Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 4903.1(a)(3)(A)
Labor Code section 4903.1(a)(3)(A) allows a lien for benefits paid by a group disability policy for the same days as temporary disability indemnity, but only if the policy provides for coordination of benefits.
The Board found defendant did not meet its burden to prove entitlement to credit under this statute because the actual LTD policy was not produced and the handbook was insufficient.
From the decision · page 4(3)(A) If the appeals board issues an award finding that an injury or illness arises
out of and in the course of employment and makes an award for temporary
disability indemnity, the appeals board shall allow a lien as living expense under
Section 4903, for benefits paid by a group disability policy providing loss-of-time
benefits and for loss-of-time benefits paid by a self-insured employee welfare
benefit plan. The lien shall be allowed to the extent that benefits have been paid for
the same day or days for which temporary disability indemnity is awarded and shall
not exceed the award for temporary disability indemnity. A lien shall not be allowed
hereunder unless the group disability policy or self-insured employee welfare
benefit plan provides for reduction, exclusion, or coordination of loss-of-time
benefits on account of workers' compensation benefits.
Labor Code section 4909
Labor Code section 4909 requires that payments credited must be intended as an advance on compensation to become due.
Defendant failed to prove intent that LTD payments were an advance on workers' compensation benefits, so credit was denied.
From the decision · page 4[...] Labor Code section 4909 authorizes the Appeals Board to award a defendant
credit for payments made during a time period that there was not a legal obligation
to do so. [] (Maples v. Workers' Comp. Appeals Bd. (1980) 111 Cal.App.3d 827
Appleby v. Workers' Comp. Appeals Bd. (1994)
Appleby v. Workers' Comp. Appeals Bd. (1994) and Ott v. Workers' Comp. Appeals Bd. (1981) require clear intent by employer and employee for credit to LTD payments.
The Board applied these cases to require clear intent for credit, which defendant did not prove.
From the decision · page 5[168 Cal. Rptr. 884, 45 Cal.Comp.Cases 1106].) An employer may be entitled to
credit for payments made under an employer-provided private disability plan.
(Appleby v. Workers' Comp. Appeals Bd. (1994) 27 Cal.App.4th 184 [32 Cal. Rptr.
2d 375, 59 Cal.Comp.Cases 520] (Appleby).) However, in order to obtain credit,
the payments must have been, "clearly intended by both employer and employee as
an advance on compensation to become due." (Ott v. Workers' Comp. Appeals Bd.
(1981) 118 Cal.App.3d 912 [173 Cal. Rptr. 648, 46 Cal.Comp.Cases 545] (Ott);
Sea-Land Serv. v. Workers' Comp. Appeals Bd. (Lopez) (1996) 14 Cal.4th 76 [58
Cal. Rptr. 2d 190, 925 P.2d 1309, 61 Cal.Comp.Cases 1360].)
Labor Code section 4661.5
Labor Code section 4661.5 requires payment of temporary disability indemnity at an increased rate if not paid within two years of injury.
Applicant is entitled to increased temporary disability indemnity rate because defendant never paid TTD and the benefit will be paid well past two years from injury.
From the decision · page 6We also find merit in applicant's contention that because defendant never paid temporary
disability indemnity and the benefit will be paid well past two years from the date of injury, she is
entitled to have the indemnity paid at the rate required by Labor Code section 4661.5. (See