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TTD & PD Rates for Seasonal Employees

By Joseph Yrulegui

 

What are the indemnity rates for an employee that only works seven months out of the year? For example, what is the temporary disability rate for an employee that only works for the picking season in the Ag industry? What is the permanent disability rate?

 

In Signature Fruit Company v. WCAB (Ochoa), 71 Cal. Comp. Cas 1044 (2006), the Court of Appeal, Fifth District, held that pursuant to Labor Code § 4653, temporary disability during a seasonal employee's in-season period of regular employment is payable based on two-thirds of employee's in-season average weekly earnings, but the seasonal employee was not entitled to temporary disability during off-season when parties stipulated that employee did not have any off-season earnings.

 

First, the examiner must determine the employment history of the injured worker in the off-season. Does the IW begin another job after the end of the season in September or November? What earnings, if any, are there in the winter months? This can be accomplished by taking the deposition of the injured worker, or sending an interrogatory to the applicant’s attorney.

 

If there are no off-season earnings, determine the injured worker’s average weekly wage, under LC 4453, by dividing the total earnings of the in-season by the number of weeks employed during the in-season. From that amount, take two-thirds, and that will produce a TTD rate, which will often be at minimum levels. For the PD rate, divide the total earnings of the in-season by 52 weeks.

 

This can greatly impact the translation from an impairment rating to actual dollar figures. The difference between a minimum indemnity rate and a maximum indemnity rate, in TTD and PPD, will often be thousands of dollars and will save a significant amount of money.

 

Moreover, TTD will not be owed in those months the IW is not working, again, typically in the off-season. This can greatly reduce exposure in denied claims where retroactive TTD might be an issue.

 

If you have any questions, please feel free to contact me by phone or email.

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