WCDefenseCA

Happy Wednesday, dear readers!

The Workers’ Compensation Ethics Advisory Committee recently posted its report on complaints from 2016.  As is expected, the vast majority of the complaints filed by were employees not represented by counsel.

There were two complaints in particular that seemed to echo what some WCJs have mentioned about supplemental job displacement benefit vouchers.

As by now we all know, SB-863 prohibits the settlement of an injured workers’ supplemental job displacement benefit voucher.  However, as was held in the panel decision of Beltran, there are cases in which no voucher is due, and the case should be settled without the voucher being provided.

In the ethics report, the two complaints were from (1) a Return-to-Work counsel, and (2) a represented applicant.  In both cases, the review of the facts concluded that there was no ethical violation, but one can easily understand and appreciate the chilling effect such a complaint has against a WCJ.

I can see a bitter return-to-work counselor lashing out in the face of dwindling income, but what about the represented injured worker?  If the attorney failed to advise of the effect of the C&R, why not pursue an ethics complaint against the attorney or file a malpractice claim?  If the attorney did advise the injured worker that there would be no voucher, why accept the settlement?

We can only hope that the applicant’s attorney did not encourage the injured worker to file an ethics complaint for approval of a settlement to which the injured worker, under advice of counsel, agreed.

Hopefully, the fact that, in both cases ethics committee found no violations will reassure WCJs that they approve a C&R that does not provide a voucher when the facts call for it.

In the meantime, practitioners should continue to draft settlement paperwork with care – the parties are not settling the voucher but, instead, are entering into settlement without determining whether or not the injured worker has the right to a voucher.