Oscar Martinez was injured while employed by Securita America Inc. on May 3, 3017 and after treatment was released to return to full duty work by June 12, 2017. He returned to work for employer Security America doing the same duties as before the date of injury.
In addition the PQME opined that Martinez is capable of performing his job duties without any restrictions, and noted that “he is currently working in his job duties within his ability. He may continue to do so without any restrictions”. (
There is no dispute that the Martinez continued to work for Security America, Inc. until that employer’s contract for providing security for the MTA through Friday November 10, 2017 ended.
Before the end date of the contract, the security company who took over the contract, North America Security Company’s supervisor went to the location where Martinez was working and informed him of the change in contract with the MTA and that he would be staying on at the same location doing the same job at the same pay starting on November 13, 2017.
Thereafter he started working for the new security company North America Security Company starting on his next scheduled work day Monday November 13, 2017.
Martinez worked at the same location, doing the same job as he did for Security America, Inc. and still works at that location for North America Security. Although his uniform was different and that some of the company policies were different, he is essentially doing the same job then and now as he did for defendant Security America, Inc.
Therefore the WCJ found that Martinez was not entitled to a Supplemental Job Displacement Benefit (SJDB) voucher. Reconsideration was granted, and SJDB.was awarded, in the panel decision of Martinez v Security America, Inc., – ADJ10887310 (January 2023)
Labor Code Section 4658.7(b) provides that an injured worker is entitled to a SJDB voucher if the industrial injury causes permanent partial disability and the employer fails to make an offer of regular, modified, or alternative work. Section 4658.7(b)(1) and (2) and Rule 10133.31(b) provide that the offer of regular, modified, or alternative work must be made no later than 60 days after receipt of the Physician’s Return to Work & Voucher Report (Form DWC-AD 10133.36) and must last for at least 12 months.
However, an “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).” (Cal. Code of Regs., tit. 8, § 10133.31(c).
According to the panel qualified medical evaluator (PQME), Martinez sustained a 2% whole person impairment to the lower extremity. This resulted in a 3% permanent disability to the lower extremity. A 3% permanent disability rating to the lower extremity entitles Martinez to a SJDB voucher under section 4658.7(b), unless defendant made an offer of regular, modified, or alternative work lasting at least 12 months. (§ 4658.7(b).) The employer holds the burden of proof to show that it offered applicant regular, modified, or alternative work.
Defendant does not contend that it made an actual offer of regular, modified, or alternative work to Martinez. Rather, defendant relies on Rule 10133.31(c) for its position that it should be deemed to have offered regular work. Rule 10133.31(c) deems an employer to have offered regular work when the employee lost no time from work or has returned to the same job for the same employer.
Here, Martinez lost approximately one month of work following the injury. Although he returned to his regular job with the same employer, without restrictions, he worked for approximately five months before he was laid off, thus failing to meet the requirement that the offer of regular work last at least 12 months.
While he performed essentially the same job in his subsequent employment, it was with a different employer. Rule 10133.31(c) specifically states that an employee must return to the same job for the same employer in order for the employer to be deemed to have offered regular work.
The burden of proof remains with defendant to show that it offered regular, modified or alternative work. (Opus One Labs v. Workers’ Comp. Appeals Bd. (Fndkyan)(2019) 84 Cal. Comp. Cases 634, 636 [2019 Cal. Wrk. Comp. LEXIS 51] (writ denied).)
“We conclude that defendant has not met its burden of proof to show that it offered regular, modified, or alternative work to applicant for at least 12 months. The subsequent employment cannot be added to meet the 12 months requirement because the subsequent employment was with a different employer.”
“Accordingly, we amend the March 13, 2020 Finding and Order to find that applicant is entitled to a SJDB voucher.”