Gary Gibson was employed by Apex Envirotech when he sustained a hearing loss industrial injury. The injury resulted in a permanent partial disability, but did not result in any period of temporary disability, and he lost no time from work.
His WCAB action was filed after he was laid off from work. The parties proceeded to trial solely on the issue of provision of the supplemental job displacement voucher (SJDV). The parties stipulated to all relevant facts and presented the matter solely as a question of applying the facts to the law.
Defendant argued that per Rule 10133.31(c), defendant was not obligated to provide a return to work offer to applicant because applicant did not lose time from work, and thus, no SJDV is due. (Cal. Code Regs., tit. 8, § 10133.31(c).)
Applicant argued that defendant either misconstrues the regulation, or in the alternative, the regulation exceeds the scope of its enabling statute in requiring applicant sustain compensable temporary disability as a precursor to receipt of a voucher.
A Findings and Award issued on February 15, 20231, which found that defendant was not excused from providing applicant a return to work offer per Rule 10133.31(c) (Cal. Code Regs., tit. 8, § 10133.31(c),) when the reason that applicant missed no time from work was because applicant had been laid off prior to filing latent injury claims. Although there were two injuries plead, the parties stipulated to a single joint award of permanent disability based upon the fact that the hearing loss was inextricably intertwined. As the permanent disability was intertwined, only one voucher was awarded.
Reconsideration of this award was denied for the reasons stated by the WCJ in his Report. The case is Gibson v Apex Envirotech ADJ13603159 – ADJ16641427 (April 2023).
For injuries occurring on or after January 1, 2013, Labor Code section 4658.7 controls whether defendant is liable to provide a supplemental job displacement voucher (SJDV).
In Dennis v. State of California (April 30, 2020) 85 Cal.Comp.Cases 389 [2020 Cal. Wrk. Comp. LEXIS 19] (Appeals Board en banc), the Appeals Board held: “[A]n employer’s inability to offer regular, modified, or alternative work does not release an employer from the statutory obligation to provide a SJDB voucher.” “Thus, absent a bona fide offer of regular, modified, or alternative work, regardless of an employer’s ability to make such an offer, and regardless of an employee’s ability to accept such an offer, an employee is entitled to a SJDB voucher.”
Here, defendant argues that applicant never lost time from work and thus, defendant is deemed to have provided a job offer per Rule 10133.31(c).
Rule 10133.31(c) provides that “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).”
According to the WCJ “This argument creates a hyper-technical application of the rule that does not comport with the purpose of the rule or its enabling statute. The purpose of the SJDV is to assist people who are not working, regain employment. When you read the entire Labor Code and regulatory scheme together, it is clear that Rule 10133.31(c) presumes that applicant is actually working for the employer. If applicant continues to work throughout the duration of litigation in the same position and never left that position due to the injury, the employer is deemed to have offered regular work.”
“In this case applicant was not working at all during the pendency of this litigation. The reason applicant technically lost no time from work was because he was laid off years prior to filing a latent injury claim. These facts do not excuse defendant from providing either a return-to-work offer, or a SJDV.”
“Hyper-technical arguments tend to be the antithesis of substantial justice.“
“As to applicant’s argument that Rule 10133.31(c) is invalid, the rule appears well intentioned, but it may exceed the scope of its authorizing statute. The intent of the rule is based upon a commonsense question: Why would you give someone a return to work offer if they never left work?”