WCDefenseCA

Alright dear readers, here’s a question for you – applicant sustains two injuries and they become P&S on the same day.  The injuries are resolved by stipulated award and applicant is not offered a return to work by the employer.  Does the applicant get one voucher or two?

Well, your humble blogger’s answer is, of course:

But, clearly, the law does not agree with your humble blogger’s musings.  Instead, the recent panel decision in the case of Sesena v. Residence Inn by Marriott, held that applicant is entitled to a voucher for each of her injuries – one for the CT to her cervical spine, lumbar spine, thoracic spine, and another in the form of hypertension.

The WCAB reversed the WCJ, finding that applicant was indeed entitled to TWO vouchers rather than one, interpreting Labor Code section 4658.7’s language of “[i]f the injury causes permanent disability” to mean that each permanent-disability-causing injury triggers a separate right to a voucher.

Practically speaking, most vouchers are used, if at all, to get the extra $5,000 from the state fund paid for by employers and insurers, a free laptop, and $500 in cash from the employer.  But, on those rare cases that the full amount is used, the defendant might be out $6,000 per voucher.

What defenses can be made against this argument?  Well, is as voucher due whenever there is permanent disability?  No, of course not – no voucher is due if there is an offer or regular, modified, or alternative work timely made.  (Section 4658.7(b).)

Well, why wouldn’t an employer make an offer of regular, modified, or alternative work?  Most likely because the work restrictions could not be accommodated.  After all, termination for cause or right to work in the United States is no reason not to make the offer.

Well, what happens if the restrictions for one of the injuries includes and/or incorporates the restrictions for the other one?  Why would an employee be entitled to two vouchers for the same work restrictions?

In the case of Mercier v WCAB, a California Supreme Court opinion from 1976, the Court held that “[w]hen all factors of disability attributable to the first injury are included in the factors attributable to the second, there is total overlap.”  Although Mercier had to do with rating permanent disability rather than dealing with vouchers, the idea remains the same: if the preclusions from one injury are included in the preclusions from the other, then there is overlap.  Mercier did not receive permanent disability twice for the same work preclusions, and an applicant should not receive a second voucher for the same work restrictions.

Now, bear in mind, my dear readers, that the panel opinion does not go into great detail as to the work restrictions in the Sesena matter.  However, every effort should be made to avoid liability for a voucher if possible, and the best way to do that is to make an offer of regular, modified, or alternative work.

Your humble blogger hasn’t had occasion to use the Mercier argument at trial yet, but if you try it please let me know how it goes.