What Is California Labor Code §4661.5: TD Rate After Two Years?

Notwithstanding any other provision of this division, when any temporary total disability indemnity payment is made two years or more from the date of injury, the amount of this payment shall be computed in accordance with the temporary disability indemnity average weekly earnings amount specified in Section 4453 in effect on the date each temporary total disability payment is made unless computing the payment on this basis produces a lower payment because of a reduction in the minimum average weekly earnings applicable under Section 4453.

What is California Labor Code 4661.5?

It is the rule that switches a long-running TD claim from the injury-year wage limit to the current wage limit under Labor Code 4453.

Normally, Labor Code 4453 locks in the minimum and maximum average weekly earnings figure that applied when the worker was hurt, and that number stays in place for as long as the disability lasts. Labor Code 4661.5 is the exception to that lock-in rule. Once a TD payment is made two years or more after the injury, the claims administrator must switch to the Labor Code 4453 limit for that payment date, not the older one tied to the original injury.

The rule applies to temporary total disability, the stage where a worker cannot do any work at all because of the injury. It does not change the two-thirds wage formula in Labor Code 4653. It only changes which year's wage number feeds into that formula.

How does Labor Code 4661.5 change a TD payment after two years?

It replaces the frozen, injury-year wage limit with the limit that applies on the day the later payment is issued.

Labor Code 4453 sets a minimum and a maximum average weekly earnings number for TD. For injuries on or after January 1, 2006, the top number in that statute rises every January 1, based on the percentage increase in the state average weekly wage reported for California. A worker hurt in an earlier year would normally be stuck with that year's maximum for the whole claim, even if the claim stays open five or ten years later. Labor Code 4661.5 removes that limit once two years have passed since the injury. After that point, each TD check is computed with the Labor Code 4453 number for the year the check is issued, not the year the worker was hurt.

The table below shows how the statewide minimum and maximum TD rate moved between 2025 and 2026 under this yearly adjustment.

A worker whose claim started several years earlier, and whose TD payments are still running past that two-year point, can move onto this more current number once the switch applies.

What is the floor that protects the minimum rate?

Labor Code 4661.5 cannot be used to cut a payment when the statutory minimum average weekly earnings number goes down.

The statute carries one exception inside the exception. The claims administrator must use the current Labor Code 4453 number, unless doing so produces a lower payment because of a reduction in the minimum average weekly earnings applicable under that section. In plain words, the later switch can only help the worker, or leave the payment the same. It is not a path to a smaller check just because a newer number in the schedule happened to drop.

This protection matters because Labor Code 4453 lists different minimum and maximum numbers for different injury-year ranges going back decades. The floor keeps a long-running claim from losing ground if a later number in that schedule is lower than the one that otherwise applied.

How does Labor Code 4661.5 connect to other TD rules?

Labor Code 4661.5 only changes the wage number used in the math. Several other statutes set the rest of the TD payment rules.

Labor Code 4453 sets the minimum and maximum average weekly earnings figures that Labor Code 4661.5 points to. Labor Code 4653 sets the underlying formula: two-thirds of average weekly earnings, with consideration given to the worker's ability to compete in the open labor market. Labor Code 4661.5 does not touch that fraction. It only changes which year's wage amount the fraction is applied to.

Labor Code 4650 sets a separate set of deadlines, including a 14 day deadline for a first TD payment and a 10 percent increase when a payment is late. That is a timeliness rule, not a rate-recalculation rule, and it applies no matter how long the claim has been open.

Labor Code 4656 limits how many weeks of TD a worker can receive, generally 104 compensable weeks within five years of the injury date, with a longer period for a short list of severe conditions. A related guide covers the extension rules for that cap. The week cap and the two-year wage switch are different limits that do not depend on each other. A claim can pass the two-year mark under Labor Code 4661.5 while the worker still has TD weeks left under Labor Code 4656, especially when the paid weeks were not fully consecutive.

What should a worker ask about a TD rate on a long-running claim?

Ask the claims administrator which year's average weekly earnings number was used, and compare it with the date the check was issued.

Save every TD payment notice in order by date. Each notice should show the pay period it covers and the weekly rate paid. Note when the injury happened next to the date each check was issued. If a check came two years or more after that, ask in writing which Labor Code 4453 figure was used, and whether it matches the one that applies on the date of that specific check.

A worker does not need to work this out alone. If a payment or a claim was denied or disputed, the same payment records help show whether the right wage number was used.

If a TD check issued well past your two-year point still shows an older, lower rate, or if you are not sure which year's Labor Code 4453 number applies, ask the claims administrator for the calculation in writing. Yazdchi Law P.C. reviews each potential case individually.

Call (661) 273-1780 or use our contact form to talk through your claim.