California Labor Code § 4661.5

Determinative passage · p.6We also find merit in applicant's contention that because defendant never paid temporary disability indemnity and the benefit will be paid well past two years from the date of injury, she is entitled to have the indemnity paid at the rate required by Labor Code section 4661.5. (See

Applicant is entitled to increased temporary disability indemnity rate because defendant never paid TTD and the benefit will be paid well past two years from injury.

Determinative passage · p.6For injuries occurring on or after Jan. 1, 1990, permanent disability benefits must be calculated according to the limits in effect on the date of injury, and those limits remain in effect for the duration of any disability resulting from the injury (Labor Code 4453(d)). A subsequent change in the statutory maximum and minimum amounts does not change the rate at which the employer must pay an employee (Labor Code 4661.5), which provides that temporary total disability indemnity payments made two years or more from the date of the injury must be paid in accordance with the statutory limits in effect on the date each payment is made. This is inapplicable to permanent disability benefits (Labor Code 4453.5).

Distinguished temporary disability rate calculation from permanent total disability rate calculation.

Determinative passage · p.4The WCJ found that Applicant was entitled to a retroactive increase to his temporary disability indemnity and the payment of this retroactive increase should be paid pursuant to Labor Code Section 4661.5. The last date of injury at issue is 1997. Defendant's first argument disputes the method of calculating that retroactive rate contending that Labor Code Section 4453 (c) (1) should be utilized rather than the section relied upon by the WCJ in her decision, Section 4453 (c) (4) and (d). To be clear, there was no evidence whatsoever presented at trial as to how Applicant's previous temporary disability was calculated. The only issue presented at trial was whether or not Applicant was entitled to an increased temporary disability rate pursuant to Labor Code Section 4661.51 and the Hofmeister decision.

Applied to determine entitlement to retroactive increase in temporary disability payments.

Determinative passage · p.5With respect to when temporary disability payments are made, section 4661.5 provides, Notwithstanding any other provision of this division, when any temporary total disability indemnity payment is made two years or more from the date of injury, the amount of this payment shall be computed in accordance with the temporary disability indemnity average weekly earnings amount specified in Section 4453 in effect on the date each temporary total disability payment is made unless computing the payment on this basis produces a lower payment because of a reduction in the minimum average weekly earnings applicable under Section 4453. (Lab. Code § 4661.5)

The Appeals Board applied this statute to rescind the WCJ's calculation of temporary disability benefits based on the date of injury and remanded for recalculation based on the rate at the time of payment.

Determinative passage · p.9there has been a delay between the legal obligation to pay and the actual payment. Goytia v. Workers Comp. App. Bd. (1972) 1 Cal. 3d 889, 895. The statute specifically applies to payments made "two years or more" from the date of injury and the computation is based on average weekly earnings under Labor Code § 4453 that is "in effect" on the date payment is made (2022). Given the State mandate on minimum wage, and also considering the applicant has demonstrated his ability to earn minimum wage with a subsequent employer exhibiting his more recent earning capacity, the Court found the increase appropriate.

Supports adjustment of average weekly earnings for delayed payment of benefits.