Under Labor Code § 4658(d) an applicant’s permanent disability payments can be increased, or decreased, by 15% if he or she returns, or doesn’t return, to work.
Essentially, the employer has sixty days from the date the applicant becomes permanent and stationary to offer an employee regular work, or the rate of permanent disability payments goes up by 15%.
In the alternative, if, at any time before the sixty days elapse, the employer makes an offer of regular work, then the permanent disability payments are decreased by 15% (immediately, not after the 60 days).
What happens if, up until trial, the issue goes unaddressed? Like that sandwich in the back of the office refrigerator, always there and never eaten, what if everyone assumes that addressing this is someone else’s responsibility?
For example, let’s say Jill gets hurt at work and files a claim. The litigation back-and-forth begins, and ultimately there is a trial before a workers’ compensation judge. At no point is the 15% increase claimed or raised as an issue, nor is the right to a 15% decrease claimed or raised, until the WCJ, in making an award, decides do add it on.
At this point, the WCJ has heard no evidence one way or another – there is nothing in the record regarding whether or not Jill returned to work and, if she did, whether it was within 60 days of becoming permanent and stationary.
Is the WCJ right in raising the issue him or herself after the record has closed? Is the WCJ to assume that Jill gets the 15% increase?
In the Reconsideration Granted opinion of Maria Parra v. E. & J. Gallo Winery (2011 – ADJ6536976) [Handled masterfully, again, by Thomas J. Harbinson (my boss) and Laura K. Lachman of Harbinson Tune Kasselik], those questions were answered.
By raising the issue of permanent disability, the issue of § 4658(d) is implied (the Board cited Bontempo v. Workers’ Compensation Appeals Board (2009) 173 Cal.App.4th 689).
However, a WCJ is bound by Labor Code § 5903(c), specifically that evidence must justify the findings of fact. This was not the case here – the WCJ did not make any findings of fact as to § 4658(d).
In other words, the WCJ can’t simply assume the insurer or self-insured employer owes money without finding the facts on which to base this assumption.
It’s easy to get cynical being a defendant in California’s Workers’ Compensation system. Don’t! You shouldn’t have to give up an inch of territory that’s yours.