Welcome, welcome, dear readers, to the end of yet another glorious week of workers’ compensation.

I thought I might relate to you, my skeptical followers that oscillate between amusement with my blog posts and frustration with their shameless oozing into your inboxes and computer screens, a recent hiccup in settling a case.

The ink was dry, the number was agreed to, and everyone was happy, but when the C&R was submitted for approval, there was one bump in the road that almost derailed the whole thing – the voucher.

As the entire claim was denied, and the parties were settling the case without a determination, one way or another, of AOE/COE, it seemed fair to have the issue of whether applicant was entitled to a voucher also left unresolved.

But the concern was voiced that the parties were, in effect, settling the voucher, which is expressly prohibited by Labor Code section 4658.7(g) (“Settlement or commutation of a claim for the supplemental job displacement benefit shall not be permitted…”)

In fact, your humble blogger has heard from more than one voice that some folks in the VR (that’s vocational rehabilitation, not virtual reality) industry have been filing ethics complaints against Judges who approve settlements without providing for a voucher as well.

In August of 2016, a panel of commissioners issued an opinion in Beltran v. Structural Steel Fabricators, in which a WCJ approved a C&R but also ordered that the voucher must be provided, even though there was a dispute about whether applicant was entitled to a voucher.  The panel reversed the order concerning the voucher and ordered the C&R approved in its original form – WITHOUT the voucher.

However, this panel decision is, of course, not binding, and some WCJs still have concerns.

Looking at the law itself, the Labor Code provides that “[i]f the injury causes permanent disability, the injured employee shall be entitled to a [voucher] … unless the employer makes an offer of regular modified, or alternative work…”  (Section 4658.7(b).)

Right away we see that a voucher may not be owed if the injury does not cause permanent disability.  Further, a voucher may not be owed if an offer of regular, modified, or alternative work is made in accordance with the law.  Finally, as the Court of Appeal ruled in Del Taco v. WCAB, “an injured employee is not entitled to vocational rehabilitation benefits where the employee is unable to return to work solely because of immigration status.”

And, most important of all, as contemplated in the Beltran case, when the claim is denied and there is a genuine dispute about causation or an affirmative defense, the parties should be able to settle the dispute with that green panacea, rather than litigating this issue like any other.

So, what’s to be done?  Well, first off, if you’re filing baseless ethics complaints against Judges because you’re unhappy with a reasonable and validated interpretation of the law in an effort to terrorize public magistrates into increasing your business – shame on you.

Second, we need to get an En Banc or Court of Appeal decision on this issue, and we need it soon.  I recognize that the $6,000 voucher doesn’t seem like a lot of money in the grand scheme of things, but having an extra year of keeping one’s file open on the off chance an applicant might use the voucher does.

And, if that’s not enough, the voucher entitles the applicant to a $5,000 payment from the “injured worker fund” and, guess what – that fund isn’t filled by the generosity of injured workers or the magic of good intentions.  Like all things in workers’ compensation, good or bad, willing or not, the funding is sucked out of the veins of California’s employers and insurers.  Accordingly, the less damage done there, the better.

Have a good weekend folks!