A Permanent Disability Increase/Decrease Update
Labor Code §4658(d) requires that an offer of regular, alternative or modified work (1) be made “in the form and manner prescribed by the administrative director; (2) be made for work lasting “at least six months” and (3) be made “within 60 days of a disability becoming permanent and stationary.”
What happens if an employer offers modified, alternate or “reassigned” work and the applicant returns to work? Is an employer entitled to a 15% decrease under Labor Code §4658(d)(3)(A) in permanent disability indemnity?
It would seem appropriate given that applicant has actually returned to work. The purpose of the statute is to promote a return of injured workers’ to active, productive work in the open labor market, thus certainly an actual return to modified work should support the decrease even without compliance with the technical aspects of Labor Code §4658(d).
However, the law does not support reduction of an injured workers’ permanent disability benefit. The Workers’ Compensation Appeals Board recently decided this issue in Monica Mansfield v. County of Los AngelesADJ3640151 (MON 0347448). The decision affirms what PKNW attorneys have advised its clients although the case was not litigated by PKNW staff. The WCAB found that failure to comply with the letter of the Labor Code by offering regular, alternative or modified work (1) “in the form and manner prescribed by the administrative director; (2) for work lasting “at least six months” and (3) “within 60 days of a disability becoming permanent and stationary” defeats defendants’ rights to Labor Code §4658(d) reductions.
The case makes sense given the WCAB’s prior and consistent pattern of applying workers’ compensation statutes as written whenever the language of a statute is clear. Labor Code §4658(d) procedures are clear. Thus, failure to strictly comply will result in failure and inability to assert a permanent disability decrease.
Remember, the decrease applies when there is (1) an offer of regular, modified or alternative work (2) within 60 days of applicant’s condition becoming permanent and stationary (3) in the form and manner prescribed by the administrative director and (4) lasting at least 12 months.
A handy laminated desk chart regarding these benefits is also available for new or existing PKNW clients.