Some time ago, in the WorkCompCentral forums, a question was raised about supplemental job displacement benefit vouchers and the employer’s obligation to provide one. This might seem like a small point: $6,000 in potential exposure, but it adds up and quickly.

Gregory Grinberg

Depending on internal claims-handling procedures, an issued but not exhausted voucher can even slow down when a file can officially be “closed.”

The forum question essentially asked if the injured worker comes back to work, is a voucher due?

What does the law say? Labor Code section 4658.7 provides that “if the injury causes permanent disability, the injured worker shall be entitled to a supplemental job displacement benefit … unless the employer provides an offer of regular, modified or alternative work, as defined in Section 4658.1.” 

The offer must be made within 60 days of receiving a permanent and stationary report, and it is for work lasting at least 12 months. As per section 4658.1, the pay offered must be at least within 85% of the pre-injury wages.

Now, before SB 863 went into effect, Labor Code section 4658(d) provided that, absent a notice of offer of regular, modified or alternative work, “in the form and manner prescribed by the administrative director,” the employee was entitled to a 15% increase in permanent disability. SB 863 changed the incentive structure for an employer to make an offer of regular, modified or alternative work, from a 15% decrease in PD to not having to make advances or providing a voucher.

But pre-SB 863, sometimes employers would bring back an injured worker but still get hit by the Workers' Compensation Appeals Board if the employer failed to use proper form. However, now employers are no longer required to use a specific form to offer work. The wording “in the form and manner prescribed by the administrative director” doesn’t apply to the “offer” anymore. 

Furthermore, and this gets to the forum question on WorkCompCentral, California Code of Regulations section 10133.31(c) provides that “if 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).” 

In other words, at least by my estimation, a voucher is not due if the injured worker returned to the same job for the same employer or lost no time from work. The voucher should also not be due if the offer was made, even without using the form, but a letter should suffice (if not a phone call). 

Now, on more than one occasion, I’ve tried to walk through settlement only to have a workers' compensation judge inquire where the old form is to avoid liability for a voucher. Fortunately, section 10133.31 has saved the day on more than one occasion when the injured worker has returned to work.

What about you? Have you had any such luck, or do you still use the old form?

Gregory Grinberg is a workers' compensation defense attorney at the Law Office of Gregory Grinberg, based in the San Francisco Bay Area. This post is reprinted with permission from Grinberg's WCDefenseCA blog.