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Temporary Disability


Employers often surmise that an offer of modified work is not necessary or can be made informally. As the cases noted above show, the best defense is always to make a written offer, on the required forms if necessary, that outline the physical duties anticipated. Documentation of the employer’s efforts to accommodate an injured worker will assist the attorneys at Mullen & Filippi in defending against unreasonable demands for TD and vouchers and will result in an overall cost reduction in litigated cases.

Temporary Disability Rate Calculated Based on Employees Earnings as of Date Temporary Disability Commenced222

The applicant’s earnings on the date of injury were $623.79, resulting in a temporary disability indemnity rate of $415.86. Her earnings as of the date she was declared temporarily disabled were $610.80 from Pacific pulmonary services, plus an additional $182.70 from In-Home Support Services for caring for a member of her family, for a total of $793.50. This resulted in a temporary disability indemnity rate of $529.00.

The Perils of Calculating Temporary Disability

Before calculating temporary disability, the parties should review Labor Code § 4653 and Labor Code § 4453 to determine which section of the Labor Code supports calculation of temporary disability based on average weekly earnings. Under Labor Code § 4653 temporary disability is two-thirds of an applicant’s average weekly earnings, subject to the minimum and maximum levels established under Labor Code section 4453.


Though Jimenez and Ochoa reach the same conclusion, the distinction is an important one. If Jimenez is correct and seasonal employees with no off-season earnings had a temporary disability rate of zero for the off-season, the entire off-season of temporary disability paid at the rate of zero would arguably count toward the 104-week temporary disability cap. On the other hand, under Ochoa that is not the case; during the off-season such employees are simply not entitled to temporary disability and the cap is not implicated.


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