WCDefenseCA

And it’s Wednesday again, dear readers!  What better way to celebrate the mid-point of the week than a WCAB panel decision on vouchers?

The panel decision is that of Gibson v. Apex Envirotech in which the WCAB denied reconsideration of a WCJ’s award of a SJDB voucher.

Applicant had two claims and sought workers’ compensation benefits. However, according to the WCJ’s Report and Recommendation on Petition for Reconsideration, applicant had been laid off during the pendency of his claim because he had been laid off several years prior to filing his claim.  The DOIs in these cases were from 2016 and the applications were not filed until late 2020 (roughly 4 to 4.5 years post DOI).  Per the WCJ, he had retired.

Apparently, defendant did not make an offer of regular, modified, or alternative work.  The WCJ cited the en banc decision in Dennis v. State of California for the proposition that facts such as retirement are irrelevant to the duty imposed by Labor Code section 4658.7 to provide a voucher or make an offer of regular, modified, or alternative work.

What about Regulation 10133.31?  This provides various exceptions to the duty to provide an offer or a voucher, such as when an employee lost no time from work or returned to the same job for the same employer.

The WCJ in this case opined that it may very well exceed Labor Code section 4658.7 and thus be invalid.  This issue was deferred to the WCAB but was not addressed, as the WCAB only adopted and incorporated the WCJ’s report.  The WCJ opined that “[i]t may be that where applicant sustains no lost time from work, a job offer must still be provided or else a voucher is due.”  But the language in 10133.31(c) appears to address this concern: “[a]n employee who has lost no time from work or has returned to the same job for the same employer, is deemed to have been offered and accepted regular work in accordance with the criteria set forth in Labor Code section 4658.7(b)” (emphasis added).

Is the regulation exceeding the labor code by defining terms such as “offer” or “acceptance?”  Section 4658.7(h) expressly authorizing the administrative director to “adopt regulations for the administration of this section.”  This should, at least, authorize the AD to define the “offer” and “acceptance” procedures, including defining a return to work or no lost time from work as an offer being made and having been accepted.

In any case, as we learned from the Dennis decision, when in doubt, make an offer of regular, modified, or alternative work!

That’s your humble blogger’s take on it, anyways.  What do you think dear readers?

You know, dear readers, when your humble blogger was just knee high to a grasshopper, there was a semi-popular franchise called “Dennis the Menace.”  This was originally a syndicated newspaper comic strip and went on to manifest itself in various tv shows and a few movies.  Basically, Dennis was a kid who kept making messes and trouble for his family and neighbor in overall harmless ways to much comic effect.

Watching the shows and movies as a kid, I never fully appreciated what a “menace” the name “Dennis” could be for everyone else.  It took practicing as a workers’ compensation defense attorney to fully understand.  Well, I do now, of course.

The very first reported decision by Lexis in this decade was that of Dennis v. State of California.  Therein, the WCAB held in an en banc decision that only “bona fide” offers of work barred liability for a SJDB Voucher for defendants.  In the Dennis case, the defendant, a prison, offered applicant (an former inmate) his job back, which he, of course, could not accept because he had since been released.  So, while the prison could accommodate the work restrictions, the release of the applicant from incarceration made the job unavailable.

The WCAB held that the “offer” of work in the Dennis case was invalid because applicant could not accept the position – absent a fresh conviction, California wasn’t going to allow Mr. Dennis into the prison.

Well, the results of that decision have been felt in case after case.  Most recently, in the panel decision of Urias v. PT Gaming (special thanks to the very talented R.C. for bringing this decision to your humble blogger’s attention), the WCAB ruled that applicant was entitled to a SJDB Voucher even though he had voluntarily resigned his employment.

In Urias, defendant argued that a SJDB Voucher is not due because applicant had voluntarily resigned – how could an employer offer a return to work when there was no longer an employment relationship?  In affirming the WCJ’s finding that a voucher was due, the WCAB ruled “we conclude that applicant’s resignation has no bearing on his entitlement to a voucher,” citing Dennis.

Effectively, applicant could force the provision of a voucher by resigning.  After using the voucher, he could seek re-employment once more, since AB-749 invalidates most resignation language that prevents seeking re-hire at the same employer.  And despite some very old case law prohibiting the use of 132a claims for refusing to rehire, perhaps the results would be a bit different if tried again today.

Well, what other benefits are available if there is no offer of regular, modified, or alternative work that complies with current work restrictions?  Typically, either temporary disability benefits or permanent disability advances.  Will the logic of Dennis and Urias apply to these as well?  Can an applicant weaponize his tactical resignation to force TD benefits?

Let’s take a hypothetical: applicant sustains injury and is temporarily disabled.  He resigns his employment while receiving TD.  His employer, relying on the resignation, hires another person to fill the vacant position.  Once the treating physician releases applicant to work (but he is not yet permanent and stationary), how does the employer avoid liability for temporary disability benefits?  The position is no longer available (even though the employer could accommodate the work restrictions), so there is no “bona fide” offer of regular, modified, or alternative work.

Hopefully the logic will not be held to so extend, but surely some enterprising applicant attorney will try it sooner or later.

Unfortunately, because the liability for a voucher is so low on an individual scale, and since either a new en banc decision or a Court of Appeal ruling would be necessary to limit or overrule Dennis, most employers and insurers will not have a business case for funding litigation on this issue.  That may very well change if and when this reasoning is used to justify temporary disability benefits.

In your humble blogger’s opinion, Dennis may have been the pebble dropped in the pond but we have yet to see how far all the ripples go.

What do you think, dear readers?   Is your humble blogger playing the role of Chicken Little once again?  Straight on till Friday!