RE: GEORGE THE BARTENDER’S DISPATCHES FROM OFFLINE HAPPY HOUR – SUPPLEMENTAL JOB DISPLACEMENT BENEFIT VOUCHER PITFALLS
FROM MY BAR AT HOME:
This Mother’s Day my friends and I decided to try something different. We would spend the morning with our lovely and adorable children, being showered with macaroni necklaces, breakfast in bed, and cuddles, but later we would go out for happy hour.1 We have had more family time than usual over the past year. Now it was time for us to celebrate motherhood together, without our little ones.
We all agreed to meet at a new Mexican rooftop bar and restaurant in the Arts District of Downtown Los Angeles called, La Cha Cha Chá. Holly Hustler, my friend and noted applicant’s attorney, showed up early, eager to spend some time back in a restaurant with a professionally prepared cocktail (or three). When we arrived, she told us she had gotten an early start because she would have to cut out before the sun went down. She had a trial the next morning on a voucher issue and was unsure how it would go.
In her case, after the Compromise and Release Holly made a demand for a supplemental job displacement benefit (SJDB) voucher to which she believed her client was entitled. The defendants had refused, pointing to the applicant’s resignation.
As a reminder, loyal Home/Lobby Bar patron, per California Labor Code §4658.7 an applicant becomes eligible for an SJDB voucher for dates of injury on or after January 1, 2013 when the following circumstances are met:
- The industrial injury causes permanent partial disability;
- The employer fails to make a timely offer of regular, modified, or alternative work on the correct form within 60 days of receipt of the Physician’s Return to Work and Voucher Report. (Unlike for dates of injury before 2013, the voucher cannot be settled within a Compromise and Release agreement, leaving defendants open to further litigation post settlement.)
In Holly’s case, the applicant reached maximum medical improvement (MMI) with permanent disability a week before the parties had entered into the settlement agreement. (At the time of the Compromise and Release, the applicant voluntarily resigned from his position.) The defendant argued that although there was a report finding that the applicant suffered permanent partial disability, there was no obligation for the employer to make an offer of modified duty because the applicant had already resigned his employment.
As much as I love to squash Holly’s buzz, in this case I had encouraging information for her, as it was Mother’s Day after all, and I was in a giving mood.
I directed Holly toward two recent panel decisions – Adalberto Urias vs. PT Gaming (ADJ10286214) and Amber Morgan vs. Living Spaces (ADJ10122311)2 . I told her that in both cases the applicant was not prevented from being eligible for the voucher despite a resignation.
In Urias, the applicant claimed a cumulative trauma from September 4, 2014 to September 4, 2015. The claim resolved via a Compromise and Release with a resignation. Subsequently, the applicant pursued an SJDB voucher.
The issue of whether the applicant was still eligible for the voucher post Compromise and Release went to trial. At the trial level, the workers’ compensation judge (WCJ) found that the applicant had sustained an industrial injury and the settlement agreement did not disqualify the applicant from pursuing the voucher. The defendant appealed, arguing the Workers’ Compensation Appeals Board (WCAB) no longer had jurisdiction post Compromise and Release to make a finding regarding industrial injury, and the voluntary resignation precluded the applicant from the SJDB voucher.
In their Opinion and Decision after Reconsideration the WCAB rejected the jurisdictional argument, noting that the “one judgment rule” cited by the defendant was not applicable in our wonderful world of workers’ compensation, quoting from Maranian v. Workers’ Comp. Appeals Bd. (2000) 81 Cal.App.4th 1068, 1073 in part as follows:
The well-known final judgment rule that governs general civil appeals was designed to prevent costly piecemeal dispositions and multiple reviews which burden the courts and impede the judicial process. (citation omitted.) This final judgment rule, however, has not held sway with respect to many decisions of the WCAB . . . .
The WCAB also disagreed with the defense’s argument that a resignation should abrogate the applicant’s right to an SJDB voucher. In arriving at their decision, they cited Anthony Dennis v. State of California – Dept. of Corrections and Rehabilitation Inmate Claims (85 Cal. Comp. Cases 389,403), an en banc decision that held that an inability to make a bona fide offer of work would not preclude entitlement to a supplemental job displacement benefit voucher.3
In Dennis, the applicant was injured while working as a state prison inmate. He was released and his claim was resolved via a Stipulated Award, but the settlement did not include an SJDB voucher. Since he left the job due to his release from prison, the employer could not offer him a job, but prior to the settlement they did send him a Notice of Offer of Regular, Modified or Alternative Work, offering him regular work or a modified or alternative job. The notice included a note to the effect that the applicant had voluntarily terminated employment due to release, making them ineligible for continued employment in the prison.
In the lengthy decision in Dennis, the WCAB delved into the history of the workers’ compensation system in California, and held that even though it was impossible for defendant to make a bona fide offer of work as the applicant had been released from prison, the employer was not relieved of their obligation to supply the SJDB voucher.4
I told Holly that in Urias the WCAB appears to accept the argument from defendants that based on the resignation they could not offer the applicant work, but based on Dennis they did not agree that this was a basis to refuse the SJDB voucher.
Given that the resignation did not abrogate the applicant’s right to an SDJB voucher and it was determined that the applicant had suffered an industrial injury, the Findings and Award was upheld in Urias. The decision pointed out that the parties stipulated that the applicant would be entitled to the voucher unless it was settled by the Compromise and Release agreement. Thus, any other argument that the defendants could have raised with regard to the admissibility or substantial nature of the medical record upon with the finding of industrial injury was waived.
Notably missing from the discussion in Urias was whether the applicant was actually entitled to the voucher. The Findings and Award from the WCJ solely found that the applicant suffered an industrial injury and was not precluded by the settlement from pursuing the SDJB voucher. The actual entitlement to the voucher was not raised at that time and therefore no evidence established that the applicant was permanently partially disabled or no offer of work (modified or alternative or otherwise) was made. Therefore, the parties could find themselves at trial once again, fighting over the actual entitlement to the same voucher.
I went on to tell Holly about the other 2020 panel decision, Morgan, where the defendant also argued that the applicant was not entitled to a supplemental job displacement voucher solely on the basis that the applicant had voluntarily resigned. The parties had no dispute as to the other factors of eligibility. Just as they did in Urias, the WCAB pointed to Dennis to support applicant’s ability to pursue the SDJB voucher.
My discourse now complete, Holly grinned. Her job for the next day just got a whole lot easier. She ordered another round and led us all in a raising of our glasses to moms everywhere. Holly was particularly grateful for my mother, the woman who gave me life and made it possible many years later for me to spoon-feed Ms. Hustler the information she needed for a smooth Monday morning.
All characters at my happy hour are fictional and the storyline is simply a product of my dynamic imagination.
Dennis and the cases that follow make it clear that the obligation to make a bona fide job offer is almost absolute in determining the applicant’s entitlement to an SDJB voucher, even if the applicant has voluntarily left their position. The possibility of further litigation over the voucher post resignation and post settlement can serve to undermine one of the purposes and motivations for an employer to enter into a settlement – the mitigation of discovery costs. In a case where there is a good faith, arose-out-of-and-in-the-course-of-employment-dispute, the parties should consider other methods of ensuring that the voucher issue is wholly resolved.
The most popular method attempted by defendants recently is the inclusion of a so-called “Beltran Waiver” established in Beltran v. Structural Steel Fabricators (2016) 81 Cal Comp Cases 1224. Beltran is a panel decision which held in relevant part as follows5 :
. . . where the trier of fact makes an express finding based upon the record that a serious and good faith issue exists to justify a release, a compromise and release agreement may be approved by the Board which will relieve the employer from liability for the Supplemental Job Displacement Benefit voucher.
While Beltran lacks the designation “significant panel decision,” Joe Truce, formerly a managing shareholder at our firm and creator of George the Bartender, frequently reminded me of one of his favorite portions of the Labor Code, §5703(g), subtitled “Specific Additional Evidence Allowed,” which states in relevant part as follows:
The appeals board may receive as evidence either at or subsequent to a hearing, and use as proof of any fact in dispute, the following matters, in addition to sworn testimony presented in open hearing: … (g) Excerpts from expert testimony received by the appeals board upon similar issues of scientific fact in other cases and the prior decisions of the appeals board upon similar issues. (Emphasis added)
He would also draw our attention to California Evidence Code §452(d), which provides that judicial notice may be taken of “Records of (1) any court of this state or (2) any court of record of the United States or of any state of the United States.”
We’re venturing out into the world slowly and safely now, where doubles can now be prepared by the professionals! Bottoms up, friends, and keep washing your hands.
1 Sunday, schmunday. Any day ending in Y is a good day for a happy hour!
2 A copy of both Urias and Morgan may be obtained via email request.
3 A copy of Dennis can be obtained via email request.
4 I should note that they also held that Title 8, California Code of Regulations, Chapter 4.5, Subchapter 1.5, Administrative Director – Administrative Rules, Article 7.5, §10133.54, Dispute Resolution was invalid, though irrelevant to our discussion here, I digress.
5 A copy of Beltran can be obtained via email request.