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Q:  What if I receive a doctor’s P&S/MMI report outside 60 days from the assigned P&S/MMI date?  Is it too late to issue the Offer of Alt/Mod or Regular Work?  Do I owe a retroactive 15% adjustment in the PD rate if the employee did not return to work during the 60 days following P&S/MMI? 

A:  In Karla Ornelaz v. Albertson’s, Inc., a WCAB panel found that the employer’s obligation to increase weekly PD payments begins 60 days (plus 5 for mailing) after it receives knowledge regarding the existence of permanent disability.  The applicant in this matter alleged that the employer owed a 15% increase on weekly PD payments because a Notice of Offer of Modified or Alternative Work (DWC AD 10133.53) was not sent until 129 days after her P&S date.  The Board found that the increase was NOT due because the employer sent the Offer 63 days after it received knowledge of the applicant’s disability.  This case addresses a common  problem for claims examiners who do not receive P&S medical reports in time to determine the availability of medically appropriate work and get an offer out within the 60 day period specified in L.C. § 4658(d).

Note that this is a WCAB panel decision which means that it has limited value as case precedent. Subsequent cases at the Board could reach differing conclusions.  It may be better to err on the side of caution and issue the notice even if the employee is back to work prior to reaching P&S.

For additional information on this issue, please contact Brian Duncan at bd@pknwlaw.com.