What the panel ordered
The Workers' Compensation Appeals Board affirmed the May 13, 2021 Findings and Award, denying the defendant's Petition for Reconsideration.
Defendant Imperium Insurance Company sought reconsideration of the May 13, 2021 Findings and Award, which the WCJ had issued, and the WCAB panel issued an Opinion and Decision After Reconsideration affirming the WCJ's decision.
What was disputed, and how it came out
Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.
The employer failed to prove it made a good faith offer of modified work within applicant's restrictions, so the applicant was entitled to temporary total disability benefits from January 11, 2019 to present.
From the decision · page 5Here, it appears that following applicant's injury and initial treatment at Concentra, applicant was provided with work restrictions, including push/pull limitations, weight-bearing and squatting/kneeling restrictions. (Ex. 19, Concentra encounter note, dated January 11, 2019.) Applicant testified to providing copies of the work restrictions to the employer (January 13, 2021 MINUTES, at 6:1), and the reporting from Concentra was among the documents contained in applicant's subpoenaed personnel file. (Ex. 21, Subpoenaed records of Mann vs Pest, p.MVP000059.) The record reflects no bona fide offer of modified duties conforming to applicant's work restrictions made by the defendant directly following applicant's injury. Applicant continued to seek medical treatment for his injuries, initially with the Concentra Clinic, and later with Glen Nusbaum, D.C. The record reflects no good faith offer of modified duties through at least May, 2019.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
No bona fide offer of modified duties conforming to applicant's work restrictions was made by defendant following injury.
Favours Applicant prevailed
Without a good faith offer of modified work, the applicant remains entitled to temporary total disability benefits.
From the decision · page 5Here, it appears that following applicant's injury and initial treatment at Concentra, applicant was provided with work restrictions, including push/pull limitations, weight-bearing and squatting/kneeling restrictions. (Ex. 19, Concentra encounter note, dated January 11, 2019.) Applicant testified to providing copies of the work restrictions to the employer (January 13, 2021 MINUTES, at 6:1), and the reporting from Concentra was among the documents contained in applicant's subpoenaed personnel file. (Ex. 21, Subpoenaed records of Mann vs Pest, p.MVP000059.) The record reflects no bona fide offer of modified duties conforming to applicant's work restrictions made by the defendant directly following applicant's injury. Applicant continued to seek medical treatment for his injuries, initially with the Concentra Clinic, and later with Glen Nusbaum, D.C. The record reflects no good faith offer of modified duties through at least May, 2019.
The written offer of modified work was never successfully communicated to applicant due to lack of contact information and applicant's failure to attend the scheduled meeting.
Favours Applicant prevailed
The employer failed to prove the offer was effectively made, supporting the award of temporary disability.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Huston v. Workers' Comp. Appeals Bd. (1979) 95 Cal.App.3d 856
Temporary disability indemnity is payable during the injured worker's healing period until recovery or permanent and stationary status.
The Board applied Huston to determine that the employer must prove availability and offer of modified work to cease temporary disability payments.
From the decision · page 4In general, temporary disability indemnity is payable during the injured worker's healing period from the injury until the worker has recovered sufficiently to return to work, or until his/her condition reaches a permanent and stationary status. [Citation.] Temporary disability may be total (incapable of performing any kind of work), or partial (capable of performing some kind of work). [Citation.] If the employee is able to obtain some type of work despite the partial incapacity, the worker is entitled to compensation on a wage-loss basis. [Citation.] If the partially disabled worker can perform some type of work but chooses not to, his 'probable earning ability' will be used to compute wage-loss compensation for partial disability. [Citation.] If the temporary partial disability is such that it effectively prevents the employee from performing any duty for which the worker is skilled or there is no showing by the employer that work is available and offered, the wage loss is deemed total and the injured worker is entitled to temporary total disability payments. (Huston, supra, at p. 806.)
Labor Code section 4658.1
The employer must establish that work within applicant's restrictions is both available and offered to relieve liability for temporary disability.
The Board applied Labor Code section 4658.1 to require a good faith offer of modified duties acknowledging work restrictions.
What proof carried it
The evidence the panel weighed, by kind.
Applicant's testimony that he was not provided modified work directly following injury and that he studied at home for the certification test without pay, which was unrebutted.
From the decision · page 2The parties appeared at trial on January 13, 2021, and stipulated to injury to the right knee with radiating pain in the right leg, and raised the issue of temporary disability for the period January 11, 2019 through the present, subject to the statutory maximum set forth in Labor Code section 4656(c)(2). (January 13, 2021 Minutes of Hearing/Summary of Evidence (Minutes) at 2:24.) Applicant testified at trial that each time he was provided a return to work slip, he would deliver it to the company office. (January 13, 2021 Minutes, at 6:5.) Applicant testified that he was not provided with modified work directly following the January 2, 2019 injury. (Id. at 6:10.) A meeting at the company offices was held eventually, at which time the employer offered to pay applicant to study to take a "certification test," and that he would study for two weeks at home. (January 13, 2021 Minutes, at 6:12; 9:17; March 15, 2021 Minutes, at 3:8) Applicant picked up materials from the office and studied at home. Upon returning to the office after studying for two weeks, applicant learned his pay check was not ready, and was told to study for an additional two weeks. (March 15, 2021 Minutes, at 4:10.) Applicant denied ever receiving a formal return to work
Disputes in the record about the circumstances of the alleged offer of modified work, including location of study and whether the employer was aware of work restrictions.
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About this page
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