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Am I eligible for Temporary disability while am off work?

Anaheim, CA |

I have a current workers comp case that is about to settle (almost 3 years since accident), the defense attorney and insurance want to settle via lump sum, but I want to keep future medical care via Stipulation with request for award, and a hearing is coming soon. I ask my lawyer that if I decide to have surgery,(back fusion) which takes about 6-12 months to achieve full recovery, would I ever be eligible for temporary disability while I am off work, and he answered no, because Permanent disability has already been paid. Is this true? why I cannot be eligible for temporary disability, how am i going to survive, when the same insurance has authorized the expensive surgery? How do I know if my lawyer is telling the truth?

Attorney Answers 3


The current law allows you to collect Temporary Disability (TD) benefits for a maximum of 104 weeks. If you have not yet used that many weeks, the remaining time would still be available for you if you have surgery and are considered TTD. The fact that you have received some Permanent Disability payments should not affect this. It is not uncommon for injured workers to be TTD, then P&S/MMI, and then TTD again due to changes in condition.

Perhaps you misunderstood your attorney or your attorney did not understand the question fully. Try again.

The information given is generic and does not constitute legal advice, which would only be given after a complete review of the specific facts of your case.

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Like most things in the law, your lawyer may be right....and then again, he may be wrong depending on the facts.

You can collect a total of 104 weeks of temporary, total disability (TTD) within five (5) years from the date of injury. Are you within 5 years of the date of injury? How many weeks of TTD have you received. The answer changes if your injury was before 2008 but from your question, I take it that your injury was 2009.

If you do settle by Stipulations with Request for Award, you would still be eligible for additional TTD if you meed the requirements. You would probably have to file a Petition to Re-Open for New and Further Disability in order to get the insurance to pay the TTD. The Petition to Re-Open and the need for the additional TTD would all have to be within the 5 years.

Good luck.

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Understand that "Permanent & Stationary" means you cannot improve with any further treatment.

If you need a fusion right now -- and the medical evidence shows you need the fusion surgery right now -- you are not yet "Permanent & Stationary" (unless you openly refused the offer of the fusion surgery).

Your elected officials (state senators and assemblmen) decided back in 2004 that if you didn't have all your surgeries in two years, you didn't need Temporary Disability to survive.

Consider writing to your State Senator, your Assemblywoman and Gov. Brown and tell them you need a surgery to become a tax-payer again but you can't get the surgery because you can't live without Temporary Disability payments, and the California Labor Code (as amended in 2004) lets the Insurer end all Temporary Disability payments after 104 weeks.

You could apply to the Employment Development Department for State Disability Insurance (SDI), but if you have not worked for 3 years and you have not made contributions from a paycheck to 'CA-SDI' for 3 years, the EDD will likely deny payment.

You could try to apply for SDI right now, and you'll see what EDD says... of course, your doctor will have to complete page 3 of that application and he might not agree you are totally unable to perform any work under any circumstance, given you don't have the surgery scheduled right now (and somebody wrote you are Permanent & healed as you are going to be).

ONE STRATEGY: go to work for 18 months, renew all those 'CA-SDI' deductions on your paycheck, you will accrue about 7-8 months of State Disability Insurance benefits, have the surgeon write and serve another "Request For Authorization" for they surgery, and when it's approved again THEN get the surgery.

You'll have to get a job working for someone else; the self-employed and teachers don't get 'CA-SDI' deductions on their paychecks.

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