Seasonal workers are indispensable to many of California’s industries—particularly agriculture, tourism, and hospitality. When these workers are injured on the job, determining how to calculate Temporary Total Disability (TTD) and Permanent Disability (PD) benefits can be challenging, especially if there is an “off-season” when the worker does not perform services for the employer. Below is a comprehensive look at TTD and PD calculation methods for seasonal employees, including how the calculation changes if there are no off-season wages.
- Temporary Total Disability (TTD): The Basics
(a) General Entitlement
Under Labor Code § 4653, TTD benefits replace lost wages when an employee is temporarily unable to perform work due to a job-related injury.
- TTD is generally two-thirds of the employee’s Average Weekly Wage (AWW), subject to minimum and maximum amounts that change yearly.
- TTD continues until the worker returns to work, reaches Maximum Medical Improvement/Permanent & Stationary (P&S) status, or exhausts TTD under Labor Code § 4656 (typically 104 weeks within five years).
(b) The Role of Signature Fruit Co. v. Workers’ Comp. Appeals Bd.
Signature Fruit clarified that a seasonal shutdown alone does not automatically terminate TTD. An employer must consider whether the worker, if not injured, could have pursued off-season work (for the same or a different employer). If the injury prevents that off-season employment, TTD may still be owed.
- Calculating TTD for Seasonal Workers
(a) Average Weekly Wage (AWW) Under Labor Code § 4453
Scenario 1: Seasonal Worker with Off-Season Wages
- If the worker regularly earns income during the off-season (through a second job or another employer), gather evidence of these wages.
- The TTD rate should reflect the total annual earnings—both in-season and off-season—spread over 52 weeks (or another relevant period) to capture the worker’s actual earning capacity.
Scenario 2: Seasonal Worker with No Off-Season Wages
- When the worker never works outside the season—whether by choice, industry practice, or lack of opportunity—the TTD calculation focuses on only the weeks worked during the season.
- In this situation, you take the in-season earnings and prorate them in a manner that captures the worker’s real earning capacity solely based on that narrow timeframe.
- For instance, if the worker typically works 20 weeks out of the year and has zero income for the remaining 32 weeks, the total in-season income is used to derive an AWW. Essentially, the TTD rate is based on average weekly wages during those working weeks, not an assumed 52-week average.
(b) Practical Application
- Thorough Wage Documentation: Claims adjusters must collect wage statements (e.g., pay stubs, W-2s, 1099s) specific to the weeks the worker actually worked.
- Consider Industry Norms: If it is standard in a given industry that employees do not work off-season, the TTD calculation will focus on the shorter season-based income.
- Beware of Hidden Concurrent Employment: Sometimes a worker might do other off-season jobs, so confirm whether they truly have zero wages outside the season.
- Permanent Disability (PD) and Seasonal Workers
Once the worker is Permanent & Stationary (P&S), TTD ends and the worker may be entitled to Permanent Disability benefits (PD). Under Labor Code §§ 4658, 4660.1, PD is calculated using:
- Whole Person Impairment (WPI): Based on the AMA Guides or equivalent.
- Occupation & Age Modifiers: Adjustments for the employee’s job duties and age at the time of injury.
- Weekly PD Rate: Consider the maximum and minimum rates as delineated by the Department of Industrial Relations.
(a) PD Rate Calculation for Seasonal Workers
- If the worker had no off-season wages, the lower AWW (based solely on in-season earnings) will generally apply to PD calculations. However, unlike TTD, PD is typically computed over a 52-week basis. This can reduce the weekly PD rate significantly when a worker’s in-season wages are annualized.
- If the worker had other employment or established a consistent pattern of off-season work, the higher overall AWW (including those wages) may result in a higher PD rate.
- Consequently, it is common for some seasonal workers to receive a higher weekly TTD rate (based on in-season wages alone) than their PD rate (which is calculated over a broader 52-week period).
- Best Practices for Claims Adjusters
- Separate the “Two Scenarios” Early
Determine upfront whether the worker has any off-season earning history. This fundamentally changes the AWW calculation for TTD and PD. - Gather Comprehensive Wage Evidence
Obtain pay records for at least the last 12 months—sometimes multiple years if necessary.
Check for unemployment benefits or any concurrent employment that might indicate hidden off-season wages. - Document the Seasonal Schedule
Note the precise weeks or months the employer operates.
Confirm that the worker does not work beyond that period for a different company. - Avoid Overlooking Modified Duty
Even in seasonal industries, sometimes limited work (e.g., maintenance, clerical) might be offered in the off-season.
If that modified duty is available and the worker can perform it, TTD payments could end or be reduced. - Accurate Occupation Codes for PD
Ensure the correct occupation code for PD rating, as it can significantly impact the final disability percentage. - Consult Counsel or Experts as Needed
When in doubt—especially for complex wage patterns—seek guidance from legal counsel or rating specialists.
This information is provided for general knowledge only and does not constitute legal advice. If you are facing complex seasonal worker claims, our firm—Yrulegui & Roberts—has extensive experience defending employers and insurers in California’s workers’ compensation system. We understand the nuances of handling seasonal employment cases and can help guide you toward effective, cost-conscious strategies. Contact us today to learn more about our services.
