What the panel ordered
The October 15, 2020 Findings of Fact and Orders are rescinded and the matter is returned to the trial level for further development of the record consistent with the Opinion After Reconsideration.
Petition for Reconsideration filed by applicant challenging the October 15, 2020 Findings of Fact and Orders by the WCJ, which found Dr. Sisto's September 30, 2019 medical report inadmissible and denied entitlement to a Supplemental Job Displacement Benefit (SJDB) voucher.
What was disputed, and how it came out
Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.
The Board found that the applicant has the right to post-settlement discovery to establish entitlement to a SJDB voucher and that the medical report by Dr. Sisto was deficient and must be further developed to cure defects.
From the decision · page 5We disagree. Section 5000 states that "nothing in this division shall: (a) [i]mpair the right of the parties interested to compromise, subject to the provisions herein contained, any liability which is claimed to exist under this division on account of injury or death." (§ 5000, subd. (a).) Forcing applicant to wait until a maximum medically improved medical report issues before she can settle her claim, lest she forego her right to a SJDB voucher, impairs her right to compromise her claim in violation of section 5000. Furthermore, prohibiting her from engaging in discovery post-settlement to prove her entitlement to a SJDB voucher in effect abrogates her right to this benefit. Applicant is not claiming permanent disability indemnity, which has been settled, but she should be allowed to conduct discovery to prove permanent partial disability for purposes of establishing her entitlement to a SJDB voucher.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant settled permanent disability and future medical treatment issues by Compromise and Release on March 21, 2019.
Favours Applicant prevailed
This settlement did not include entitlement to a SJDB voucher, which remains subject to further development and adjudication.
From the decision · page 2the applicant, age 24, while employed on March 4, 2018, as a store associate, at Valencia, California, by Nike, Inc., sustained injury arising out of and in the course of employment to her thoracic and lumbar spine. The parties entered into a compromise and release on March 21, 2019 which included settlement of the issues of permanent disability and future medical treatment. The compromise and release included language in paragraph nine that:
Dr. Sisto's September 30, 2019 medical report was procured post-settlement and lacked required statutory statements and identification as primary treating physician.
Favours Applicant prevailed
The report was found deficient and inadmissible, necessitating further development of the record to establish entitlement to a SJDB voucher.
From the decision · page 4Section 4658.7 provides that an injured worker is entitled to a SJDB voucher if the industrial injury causes permanent partial disability and the employer fails to make an offer of regular, modified, or alternative work within a specified amount of time. (§ 4658.7.) Rule 10133.31, subdivision (b), specifies that an offer for regular, modified, or alternative work must be provided no later than 60 days after receipt of the Physician's Return to Work & Voucher Report (Form DWC-AD 10133.36). (Cal. Code of Regs. tit. 8, § 10133.31, subd. (b).) Dr. Sisto's Report
What the panel did with the medical opinions
The role the physician served, and the weight the opinion carried. Physicians are named here as the decision names them; we do not score them.
Dr. Sisto's September 30, 2019 report was found deficient because it lacked required statements under penalty of perjury, did not identify him as the primary treating physician, and did not comply with section 4628 requirements. The report was procured post-settlement and was not admitted as evidence by the WCJ.
The report was deficient and did not meet statutory requirements, leading to its inadmissibility and the need for further development of the record.
From the decision · page 4Section 4658.7 provides that an injured worker is entitled to a SJDB voucher if the industrial injury causes permanent partial disability and the employer fails to make an offer of regular, modified, or alternative work within a specified amount of time. (§ 4658.7.) Rule 10133.31, subdivision (b), specifies that an offer for regular, modified, or alternative work must be provided no later than 60 days after receipt of the Physician's Return to Work & Voucher Report (Form DWC-AD 10133.36). (Cal. Code of Regs. tit. 8, § 10133.31, subd. (b).) Dr. Sisto's Report
MRI report by Dr. Hale was also found inadmissible for the same reasons as Dr. Sisto's report.
The MRI report was inadmissible due to lack of required disclosures and statements under penalty of perjury.
From the decision · page 2Sisto's report is inadmissible because it does not contain a Labor Code1 section 139.3 disclosure and does not contain a statement under penalty of perjury that the report is true and correct to the best of the physician's knowledge in violation of section 5703, subdivision (a)(2), (3) Dr. Sisto's report is not a report by a QME, AME or PTP as required by sections 4061 and 4062.2, (4) Dr. Sisto's report is not a comprehensive report because it failed to follow the requirements of section 4628, (5) the MRI report of Maurice Hale, M.D., is inadmissible for the same reasons that Dr. Sisto's report is inadmissible, (6) applicant did not meet her burden to prove entitlement to a SJDB voucher, and (7) the petition for reconsideration was improperly served. Defendant further requests sanctions against applicant for proceeding to trial without meeting her burden of proof.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Dennis v. State of California--Department of Corrections and Rehabilitation Inmate Claims (2020) 85 Cal.Comp.Cases 389, 396 (Appeals Board en banc)
The Workers' Compensation Appeals Board has exclusive jurisdiction to adjudicate recovery of compensation including SJDB vouchers arising from industrial injuries.
The Board concluded it has jurisdiction to hear and resolve applicant's claim to a SJDB voucher despite settlement of permanent disability.
From the decision · page 3Preliminarily, we address the issue of jurisdiction. Defendant contends that we lack jurisdiction to determine the existence of permanent disability because the parties settled permanent disability by Compromise and Release. In Dennis v. State of California--Department of Corrections and Rehabilitation Inmate Claims (2020) 85 Cal.Comp.Cases 389, 396 (Appeals Board en banc), we held that the Workers' Compensation Appeals Board has exclusive jurisdiction to adjudicate the recovery of compensation, including SJDB vouchers, that arise out of industrial injuries. The issue here is applicant's entitlement to a SJDB voucher, not entitlement to an award of permanent disability indemnity. While entitlement to a SJDB voucher requires a determination of permanent partial disability, this determination is for purposes of eligibility to a SJDB voucher. Furthermore, settlement does not divest our jurisdiction to hear any issues that may arise from it. We, therefore, conclude that we have jurisdiction here to hear and resolve applicant's claim to a SJDB voucher. Service of Petition
Labor Code section 4658.7
Section 4658.7 entitles injured workers to a SJDB voucher if industrial injury causes permanent partial disability and employer fails to offer suitable work within specified time.
The Board applied this statute to determine eligibility for SJDB voucher.
From the decision · page 4Section 4658.7 provides that an injured worker is entitled to a SJDB voucher if the industrial injury causes permanent partial disability and the employer fails to make an offer of regular, modified, or alternative work within a specified amount of time. (§ 4658.7.) Rule 10133.31, subdivision (b), specifies that an offer for regular, modified, or alternative work must be provided no later than 60 days after receipt of the Physician's Return to Work & Voucher Report (Form DWC-AD 10133.36). (Cal. Code of Regs. tit. 8, § 10133.31, subd. (b).) Dr. Sisto's Report
California Code of Regulations, title 8, section 10133.31
Rule 10133.31(b) requires employer to offer regular, modified, or alternative work within 60 days after receipt of Physician's Return to Work & Voucher Report form to trigger SJDB voucher timeline.
The Board noted the necessity of the form to trigger employer's obligation and SJDB voucher timeline.
From the decision · page 6We note that the record does not contain a Physician's Return to Work & Voucher Report form and we remind the parties that this form is necessary to trigger the employer's deadline to offer regular, modified, or alternative work, which is turn will trigger the timeline for the employer to issue a SJDB voucher. (Cal. Code of Regs. tit. 8, § 10133.31, subds. (b) and (d).) Sanctions
What proof carried it
The evidence the panel weighed, by kind.
Applicant mailed petition to wrong address but defendant received it via email later with no prejudice.
From the decision · page 4Here, we note that the error was defendant's address. Applicant included a proof of service in her petition and mailed her petition to defendant, albeit to the wrong address. While we acknowledge that the error may amount to a finding of no service, we conclude that there was no prejudice here. Defendant received the petition via email three days later and was able to timely file an answer to the petition. SJDB Voucher Eligibility Requirements
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