The trigger to the 60 days of 4658(d)
When does the 60 day time-period to make an offer of regular work begin? This issue is a regular character in the California Workers’ Compensation Defense drama.
We all know that an employer has 60 days from when an applicant becomes permanent and stationary to make an offer of regular work. In fact, the employer faces a 30% difference under Labor Code § 4658(d) – either a 15% increase in permanent disability indemnity, or a 15% decrease in the same.
Let’s say Dr. Cu’Emee finds that applicant became permanent and stationary January 1, 2011, based on his evaluation, which occurred March 1, 2011, but then doesn’t sign or send the report until May 1, 2011.
When does the 60-day time period start? If it starts after the applicant becomes permanent and stationary, then by the time the report reaches the defendant, the 60 days have passed. If it is based on the date of the report, then the employer isn’t afforded the full 60 days either.
In a recent case, Soto v. ACE Ins. Co. (2011) 39 CWCR 122, applicant became permanent and stationary, according to the QME, on August 14, 2007 (the same date as the P&S report). But the report wasn’t mailed until September 18, 2007 and an offer of regular work wasn’t made until October 24, 2007, and the form sent was unsigned.
The Workers’ Compensation Judge awarded applicant the 15% increase under 4685(d). On petition for reconsideration, the Workers’ Compensation Appeals Board granted reconsideration, holding that the 60 days do not begin to run until the defendant has been properly served with the Permanent and Stationary report.
Just before you begin to sigh with relief as you picture ACE Insurance Company riding off into the sunset, a 15% decrease in its pocket and a smile on its face, no such happy ending blessed our brave defendant.
In its order, the WCAB instructed the WCJ to evaluate if, because the offer of regular work was unsigned, the employer failed to comply with the requirements of § 4658(d).
So, the two lessons to take away from this:
(1) The 60 days don’t begin to run until after there has been proper service of the permanent and stationary report; and
(2) Make sure to sign page 3 of the offer of regular work form.
Armed as you are with today’s post, I wish you all good hunting!
Thank you for your post. How can I get a copy of the Soto v. ACE case other than CWCR?
I will be happy to e-mail you a copy. Is the address that you submitted with your comment acceptable?
yes, that would be fine. Thank you!
The 60 days starts when the defendant receives the report. It’s somewhat of a anomaly and it does lead to issues, but that’s the law. Date of service (when the report is sent by doctor, claimant, attorney, etc.) is not the critical date. A best practice is obviously to date stamp all reports.
Kent, that’s true. But note that this case had to be appealed – the trial judge found that an unsigned and unsent P&S report triggered the 60 days. It is ridiculous to expect an employer to offer work when no P&S report has yet been received, let alone sent. Have you experienced anything similar in your practice?