LC4658(d)(2) (California)

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LC4658(d)(2) (California)

Postby DASF22 on Sat Oct 24, 2009 1:26 pm

Is there any authority as to WHEN the 50 employees have to determined for the 15% bump to apply: on the date of injury, date of MMI or date upon which the 60 days lapses?
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Re: LC4658(d)(2) (California)

Postby rosellavera on Sat Oct 24, 2009 2:05 pm

Labor Code § 4658 requires “within 60 days of disability becoming permanent and stationary". so my guess would be that as of the date that the 15%+/- applies which would be 60 days from the P&S/MMI date.
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Re: LC4658(d)(2) (California) (California) (California)

Postby stewshe on Sun Oct 25, 2009 1:40 pm

DASF22,

See CCR §10002(a)(1) in a section dealing with Return to Work generally and the "Offer of Work; Adjustment of Permanent Disability Payments."

What counts is the number of employee employed "...at the time of the most recent policy inception or renewal date for the insurance policy that was in effect at the time of the employee's injury".

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Last edited by stewshe on Sun Oct 25, 2009 2:15 pm, edited 2 times in total.
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Re: LC4658(d)(2) (California) (California) (California)

Postby stewshe on Sun Oct 25, 2009 1:40 pm

(Please excuse accidental double post)
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Re: LC4658(d)(2) (California)

Postby zacko1 on Mon Oct 26, 2009 3:13 pm

On a related note, any thoughts on whether the 15% bump-up applies to a retired employee? Applicant retires, at some point after that, AME reports come in with work restrictions. Is the employer still required to offer reg, mod or alt work? I know this is something that is usually negotiated, but wondering if anyone has any trial experience with this issue. I would suspect the employer should still be required to make the offer, but I thought I heard somewhere once that the law does not favor useless acts...
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Re: LC4658(d)(2) (California)

Postby stewshe on Mon Oct 26, 2009 4:14 pm

zacko1,

I agree there is a maxim which says, as best I recall, "The law does not require the performance of useless acts."

However, the offering of employment is usually not a "useless act." Just because someone retires it does not necessarilly mean they have retired from the labor market, or that if they are offered other more congenial employment it would not be accepted.

A similar argument sometimes exists regarding TD. My Work Comp Index, 2008 edition, pages 700 to 703 cites a number of cases pro/con as to whether or not TD is due. The issue is whether or not there is an intent to withdraw from the labor market. See, e.g., Connie Gonzales 27 CWCR 4, 63 CCC 1477 finding TD not owed.

I'm not aware of any cases exactly on point, but suspect an argument by analogy would be made to the TD cases since the issue at least appears similar as to retirment.

Bottom line? If I were an employer and wanted the 15% savings, I'd send the offer letter even if the EE retired and I was certain it was "forever."

Also, expect some EEs to accept the offer! Phony offers of mod/alt employment used to be common as a ploy on the part of some ERs to avoid VR.

The remedy, from the AA's perspective, is to encourage the EE to accept. I have done that with some offers of employment which were withdrawn after being accepted!

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