Q: Can I assert a credit for PD overpayment if applicant was paid $13,000 in advances but the Panel Qualified Medical Evaluator concludes there is 0% whole person impairment?

A: Yes, you can petition for credit against future benefits in my opinion as the statutory language allowing the credit actually states that benefits paid, but not due, “may” be taken into account by the Board in fixing future benefits owed. See Labor Code section 4909 below:

Any payment, allowance, or benefit received by the injured employee during the period of his incapacity, or by his dependents in the event of his death, which by the terms of this division was not then due and payable or when there is any dispute or question concerning the right to compensation, shall not, in the absence of any agreement, be an admission of liability for compensation on the part of the employer, but any such payment, allowance, or benefit may be taken into account by the appeals board in fixing the amount of the compensation to be paid. The acceptance of any such payment, allowance, or benefit shall not operate as a waiver of any right or claim which the employee or his dependents has against the employer.

Two things I would point out: I recommend the filing of a Petition for Credit and a Declaration of Readiness to Proceed before asserting any credit to avoid Labor Code section 5814 penalty exposures and do not expect a credit against future medical (though it is my opinion the Workers’ Compensation Appeals Board may consider one).

A credit against future medical care is rarely if ever granted as at least one case has held Labor Code section 4909 did not entitle an employer to a credit against a subsequent award to an employee for self-procured medical help, for money paid to the employee as living expenses pursuant to a private benefit plan of the employer, which was intended as a gift or a gratuity. Reiman v. WCAB, (1977, Cal App 1st Dist).

Credit for PD overpayment is generally not allowed against future medical treatment. Nadeen v. Campbell Soup Co. (2000) 28 CWCR 243.

Credit for PD overpayment against future medical treatment is not prohibited if applicant has medical treatment available. A judge can allow credit against future medical treatment and reserve jurisdiction over medical treatment. Hofer v. WCAB, 61 CCC 277.