Angel Hernandez was employed by the California Highway Patrol and filed an industrial injury claim for cardiovascular disease and a stroke. In 2021 the parties entered into a Stipulations with Request for Award for permanent total disability. The WCJ issued an Award pursuant to the Stipulations with Request for Award.
In 2022 the State Fund refused to provide Hernandez with a Supplemental Job Displacement Benefit Voucher, correctly stating that Labor Code section 4658.7 applies only if the injury causes permanent partial disability. SCIF pointed out that applicant is not permanently partially disabled, but is in fact permanently totally disabled. The matter proceed to trial on the SJDB issue.
A February 10, 2023 Findings and Award found that applicant is entitled to a Supplemental Job Displacement Benefit (SJDB) voucher when it failed to offer regular, modified, or alternative work following the receipt of the September 13, 2018 report of David W. Baum, M.D.
The State Fund Petition for Reconsideration was granted, and the Findings and Award was rescinded in the panel decision of Hernandez v State of California Department of Highway Patrol – ADJ11168233 (May 2022).
Defendant contends that applicant is not entitled to a SJDB voucher because applicant did not suffer permanent partial disability but rather suffered permanent total disability.
Applicant argued that he was not claiming he is entitled to a Supplemental Job Displacement Benefit Voucher in order to avail himself of the education-related retraining or skill enhancement contemplated by section 4658.7. He can never work again, so retraining would be pointless.
Instead, Applicant is claiming entitlement to a Supplemental Job Displacement Benefit Voucher only because that is the method promulgated by statute to apply for the $5,000.00 Return-to Work Supplement payment.
Labor Code, section4658.7(b)1 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. (§ 4658.7(b).) 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. (§ 4658.7(b)(1) and (b)(2); Cal. Code of Regs.tit. 8, § 10133.31(b).)
A different Appeals Board panel in Sanchez v. Forever 21, Inc. (ADJ11573028, December 5, 2022) [2022 Cal. Wrk. Comp. P.D. LEXIS 333] and Schmidt v. Fremont Swim School (ADJ12311590, December 7, 2022) [2022 Cal. Wrk. Comp. P.D. LEXIS 342] opined that a Physician’s Return to Work & Voucher Report is not necessary so long as applicant makes a showing that he sustained permanent partial disability and the employer failed to show that it offered regular, modified, or alternative work.
Here, Dr. Baum’s report serves as notice to defendant that applicant sustained permanent disability, which would trigger defendant’s duty to offer regular, modified, or alternative work within 60 days, or a SJDB voucher, if the permanent disability is partial.
Dr. Baum opined that applicant sustained a 55% whole person impairment (WPI) as a result of his stroke and a 50% WPI due to hypertensive cardiovascular disease, for a combined WPI of 78%. It is unclear what percentage of permanent disability results from Dr. Baum’s impairment rating. If Dr. Baum’s impairment rating results in permanent partial disability, then the WCJ is correct that the SJDB statute is triggered at that time. If Dr. Baum’s impairment rating results in permanent total disability, then defendant is correct that applicant is not entitled to a SJDB voucher.
The panel went on to say that “applicant’s position that it is not seeking a voucher for its retraining purposes but merely as a step to obtain a Return-to-Work supplemental benefit is concerning. While we understand that the Return-to-Work supplemental benefit requires the issuance of a SJDB voucher, seeking a voucher in name only without intending to benefit from its intended purpose of retraining a worker is not proper. (See Finch v. Chicos (ADJ10123459, June 17, 2020 [2020 Cal. Wrk. Comp. P.D. LEXIS 233] [Appeals Board affirming the WCJ’s conclusion that a voucher “in name only” is not sufficient to trigger the applicant’s eligibility for the Return-to-Work Supplemental Program benefit].) We also note that applicant is represented by a guardian-ad-litem because he is deemed incompetent and we question the propriety of a voucher in circumstances where the applicant is deemed incompetent.”