ADJ3120504 · October 7, 2024

Applicant was paid in full for permanent disability within 60 days of P&S date, so no increase applies; however, defendant did not make a return-to-work offer, so no decrease applies either.

From the decision · page 7Accordingly, we grant applicant's Petition solely to amend Finding of Fact 5 to clarify that there were no permanent disability benefits remaining to be paid to applicant within 60 days of July 7, 2021, and as such, applicant is not entitled to an increase under Labor Code section 4658(d)(2), but since defendant did not make an offer of regular, modified, or alternative work to applicant within 60 days of July 7, 2021, defendant is not entitled to a decrease under Labor Code section 4658(d)(3)(A). We otherwise affirm the F&A.

Applicant was paid in full for her 45% permanent disability within 60 days of the July 7, 2021 P&S date.

Favours Defendant prevailed

This fact means no permanent disability benefits remained unpaid to trigger the 15% increase under Labor Code section 4658(d)(2).

From the decision · page 7defendant on August 12, 2021 based upon this report and the corresponding increase to 38% permanent disability. Applicant alleges that a 15% increase applies to this payment since a return- to-work offer was not provided subsequent to the July 7, 2021 P&S date. Applicant, however, fails to recognize that according to the plain language of the statute, the increase only applies to payments "remaining to be paid." (Lab. Code, § 4658(d)(2), emphasis added.) At the time, there were no remaining payments as applicant had been paid in full, less attorney's fees, within 60 days of July 7, 2021.

Defendant did not make a return-to-work offer within 60 days of the July 7, 2021 P&S date.

Favours Applicant prevailed

Because no return-to-work offer was made, defendant is not entitled to a 15% decrease under Labor Code section 4658(d)(3)(A).

Found 9% whole person impairment rating to 10% permanent disability, with P&S date September 25, 2013.

From the decision · page 2In his October 17, 2013 report, Dr. Matiko found a 9% whole person impairment which rates to 10% permanent disability not including apportionment. (Joint Exhibit 2, p. 8.) A specific P&S date was not provided. (Ibid.) In light of the prior payment of permanent disability, additional permanent disability was not paid.

Found P&S date July 7, 2021 with 38% permanent disability rating, later increased to 45% after deposition.

Labor Code section 4658(d)(2)

Labor Code section 4658(d)(2) requires an employer to make a return-to-work offer within 60 days of permanent and stationary status to avoid a 15% increase in permanent disability payments.

The Board found that since no permanent disability benefits remained unpaid within 60 days of the P&S date, no increase applies, but since no return-to-work offer was made, no decrease applies either.

From the decision · page 4II. Turning to the merits of the Petition, current section 4658(d)(2), which applies to injury dates from January 1, 2005 to December 31, 2012, provides that:

Applicant's retirement status did not exempt defendant from making a return-to-work offer under Labor Code section 4658(d)(2).

From the decision · page 5The clear language of section 4658(d)(2), however, makes no such exceptions. Further, prior decisions have found that irrespective of applicant's retirement status, an employer must make a return-to-work offer to avoid liability for the 15% increase on any remaining payments under section 4658(d)(2). (See University of California v. Workers' Comp. Appeals Bd. (2020) 85 Cal.Comp.Cases 311 [writ den.]; Kings County v. Workers' Comp. Appeals Bd. (2011) 76 Cal.Comp.Cases 378 [writ den.]; Visalia Unified School Dist. v. Workers' Comp. Appeals Bd. (2011) 76 Cal.Comp.Cases 1255 [writ den.].) Prior case law therefore confirms that it is applicant, not defendant or even the WCJ, who determines whether a return-to-work offer can be accepted. The defendant may not withhold an offer due to retirement or any other perceived unavailability.