ADJ10913893 · June 27, 2024

Applicant is entitled to a 60% permanent disability award with a 15% increase due to defendant's failure to offer regular, modified, or alternative work as required by law.

Applicant is entitled to temporary disability indemnity for 104 weeks subject to statutory caps and limitations, despite defendant's contention that applicant voluntarily retired.

From the decision · page 67. Applicant is entitled to temporary disability from June 12, 2012 through November 6, 2018, subject to the 104-week cap and five-year limitation of Labor Code section 4656(c)(2), less credit for monies received or earned or benefits paid, with the exact amount of temporary disability indemnity to be adjusted by the parties or determined by the WCJ absent adjustment, jurisdiction reserved at the trial level.

Applicant retired due to inability to perform job duties caused by industrial injury, not voluntarily.

Favours Applicant prevailed

This fact supports applicant's entitlement to temporary disability indemnity despite defendant's contention of voluntary retirement.

Employer did not offer regular, modified, or alternative work as required by law.

Favours Applicant prevailed

Supports applicant's entitlement to 15% increase in permanent disability award under Labor Code section 4658(d)(2).

From the decision · page 9Applicant underwent knee surgery on an industrial basis on February 10, 2011.and returned to work on March 9, 2011. Applicant was found to be permanent and stationary December 5, 2011. There is no evidence of any offer of regular, modified or alternative work offered to applicant in the manner and form proscribed by the Administrative Director and therefore Applicant was entitled to a 15% increase on all permanent disability remaining to be paid.

Applicant should have been able to continue working with restrictions until knee replacements; temporary disability reasonable after surgeries if employer could not accommodate work.

Supports applicant's entitlement to temporary disability indemnity for 104 weeks.

From the decision · page 9As to temporary disability, Applicant was evaluated by Peter Newton, M.D., Arthur Lipper, M.D., and Arnold Gilberg, M.D. All performed an evaluation of applicant in the capacity of an Agreed Medical Evaluator (AME).

Evaluated applicant as AME relevant to temporary disability issue.

From the decision · page 9As to temporary disability, Applicant was evaluated by Peter Newton, M.D., Arthur Lipper, M.D., and Arnold Gilberg, M.D. All performed an evaluation of applicant in the capacity of an Agreed Medical Evaluator (AME).

Evaluated applicant as AME relevant to temporary disability issue.

From the decision · page 9As to temporary disability, Applicant was evaluated by Peter Newton, M.D., Arthur Lipper, M.D., and Arnold Gilberg, M.D. All performed an evaluation of applicant in the capacity of an Agreed Medical Evaluator (AME).

Labor Code section 4656(c)(2)

Labor Code section 4656(c)(2) limits temporary disability payments to 104 weeks within five years from date of injury.

Applied to limit temporary disability indemnity awarded to applicant.

From the decision · page 3In reference to the WCJ's overlapping award of temporary disability indemnity in the two cases herein,1 we note that Labor Code section 4656(c)(2) provides: "Aggregate disability payments for a single injury occurring on or after January 1, 2008, causing temporary disability shall not extend for more than 104 compensable weeks within a period of five years from the date of injury." (Italics added.)

Labor Code section 4658(d)(2)

Labor Code section 4658(d)(2) provides a 15% increase in permanent disability payments if employer fails to offer regular, modified, or alternative work within 60 days of permanent and stationary date.

Applied to increase permanent disability award due to employer's failure to offer work.

From the decision · page 5Section 4658(d)(2) states in relevant part: "If, within 60 days of a disability becoming permanent and stationary, an employer does not offer the injured employee regular work, modified work, or alternative work, in the form and manner prescribed by the administrative director, for a period of at least 12 months, each disability payment remaining to be paid to the injured employee from the date of the end of the 60-day period shall be paid in accordance with paragraph (1) and increased by 15 percent. [...]" (Italics added.)

Applicant's credible testimony that she retired due to inability to perform job duties caused by industrial injury, not voluntarily.

Employer failed to show any offer of regular, modified or alternative work during temporary disability period.

From the decision · page 10"After my evaluation of 12/01/15, this applicant should have been able 6to continue working with restrictions up until the time of her two knee replacements. After each of her knee replacement surgery, it would have been reasonable for her to have been TTD for six weeks, after which tine she should have been able to return to work with restrictions. If at any time her employer could not have accommodated her, she would have been considered TTD through today." Applicant testified credibly at trial with due regard for her demeanor as witness that she only stopped working due to her inability to perform her job duties as a result of her industrial injury. Based on the employer's inability to meet their burden to show any offer of modified or alternative work during the period applicant was TTD/TPD and when taken together with Dr. Newton's finding as quoted hereinabove, applicant is entitled to 104 weeks of temporary disability for both injuries concurrently as the temporary disability period overlaps for both injuries, less credit for all monies paid or benefits received. Based on the employer's failure to show any offer of regular, modified or alternate work was offered in the manner and form proscribed by the Administrative Director, applicant is entitled to an increase in her permanent disability award of 15%.