from the labor market in total or just from the occupation held at the time of the injury and whether the decision to retire was truly voluntary or was the decision to retire related to the industrial injury. Applicant credibly testified that he did not want to retire at the time he did and only did so because he was physically unable to work. Defendant failed to present any testimony or evidence that the

Labor Code §4661.5

When temporary total disability indemnity payments are made two years or more from the date of injury, the rate in effect at the time of payment applies.

State Disability Insurance payments are not temporary total disability payments by the carrier; thus, the rate must be calculated as of the date of payment under Labor Code §4661.5.

From the decision · page 6It is determined that Applicant testified credibly, that Applicant's retirement was not voluntary, and as such he is entitled to temporary total disability after his retirement. Secondly, Defendant contends that Labor Code §4661.5 is inapplicable in this matter. Labor Code §4661.5 provides that that when temporary total disability indemnity payments are made two years or more from the date of injury, the rate in effect at the time of payment applies. Defendant's contention is essentially that because EDD paid state disability benefits to Applicant within 2 years of the industrial injury dated stipulated to by the parties, that Labor Code §4661.5 in not applicable.

Applicant's credible testimony that retirement was due to physical inability to work and not voluntary.

From the decision · page 6applicant could have continued working but chose to retire for reasons unrelated to the industrial injury. The credibility determinations of the workers' compensation judge are entitled to great weight and should not be-disturbed when they are supported by substantial evidence because the judge has the opportunity to observe the demeanor of witnesses and weigh their statements with their manner in testifying. San Diego Transit v. WCAB (2006) 71 CCC 445; Garza v. Workers' Comp. Appeals Bd. (1970) 3 Cal. 3d 312, 35 CCC 500. The Appeals Board must accept as true a witness's testimony if it is both uncontradicted and unimpeached. McAllister v. WCAB (1968) 33 CCC 660,662; Levesque v. WCAB (1970) 35 CCC 16, 26; Lamp v. WCAB (1974) 39 CCC 310,314; Western Electric Co. v. WCAB (Smith) (1979) 44 CCC 1145, 1153.