County of San Diego v. Workers' Comp. Appeals Bd.

Filed 3/6/18
CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

COUNTY OF SAN DIEGO, D072648

Petitioner,

v. (WCAB No. ADJ7811907)

WORKERS' COMPENSATION APPEALS
BOARD and KYLE PIKE,

Respondents.

Petition for writ of review from an order of the Workers' Compensation

Appeals Board. Order annulled and remanded with directions.

Thomas E. Montgomery, County Counsel, and David E. Shamsky, Deputy

County Counsel, for Petitioner.

Law Offices of Allweiss & McMurtry and Michael A. Marks for California

Workers' Compensation Institute as Amicus Curiae on behalf of Petitioner.

Peter J. Ray for Respondent Workers' Compensation Appeals Board.

Law Office of Matthew D. Hill and Matthew D. Hill for Respondent Kyle Pike.

Smith & Baltaxe, Bernhard D. Baltaxe and Justin C. Sonnicksen for California

Applicants' Attorneys Association as Amicus Curiae on behalf of Respondents.
 I.

INTRODUCTION

The question presented in this writ proceeding is straightforward. Is petitioner,

County of San Diego (the County), correct that Labor Code section 4656, subdivision

(c)(2)1 precludes respondent, Workers' Compensation Appeals Board (the Board),

from awarding respondent, Kyle Pike, temporary disability payments for periods of

disability occurring more than five years after the date of the underlying injury that

Pike suffered while working for the County? We conclude that the plain language of

the statute indicates that the answer to this question is, "Yes." Section 4656,

subdivision (c)(2) provides, "Aggregate disability payments for a single injury

occurring on or after January 1, 2008,[2] causing temporary disability shall not extend

for more than 104 compensable weeks within a period of five years from the date of

injury." (Italics added.) Accordingly, we annul a Board order affirming a workers'

compensation administrative law judge's order that awarded temporary disability

benefits for periods of disability occurring more than five years after Pike's injury.

1 All subsequent statutory references are to the Labor Code, unless otherwise
specified.
2 It is undisputed that Pike's injury occurred after January 1, 2008.
2
 II.

FACTUAL AND PROCEDURAL BACKGROUND

A. Pike's injury and the Board's permanent disability award

While employed by the County as a deputy sheriff, Pike suffered an injury to

his right shoulder on July 31, 2010. Pursuant to a stipulation between Pike and the

County, the Board granted Pike a 12 percent permanent disability award in May 2011.

B. Pike's petition to reopen and request for section 48503 and temporary disability
benefits

Pike filed a petition to reopen the matter on May 26, 2015. In his petition, Pike

contended that his shoulder injury had worsened. He sought salary continuation

benefits pursuant to section 4850 and temporary total disability benefits (§ 4653). The

County paid Pike all of the section 4850 and temporary total disability benefits due to

him through the period ending five years from the date of the July 31, 2010 injury, i.e.,

July 31, 2015.

Pike sought additional section 4850 and temporary total disability benefits for

periods of disability occurring after July 31, 2015. Specifically, Pike sought section

4850 benefits for the period September 15, 2015 through March 28, 2016 and

temporary disability benefits for the period March 29, 2016 through August 18, 2016.

3 As discussed in greater detail in part III, post, section 4850 provides for salary
continuation benefits for certain employees, including "[s]heriffs" and "[o]fficers or
employees of any sheriff's offices," suffering an injury or illness arising out of the
employee's duties. Section 4850 benefits are subject to the limitations on temporary
disability payments contained in section 4656. (See fn. 10, post.)
3
The County contended that section 4656, subdivision (c)(2) limited Pike's entitlement

to section 4850 benefits and temporary disability benefits to periods of disability

occurring within five years from the date of the July 31, 2010 injury, i.e., July 31,

2015.

C. The workers' compensation judge's ruling

The parties submitted the matter on the administrative record to a workers'

compensation judge (WCJ). The WCJ issued an order determining that Pike was

entitled to section 4850 and temporary disability benefits for periods of disability

occurring more than five years after the date of the injury. The WCJ concluded in

relevant part:

"Where [an] applicant has filed a timely petition to reopen, and
temporary total disability has commenced prior to five years from
the date of the industrial injury, the [Board] has continuing
jurisdiction to award temporary total disability benefits beyond
five years from the date."

The WCJ awarded Pike section 4850 benefits for the period September 15,

2015 through March 28, 2016 and temporary disability benefits for the period March

29, 2016 through August 18, 2016.

D. The County's petition for reconsideration

The County filed a petition for reconsideration. After the WCJ issued a report

recommending denial of the petition, a panel of the Board affirmed the WCJ's decision

and denied the County's petition. In a split decision, a majority of the Board panel

concluded that the WCJ was "authorized to award temporary disability indemnity

within the five year period, to continue until the 104 week limitation is exhausted or

4
[Pike's] period of temporary disability ends. . . ." The dissenting panel member

concluded that section 4656, subdivision (c)(2) "is not susceptible of an interpretation

that permits an award of temporary disability more than five years after July 31, 2010,

the date of [Pike's] injury."

E. The County's petition for review

The County filed a petition for review in this court requesting that we annul the

Board's order denying the County's petition for reconsideration.4 After Pike filed an

answer and the County filed a reply, we issued a writ of review in order to review the

Board's decision.5

III.

DISCUSSION

The Board erred in concluding that it may award Pike section 4850
and temporary total disability payments for periods of disability
occurring more than five years after Pike's injury

The County claims that section 4656, subdivision (c)(2) prohibits the Board

from awarding Pike any section 4850 or temporary disability benefits for periods of

disability occurring more than five years after his June 31, 2010 injury.

4 The County's petition for review is authorized pursuant to section 5950.
5 While this writ proceeding was pending, we granted the California Workers'
Compensation Institute's application to file an amicus brief on behalf of the County.
We also granted an application to file an amicus brief on behalf of the Board and Pike
filed by the California Applicants' Attorneys Association (CAAA). We have
considered these amicus briefs, as well as the County's answer brief to the CAAA's
amicus brief.
5
A. Standard of review

The County's claim turns on whether the Board properly interpreted section

4656, subdivision (c)(2). In Larkin v. Workers' Comp. Appeals Bd. (2015) 62 Cal.4th

152 (Larkin), the Supreme Court summarized the applicable statute of standard of

review in considering such claims:

"While we assign considerable importance to the agency's views,
we also retain ultimate responsibility for interpreting the relevant
statute. [Citation.] If the agency's interpretation is clearly
erroneous or unauthorized under the statute, we will not give
effect to its understanding of the statute. [Citations.] But where
the Board's conclusion is not plainly at odds with the statutory
scheme, we assign great weight to it." (Id. at p. 158.)

B. Governing law

1. Principles of statutory interpretation

In Baker v. Workers' Comp. Appeals Bd. (2017) 13 Cal.App.5th 1040, 1046, the

Court of Appeal summarized the well-established law governing the interpretation of

statutes:

"We are guided by well-established rules of statutory
construction. Our primary goal in construing a statute is to
ascertain and effectuate the Legislature's intent. [Citation.]
' " ' " 'Because statutory language "generally provide[s] the most
reliable indicator" of that intent [citations], we turn to the words
themselves, giving them their "usual and ordinary meanings" and
construing them in context [citation].' [Citation.] If the language
contains no ambiguity, we presume the Legislature meant what it
said, and the plain meaning of the statute governs." ' " '
[Citation.] If a statute is amenable to different interpretations, the
interpretation that leads to the more reasonable result should be
followed. [Citation.] We must construe the words of a statute in
context, and harmonize the various parts of an enactment by
considering the provision at issue in the context of the statutory
framework as a whole."

6
"In addition, when construing a provision from the Workers' Compensation Act

[citation], if the statute can reasonably be construed in a manner that would provide

coverage or payments we must adopt that construction." (Ibid; see § 3202.)6

2. Section 4656

Section 4656 provides different limitations on the payment of temporary

disability benefits contingent upon the worker's date of injury. Section 4656,

subdivision (a) governs injuries occurring prior to January 1, 1979, and provides:

"Aggregate disability payments for a single injury occurring prior
to January 1, 1979, causing temporary disability shall not extend
for more than 240 compensable weeks within a period of five
years from the date of the injury."

Section 4656, subdivision (b) governs injuries occurring on or after January 1,

1979, and prior to April 19, 2004, and provides:

"Aggregate disability payments for a single injury occurring on or
after January 1, 1979, and prior to April 19, 2004, causing
temporary partial disability shall not extend for more than 240
compensable weeks within a period of five years from the date of
the injury."

Section 4656, subdivision (c)(1) governs injuries occurring on or after April 19,

2004, and provides:

"Aggregate disability payments for a single injury occurring on or
after April 19, 2004, causing temporary disability shall not extend
for more than 104 compensable weeks within a period of two

6 Section 3202 provides that the Workers' Compensation statutes "shall be
liberally construed by the courts with the purpose of extending their benefits for the
protection of persons injured in the course of their employment."
7
 years from the date of commencement of temporary disability
payment."

Section 4656, subdivision (c)(2), the provision at issue in this case, governs

injuries occurring on or after January 1, 2008, and provides:

"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." (Italics added.)7

C. Application

1. The text of section 4656, subdivision (c)(2) clearly states that, for injuries
occurring on or after January 1, 2008, temporary disability benefits may not
be awarded for periods of disability occurring more than five years from the
date of a worker's injury

The plain language of section 4656, subdivision (c)(2) supports the conclusion

that the Board may not award temporary disability payments for any period of

disability occurring beyond five years from the date of the worker's injury. The statute

clearly states that, for an injury occurring on or after January 1, 2008, temporary

disability benefits "shall not extend for more than 104 compensable weeks within a

period of five years from the date of injury." (§ 4656, subd. (c)(2), italics added.) This

text supports the conclusion that the Board is authorized to award a maximum of 104

7 Although not applicable in this case, section 4656, subdivision (c)(3) provides:
"Notwithstanding paragraphs (1) and (2), for an employee who
suffers from the following injuries or conditions, aggregate
disability payments for a single injury occurring on or after April
19, 2004, causing temporary disability shall not extend for more
than 240 compensable weeks within a period of five years from
the date of the injury: [list of specified injuries]."
8
weeks of temporary disability payments to a worker who suffers an injury on or after

January 1, 2008, but also limits payments to periods of disability occurring within five

years of the injury. Neither Pike, nor the amicus brief filed by the CAAA on his

behalf, offers any interpretation of section 4656, subdivision (c)(2) that would permit

the award of temporary disability benefits for an injury occurring on or after January 1,

2008 for a period occurring more than five years from the date of the injury.8

2. The legislative history supports the conclusion that, for an injury occurring
on or after January 1, 2008, the Legislature intended to limit temporary
disability benefits to five years from the date of the injury

The legislative history of section 4656, subdivision (c)(2) is entirely consistent

with the statutory text in supporting the conclusion that the Legislature intended to

limit temporary disability benefits to five years from the date of a worker's injury for

injuries occurring on or after January 1, 2008. The Legislative Counsel's Digest of the

bill that enacted section 4656, subdivision (c)(2) explains that the bill altered the

period during which a worker could obtain temporary disability payments:

"Existing workers' compensation law generally requires
employers to secure the payment of workers' compensation,
including medical treatment, for injuries incurred by their
employees that arise out of, or in the course of, employment.
Existing law prohibits aggregate disability payments for a single
injury occurring on or after April 19, 2004, causing temporary
disability from extending for more than 104 compensable weeks
within a period of 2 years from the date of commencement of
temporary disability payment, except if an employee suffers from
certain injuries or conditions.

8 In fact, neither Pike nor the CAAA provides any interpretation of the text of
section 4656, subdivision (c)(2).
9
 "This bill would, for a single injury occurring on or after January
1, 2008, increase to 5 years from the date of injury, the period of
time during which an employee can receive aggregate disability
payments." (Legis. Counsel's Dig., Assem. Bill No. 338 (2007-
2008 Reg. Sess.), italics added.)

The Assembly Floor Analysis also supports this conclusion. The analysis notes

that under then existing law (i.e., current section 4656, subdivision (c)(1)), "an injured

worker cannot receive temporary disability benefits for more than two years after the

date that temporary disability payments commenced." (Assembly Floor Analysis of

Assem. Bill No. 338 (2007–2008 Reg. Sess.) Sept. 6, 2007, italics added.) The

analysis notes that the bill "[e]xtends the window during which an injured worker can

receive [temporary disability] benefits from two years to five years" (italics added),

and "[c]hanges the date that starting the window period running from the date

[temporary disability] benefits are first paid to the date of injury." (Ibid., italics

added.)9

3. Case law interpreting an analogous restriction in former section 4656
supports the conclusion that temporary disability benefits may not be
awarded under section 4656, subdivision (c)(2) for periods of disability
occurring more than five years from the date of a worker's injury

There is no appellate authority construing section 4656, subdivision (c)(2).

However, there is authority construing a nearly identically worded five-year restriction

in former section 4656 as precluding an award of benefits more than five years from

9 Thus, the CAAA's suggestion that the Legislature, in enacting section 4656,
subdivision (c)(2) in 2007, "intended to . . . only change the number of compensable
weeks payable," is contrary to both the plain language of the statute and the legislative
history discussed in the text.
10
the date of a worker's injury. (See Radesky v. City of Los Angeles (1974) 37

Cal.App.3d 537, 542 (Radesky).) In Radesky, the Court of Appeal considered whether

the five-year limitation contained in former section 4656 applied to a municipal

worker's claim for benefits under a provision of the municipal code that incorporated

portions of state law. (Radesky, supra, at pp. 540–541 ["The question presented on

this appeal is whether the limitation periods contained in division IV of the Labor

Code [i.e., former section 4656] are applicable to claims for temporary disability

compensation made pursuant to section 4.177 of the Los Angeles Administrative

Code"].) The five-year limitation at issue in Radesky (former section 4656) is

materially identical to the limitation in section 4656, subdivision (c)(2). Former

section 4656 provided, " 'Aggregate disability payments for a single injury causing

temporary disability shall not extend for more than 240 compensable weeks within a

period of five years from the date of the injury." (Radesky, at p. 542, italics added.)

The Radesky court stated that, if former section 4656 applied, it was "clear" that

the worker was not entitled to temporary disability for periods beyond five years from

the date of the worker's injury. (Radesky, supra, 37 Cal.App.3d at p. 544 ["If the

benefits provided in section 4.177 [of the Municipal Code] are limited by the

provisions of division IV of the Labor Code [i.e., former section 4656], it is clear that

[the worker] would not be entitled to the compensation he seeks by way of writ of

mandate in this case [i.e., benefits for a period beyond 5 years after the date of

injury]".) The Radesky court ultimately concluded that the worker's claim was subject

to the five-year limitation in former section 4656. (Radesky, supra, at p. 546.)

11
Accordingly, the Radesky court further concluded that the worker's claim for benefits

for a period occurring more than five years after the worker's injury was statutorily

barred. (Ibid.)10

The Radesky court's conclusion that former section 4656 barred an award of

temporary disability benefits for periods of temporary disability more than five years

after a worker's injury strongly supports the conclusion that a nearly identically

worded limitation in section 4656, subdivision (c)(2) bars Pike's claim for such

benefits in this case.

4. Neither Pike's nor the CAAA's arguments are persuasive

None of the arguments presented by Pike or the CAAA in support of Pike's

claim for benefits is persuasive. As discussed above (see pt. III.C.3, ante), neither

Pike nor the CAAA makes any argument that the text of section 4656, subdivision

(c)(2) may be interpreted as permitting the Board to award such benefits. Instead, Pike

and the CAAA contend that the Board had jurisdiction under sections 5410, 5803,

5804 to award such benefits. This argument fails because, for the reasons discussed

10 It is settled that section 4850 benefits are "aggregate disability payments,"
subject to the 104-week limitation contained in section 4656, subdivision (c)(2).
(County of Alameda v. Workers' Comp. Appeals Bd. (2013) 213 Cal.App.4th 278, 286
["Given the Legislature's choice of the words '[a]ggregate disability payments,' we
think it is clear that section 4850 benefits paid for an injury causing temporary
disability must count toward the 104-week limit absent a specific exclusion"].) We
see no reason, and Pike offers none, for why section 4850 benefits would not also
constitute "[a]ggregate disability payments," subject to the five-year limitation
contained in section 4656, subdivision (c)(2). (See Eason v. City of Riverside (1965)
233 Cal.App.2d 190, 193 [stating that former section 4850 benefits are subject to the
five-year postinjury limitation period in former section 4656].)
12
below, even assuming that the Board had jurisdiction to act on Pike's petition to

reopen, the substantive law governing his petition does not permit the Board to award

Pike benefits for periods of disability occurring more than five years after his injury. 11

Specifically, the Board does not have the authority to award benefits that are expressly

prohibited by section 4656, subdivision (c)(2). (See Radesky, supra, 37 Cal.App.3d at

p. 545 ["The Workmen's Compensation Appeals Board has no power to award

temporary disability benefits for a time extending beyond the limits of [former] section

4656"].) Further, there is nothing in the jurisdictional provisions of sections 5410,

5803, 5804, nor any authority that supports Pike and the CAAA's suggestion that a

timely filed petition to reopen trumps the substantive limitations in section 4656.

Section 5410 provides in relevant part:

"Nothing in this chapter shall bar the right of any injured worker
to institute proceedings for the collection of compensation within
five years after the date of the injury upon the ground that the
original injury has caused new and further disability. The
jurisdiction of the appeals board in these cases shall be a
continuing jurisdiction within this period."12

11 Jurisdiction refers to the power of a tribunal to "hear and determine a matter"
(Adoption of Matthew B. (1991) 232 Cal.App.3d 1239, 1268), while substantive law is
the set of rules that " 'gives or declares' " a legal right. (Shisler v. Sanfer Sports Cars,
Inc. (2008) 167 Cal.App.4th 1, 10.)
12 Pike and the CAAA both cite section 5410. CAAA also cites section 5803 and
section 5804. Section 5803 provides in relevant part:
"The appeals board has continuing jurisdiction over all its orders,
decisions, and awards made and entered under the provisions of
this division . . . . At any time, upon notice and after an
opportunity to be heard is given to the parties in interest, the
appeals board may rescind, alter, or amend any order, decision, or
award, good cause appearing therefor.

13
 In Sarabi v. Workers' Comp. Appeals Bd. (2007) 151 Cal.App.4th 920, 925

(Sarabi), the Court of Appeal summarized the jurisdictional limitations contained in

sections 5410, 5803, and 5804 as follows:

"Under . . . section 5410, an injured worker who has previously
received workers' compensation benefits either voluntarily paid
by the employer or pursuant to an award is entitled to claim
benefits for 'new and further disability' within five years of the
date of injury. Section 5803 permits the reopening of a
previously adjudicated case for 'good cause' upon a petition filed
by a party, also within five years from the date of injury. If a
petition to reopen under either section is filed within the five-year
period, the Board has jurisdiction to decide the matter beyond the
five-year period. (§5804; [citations].)"

The Sarabi court concluded that the Board had jurisdiction under section 5410

to award a worker temporary total disability benefits for a period continuing beyond

five years after the worker's injury. (Sarabi, supra, at p. 151 Cal.App.4th at pp. 925–

"This power includes the right to review, grant or regrant,
diminish, increase, or terminate, within the limits prescribed by
this division, any compensation awarded, upon the grounds that
the disability of the person in whose favor the award was made
has either recurred, increased, diminished, or terminated."
Section 5804 provides:
"No award of compensation shall be rescinded, altered, or
amended after five years from the date of the injury except upon a
petition by a party in interest filed within such five years and any
counterpetition seeking other relief filed by the adverse party
within 30 days of the original petition raising issues in addition to
those raised by such original petition. Provided, however, that
after an award has been made finding that there was employment
and the time to petition for a rehearing or reconsideration or
review has expired or such petition if made has been determined,
the appeals board upon a petition to reopen shall not have the
power to find that there was no employment."
14
928.) The Sarabi court reasoned that the worker had timely filed a petition to reopen

within five years under sections 5410 and 5803 (Sarabi, at pp. 925–926) and had

suffered a "new and further disability" within the meaning of section 5410 within the

five-year period. (Sarabi, at p. 926.)

However, and of critical importance to the present appeal, the Sarabi court was

not presented with any question with respect to whether such benefits were precluded

by the substantive limitations contained in section 4656. Section 4656, subdivision

(c)(2) did not apply because the date of worker's injury in Sarabi was August 28, 1999

(Sarabi, supra, 151 Cal.App.4th at p. 922; see § 4656, subd. (c)(2) [limitations

applicable to injuries occurring "on or after January 1, 2008"]). Further, because the

worker in Sarabi sought total temporary disability benefits (Sarabi, at p. 922), the

five-year postinjury limitation period contained in section 4656, subdivision (b) with

respect to "partial disability" payments (§ 4656, subd. (b), italics added) for injuries

occurring after January 1, 1979, and prior to April 19, 2004, also did not apply. Thus,

the Sarabi court had no occasion to discuss, and therefore did not cite, any provision

of section 4656 in its opinion.

In addition, the Supreme Court has made clear that the jurisdictional limitations

in sections 5410, 5803 and 5804 are separate and distinct from the substantive law

limiting an award of temporary disability benefits in section 4656. (Nickelsberg v.

Workers' Comp. Appeals Bd. (1991) 54 Cal.3d 288 (Nickelsberg).) In Nickelsberg, the

Supreme Court considered a 1978 "amendment [that] removed the 240-week

limitation on aggregate temporary total disability within a 5-year postinjury period for

15
injuries occurring on or after January 1, 1979." (Id. at p. 292, italics removed.)13 The

worker in Nickelsberg argued that the amendment provided a workers' compensation

judge with "jurisdiction to award further temporary total disability indemnity more

than five years after the original injury" (Nickelsberg, supra, at p. 293, italics added),

notwithstanding that the worker had not filed a petition to reopen within five years as

required by sections 5410 and 5804. The Nickelsberg court rejected that argument,

reasoning, "It may not be inferred, as Nickelsberg suggests, that the 1979 amendment,

removing the 240-week limitation on aggregate temporary total disability payments

within a 5-year postinjury period, in any manner modified the time or jurisdictional

limitations of either section 5410 or section 5804." (Nickelsberg, at p. 298.)

The converse of Nickelsberg is also true. Even assuming that the Board had

jurisdiction under section 5410 to rule on Pike's petition to reopen, the Board had no

power to award benefits in direct contravention of the express substantive limitation on

the award of temporary disability benefits contained in section 4656, subdivision

13 The 1978 amendment resulted in text currently codified in section 4656,
subdivision (b). (See Nickelsberg, supra, 54 Cal.3d at pp. 292–293 [quoting text of
amendment].) Section 4656 subdivision (a), which governs injuries occurring before
January 1, 1979, restricts the payment of temporary total disability benefits to a "5-
year postinjury period." (Nickelsberg, supra, at p. 294.) We are aware of no authority,
and the parties have cited none, that has concluded that, for injuries governed by
section 4656, subdivision (a), the Board may award temporary disability benefits for a
period more than five years after a worker's injury notwithstanding the five-year
limitation contained in section 4656, subdivision (a).
16
(c)(2). In short, in order to award benefits, the Board must have jurisdiction to act, and

the law must entitle the worker to benefits.14

Both Pike and the CAAA also rely on the liberal construction mandate of

section 3202. While we are "mindful" (Larkin, supra, 62 Cal.4th at p. 167), of section

3202, this principle of interpretation cannot "justify an otherwise erroneous

construction" of section 4656. (Larkin, supra, at p. 167.) That is because, "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." (Nickelsberg,

supra, 54 Cal.3d at p. 298.)

Accordingly, we conclude that section 3202 does not provide a basis for

awarding Pike temporary disability benefits for a period of disability more than five

years after the date of his injury.

5. The Board's conclusion that it may award Pike temporary disability benefits
for a period more than five years after his injury is clearly erroneous

As noted previously (see pt. III.C.1), we ordinarily defer to the Board's

interpretation of a Workers' Compensation statute unless the "agency's interpretation is

clearly erroneous or unauthorized under the statute." (Larkin, supra, 62 Cal.4th at p.

14 Similarly, even assuming that the Board had jurisdiction to rule on Pike's
petition, the Board could not legally award Pike benefits for more than 104
compensable weeks. (See § 4656, subd. (c) ["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"].) As the CAAA acknowledges, "It is accepted as a starting point
that the Board has no power to award [t]emporary [d]isability [benefits] beyond the
limits of . . . [s]ection 4656."
17
158.)15 In this case, the Board affirmed the WCJ's reasoning that section 4656,

subdivision (c)(2) does not preclude an award of temporary disability benefits for a

period of disability beyond five years from the date of Pike's injury. The Board

summarized the WCJ's interpretation of section 4656, subdivision (c)(2) as follows:

"The WCJ concluded his exercise of jurisdiction was appropriate
to award temporary disability benefits for a period of temporary
disability that commenced within five years of the date of
applicant's injury. Where such benefits are initiated within five
years of the date of injury and do not exceed the 104[-]week
limitation on receipt of such benefits, the WCJ held that applicant
is entitled to receive the full amount of benefits notwithstanding
the language that such benefits must be paid 'within a period of
five years from the date of injury.' [(§ 4656, subd. (c)(3).)]
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." (Italics added.)

The WCJ's reasoning in support of the italicized language in the quotation

above is as follows:

"[T]he WCJ finds that the statutory language of Labor Code
section 4656(c)(2) intends to discuss only those benefits that are
due and payable within five years from the date of injury. The
statute is silent as to what shall occur once the five years have

15 In its order, the Board noted, "The WCJ's interpretation of the application of
section 4656[, subdivision ](c)(2) for dates of injury after January 1, 2008 has been
embraced by some panel decisions,[ ] while others have followed the argument
proffered by [the County] and the dissenting opinion."
18
 expired. Had the [L]egislature intended otherwise, they could
have easily provided that no temporary disability benefits shall be
payable more than five years subsequent to an industrial injury."

This interpretation of section 4656, subdivision (c)(2) is not tenable. As

discussed above, section 4656, subdivision (c)(2) clearly and unambiguously provides

that temporary disability benefits "shall not extend for more than 104 compensable

weeks within a period of five years from the date of injury." (§ 4656, subd. (c)(2).)

Thus, contrary to the Board's decision, the relevant statutory language does provide

that all periods of temporary disability for which payments are made must occur

within five years of date of the injury.

Moreover, if the WCJ were correct that section 4656, subdivision (c)(2) is

"silent as to what shall occur once the five years have expired," the statute would not

preclude an award of temporary disability payments extending past 104 compensable

weeks as long as those compensable weeks occurred more than five years after the

date of the injury. Yet, the WCJ concluded that "temporary disability which

commences within five years from the industrial injury and continues beyond five

years may be awarded, provided that aggregate temporary disability does not exceed

the 104[-]week limitation of . . . section 4656[, subdivision ](c)(2)." (Italics added.)

Such inconsistent reasoning further demonstrates the fallacy of the WCJ's

interpretation.

19
 Finally, both the Board and the WCJ relied on Oakland Unified School District

v. Workers' Comp. Appeals Bd. (2009) 74 Cal.Comp.Cases 1399 (Oakland Unified)

and Unigard Insurance Co. v. Workers' Comp. Appeals Bd. (1994) 59 Cal.Comp.Cases

966 (Unigard) in which panels of the Board affirmed temporary disability awards for

periods of disability occurring more than five years after the worker's injury. (Oakland

Unified, supra, at p. 1402; Unigard, supra, at p. 968.) However, Oakland Unified and

Unigard are easily distinguishable because neither case involved section 4656,

subdivision (c)(2). Rather, Oakland Unified and Unigard involved injuries governed

by the "[1978] amendment [to section 4656 that] removed the old cap and provided for

payment of temporary total disability to applicant . . . beyond five years from the date

of his injury." (Unigard, at p. 967, italics added; Oakland Unified, at p. 1401 [noting

that case involved "the 1978 amendment to [section] 4656, adding sub[division]

(b) . . . [that] eliminate[d] the time limit on awards of total [temporary disability]"

(italics added)].) In this case, in contrast, there is a five-year time limitation on

temporary disability awards in the form of section 4656, subdivision (c)(2).

Accordingly, we decline to defer to the Board's conclusion that it may award

Pike temporary disability benefits for periods of disability occurring more than five

years after his injury.

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 IV.

DISPOSITION

The Board's order denying the County's petition for reconsideration is annulled.

The matter is remanded to the Board with directions to grant the County's petition for

reconsideration.

AARON, J.

WE CONCUR:

HUFFMAN, Acting P. J.

O'ROURKE, J.

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