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Grinberg: Is Section 10133.31 Invalid?

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What better way to celebrate the midweek than a WCAB panel decision on vouchers?

Gregory Grinberg

Gregory Grinberg

The decision is that of Gibson v. Apex Envirotech, in which the Workers' Compensation Board denied reconsideration of a judge's award of a Supplemental Job Displacement Benefit voucher.

Applicant had two claims and sought workers’ compensation benefits. However, according to the judge's report and recommendation on petition for reconsideration, applicant had been laid off during the pendency of his claim because he had been laid off several years prior to filing his claim. The date of injuries in these cases were from 2016, and the applications were not filed until late 2020 (roughly four years post-DOI). Per the judge, he had retired.

Apparently, defendant did not make an offer of regular, modified or alternative work. The judge cited the en banc decision in Dennis v. State of California for the proposition that facts such as retirement are irrelevant to the duty imposed by Labor Code Section 4658.7 to provide a voucher or make an offer of regular, modified or alternative work.

What about regulation 10133.31? This provides various exceptions to the duty to provide an offer or a voucher, such as when an employee lost no time from work or returned to the same job for the same employer.

The judge opined that it may very well exceed Labor Code Section 4658.7 and thus be invalid. This issue was deferred to the WCAB but was not addressed, as the board only adopted and incorporated the report. The judge opined, “It may be that where applicant sustains no lost time from work, a job offer must still be provided or else a voucher is due.” 

But the language in 10133.31(c) appears to address this concern: “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).” 

Is the regulation exceeding the Labor Code by defining terms such as “offer” or “acceptance?” Section 4658.7(h) expressly authorizes the administrative director to “adopt regulations for the administration of this section.” This should, at least, authorize the AD to define the “offer” and “acceptance” procedures, including defining a return to work or no lost time from work as an offer being made and having been accepted.

In any case, as we learned from the Dennis decision, when in doubt, make an offer of regular, modified or alternative work.

Gregory Grinberg is managing partner of the Tobin Lucks office in Burlingame and a certified specialist in workers’ compensation law. This post is reprinted with permission from Grinberg’s WCDefenseCA blog.

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