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Labor Code 4658(d)(3)(A)

By Joseph Yrulegui

 

The primary focus of the California’s workers’ compensation system is to return injured workers back to work. As an incentive for this goal, the legislature enacted Labor Code 4658(d)(1-4). Labor Code 4658(d)(3)(A) states in pertinent part:

 

"Labor code 4658(d)(2) mandates a 15% increase of each of the remaining disability payments if an offer of regular, modified, or alternative work is not made within 60 days of the injured worker becoming permanent and stationary."

 

The permanent and stationary date is often determined by the med-legal report, either an AME or QME. What if the doctor finds the injured worker P&S as of the date of the examination, but the report does not arrive to the parties for several months? What if the doctor finds the injured worker P&S several months prior to the examination, making it impossible for the employer to make a timely offer of return to work within 60 days?

 

Is the employer liable for the 15% increase?

 

Luckily, a recent panel decision further clarified the issue. In Campo v. Costco Wholesale Corp, the WCAB held, "that the sixty-day period for offering work in sections 4658d2 and d3A does not begin to run until the employer has actual or constructive knowledge of the applicant’s permanent and stationary status and the applicant’s permanent work restrictions." Although the WCAB has ruled on this issue in the past, this most recent panel decision is unequivocal.

 

The statute begins to run when the report is received by the parties. Keeping the proof of service is pivotal. For example, if the P&S date is April 1, and report is not received by the parties until June 1, subject to proof, then the 60-day period begins to run on June 1.

 

However, there is a caveat. The WCAB found that the sixty-day period begins to run when the employer has actual or constructive knowledge of the P&S date. As a claims examiner, if your attorney receives the report, you could be found to have constructive knowledge of the P&S date.

 

Often, the attorney receives the med-legal report, and a copy is not sent to the examiner for weeks or months. It is imperative that your attorney not only forward you a copy of the report, but also note the P&S date so the examiner may begin their process of informing the employer, and making the return to work offer on a timely basis.

 

Promptly following the procedures set forth in Labor Code 4658 can result in significant savings for the payor. Do not miss the opportunity.

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