When Does the 60 Day Return to Work Period Start?
Under Labor Code section 4658(d)(3)(A), an employer has sixty (60) days from the date of a disability becoming permanent and stationary to make an offer to the injured employee of regular, modified or alternate work that is at least twelve (12) months in duration, with each disability payment remaining to be paid to the injured employee to be reduced by 15%.
If the employer does not make an offer of regular, modified work to the injured employee within 60 days of being declared permanent and stationary, and if the employer has 50 or more employees, then the disability payment shall be increased by 15% commencing after the 60 day period, per Labor Code section 4658(d)(2).
The question becomes: what if the permanent and stationary report is dated well in advance of the actual receipt of the report?
This question was posed in Soto v. Ace Insurance Co. (2011) 39 CWCR 122 (panel decision). In Soto, the Primary Treating Physician wrote a report dated August 14, 2007 that found the applicant to be permanent and stationary, however the report was not mailed until September 18, 2007. The employer mailed an offer of modified or alternate work to the applicant after receipt of the report.
At the ensuing trial, the WCJ issued a decision that the employer had not offered the applicant modified or alternate work within 60 days of his disability becoming permanent and stationary.
Defendants appealed the Judge’s decision that the employer’s job offer was untimely. The WCAB panel overturned the Judge’s finding and found that before a duty to offer work can be imposed on the employer, the employer must be put on notice when the applicant was permanent and stationary. Obviously, this cannot happen until the report is received by the defendants/employer, thus the date of receipt of the permanent and stationary report starts the running of the 60 day period.