Injured workers are entitled to compensation in the form of temporary disability benefits if they are unable to work due to the effects of their industrial injury. Temporary disability may be total or partial. If the injured worker is entirely unable to work after the injury, then the disability is total. If the injured worker is limited to fewer hours or lower-paying work, then the disability is partial. Generally, the temporary total disability rate depends on the injured worker’s rate of pay. Temporary disability will be paid at the rate of two-thirds of the applicant’s average weekly wage. Earnings from up to one year prior to the date of injury will be used to calculate the injured worker’s average weekly wage. Depending on the date of injury, the applicant is not entitled to more than 104 weeks of temporary disability benefits. Although for certain severe injuries, an injured worker may be entitled to temporary disability beyond 104 weeks and up to 240 weeks.
Injured workers employed by school districts may be entitled to additional benefits under the California Education Code. Pursuant to Education Codes 44984 and 45192, an injured employee is entitled to no less than 60 days of industrial accident and illness leave of absence within one year of the incident. The 60 days of industrial accident and illness leave of absence must precede any sick pay, vacation, and/or other leave benefits.
Additionally, industrial accident and illness leave of absence is paid at full salary/wage and will commence on the first day of absence, regardless of whether an applicant has been deemed temporarily disabled. Once the injured employee has exhausted his/her 60 days of industrial accident and illness leave of absence, then temporary disability benefits will begin.
Supposing, however, that even after an injured employee has exhausted the 60 days of industrial accident and illness leave of absence, if no determination has been made regarding temporary disability or work-relatedness, then an allegedly injured employee can begin using sick leave. Sick leave is typically accumulated year-to-year pursuant to Education Codes 44978 and 45191.
Suppose further that an allegedly injured employee has exhausted all industrial accident and illness leaves of absence and sick leave, then said injured employee can use vacation time. Like sick leave, vacation time is accumulated on a year-to-year basis pursuant to Education Code 45197.
After all other benefits are exhausted, and if the injured employee remains unable to return to work, the injured employee is placed on a re-employment list for a period not to exceed 39 months (R39). (Education Codes 44978.1, 45192, and 45195). Placement on the R39 list is required even if an injured employee is still receiving temporary disability benefits. Though once on the R39 list, the injured worker must be returned to his/her full duties by the physician before returning to work but does get first preference on available jobs absent specific circumstances.
Navigating the interplay between the California Education Code and California workers’ compensation can prove difficult and confusing. If Yrulegui & Roberts can assist in any way, please let us know.
