Filed 3/6/18

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

COUNTY OF SAN DIEGO,

Petitioner,

v.

WORKERS' COMPENSATION APPEALS 

BOARD and KYLE PIKE,

Respondents.

 D072648

 (WCAB No. ADJ7811907)

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.
2

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.
3

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.)
4

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
5

[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.
6

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."
7

"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."
8

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]."
9

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).
10

"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.
11

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.) 
12

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].)
13

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.
14

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."
15

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 
16

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).
17

(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."
18

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."
19

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.
20

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.
21

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.