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Topics covered in this FAQ include:
Application of the +/- 15 percent permanent disability (PD) bump up/bump down
Definition of return to work
Employee rights
Interactive process
Notice requirement in the return to work (RTW) process
Proper RTW filing procedures
Termination of employer's liability

Q: Can an employer take the 15 percent reduction in weekly PD payments where the employee opts to retire rather than returning to work in available modified or alternative work?

A: The employer can take the 15 percent PD reduction if an offer of available modified or alternative work is made. The employer needs to complete the notice of offer of modified or alternative work (DWC AD Form 10133.53) and send it to the employee. The employee has 30 days to accept, reject, or not respond to the offer. The employer can take the 15 percent reduction when the offer is made. The employer cannot take the 15 percent reduction if they fail to send the 10133.53 because the employee has retired or has made his or her intent to retire known. A best practice would be for the employer to invite the employee in to discuss a return-to-work option and initiate the interactive process. If the employee is serious about retirement, it is probable that he or she will decline which provides documentation for the employer.

Q: What is the employer's obligation to engage in the interactive process with this employee who opts to retire?

A: If the employee has permanent disability, the employer would need to follow the rules & regulations pursuant to AR 10117(b) in serving the employee with a notice of regular work. If the employer does not comply with this regulation, each payment of permanent partial disability remaining to be paid to the employee from the date of the end of the 60 day period shall be paid in accordance with Labor Code section 4658(d)(1) and increased by 15 percent. The fact that the employee retired does not terminate the employer's obligation to offer modified or alternative work in terms of the bump up/bump down of PD or the supplemental job displacement voucher (DWC AD 10133.57) obligation.

Q: We have been operating under the belief that the +/- 15 percent in weekly permanent disability affects those employers with 50 or more employees in California. Is this correct, or is it 50 or more employees' even if some of those employees are in another state?

A: The Labor Code section 4658 (2) refers to California employers with 50 or more employees. The Labor Code is silent regarding California employers with out of state employees. It is the opinion of the Division of Workers' Compensation that since the employer is in California and hires more than 50 employees this would include employees who work in other states.

Q: Does a part time employee, for example a stunt person, working only a few weeks per year for a particular employer get the 15 percent increase if the employer cannot offer permanent modified work? Permanent work for a stunt person is not available in the motion picture industry other than on a seasonal basis.

A: When the employee is hired on a seasonal basis prior to the injury and the employer cannot offer seasonal work that is similar to the previous employment that lasts an aggregate of 12 months, the employee would be entitled to the 15 percent increased PD payments and may be entitled to the supplement job displacement benefit (voucher).

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Q: What can an injured worker do if the employer or adjuster does not send the offer of modified work in writing and allow 30 days to respond?

A: When there is a dispute regarding the appropriateness of a return to work job offer by either party, the claims administrator or employee may request that the DWC administrative director resolve the dispute. The party requesting that the administrative director resolve the dispute shall:

• Complete the EAMS OCR form request for dispute resolution before the administrative director (DWC-AD 10133.55).
• Clearly state the issue(s) and identify supporting information for each issue and position.
• Attach all pertinent documents.
• Submit a copy of the request and all attached documents to the administrative director and serve a copy of the request and all attached documents on all parties.
• attach a signed and dated proof of service to the form DWC-AD 10133.55

Q: Can an adjuster terminate temporary total disability (TTD) benefits because the employer claims the employee refused modified duty by failing to answer the phone when he called?

A: An adjuster can only terminate benefits if they acted in good faith and sent a bonafide offer of modified or alternative work.

Q: What does the term, "wages" mean as it is used on form DWC-AD 10133.53? My employer is offering me a job at 85 percent of my previous pay rate of $9.72 per hour, but does not guarantee that the number of hours available to work in that position matches the hours worked when I was injured. I averaged 35 hours per week at $10.50 per hour for a three month period. The position I was offered has no guarantee of hours. If I work 10 hours per week at the pay rate of $9.72 per hour, I would earn $270 less per week. This offer does not fall within 85 percent of the wages at the time of my injury. Am I required to take this offer?

A: Alternative work is work that offers wages and compensation that are at least 85 percent of those paid to the employee at the time of injury. If your employment was permanent full time, the employer would have to offer at least 85 percent of wages. If, at the time of hire, you were not guaranteed a certain number of hours per week, then the employer's offer of alternative work is valid. In this instance you would be required to take the job.

Q: I am concerned about my rights as an employee. I worked for an employer for several years when I sustained my industrial injury. After surgery and aggressive physical rehabilitation my primary treating physician released me to return to work. When I returned to work my supervisor said work was slow and there was no work for me and sent me home. There were 20 other employees who did the same work as I did who are still there. Two co-workers told me that the supervisor stated that my injury cost the company and has caused them nothing but troubles. It seems that I have been blackballed. Can my employer legally keep me from working? It certainly appears that I have been discriminated against.

A: Trying to prove that an employee has been blackballed from employment can be difficult. You can contact the Department of Fair Employment & Housing (DFEH) who investigates employment discrimination. You can also contact a labor attorney.

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Q: What is the "interactive process?" How does it work?

A: The essential elements of the interactive process are to:

• Recognize the need for job accommodation or reassignment.
• Invite the employee to participate.
• Review the employee's job duties and work limitations.
• Obtain a job analysis; use available resources as needed to assess return-to-work options.
• Identify and procure any required assistive or adaptive devices needed for the workplace.
• Offer the modified or alternative position to the employee.

An employer must document these steps to meet its obligations under the Fair Employment and Housing Act (FEHA).

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Q: Is the claims administrator required to send an injured employee the notice of offer of modified or alternative work (AD Form 10133.53) within 30 days of the termination of temporary disability, (TD)?

A: Yes. The DWC AD 10133.53 - Offer of modified or alternative work form must be sent within the 30 days of the last payment of TD payment whether the employee is returning to permanent modified or alternative work. If the employer or claims administrator does not send the 10133.53 for alternative or modified work and the employee later needs a permanent modified or alternative job, the employer loses the right to use the 10133.53. If the employee returns to regular duty, the 10133.53 becomes irrelevant and the employee will be entitled to a voucher, even if he or she returns to work in a permanent modified or alternative position.

If permanent job modification is required after P&S and after an offer has been timely made and if work in a modified job is available, the employer or claims administrator can then send a "revised" offer to the employee.

Q: Does an employer have to conduct the "interactive process" if transitional work is provided to an employee?

An employer is not required to engage in the "interactive process" for a temporary or transitional work assignment under workers' compensation. An employer has the right to assign any employee to temporary work, as long as the nature of the assignment isn't demeaning or punitive.

Q: If an employee is returned to work immediately in a modified position and there is no lost time but the employee has PD, at what point is the notice of rights due?

A: Where no TD has been paid, the claims administrator should send the notice of potential rights §10133.52 as soon as there is evidence of the existence or probable existence of permanent disability. The claims administrator should keep in mind that the notice of rights is informational only. The SJDB notice of potential rights tells the injured employee about a benefit he or she might get if all conditions are met.

Q: When is the offer of modified or alternative work offer (DWC AD 10133.53) due?

A: If no TD has been paid, you can send the notice of offer of modified or alternative work (DWC AD 10133.53) as soon as you have final work restrictions.

Q: How would this situation impact the Labor Code section 4658(d) +/-15 percent requirement?

A: The 15 percent PD adjustment cannot be taken until the employee is P&S, even though the employer provided modified or alternative work immediately. L.C.§ 4658(d) specifically uses the P&S date to start the PD adjustment process. Also, the 15 percent PD reduction cannot begin until there has been an actual offer of the position.

Q: The injured worker was examined by an agreed medical evaluator AME who indicated the he or she has permanent residuals. The injured employee continued to perform the regular job duties. The employee has now retired; however, unfortunately we have gone past 60 days. Is a notice still required offering the employee regular work after retirement?

A: No, administrative regulation 10117(b) states that within 60 calendar days from the date the condition of an injured employee with permanent partial disability becomes permanent and stationary, notices are required. The permanent and stationary status assumes that the employee has been temporarily disabled at some point and now has some permanent disability. Since the employee has lost no time from work and has no restrictions, a notice of return to regular work would not be necessary.

Q: If the notice of offer of regular work, (DWC-AD Form 10118) was issued on a claim six months ago and was based on the primary treating physician's report and later the agreed medical evaluator (AME) issued a report confirming the primary treating physician's report, does a second notice need to be sent to the employee?

A: No, if a notice of offer of regular work was sent to the employee based on the primary treating physician's report, and a second medical report by an AME was sent a few months later where there was no change in status, a second notice or offer would not need to be sent.

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Q: What needs to be filed when sending a notice of return to work regular duties (DWC-AD Form 10118) in order to be compliant with the EAMS process?

A: A copy of the return to work notice - (DWC AD form 10118) as well as the proper EAMS cover sheet, EAMS separator sheets, job description and medical reports outlining the permanent restrictions should be sent to the Retraining and Return to Work Unit headquarter office. Without the medical restrictions, the appropriateness of the offer cannot be determined.

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Q: If an employee is terminated from their employer for cause and is not being offered a job, would a letter of explanation to the employee be sufficient?

A: No. In order for an employer to terminate their liability an offer must be made to the employee as prescribed by the administrative director on notice of offer of regular work (DWC AD form 10118).

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November 2010