The very first reported decision by Lexis in this decade was that of Dennis v. State of California. Therein, the Workers' Compensation Appeals Board held in an en banc decision that only “bona fide” offers of work barred liability for a Subsequent Job Displacement Voucher for defendants.
In the Dennis case, the defendant, a prison, offered applicant (a former inmate) his job back, which he, of course, could not accept because he had since been released. So, while the prison could accommodate the work restrictions, the release of the applicant from incarceration made the job unavailable.
The WCAB held that the “offer” of work in the Dennis case was invalid because applicant could not accept the position. Absent a fresh conviction, California wasn’t going to allow Dennis into the prison.
Well, the results of that decision have been felt in case after case. Most recently, in the panel decision of Urias v. PT Gaming (special thanks to the very talented R.C. for bringing this decision to my attention), the WCAB ruled that applicant was entitled to an SJDB voucher even though he had voluntarily resigned his employment.
In Urias, defendant argued that an SJDB voucher is not due because applicant had voluntarily resigned. How could an employer offer a return to work when there was no longer an employment relationship? In affirming the WCJ’s finding that a voucher was due, the WCAB ruled, “we conclude that applicant’s resignation has no bearing on his entitlement to a voucher,” citing Dennis.
Effectively, applicant could force the provision of a voucher by resigning. After using the voucher, he could seek re-employment once more, since AB 749 invalidates most resignation language that prevents seeking re-hire at the same employer. And despite some very old case law prohibiting the use of 132a claims for refusing to rehire, perhaps the results would be a bit different if tried again today.
Well, what other benefits are available if there is no offer of regular, modified or alternative work that complies with current work restrictions? Typically, either temporary disability benefits or permanent disability advances. Will the logic of Dennis and Urias apply to these as well? Can an applicant weaponize his tactical resignation to force TD benefits?
Let’s take a hypothetical: Applicant sustains injury and is temporarily disabled. He resigns his employment while receiving TD. His employer, relying on the resignation, hires another person to fill the vacant position. Once the treating physician releases applicant to work (but he is not yet permanent and stationary), how does the employer avoid liability for temporary disability benefits? The position is no longer available (even though the employer could accommodate the work restrictions), so there is no “bona fide” offer of regular, modified or alternative work.
Hopefully, the logic will not be held to so extend, but surely some enterprising applicant attorney will try it sooner or later.
Unfortunately, because the liability for a voucher is so low on an individual scale, and since either a new en banc decision or a Court of Appeal ruling would be necessary to limit or overrule Dennis, most employers and insurers will not have a business case for funding litigation on this issue. That may very well change if and when this reasoning is used to justify temporary disability benefits.
In my opinion, Dennis may have been the pebble dropped in the pond, but we have yet to see how far all the ripples go.
Gregory Grinberg is managing partner of Gale, Sutow & Associates’ S.F. Bay South office and a certified specialist in workers’ compensation law. This post is reprinted with permission from Grinberg’s WCDefenseCA blog.
May 19 – Sep 2, 2021
Overview: WorkCompCentral has partnered with Randy Pollak, Managing Attorney at Wintersteen & Casa …
Aug 5, 2021
Overview: WorkCompCentral and our distinguished panel will discuss racial inequity in the workers …
Sep 7-10, 2021