Labor Code Section 4658(d) holds that if an employer fails to offer regular, modified, or alternative work for pre January 1, 2013 injuries, permanent disability benefits are increased by 15%, unless the employer employs less than 50 people.

But who bears the burden of addressing this issue?  Does the employer have to prove that it employs less than 50 people? Or does the employee have to prove that there are more than 49 employees?

A recent panel decision holds that the burden (like so many burdens in our burdensome system) falls on the defendant.

In the matter of Doug Lentz v. Henry Mechanical, (note, dear readers, how Henry Mechanical proudly notes that it has grown from two employees to its current crew of 33 people)both applicant and defendant petitioned for reconsideration on a variety of issues, but this one in particular struck your humble blogger.  It appears that no evidence was offered with respect to a Notice of Offer of Regular, Modified, or Alternative Work being made, and so the workers’ compensation Judge awarded a 15% increase in permanent disability benefits.

Defendant petitioned for reconsideration, arguing that there had been no finding of fact that defendant employed more than 50 people, so Labor Code section 4658(d)(2) shouldn’t apply.  The WCJ, in his Report and Recommendation, reasoned that defendant was the one best suited to produce this information, and that since producing this information would have benefited defendant, the WCJ can infer that it employs more than 50 people.

The Workers’ Compensation Appeals Board, in denying defendant’s petition for reconsideration, adopted the WCJ’s reasoning.

Now, to be fair, the Labor Code is silent on who bears the burden of proving that the relevant Labor Code section applies.  On the other hand, this seems like harsh treatment for the employer and its insurer.  Certainly, the proper thing in this case would have been to allow the defense an opportunity to develop the record on this issue.  After all, it appears that Henry Mechanical employs less than 50 people (just 33).

In all likelihood, no proof was offered one way or another because the issue was not specifically raised.  However, your humble blogger has cautioned you before, that when permanent disability is raised as an issue, the entirety of Labor Code section 4658 is automatically raised as well.

Well, now we know, that the burden of disproof weighs even heavier on the defense.