Robert Fndkyan injured his cervical spine, thoracic spine, lumbar spine, bilateral shoulders and bilateral wrists. His case resolved in 2016 by a Compromise and Release and his entitlement to a SJDV was not resolved in the Order.
In 2015, before the case was settled, a QME report specified permanent disability impairment ratings for various body parts. He further opined that applicant should have prophylactic work preclusions:… for the cervical, thoracic, and lumbar spines: No very heavy lifting; or repeated bending or stooping. For the bilateral shoulders … : No repetitive at or above shoulder reaching or work. For the bilateral wrists … : No repetitive forceful gripping or grasping.
After the case was settled, he demanded a Supplemental Job Displacement Voucher (SJDV), which was denied by the defendant.
The WCJ found that applicant was not entitled to a SJDV because there was no evidence that a Physician’s Return-to-Work and Voucher (Physician’s RTW) form was sent to or received by defendant.
A petition for reconsideration was granted, and the WCAB reversed finding that Fndkkyan was entitled to the SJDV in the case of Fndkyan v Opus One Labs.
The sole issue at trial was whether applicant is entitled to a SJDV when a Physician’s RTW form was not sent to or received by defendant.
The WCJ correctly points out that Labor Code section 4658.7(b)(l) specifically provides that an employer’s obligation to offer regular, modified, or alternative work in lieu of a SJDV is to be made no later than 60 days after receipt of a medical report “in the form created by the administrative director” finding that the disability from all conditions has become permanent and stationary and has caused permanent partial disability. (Lab. Code, § 4658.7(b)(l). This form is described as a “mandatory attachment” to a medical report and that informs the employer of work capacities and restrictions relevant to regular, modified, or alternative work.
The WCJ also correctly points out that AD Rule 10133.31(b) specifies that this form is identified as the Physician’s Return-to-Work & Voucher Report.
In this instance, defendant had the burden to obtain a Physician’s RTW form when defendant was apprised of applicant’s permanent disability status and work preclusions in the QME report. “To conclude otherwise would place form over substance.”