Home > Uncategorized > Court of Appeal Rules No 15% Bump When No Work Missed

Court of Appeal Rules No 15% Bump When No Work Missed

If you listen closely, dear readers, you will hear the furious typing and exciting writings of the workers’ compensation community, with all the big experts giving their interpretations and predictions for the constantly changing “reforms” of Senate Bill 863.  Even as Senator Kevin de León faced the wrath of hired protestors, speculation continued for what the reforms will be when (and if) the bill is signed by Governor Brown.

At the risk of swimming against the stream, allow your humble blogger to report to you another development in the law of workers’ compensation, this one with more binding authority than the wishful thinking of the workers’ compensation community.

We’ve had a few conflicting panel opinions on the issue of Labor Code section 4658(d), among them Hisato Tsuchiya v. County of L.A., which held that the 15% increase/decrease does not apply in cases where the injured worker missed no time; and Wendy Audiss v. City of Rohnert Park, which held that it does.

Now, the Court of Appeal has pronounced judgment, ruling that in cases where the injured worker has not missed any time from work, section 4658d does not apply.  The case is City of Sebastopol v. Workers’ Compensation Appeals Board.  Defendant-employer made an offer of regular work less than sixty days after applicant William Braga was declared permanent and stationary, even though Braga had lost no time from work and was happily at his task even after filing his claim for hearing loss.

Naturally, the City took a 15% decrease in permanent disability payments, and, surprisingly, applicant was perfectly agreeable to this – all parties just wanted their compromise and release agreement approved.  But the workers’ compensation Judge rejected the settlement agreement, reasoning that the 15% decrease does not apply in cases where the applicant missed no time from work.

Unfortunately, the Court of Appeal has agreed.

Now, bear in mind, dear readers, that a good portion of the workers’ compensation community finds this a good decision, but your humble blogger does not count himself among them.  Through diligent adjusting efforts, employers who found workers with no missed time following an injury enjoyed a benefit in the form of a 15% decrease in permanent disability indemnity.  And this made sense – if the injury is so minor that a worker did not miss any time, then the PD really should be decreased.

Now, however, that benefit is no longer available to the employers and insurers, and the best adjusters have one less way to distinguish themselves.

Categories: Uncategorized
  1. Tom Harbinson
    August 30, 2012 at 9:13 am

    I agree with your comments. Further, I think this decision reflects a lack of practical business experience and emphasises the liberal bias. The business response to this decision should ,and hopefully will be, that an injury will not be temporarily accomodated so that the injured worker can continue working. While I know that would be a difficult response to a claim of hearing loss it certainly would be justified in most situations where work injuries are claimed.

    • August 30, 2012 at 12:45 pm

      Absolutely. The governing policy should always be to decrease costs for the employer as soon as the employee is taken care of.

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