WCDefenseCA

Now that I’ve scared (or bored) you with my fear that California’s bread-and-butter of workers’ compensation claims will be eliminated by the robotization of the workforce, I have more immediate concerns to address.

For injuries occurring prior to January 1, 2013, Labor Code section 4658(d) offers a 15% increase or decrease depending on whether the employer was able to follow proper procedures in offering regular, alternative, or modified work to its injured employee.  However, the benefit of a worker back at work for all injury dates as of January 1, 2013, is that there is no duty to make advances for permanent disability benefits.  (See LC section 4650(b)(2).)

As discussed previously, the employer may or may not have to use a particular form to reap this benefit.  But, here’s another issue: what if the employer missed no time from work?

After all, The Court of Appeal ruled in City of Sebastopol v. WCAB, that the 15% bump or drop does not apply to cases where the employee missed no time from work due to the injury.  So, if the employee claims a CT and is immediately placed on modified duty, is there a need to offer regular, modified, or alternative work to avoid having to make advances?

Your humble blogger wishes, of course, that he had a panel case for you with a definitive answer.  (If you’ve got one, please send it my way!)

Looking at the statute itself, there are no advances due if an offer is made for a job paying at least 85% of the pre-injury earnings, or if the worker goes to work for someone else and is making at least 100% of the pre-injury earnings.  Well, how would employer 1 make an offer to the employee for a job with employer 2?  In all probability, no offer on any form is required to reap the benefit of 4650 when the employee jumps ship for another job.

If the worker missed no time from work, and is continuing to receive a paycheck, why does the worker need advances on his or her permanent disability benefits?

Your humble blogger’s advice is always to act early and act often – there is no reason not to provide an offer of regular/modified/alternative work even if there is no missed time.  But, even if you elected not to make the offer, if the employee missed no time, there should still be no need for advances unless there is an actual award.

What’s your experience with this, dear readers?  Have you been scared into paying a self-imposed penalty for not advancing prior to an award in such situations?

Something to ponder over your weekend!