Kyle Pike was employed by the County of San Diego as a Deputy Sheriff Detention on July 31, 2010. He sustained an industrial injury to his right shoulder and received a combination of Labor Code section 4850 salary continuation benefits and permanent disability benefits between October 27, 2010 and November 15, 2011 and April 30, 2015 through June 19, 2015.

Pike received a Stipulated Award of 12% permanent disability on May 31, 2011, and filed a timely Petition to Reopen on May 26, 2015 as he claimed an entitlement to Labor Code section 4850 benefits for the period September 15, 12 2015 through March 28, 2016, and temporary total disability benefits from March 29, 2016 through August 18,2016 which was beyond the five year time limit from the date of his injury.

The County paid all temporary disability and 4850 benefits through the period ending five years from the date of injury. The issue to be determined was whether applicant could receive additional benefits for periods of temporary disability that extended more than five years from his July 31, 2010 date of injury. The parties submitted the issue on the record without testimony.

The WCJ concluded that when acting upon a timely petition to reopen, the Appeals Board may award temporary disability benefits more than five years from the date of injury, provided that applicant is limited to an aggregate of 104 weeks of benefits. A split panel decision denied reconsideration in the case of Pike v County of San Diego.

Labor Code section 4656( c )(2) provides that “Aggregate disability payments for a single injury occurring on or after January 1, 2008, causing temporary disability shall not extend for more than 104 compensable weeks within a period of five years from the date of injury.”

The majority held that because “the statutory language does not provide that no temporary disability benefits may be paid more than five years from the date of injury, the WCJ concluded that the legislature did not intend to prohibit otherwise temporarily disabled injured workers from receiving the full 104 weeks of benefits where such temporary disability occurs within five years from the date of injury.” The majority cited some panel decisions that have agreed with this view.

Commissioner Razo dissented. “I believe our ability to award temporary disability indemnity is constrained by the statutory language in Labor Code section 4656( c )(2), which expressly limits such an award to five years from the date of injury for injuries on or after January 1, 2008.” He cited several panel decisions that agreed with his view and against the majority.

In August the County filed a Petition for Writ of Review with the Court of Appeal. At the end of September the Court issued a writ and agreed to hear the case. On October 23 the CWCI was grated permission to file an amicus brief in the case, and it is expected that the CAAA, and other stakeholders will soon weigh in as well.

Among the several theories presented by the County and CWCI, they claim “the decision below relies upon an improper use of Labor Code Section 3202. As noted by our Supreme Court in Nickelsberg v. Workers’ Comp. Appeals Bd. (1991) 54 Cal.3d 288, 298 the rule of liberal construction stated in section 3202 should not be used to defeat the overall statutory framework and fundamental rules of statutory construction.