Share this article:
Sometimes, parties settle a claim by way of compromise and release (C&R) before the injured worker is released from care. There are various reasons why they might agree do this. Employees might want to avoid the delays and risks in the litigation process. Employers might want to avoid discovery and litigation costs, and to close the file.
Although most issues can be resolved as part of a C&R, Labor Code § 4658.7(g) precludes settlement or commutation of a claim for the supplemental job displacement benefit (SJDB) voucher for injuries occurring on or after Jan. 1, 2013. But an employee is not automatically entitled to the voucher. Pursuant to § 4658.7(b), an employee is entitled to the voucher only if the injury causes permanent partial disability and the employer does not make a timely offer of regular, modified or alternative work.
Of course, after an employee has settled a claim by way of C&R, physicians do not commonly issue permanent and stationary reports. C&Rs generally settle the employee's entitlement to all benefits, and physicians are reluctant to issue lengthy reports knowing that such work will not be paid by the employer. Nevertheless, in a series of recent cases, the WCAB has been clear that a C&R does not preclude employees from receiving the voucher.
In Urias v. PT Gaming 2021 Cal. Wrk. Comp. P.D. LEXIS 76, the WCAB held that pursuant to Dennis v. State of California––Department of Corrections and Rehabilitation Inmate Claims (2020) 85 CCC 389 (appeals board ''en banc''), an applicant’s resignation from his employment as part of a C&R with the defendant did not preclude entitlement to the supplemental job displacement benefit voucher. The WCAB also found that liability for the voucher was not settled as part of the C&R because the box on that document for settling it was not checked, and such a settlement would be barred by § 4658.7(g).
In Singerman v. Nike, Inc. 2021 Cal. Wrk. Comp. P.D. LEXIS 81, the WCAB rescinded a WCJ's decision that an applicant was not entitled to the SJDB voucher based on evidence obtained after a settlement. It held that a C&R did not take away its jurisdiction to hear and resolve the applicant's claim to the voucher. Although the WCAB concluded that the medical evidence in that case did not support entitlement to the voucher, it remanded for further development, with a reminder to the parties that a return-to-work & voucher report was the trigger for the employer to issue an SJDB voucher.
Moreover, in Garcia v. Riverside Magnolia Corp. dba Extended Care Hospital of Westminster 2021 Cal. Wrk. Comp. P.D. LEXIS 69, the WCAB held that an applicant was entitled to a supplemental job displacement benefit voucher based on a physician's return-to-work & voucher report that was not accompanied by a permanent and stationary (P&S) report. Although the report was obtained after the parties settled the claim by way of C&R, the WCAB found that it provided the parties with the necessary information to determine whether the applicant was entitled to the voucher. It concluded that under the circumstances, determining that a P&S report was mandatory would deny the applicant the voucher to which she was otherwise entitled, would place form over substance and would be inconsistent with the intent of the Legislature.
Accordingly, not only has the WCAB made clear that injured employees may conduct additional discovery and obtain medical evidence regarding eligibility for the voucher after settlement, it has made it simple for them to do so. They are not required to obtain lengthy and costly P&S reports to support eligibility for the SJDB voucher –– they need only to obtain a return-to-work & voucher report (Form DWC AD 10133.36), a one-page form documenting an employee's various work restrictions. Given that eligibility for the SJDB voucher also entitles injured workers to a $5,000 return-to-work supplement from the state, it's likely that more employees who choose early settlement will also seek evidence after the settlement to support their entitlement to the voucher.