4658(d) and P&S date (California)

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4658(d) and P&S date (California)

Postby lyounglaw on Tue Mar 31, 2009 2:39 pm

LC 4658(d)(2) says that an offer of modified work needs to be made within 60 days of an injury becoming P&S, but what if the PTP has found applicant TTD for over 2 years, then the AME's report is received showing that applicant was P&S over 8 months ago? It appears that there is no way that a defendant can comply with this provision. My client wants to make a job offer but it is way beyond the 60 days, so they are thinking that if they have to pay the extra 15% anyway, then they won't offer the job. I can't find anything in my research on this. Can the date of the AME's P&S report be used as the starting date since there was no knowledge of a P&S date prior to receiving the report?

Has anyone had experience with this? Thanks for any help,
Laura
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Re: 4658(d) and P&S date (California)

Postby gaiassoul1@yahoo.com on Wed Apr 01, 2009 11:00 pm

be careful here, 15% or not FEHA and ADA actions cost more....so if they can offer modified, they need to do so under FEHA and ADA regardless of 15% increase or decrease in the comp arena.

That this discussion already exists shows that modified work is available.
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Re: 4658(d) and P&S date (California)

Postby gaiassoul1@yahoo.com on Wed Apr 01, 2009 11:00 pm

be careful here, 15% or not FEHA and ADA actions cost more....so if they can offer modified, they need to do so under FEHA and ADA regardless of 15% increase or decrease in the comp arena.

That this discussion already exists shows that modified work is available.
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Re: 4658(d) and P&S date (California)

Postby lyounglaw on Thu Apr 02, 2009 3:14 pm

Thanks for the reminder. I've already advised them of the possible FEHA situation. And this is a strange case because, although the doctor released to regular work, there are work restrictions which are inconsistent with the job description, and the company doesn't have any modified jobs within the work restrictions. So, we'll have to get clarification from the AME.

But my original question still remains, how can any job be offered within 60 days of P&S date if we didn't know it was a P&S date until 8 months later?
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Re: 4658(d) and P&S date (California)

Postby jpod on Fri Apr 03, 2009 7:45 am

The reason is the literal words of the statute say the job has to be offered within 60 days of the employee becoming P&S. As it is common to have retroactive P&S dates it is impossible to make the statute work (in terms of its legislative goal of offering a carrot for early offers of return to work).

There have been two cases, neither is citable. The first case was Audis, it was called a Noteworthy Panel Decision. The other case name escapes me.

In Audis the employee never lost time from work, continued in their regular job throughout the claim. The PTP declared the employee P&S but failed to mail the P&S report to the carrier. When the carrier wrote for medical status, the PTP realized the report had not been sent and mailed it. The PD was small and all of it had accrued. The WCAB Panel said that under these facts the substance of the matter is the employee was working in their U&C on the day they were declared P&S, and the court said it mattered not when the form. Essentially the court elevated substance over form. The problem is the DWC is sticking to the literal interpretation b/c they have to, because the CA Supreme Court admonished the DWC in Honeywell for making a rule that conflicted with the plain meaning of a statute.


I have been toying with a new idea however that I think can make the statute work.

Notice the statute says "...if within 60 days of the employee becoming P&S. It does not say within 60 days AFTER the employee becomes P&S. Wouldn't this include the 60 days BEFORE becoming P&S as well as AFTER. If once the employee is returned to work, the employer starts offering either regular, modified, or alternative work, and every thirty days continues to make the appropriate offer until the employee is declared P&S then the terms of the statute have been met. Of course the offers have to be appropriate, and one could envision that there would be a transition from an offer of modified to regular; or modified to alternative work depending on the medical progress of the employee as reported by the doctor.

In fact I wonder if this approach is actually what the legislature had in mind b/c why is the statute written as it is? Why is regular, modified, and alternative all lumped together? Did the legislature appreciate the fluidness of this issue in daily practice? Isn't it a more pro-active approach in monitoring RTW? After all the goal is to get employee back to working so in many ways I think this interpretation makes more sense.

I have floated this idea to a couple of attorneys but have not heard back from them yet.
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Re: 4658(d) and P&S date (California)

Postby lyounglaw on Sun Apr 05, 2009 3:29 pm

jpod: I like your idea and it would be a good argument in the right case, especially where applicant has returned to work; however, in my case the worker was not working and we didn't even know she was P&S until 8 months later. Also, as I mentioned in my second post on this thread, we need to get clarification on work restrictions from the AME, so the employer isn't really sure if they can offer her work even now. So, as you note, it makes it impossible for the employer to comply, and the legislative intent is thwarted anyway.

Let me know if you think of anything else. Thanks.
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Re: 4658(d) and P&S date (California)

Postby TC on Mon May 04, 2009 10:27 pm

See Ornelaz v Albertson's Inc. 2008 Cal. Wrk. P.D. LEXIS ---
It explains how how to count days for 4658(d)

http://law.lexisnexis.com/practiceareas/Workers-Compensation-Law-Blog/Case-Law-Developments/Recent-Noteworthy-Panel-Decisions-Issued-by-California-WCAB-%20Posted-262009

Karla Ornelaz v. Albertson's, Inc.—Permanent Disability—Notice of Offer of Regular, Modified, or Alternative Work—WCAB rescinded WCJ's award entitling applicant/checker/scanner/stocker with injuries to her back, right leg and right hip during period 11/10/2004 to 11/2005 to a 15 percent increase in permanent disability indemnity under Labor Code § 4658(d)(3)(A) based on WCJ's finding that defendant's notice of offer of modified or alternative work, which was sent 129 days after applicant's permanent and stationary date and 63 days after service of agreed medical examiner's permanent and stationary report, was untimely because it was not sent within 60 days of applicant's permanent and stationary date, and held, instead, that (1) an employer's duty to offer regular, modified or alternative work under Labor Code § 4658(d) arises when employer first becomes aware of permanent and stationary date, rather than on actual permanent and stationary date, (2) 60 day period for defendant in this case to offer regular, modified or alternative work began to run when permanent and stationary report was served since this was when defendant first became aware of applicant's permanent and stationary date, (3) pursuant to Code of Civil Procedure § 5316 and 8 Cal. Code Reg. § 10507, five day extension for mailing set forth in Code of Civil Procedure § 1013 applies to extend 60 day period under Labor Code § 4658(d) to 65 days, because permanent and stationary report is equivalent of "notice," and (4) since defendant's offer of work was timely sent to applicant within 65 days from date permanent and stationary report was served, defendant was entitled to a 15 percent decrease in permanent disability indemnity owed to applicant pursuant to Labor Code § 4658(d)(2).
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