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City of Sebastopol v. Workers' Compensation Appeals Board and William Braga

August 28, 2012

CITY OF SEBASTOPOL, PETITIONER,
v.
WORKERS' COMPENSATION APPEALS BOARD AND WILLIAM BRAGA, RESPONDENTS.



Workers' Compensation Judge George R. Ferris, case No. ADJ7702084.

The opinion of the court was delivered by: Simons, J.

CERTIFIED FOR PUBLICATION

(WCAB NO. ADJ7702084)

Labor Code section 4658*fn1 contains several formulas for determining the number of weeks permanent disability benefits are payable for industrial injuries. In 2004, section 4658(d) was added to the code. Section 4658(d)(2) and (3)*fn2 create incentives for employers of 50 persons or more to timely offer a return to work for an injured employee after his or her disability has become permanent and stationary. Pursuant to section 4658(d)(2), permanent disability payments are to be increased by 15 percent if the employer does not offer the injured employee regular, modified, or alternative work within 60 days of the disability becoming permanent and stationary. Pursuant to section 4658(d)(3)(A), permanent disability payments are to be decreased by 15 percent if the employer does offer that injured employee regular, modified, or alternative work, regardless of whether the employee accepts or rejects the offer.*fn3

Petitioner City of Sebastopol (City), "permissibly self-insured and administered by the Redwood Empire Insurance Fund," seeks writ review of the denial by the Workers' Compensation Appeals Board (WCAB) of City's petition for reconsideration of an order by the workers' compensation judge (WCJ) finding section 4658(d)(3)(A) inapplicable because City's injured employee, William Braga (Braga), lost no time from work. City contends, regardless of the fact Braga lost no time from work, section 4658(d)(3)(A) entitled City to decrease his permanent disability indemnity (PDI) by 15 percent because City made him a timely return to work offer. We reject the contention and affirm the decision and order of the WCAB.

BACKGROUND

The background facts are undisputed. Braga, employed by City as a fire captain from August 5, 2009, through August 10, 2010, sustained an industrial injury resulting in hearing loss. Braga lost no time from work as a result of his injury.*fn4 In a February 2011 report, Dr. Brian Schindler, the panel qualified medical evaluator (QME), stated Braga had sustained "bilateral high-frequency hearing loss" and declared the condition was permanent and stationary.*fn5

On March 24, 2011, City served Braga with a "Notice of Offer of Regular Work (DWC-AD Form 10118)"*fn6 and commenced making weekly PDI payments of $195.50, reflecting a 15 percent decrease pursuant to section 4658(d)(3)(A). On March 25, Braga accepted the offer of regular work. On or about April 14, the parties agreed to resolve Braga's claim by way of stipulations establishing his permanent disability at 18 percent. The stipulations submitted for approval indicated that pursuant to section 4658(d)(3)(A), City was entitled to decrease Braga's PDI by 15 percent as of the February date the QME declared Braga's condition permanent and stationary. The "Stipulations with Request for Award" were submitted to the WCAB for approval.*fn7

On July 20, 2011, the WCJ issued an Order Suspending Action stating that City was not entitled to decrease Braga's PDI by 15 percent because he lost no time from work. The order suspending action asked whether City agreed to increase Braga's PDI to the scheduled 18 percent rate of $15,065.

On October 31, 2011, the WCJ issued his findings and award again concluding that, since Braga lost no time from work, City was not entitled to a 15 percent decrease in Braga's PDI pursuant to section 4658(d)(3)(A) and Braga was not entitled to a 15 percent increase in his PDI pursuant to section 4658(d)(2).*fn8 The WCJ awarded Braga 18 percent PDI at the scheduled rate of $15,065.

City filed a petition for reconsideration of the WCJ's findings and award. City contended, since it made Braga a timely offer of regular work pursuant to section 4658(d)(3)(A), his PDI should have been decreased by 15 percent--from $230 per week to $195.50 per week. City argued the only condition precedent contained in section 4658(d) regarding a 15 percent increase or decrease in PDI is that the employer offer regular, modified, or alternative work, or fail to do so.

On December 16, 2011, the WCJ issued his report recommending denial of City's reconsideration petition. The WCJ explained that section 4658(d)(2) and (3) are intended to give employers an incentive to return their injured employees to work. However, when the injured employee is working, these provisions serve no purpose. The WCJ found that, although City made a timely job offer to Braga within 60 days of Braga's injury being declared permanent and stationary, City did not have to make that offer because Braga lost no time from work. The WCJ recognized that, in Audiss v. City of Rohnert Park (Apr. 2, 2007, SRO 0137956) 2007 Cal. Wrk. Comp. P.D. LEXIS 9 (Audiss), the WCAB adopted the position urged by City. However, the WCJ was persuaded by the contrary reasoning in two more recent decisions, Tsuchiya v. County of Los Angeles Sheriff's Dept. (Apr. 13, 2009, ADJ2508984 (VNO 0541888)) 2009 Cal. Wrk. Comp. P.D. LEXIS 399 (Tsuchiya) and Anguiano v. Amy's Kitchen (Nov. 15, 2011, ADJ7724380) 2011 Cal. Wrk. Comp. P.D. LEXIS 515 (Anguiano).

On January 23, 2012, the WCAB issued its opinion and order denying City's petition for reconsideration. It reiterated that section 4658(d) is intended to give employers an incentive to return their injured employees to work. It concluded, "In cases such as this one, where the employee has lost no time from work and is continuing to perform his or her regular work, the provisions [of section 4658(d)] have no purpose. Therefore, we find . . . section 4648(d) inapplicable in this case." The WCAB also concluded, "applying . . . section 4648(d) in cases where the injured worker has lost no time from work creates the potential for injured workers to receive a 15 [percent] windfall if ...


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