Employers often surmise that an offer of modified work is not necessary or can be made informally. As the cases noted above show, the best defense is always to make a written offer, on the required forms if necessary, that outline the physical duties anticipated. Documentation of the employer’s efforts to accommodate an injured worker will assist the attorneys at Mullen & Filippi in defending against unreasonable demands for TD and vouchers and will result in an overall cost reduction in litigated cases.
Though Jimenez and Ochoa reach the same conclusion, the distinction is an important one. If Jimenez is correct and seasonal employees with no off-season earnings had a temporary disability rate of zero for the off-season, the entire off-season of temporary disability paid at the rate of zero would arguably count toward the 104-week temporary disability cap. On the other hand, under Ochoa that is not the case; during the off-season such employees are simply not entitled to temporary disability and the cap is not implicated.
In summary, if the issue arises regarding disputed receipt of documentation, the substance of the proof of service may be worth litigating. Precedent in the form of the Cavanaugh case gives the WCAB framework for finding in favor of the party who served the documents with an endorsed proof of service, however, there are arguments to be made that the law is not settled on this issue.