Do I Need to Make a 2nd Offer of Regular Work?
As my dedicated and well-read readers will no doubt know, Labor Code section 4658(d) allows employers to take a 15% decrease in permanent disability payments if they make an offer of regular, modified, or alternative work to an injured employee within 60 days of that employee becoming permanent and stationary. I’ve had the opportunity to blog about some interesting cases touching on this section.
What happens when there are two different P&S dates? In the case of Velgrace Smith v. Workers’ Compensation Appeals Board, applicant sustained an injury and filed a workers’ compensation claim. The parties eventually went to an AME, who evaluated applicant on November 29, 2006, finding her permanent and stationary as of September 2006. Defendant made of offer of regular work, within the AME’s prescribed work restrictions, on December 29, 2006. There was no response from applicant.
On April 30, 2008, applicant was re-evaluated by the same AME, who revised his opinions regarding her P&S status: she actually became P&S in March of 2007. Defendant renewed its offer of regular work.
Here’s a timeline:
08/25/2005 – Date of Injury (end of a cumulative trauma period)
09/??/2006 – Retroactively found Permanent and Stationary Date (1)
11/29/2006 – Evaluated by AME; AME issues report
12/29/2006 – Defendant makes offer of regular work (1)
03/??/2007 – Retroactively found Permanent and Stationary Date (2)
04/30/2008 – Re-evaluated by AME; revised P&S opinions
05/??/2008 – Defendant makes a second offer of regular work (2)
The matter proceeded to trial and the Workers’ Compensation Judge found that applicant was entitled to a 4658(d) increase of 15% because defendant did not make an offer of regular work within 60 days of March, 2007. The WCJ acknowledged that this was physically impossible for the employer to do, but (for some reason) the literal application of the law was appropriate in this case.
Defendant petitioned for reconsideration and the WCAB granted said petition, holding that the 60 days during which a defendant has to make an offer of regular, modified, or alternative work begin to run upon defendant’s receipt of the report, not the actual date of the report or the date elected as the permanent and stationary date. Furthermore, the WCAB held:
“a mere change in permanent and stationary date does not invalidate an offer of modified work for the purposes of Labor Code section 4658(d) unless there is also a change in the permanent work restrictions which renders the offer of modified work inconsistent with the work restrictions. To the extent that the December 29, 2006 offer of modified work was compatible with the applicant’s permanent work restrictions as of March 2007, the defendant should gain the benefit of the decrease outlined in section 4658(d)(3)(A) with regard to its entire permanent disability indemnity liability. However, if the applicant was given different or more restrictive work restrictions, a new 60-day period runs from the date of knowledge of the new work restrictions.”
The Court of Appeal denied applicant’s petition for a writ of review.
Assuming the second P&S dates comes with additional restrictions, does the defendant get the benefit of a 15% decrease on all permanent disability payments made after the offer of regular work was made, but before service of the new P&S date? I would argue yes – the policy behind 4658, according to the WCAB, is to encourage retention of injured workers through the use of monetary incentives. If you’re aware of a case with a contrary holding, I would be interested in reading it – gregory.grinberg@htklaw.com.