Employers cannot avoid liability for the supplemental job displacement voucher by making a job offer for employment that doesn’t exist, according to a new en banc decision by the Workers’ Compensation Appeals Board.
The WCAB’s recent en banc decision in the case of Anthony Dennis vs. State of CDCR; State Compensation Insurance Fund (ADJ9346293) addressed who gets to decide whether the applicant is entitled to a supplemental job displacement voucher.
The instant case involved a prisoner who was injured in 2013 while working as an inmate for the California Department of Corrections. The parties settled by stipulated award on 09/11/2017.
Prior to the settlement, on 05/15/2017, Defendant sent applicant a Notice of Offer of Regular, Modified, or Alternative Work. That letter stated that “Subject to applicant verifying they are lawfully qualified to accept employment as inmate labor, you have voluntarily terminated your employment due to your release from prison and are no longer available for employment.”
Applicant filed a request for Dispute Resolution Before Administrative Director on 09/19/2017. The Administrative Director (AD) did not issue a determination, therefore the request was deemed denied by operation of law according to the WCAB. (The Administrative Director contended that the request was not properly filed therefore the denial by operation of law never went into effect.) Parties went to trial on the issue of whether a voucher was owed on 03/27/18. On 05/19/18, the WCJ ruled that the applicant’s appeal of the AD decision was untimely and therefore the voucher was not owed. Applicant filed a Petition for Reconsideration on 05/15/18. On 07/31/18 the WCAB ruled the voucher was owed. Furthermore, the WCAB ruled that it maintains exclusive jurisdiction to adjudicate SJDB disputes irrespective of AD Rule 10133.54, which provides that the parties may request a dispute resolution with the AD before appealing the AD decision to the WCAB. Defendant then filed a petition for reconsideration.
The WCAB issued a ruling stating that:
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- AD Rule 10133.54 is invalid because it exceeds the statutory authority granted to the administrative director under sections 4658.5(c) and 4658.7(h) and restricts the exclusive adjudicatory power of the WCAB to adjudicate compensation claims, including disputes over supplemental job displacement benefits.
- An employer must show that it made a bona fide offer of regular, modified, or alternative work in order to avoid liability for a supplemental job displacement benefits voucher, and Defendant could not and did not provide a bona fide offer of regular, modified, or alternative work and, therefore, applicant is entitled to a supplemental job displacement benefits voucher.
What does this mean for defendants?
First, the easy conclusion is that the WCAB is now the appropriate venue to determine whether the voucher is owed. More importantly, this is a reminder for employers how important it is to make the return to work offer timely and in keeping with the rules. The offer of regular, modified, or alternative work must be bona fide. The court went to great lengths to analyze the terms, regular, modified, and alternative work. A bona fide offer in this case along with some of the others that the court cited simply wasn’t possible to make as the applicant had been released from prison and thus wasn’t eligible for prison employment, and the court still found the voucher was owed.
The court cited a number of other cases where it was determined the voucher was owed in circumstances where it was essentially impossible for the employer to offer the voucher. This includes Jackson v. California Prison Industry Authority (August 2, 2017, ADJ9968628)[2017 Cal. Wrk. Comp. P.D. Lexis 368]. In Jackson, the court ruled that the voucher was owed to inmate applicant who had been released despite notice of denial of SJDB voucher due to applicant being released from prison. The court also mentioned Robertson v WCAB (2003) 112 Cal.App.4th [68 Cal Comp Cases 1567] where the applicant was terminated for cause prior to becoming permanent and stationary. The Robertson decision found that the voucher was owed despite the notice the employer provided saying they would have offered the return to work had he not been terminated for breaching the employer’s attendance policy.
This was distinguished from cases such as the Del Taco v. Workers Comp Appeals Board (Gutierrez) (2000) 79 Cal. App. 4th 1437 [65 Cal.CompCases 342] case where the employer made a bona fide return to work offer that the applicant cannot accept. In that case the applicant could not return to work because it was discovered that he was using an invalid Social Security number and was not legally allowed to work in the United States.
In short, the WCAB will be making determinations as to when the voucher is owed. The Dennis case appears to be a signal that employers cannot simply make an offer that cannot actually be accepted and expect that to satisfy the requirements necessary to avoid owing a voucher.
Alec T. Bradford, a Southern California native, is a senior partner at the San Diego office of Bradford and Barthel. If you have questions about the Dennis decision, supplemental job displacement vouchers, or other workers’ compensation defense issues feel free to contact him at abradford@bradfordbarthel.com.
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