One of the most frequently-asked questions when defendants wish to settle a case is whether the Supplemental Job Displacement Benefit (SJDB) voucher is owed.
In many cases, the issue is straightforward and can be answered by evaluating the permanent work restrictions and whether a written offer of modified work was timely-issued.
However, there are times when entitlement to the voucher may not be so clear. Sometimes this is the result of poor communication between applicant, the employer, and the insurer. In other situations, the employee may feel that despite permanent work restrictions, they are either unable to perform their job or that the modified job does not satisfy their work restrictions.
In some situations, the employer may quite reasonably contend that a voucher is not owed because there is no job for applicant to return to. What should be a fairly clear situation (e.g., that modified work necessitates an actual job) actually requires deeper analysis.
Prior decisions from the WCAB have made clear that Labor Code section 4658.7, which governs the SJDB voucher, is strictly-enforced in favor of issuing the voucher when there is no timely offer of modified work.
For example, in the en banc decision in the case of Dennis v. State of California 85 CCC 389, the WCAB held that unless there is a timely, bona fide offer of alternative work, the defendant owes the voucher even if there is no way for applicant to return to the employer. In Dennis, the applicant was an inmate who had been released from prison after being injured during his prison employment. The employer said that they had regular or modified work available for the applicant, but also noted that he had voluntarily terminated his employment with the prison since his sentence had ended. Despite the employer’s efforts, the WCAB held that the voucher was owed.
In evaluating whether the voucher is owed, the Dennis case is a touchstone demonstrating how favorable Labor Code 4658.7 is construed in favor of applicants.
The WCAB recently issued a decision finding that an applicant is owed an SJDB voucher despite being laid off before filing a latent trauma injury. In the panel decision of Gibson v. Apex EnviroTech, 2023 Cal. Wrk. Comp. P.D. LEXIS 116, applicant never lost time from work because he was not working during litigation. In fact, he had been laid off “years prior to filing a latent injury claim.” When permanent work restrictions were issued, defendant argued that they did not need to make an offer of modified work due to applicant’s prior termination years earlier.
The trial judge ruled, and the WCAB affirmed, that defendants were not excused from providing either a return to work offer or an SJDB voucher. The commissioners wrote, “Applicant sustained a permanent partial disability; he was not provided a return to work offer. Per the holding in Dennis and per the Labor Code, there is no exception to providing a voucher in cases were applicant retired.”
The judge indicated that if defendant wanted to avoid liability for a voucher “they must offer applicant the opportunity to come out of retirement and work again.” Unless this was done, the SJDB voucher was owed.
Employers are advised that the WCAB strictly interprets the SJDB voucher issue. It is worthy to quote the decision wherein it states: “Why would you give someone a return to work offer if they never left work? To which the Labor Code replies: because it is required.”
Accordingly, defendants should be aware that even in situations where the applicant no longer works for the employer, has been laid off or terminated, or has even moved to a different state or different country, the permanent work restrictions provided in the permanent and stationary report must result in either the offer of modified work or an SJDB voucher. The WCAB has effectively presented defendants with a binary choice from which there is little exception.
In these cases, the strict letter of the law comes into conflict with the nuanced realities of employment in the 21st Century. Many employees in white collar industries have elected to work from home, which allows them to move to areas far away from the employer’s facility.
Other more traditional jobs still require physical performance at the place of employment. Therefore, even though it may appear impossible for an applicant to return to a position that is either no longer available or seems completely unrealistic, an offer of modified work must be made or the voucher will be required by law. The WCAB has effectively held that these are the two alternatives available to defendants.
Michael P. Burns is a partner at Bradford & Barthel’s San Jose location. Before joining B&B, Michael practiced civil litigation and employment law. If you have questions about workers’ compensation defense issues, feel free to contact Michael at email@example.com or (408) 392-8202.
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