While we’re on the subject of Labor Code § 4658(d), let’s take a hypothetical.  Andy the applicant slips and falls at work.  He twists his ankle and it’s hard for him to work.  He goes to see a doctor on the same day, and the following morning returns to work.  He tells his supervisor that he needs to stay off his leg, but other than that he’s fine.

Naturally, Andy’s supervisor puts him to work at the same job – sitting at a desk and working the call center.

Eventually, Andy files a claim and the matter proceeds to trial.  As the defense attorney is filling out the Stipulations with Request for Award form, he gets to page 6 and is stumped – is there a 15% increase because the employer never sent out an offer of regular work?  Is there a 15% decrease because Andy never missed work?  Does this section even apply?

For the moment, the authority seems limited and split.  Fortunately, both splits are relatively good for the defense!

In the panel decision of Hisato Tsuchiya v. County of L.A. (ADJ2508984) [scroll down to page 50], the panel found that the 15% increases and decreases do not apply when no time was lost due to the injury.   In other words, the defendant was not penalized 15%, but didn’t get the benefit of a 15$ reduction either, because the proper paperwork was not done.

In another decision, Wendy Audiss v. City of Rohnert Park (2007 Cal. Wrk. Comp. P.D. Lexis 9), the Board went further to favor the defense.

There, the Board held “[d]efendant’s compliance with the purposes of this provision is evidenced by the fact that as of the date applicant became permanent and stationary March 31, 2006, she was employed by defendant performing her regular work … The subsequent timing of defendant’s offer is not dispositive for the purposes of this provision, where applicant has been employed full time in her regular work.”

Of note here is the fact that there was a formal offer of work made, but, because of late service of the treating physician’s P&S report, this offer was made more than 60 days after applicant was permanent and stationary.

Subsequent authority might later hold that, unless the Notice of Offer of Modified or Alternative Work is actually sent, the applicant will receive a 15% in permanent disability payments.  I’ve known some adjusters to safeguard against this by always sending the offer of alternative work, even when the applicant’s employment has been terminated for cause.

In the meantime, it is important to press for that 15% decrease if the employee is back to work at any time before the 60-day-mark of the Permanent and Stationary report.