By Claire Meredith
As you know, Labor Code Section 4658.7(h)(2), requires the Physician’s Return-to-Work (Physician’s RTW) (DWC-AD 10133.36 to fully inform “the employer of work capacities and of activity restrictions resulting from the injury that are relevant to potential regular work, modified work, or alternative work.” The purpose of the form is to aid the employer in understanding the applicant’s work capacities in order to make an informed decision. But can an employer deny the voucher on the basis they did not receive this form? One court said no.
Recently, in the panel decision Fndkyan v. Opus One Labs, 2019 Cal. Wrk. Comp. P.D. LEXIS, the WCAB held the applicant was not precluded from the voucher based on the fact the Physician’s RTW form was not sent to or received by defendant. Here, the QME report clearly provided the information that would have been included in the Physician’s RTW form. Based upon this, the WCAB believed defendant could deduce the applicant’s work capacities and restrictions. The WCAB stated “to conclude otherwise would place form over substance.”
Thus, if you receive a QME report that indicates the applicant is permanent and stationary, is industrially permanently disabled and provides work capacities and restrictions as a result of the industrial injury, it may be in your best financial interest to determine whether regular, modified, or alternative work is available. If you cannot determine whether a position fits within their restrictions, take necessary actions to obtain the Physician’s RTW form. If a position is not available, you may issue the voucher and not wait for the Physician’s RTW from.
It is important to note this was a panel decision and thus not binding. You can still fight the voucher issue and require the Physician’s RTW form. However, parties can cite this decision in order to indicate contemporaneous interpretation and application of workers’ compensation laws. Carefully review your QME report and if you have all the information you need to make an informed decision, I would recommend issuing the voucher, even if you have not received the Physician’s RTW form.