In a recent Board Panel decision, the Workers’ Compensation Appeals Board found that an applicant is entitled to a Supplemental Job Displacement Voucher even if the Physician’s Return-To-Work form was not used.
Per Labor Code Section 4658.7(b)(1), an employer has a duty to offer regular, modified, or alternative work or issue a Notice of Supplemental Job Displacement Benefits within 60 days of receipt of a permanent and stationary report causing permanent partial disability, on the form provided by the Administrative Director, known as the Physician’s Return-to-Work & Voucher Report. The form is a mandatory attachment to a medical report per Labor Code Section 4658.7(h)(2).
In Fndkyan v. Opus One Labs, 2019 Cal. Wrk. Comp. P.D. LEXIS 51, the applicant was declared permanent and stationary by the QME, however a Physician’s Return-to-Work & Voucher Report was not attached to the report. The defendant did not receive a separate return-to-work form at any time. The claim settled by way of Compromise and Release, and afterward the applicant requested a SJDB voucher.
At a trial on the issue, the Workers’ Compensation Judge found that the applicant was not entitled to the SJDB voucher because the form was not sent to or received by the defendant.
Applicant filed a Petition for Reconsideration arguing that the QME report substantially complied with the form by including all of the necessary information and that it was defendant’s burden to obtain the form once the report was received.
The WCAB agreed with the applicant stating that there was no question that defendant was in receipt of the permanent and stationary report. As such, Labor Code Section 4658.7(b)(1) creates a burden on the employer to request the form if needed or to comply with the substance of the report. Further, the WCAB stated that to withhold the applicant’s benefit entitlement in this instance would be putting form over substance.
It was ordered that Applicant is entitled to the SJDB voucher.
WHAT THIS MEANS FOR YOU
This Board Panel decision holds that when a permanent and stationary report is received, the defendant may not avoid providing a Supplemental Job Displacement Benefit Voucher simply because the Physician’s Return-to-Work & Voucher Report (Form [DWC-AD 10133.36) is not submitted by the reporting physician. Rather this case states that it is the defendant’s burden to either request a Physician’s Return-to-Work & Voucher Report or to utilize the information received in the medical report to provide an offer of regular, modified, or alternative work or a Notice of Supplemental Job Displacement Benefits within 60 days of receipt. The Board panel used the term “form over substance” to emphasize that a defendant may not avoid offering the SDJB voucher based on a technicality.
Amanda Rocha, Esq.
Central Coast Office
Goldman, Magdalin & Krikes, LLP