THE SJDB DILEMMA RESOLVED VOCATIONAL REHABILITATION:
Is an applicant with two or more dates of injuries entitled to two or more vouchers, or just one voucher?
For years, Workers' Compensation has attempted to equitably resolve issues regarding the re-training of applicants, who are Qualified Injured Workers, as their work restrictions are unable to be accommodated by their employers. Below is a brief history of attempts to accommodate such workers with the means to retrain and allow such applicants to re-enter the open labor market, as well as a recent Panel Decision which specifically addresses how many SJDB Vouchers an applicant is entitled to.
In prehistoric times, prior to SB899 and SB863, there was no Supplemental Job Displacement Benefits Voucher. There was Vocational Rehabilitation. The applicant was entitled to receive training at a cap of $16,000, with up to $4,500 used for counselling, job analysis and placement costs. The applicant was also entitled to VRTD (Vocational Rehabilitation Temporary Disability) or VRMA (Vocational Rehabilitation Maintenance Allowance) while going through Vocational Rehabilitation training.
In 2003, Labor Code section 4646(b) was included in the Labor Code, to allow a buy-out of Vocational Rehabilitation for an amount to not exceed $10,000.
In 2004, SB899 brought sweeping changes to Workers' Compensation. One of such changes was the eventual elimination of Vocation Rehabilitation, replaced with the Supplemental Job Displacement Benefits Voucher. Labor Code section 4658.5 provided for SJDB Vouchers, for dates of injuries 01/01/2004 and thereafter, for a range of amounts of $4,000 - $10,000, depending on the Permanent Disability level.
In 2013, the provisions of SB863 were placed in the Labor Code. Regarding the SJDB Voucher, Labor Code section 4658.7 was inserted into the Labor Code, for dates of injury on 01/01/2013 and thereafter.
The amended code provides for vouchers in the amount of up to $6,000, regardless of Permanent Disability level.
In the pre-historic days, the Vocational Rehabilitation cap of $16,000 was presumed to apply to all dates of injuries. The reasoning being, the applicant was only entitled to one area of re-training, in order to re-enter the job market with particular impairment.
Once the Vocational Rehabilitation era ended, and the Voucher Era began, this gave rise to a new issue: Whether or not an applicant with two or more dates of injuries should be entitled to two or more vouchers, or just one voucher.
Between dates of injuries of 2004 and 2013, there were four scenarios:
1. Based upon the Permanent Disability assigned to each date of injury, a corresponding voucher amount to such disability, with a cap of $10,000.
For instance, if the applicant's Permanent Disability was 40%, and 10% was apportioned to one DOI, with 30% apportioned to another DOI, the applicant would be entitled to two vouchers of $4,000 and $8,000, respectively. With a cap of $10,000, only a $10,000 voucher would be issued.
2. Based upon the Permanent Disability assigned to each date of injury, a corresponding voucher amount to such disability.
For instance, if the applicant's Permanent Disability was 40%, and 10% was apportioned to one DOI, with 30% apportioned to another DOI, the applicant would be entitled to two vouchers of $4,000 and $8,000, respectively. Without the $10,000 cap, the voucher would equate to $12,000.
This was the most favorable option to the applicant.
3. The applicant would only be entitled to a voucher for the total amount of PD.
With the same scenario above, 40% PD would equate to a corresponding voucher figure of $8,000.
4. The applicant would only be entitled to one voucher, for the highest corresponding PD figure only.
Different scenario, if one DOI was 15% PD ($6,000 voucher), with the other DOI apportioned to 35% PD ($8,000 voucher), the applicant would only be entitled to the higher PD figure for the voucher, $8,000.
This was the most favorable option to the Defense.
Usually, the parties would compromise, agreeing to use the total PD value to denote the corresponding voucher amount.
Under SB863, regarding dates of injury of 01/01/2013 and thereafter, all vouchers are $6,000, regardless of PD level. In regards to resolving the voucher dilemma for multiple dates of injuries, the WCAB, in a Panel decision, under Labor Code section 4658.5, as well as CCR section 10133.56, determined each DOI would give rise to a separate voucher.
In Silva vs. LSG Sky Chiefs and Liberty Mutual Insurance Company, 2015 Cal. Wrk. Comp. P.D. LEXIS, the Court determined there is no overlap with separate vouchers, noting CCR section 10133.56 discusses eligibility for job displacement benefit vouchers references "the injury", and provides that the employee "shall be eligible" for a benefit if requisite criteria are met.
Since a benefit is associated with and triggered by each qualifying "injury," the WCAB reasoned that each injury claim must be considered on its own merits in terms of an applicant's entitlement to a voucher. Thus, the WCAB Panel concluded that there was no basis to interpret the Labor Code section 4658.5 and CCR section 10133.56 as merging multiple injuries into one for purposes of awarding a single as opposed to multiple vouchers.
The dilemma regarding whether or not one voucher or multiple vouchers has been decided by a Panel decision, which is a persuasive, but not a binding decision on future cases. Thus, even though this issue has been addressed by a WCAB Panel, Defendants can still assert more than one voucher would be an overlap of benefits in negotiating settlement of this issue with Applicant Attorneys, as this Panel Decision is non-binding, and most Applicant Attorneys would likely not want to try this issue before a Workers' Compensation Judge, due to the low potential attorney's fees.
For further clarification, please contact the Law Offices of Parker & Irwin.