Temporary Disability / Modified Duty

If you are injured on the job and unable to work during a period of your medical recovery, you are potentially entitled to temporary disability to help replace your lost income. Those payments generally are paid until you are able to return to work, become permanent or stationary, or have exceeded the maximum allowed under the law. Our Sacramento Workers’ Compensation Attorneys are regularly confronted with questions from clients regarding temporary disability rights. In this article, we will discuss the timing of temporary disability payments and how temporary disability payments are calculated. We will also cover whether you have to accept alternative or modified work as well as how other payments such as State Disability Insurance and private insurance disability affects temporary disability. 

CA WC Case Temporary Disability
When does California workers’ compensation temporary disability start and end?

For most work-related injuries, there is a waiting period of three days. In other words, you are not paid temporary disability for the first three days that you miss work after an industrial injury. On the positive side, the date of injury does count as day one unless you were paid full wages for that day.  

There are, however, two significant exceptions to the waiting period. First, if your disability keeps you off of work for more than 14 days, then your disability is paid from the date of injury forward instead of the three day waiting period. The second major exception is if the injury required inpatient hospitalization.

There are three common situations where temporary disability would end. For most cases under the current law, you cannot receive more than 104 compensable weeks or two cumulative years worth of temporary disability payments. The second reason temporary disability ends and probably the most common is that you have returned to work or you have been cleared to return to work. In addition to the previous two, once your condition has been medically deemed to be permanent and stationary, your rights to temporary disability end and other rights may begin. 

How are California workers' compensation temporary disability benefits calculated?

Under the California workers' compensation law, an injured employee is generally entitled to weekly temporary disability payments based on your average weekly earnings. When calculating an injured employee's average weekly earnings, an employee must include not only regular wages and salary but also payments for overtime. Additionally, if an employee works more than one job, the earnings from the other job should be included as well.  

Once an employees average weekly earnings are determined, the temporary disability amount paid is rather simple to calculate. Temporary disability is two-thirds of the employee's average weekly earnings up to a statutory maximum. If you were injured in 2019, your minimum temporary disability payment is $187.71 per week, and the maximum temporary disability payment is $1,251.38 per week. If you were injured in 2020, your minimum temporary disability payment is $194.91 per week, and your maximum temporary disability payment is $1299.43 per week. 

Does an employee lose their right to California temporary disability benefits if they refuse to accept work that may result in lesser pay or fewer hours?

If an employee suffers an on the job injury, under the California workers’ compensation law, they are expected to accept suitable work from their employer, even if it is a different type of work or work at lesser pay. An employee who refused alternative work from an employer without a legal basis can, unfortunately, be denied temporary disability payments, at least that would be related to that suitable work.

The good news, however, is that an employee that suffers a wage loss may be entitled to temporary disability type payment for the differential in pay. The calculation of the differential pay and temporary disability is complex, as it must take into account what you are being paid, and the statutory maximums. If you believe you are not being paid partial temporary disability correctly, then you might want to contact the Information and Assistance Unit with the Workers’ Compensation Appeals Board, 916-928-3158, or a Sacramento Workers’ Compensation Attorney.

Can you recover state disability benefits, regular pay from your employer, or benefits from a private disability policy while on workers’ compensation temporary disability?

Generally, the answer is that you can't "double-dip" disability payments. If your employer is contesting whether your disability is work-related and, consequently, you are not being paid temporary disability payments, then most employees should apply for California State Disability Insurance benefits sooner rather than later. However, if you start receiving temporary disability, then you will need to notify the Employment Development Department to stop receiving those State Disability Insurance payments.  

If you are fortunate to have an employer that pays your wages even if you are not able to work, you cannot also receive workers' compensation benefits at the same time. The workers' compensation carrier has the legal right to discontinue temporary disability during this time.  

Private disability insurance policies such as AFLAC vary from insurance company to insurance company, and even then can further vary based on the actual written policy itself. If you have one of these policies, you should request a written copy of your policy immediately so you can stay informed of your rights. Most of these policies, however, provide that they only supplement what you do not receive from another source, or that they are a policy of "last resort" and thus may not pay anything at all if you are receiving from another source. If you have questions about whether your policy should be paying temporary disability payments, you should consider contacting one of our Sacramento Workers' Compensation Attorneys to review the specific policy language.  

In this article, we attempted to give you a broad overview and answer some of the questions that our Sacramento Workers’ Compensation Attorneys receive with respect to temporary disability rights. If you have questions about any of these, or other matters related to your workers compensation case, we hope you will consider contacting one of the attorneys at the Sacramento Workers Compensation Attorneys, P.C.