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Q:  Do we really have to issue a Notice Of Regular Work when the employee never missed time from work? 

A:  In Tsuchiya v County of LA Sheriff’s Department, a Los Angeles County sheriff deputy returned to work without lost time after an industrial injury. At the time he reached maximal medical improvement, he was assigned a level of PD warranting an Award. Since the employee missed no time from work, the claims examiner felt it unnecessary to issue an offer of regular work. The issue arose as to whether he was entitled to a 15% increase in the PD rate since the claims examiner failed to issue the formal offer of regular duty.

The WCAB panel decision concluded Labor Code §4658(d) is inapplicable to people who return to work prior to reaching Maximum Medical Improvement. In short, the requirement to send the Notice is moot since the employee is already working. There is no “return to work issue.” So in this case, the employer’s failure to send the form offering regular or modified work did not entitle the Applien to the 15% increase in PD benefits.

However, the WCAB panel also ruled that since the terms of LC §4658(d) do not apply to employees who are working, the employer is not entitled to the 15% decrease in PD benefits under the statute either. This ruling effectively rewards employers who bring back employees only after P&S and penalized employers who manage to keep employees on the job at full pay (usually in temporary alternate or modified positions).

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.