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Is the New RTW Form Mandatory?

August 28th, 2013

There were endless – ENDLESS – cases, opinions, factual scenarios, theories, revisions, etc. under the previous Labor Code section 4658(d).  What if the worker didn’t miss time? Do the 60 days run from receipt of the report or its issuance? If the employer knows it can’t offer work and advances the entire PD amount before the 60 days… does it pay a 15% bump?

One of the most reasonable results from the insanity that lead to SB-863 being signed into law was that someone at the table said “guys, I know we’re making stuff up as we go, but this 15% bump has got to go.”  And go it did.  The Labor Code has done away with the bump up or bump down, but instead, thanks to Labor Code section 4650(b)(2), no advances are due until there is an award if the employer has offered the employee a position that pays at least 85% of the wages and compensation paid at the time of injury (or the employee is working for someone else making as much or more as at the time of injury).

Note, dear readers, that the language here is distinct from the language of Labor Code section 4658(d), which requires the offer to be made “in the form and manner prescribed by the administrative director.”  So, perhaps no more silly form technicalities – I would submit to you, dear readers, that the Legislature is telling us that strict adherence to the provided form is no longer required?

On the other hand, please note that there is a form (10133.35), which should probably be used, but perhaps something as simple as the interactive process would suffice?  Regulations 10133.34 requires the use of Form 10133.35, but if you find yourself having made the offer but not used the form, perhaps this argument will save your defendant pelt from applicant’s counsel’s hunting-lodge wall?

And here’s another fun fact – because 4650 applies to all dates of injury, you could easily take advantage of both – secure a 15% drop in permanent disability and not have to make any advances because the offer was made.

I’m sure we’re all going to see cases that address this issue – was the form properly filled out? What if part of the form was missing? What if the injured worker claims he never received it?  What if the worker is working, but the employer/insurer can’t produce a signed proof of service for the offer? (A headache reminiscent of pre-SB-863 section 4658(d)).

So, your humble blogger suggests that the regulations should be interpreted as one method of making the “offer” contemplated by Labor code section 4650(b)(2), rather than the  ONLY method of making the offer, as the language in 4658(d) makes clear.

If this argument works for you, please let me know!

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