Cal. Code Regs. tit. 22 § 2706-5

Current through Register 2024 Notice Reg. No. 25, June 21, 2024

Section 2706-5 - Payment of Disability Benefits Pending Appeal by Claimant

(a) Scope. This section interprets whether disability benefit payments continue in situations where the department determines a claimant is initially eligible for benefits, but subsequently determines the claimant is ineligible or disqualified for benefits for further days, and the claimant files an appeal from the subsequent determination.

(b) General. If the department finally determines that a claimant is initially eligible for disability benefits, subsequently determines that the claimant is ineligible, disqualified or subject to a reduction of further benefits, and the claimant files a timely appeal from the subsequent determination, within 30 days pursuant to Unemployment Insurance Code Section 2707.2, and a written election with the department on a prescribed form ("Notice of Right to Receive Benefits Pending Appeal" DE Form 63155CC Rev.3: 6/86) to have benefits continued and files continued claims pending disposition of the appeal, the department shall continue to pay benefits until the appeal has been resolved by the decision of an administrative law judge, except that benefit payments shall cease if the appeal is dismissed or if a criminal complaint for fraud is filed against the claimant under Section 2101 of the code (see subdivision (c) of Section 1263 of the code and Section 2602 of the code).

(c) Claimant Finally Determined Initially Eligible. The department has finally determined that a claimant is initially eligible for disability benefits, if, after the filing of a first claim, the department determines that all of the following conditions exist:

(1) The claimant is disabled.

(2) The claimant has received one or more disability benefits payments.

(3) The claimant has filed a claim in accordance with authorized regulations, which appear in Title 22, California Code of Regulations, Division 1, Part 2, Chapter 2, Article 4.

(4) The claimant has a monetarily valid claim.

(5) The claimant has not exhausted the maximum benefit amount for the disability benefit period of the claim.

(6) The claimant is otherwise eligible.

(7) The initial determination is not subject to reconsideration under subdivision (a) of Section 2707.5 of the code.

(8) The initial benefit amount has not been recomputed under subdivision (b) of Section 2707.5 and determined to be monetarily invalid.

(9) The department has not determined that the claimant is ineligible for benefits based on a new set of facts or conditions unless the new determination of ineligibility meets all the other conditions of this subdivision.

EXAMPLE 1. Claim Filing. Claimant A files a first claim for disability benefits with a postmark date of September 20. A claims disability beginning June 30. The department determines A does not have good cause for late filing, and under code Section 2706.1 gives the claim an effective date of August 3. A is paid benefits based on that date. A appeals the department's denial of benefits for the days from June 30 through August 2. The department has not determined that A was initially eligible for those days. Therefore, pending decision on the appeal, A is not entitled to receive payment for any day prior to August 3. The days after August 2 are not affected by the back dating issue raised by A's appeal, and A is entitled to continued payment of benefits for days after August 2.

EXAMPLE 2. Claim Filing. The department receives a first claim in which Claimant B states that the disability began August 10, on which date B was examined by a doctor. The doctor's certificate does not support a disability. B appeals the department's determination of ineligibility under Section 2708 of the code. B does not have the right to receive benefits pending decision on the appeal because B was not finally determined initially eligible for benefits.

EXAMPLE 3. Claim Filing. The department determines Claimant C is initially eligible for disability benefits. C receives benefits for 28 days, but does not return the continued claim for the next period of payment until after the 20-day filing period. The department determines that C does not have good cause for late filing and holds C ineligible because C's claim was not filed timely in accordance with Section 2706-3 of these regulations. C appeals. Since the department has finally determined that C was initially eligible, C is entitled to receive benefits for the disallowed period pending decision on the appeal.

EXAMPLE 4. Reconsideration of Determination. Claimant D claims disability for 56 days because of hernia surgery. There is no indication on the claim that the hernia was caused by D's work. The department pays D benefits for 35 days and then discovers that D is being paid temporary workers' compensation indemnity for the same days of disability at the same weekly rate. The department reconsiders the determination and determines that D is ineligible under Section 2629 of the code for the period of the disability because of duplication of benefits. D appeals. Since under subdivision (a) of Section 2707.5 of the code the department may reconsider any disability benefit determination prior to the filing of an appeal, the initial determination was not final, and D is not entitled to receive disability benefits pending decision on the appeal.

EXAMPLE 5. Reconsideration of Computation. Claimant E files for and is paid disability benefits. While E is in continued claim status, the department recomputes E's claim and determines under Section 2652 of the code that E does not have sufficient qualifying wages in the disability base period to have a valid claim. E appeals. Since under subdivision (b) of Section 2707.5 the department may recompute a claim within one year from the beginning date of a disability benefit period, the initial computation was not final, and E is not entitled to receive disability benefits pending decision on the appeal.

(d) The department shall not continue benefits pending the decision of an administrative law judge if disability benefits are otherwise limited by operation of law, including but not limited to the following sections of the code:

(1) Section 2626.1 (benefits to a claimant whose eligibility depends upon residence in an approved alcoholic recovery home are limited to 30 days, with the possibility of extension to an additional 60 days).

(2) Section 2626.2 (benefits to a claimant whose eligibility depends upon residence in an approved drug-free residential facility are limited to 45 days, with the possibility of extension to an additional 45 days).

(3) Section 2628 (the claimant is not entitled to disability benefits for any day for which he or she is entitled to unemployment compensation benefits under any state or federal unemployment compensation law).

(4) Section 2629 (the claimant received or is entitled to an amount of "other benefits" as defined in Unemployment Insurance Code section 2629 under any state or federal workers' compensation or employer's liability law in an amount which equals or exceeds the amount of disability benefits to which the claimant is entitled for the same day during the disability benefit period).

(5) Section 2656 (the amount of disability benefits to which the claimant is entitled for any day is limited by the amount of wages or regular wages received for the same day). (See also, Sections 678, 926, 926.5, 1252.1, 1252.2, 2656, and 2657.)

(6) Section 2676 (the claimant may be denied disability benefits for any day for which he or she has been disqualified from or forfeits unemployment compensation benefits under Section 1256, 1257, 1260, 1261, or 1263 of the code).

(7) Section 2678 (a claimant confined pursuant to commitment or court order or certification as a dipsomaniac, drug addict, or sexual psychopath is not entitled to disability benefits for any day of such confinement).

(8) Section 2680 (a claimant is not entitled to disability benefits for any day during which he or she is in custody of law enforcement authorities in any federal, state, or municipal penal institution, jail, medical facility, public or private hospital, or in any other place upon adjudication or conviction of a criminal violation of a federal, state, or other municipal law or ordinance by a court of competent jurisdiction).

(9) Section 2681 (a claimant is not entitled to disability benefits if he or she is disabled due to illness or injury caused by or arising out of the commission of, arrest, investigation, or prosecution of any crime that results in a felony conviction).

(10) Section 2708 (a claimant is not entitled to disability benefits for any period after the period covered by the initial certificate or preceding continued claim unless his or her continued claim is supported by the certificate of a treating physician or practitioner authorized pursuant to sections 2708 and 2709 to certify State Disability Insurance claims).

(11) Section 3253 (a claimant is not entitled to disability insurance coverage under the state plan if an employer or combination of employers of the claimant is solely liable for such coverage under an approved voluntary plan or plans).

EXAMPLE 6. Able to Work. Claimant G is found eligible for disability benefits based on a physical condition that the certifying doctor estimates will last 20 weeks. The normal recovery expectancy for G's disability is from 8 to 10 weeks. At the eighth week of disability, the department asks the certifying doctor for a progress report. The reply is inadequate to support the continuance of disability, and G is asked to submit to an independent medical examination. The examining doctor reports that G is able to return to regular and customary work as of the date of the examination, and the department denies benefits after that date under Section 2626 of the code. G appeals. Since the department has finally determined G initially eligible for benefits, G is entitled to continued payment of benefits pending decision on the appeal, provided G's treating physician has certified or continues to certify G as continuing to be disabled.

EXAMPLE 7. Able to Work. Claimant H is found eligible for benefits based on surgery that will disable H for 12 weeks. The claimant's surgeon examines H at the end of the ninth week of disability, and advises the department that H is now able to return to work. The department denies continued benefits under Section 2626 and H appeals. H is entitled to receive benefits pending decision on the appeal only to the extent that H's continued claims are supported by the certificate of a treating physician or practitioner as required pursuant to Section 2708 of the code.

EXAMPLE 8. Receipt of Duplicate Benefits. Claimant I is found eligible for benefits because of a neck injury suffered in an automobile accident. Prior to the accident I had been scheduled for operation to repair an industrial hand injury. The scheduled operation is performed during the period that I is disabled by the neck injury. Beginning with the date of the operation, and for the next four weeks, I is paid temporary workers' compensation indemnity at a rate in excess of I's weekly disability benefit amount. The department denies benefits for four weeks, under code Section 2629. I appeals. Since I is not entitled to duplicate benefits for the same period of disability, I is not entitled to receive benefits for the four weeks pending decision on the appeal.

(e) Fraud, Misrepresentation or Willful Nondisclosure. A claimant does not have the right to receive benefits pending an appeal for any day the claimant is subject to disqualification for having made a willful false statement or representation, with actual knowledge of the falsity thereof, or has willfully withheld a material fact concerning his or her initial eligibility and the false statement determination is final (see Section 2675 of the code).

(f) Fraud Conviction. If a claimant is convicted under Section 2101 of the code by any court of competent jurisdiction of willfully making a false statement or knowingly failing to disclose a material fact to obtain or increase benefits, the claimant forfeits any right to benefits for 52 weeks beginning with the week in which the criminal complaint is filed (see subdivision (a) of Section 1263 of the code).

(g) Pretermination Due Process. A claimant does not have the right to continue to receive benefits pending an appeal for any day he or she has been found ineligible after having been afforded a pretermination eligibility review pursuant to Section 2675-1 of these regulations.

(h) Benefit Overpayment Offsets. A claimant does not have the right to a cash refund of benefits previously offset, or payment of any portion of his or her continued benefits pending appeal which are subject to offset against an overpayment of benefits previously paid under the code if the overpayment determination is final (see Sections 2739 and 1379 of the code).

(i) Child Support Intercept. A claimant does not have the right to a cash refund of benefits previously intercepted, or payment of any portion of his or her continued benefits pending appeal which are subject to intercept in order to satisfy an unpaid, court-ordered child support obligation pursuant to Welfare and Institutions Code section 11350.5 (also see Section 2630 of the code).

(j) Recovery or Return to Work. A claimant is not disabled, and consequently does not have the right to continue to receive benefits pending appeal, for any day on which he or she has reported ability to perform his or her regular and customary work or has returned to regular or customary work (see Section 2626 of the code).

(k) Notice to Claimant Regarding Appeal. If the department determines that a claimant is initially eligible for benefits and subsequently determines that the claimant is ineligible or disqualified, the department shall notify the claimant of the right to appeal to an administrative law judge. Concurrent with the notification of the right to appeal, the department shall also notify potentially entitled claimants that they may be eligible for benefits pending the appeal and may elect to continue to receive benefits pending the appeal; and that they may be required to repay such benefits if the administrative law judge affirms the department's determination of ineligibility or disqualification.

(l) Appeal by Claimant. A claimant whom the department initially determines to be eligible but subsequently determines ineligible, and who files a timely appeal, is entitled to continue to receive benefits pending decision on the appeal. However, if the claimant's appeal is untimely because it was not filed within 30 days of service of notice of the department's determination, the claimant is not entitled to receive benefits pending decision on the appeal. If an administrative law judge dismisses a claimant's appeal for nonappearance, benefit payments to the claimant cease immediately upon the department's receipt of that decision, since the claimant has had an opportunity for a fair hearing on the appeal.

Cal. Code Regs. Tit. 22, § 2706-5

1. New section filed 1-26-89; operative 2-25-89 (Register 89, No. 7).
2. Amendment of section and NOTE filed 8-8-96; operative 9-7-96 (Register 96, No. 32).
3. Change without regulatory effect amending subsections (b) and (l) and amending NOTE filed 3-1-2018 pursuant to section 100, title 1, California Code of Regulations (Register 2018, No. 9).

Note: Authority cited: Sections 305 and 306,Unemployment Insurance Code. Reference: Sections 2706 and 2707.2, Unemployment Insurance Code; and American Federation of Labor, et al. v. California Employment Development Department et al. (1979) 88 Cal.App.3d. 811, 152 Cal. Rptr. 193; Mills v. Employment Development Department Consent Decree (1988) (Superior Court, Shasta County, No. 81784).

1. New section filed 1-26-89; operative 2-25-89 (Register 89, No. 7).
2. Amendment of section and Note filed 8-8-96; operative 9-7-96 (Register 96, No. 32).
3. Change without regulatory effect amending subsections (b) and (l) and amending Note filed 3-1-2018 pursuant to section 100, title 1, California Code of Regulations (Register 2018, No. 9).