Silva v. Liberty Mutual Ins. Co./LSG Sky Chefs, ADJ7812017, ADJ7813152, July 15, 2015, Opinion and Decision After Reconsideration (“Silva”)

Brief Summary:

The unanimous Panel in Silva held that applicant was entitled to separate Supplemental Job Displacement Vouchers (“SJDVs”) for each of his separate injuries which caused concurrent total temporary disability periods, almost identical injured body parts, and similar dates of injury while working for the same employer.

Facts:

Voucher #1: Specific Injury, April 16, 2010

The Workers’ Compensation Administrative Law Judge (“WCJ”) found that applicant sustained a specific injury on April 16, 2010 to his left shoulder, cervical spine, and psyche, with temporary disability due for the period of April 26, 2010 through August 4, 2011, resulting in permanent disability of 25%, with a need for future medical treatment, and awarded a SJDV up to $6,000 under Labor Code § 4658.5.

Voucher #2: Cumulative Trauma Injury, April 26, 2009 through April 26, 2010

The WCJ found that applicant sustained a cumulative trauma injury from April 26, 2009 through April 26, 2010 to the same body parts as the specific injury with the additional injury to his left wrist, with temporary disability running concurrently with the specific injury period, resulting in permanent disability of 30%, with a need for future medical treatment, and awarded a voucher of up to $8,000. Both injuries occurred when applicant worked for the same employer.

Case Disposition:

Defendant contended that the WCJ incorrectly awarded two separate SJDVs, one for each of the two dates of injury, claiming it was improper double recovery. The Panel affirmed the WCJ’s Decision on all grounds, including the issuance of two separate vouchers even after consideration of “double recovery” and “unjust enrichment” arguments.

Relevant Law:

“Section 4658.5 provides that if certain conditions are not met, injured workers who sustain an industrial injury on or after January 1, 2004 and before January 1, 2013, are entitled to a supplemental job displacement benefit, in the form of a non-transferable voucher, which can be used to pay for educational retraining or skills enhancement at state approved schools. The conditions are: (1) that the injury causes permanent partial disability; (2) that the employer does not timely offer modified or alternative work; and (3) the employee does not return to work within 60 days after the termination of temporary disability. (Lab. Code §§ 4658.5(b), 4658.6, and Cal. Code Regs., tit. 8, § 10133.5.).”

The Panel’s opinion, in part:

“The language and provisions of section 4658.5 detailing an applicant’s potential entitlement to supplemental job displacement benefits are clear and unambiguous…Section 4658.5(b) and the related Administrative Director’s Rule 10133.56(b)(1), discuss eligibility and each refers to “the injury”, and provide that if the requisite criteria are met, the employee “shall be eligible” for the benefit. Since the benefit is associated with and triggered by each qualifying “injury”, each injury claim is judged on its own merits in terms of applicant’s entitlement to a voucher. Given the context of the statutory scheme and the explicit language of the statute and related rule, there is no basis or reason to interpret this section and rule as merging multiple injuries into one for purposes of awarding a single, as opposed to multiple vouchers. In this case, the WCJ found two distinct injuries with separate dates of injury, which resulted in concurrent periods of temporary disability. The second injury also involved a new body part, the left wrist. We interpret the language of section 4658.5 and related Administrative Director Rule 10133.56, to entitle qualifying applicants to a voucher at the applicable value, for each injury they sustain.”

Impact of Silva: Importance of Issuing Notice of Regular, Modified, or Alternative Work [Injuries on or after 1/1/13]; Notice of Modified or Alternative Work [Injuries occurring between 1/1/04-12/31/12]

The Silva Panel decision makes it clear that applicants may be entitled to more than one SJDV when they are found to have sustained multiple injuries.

Therefore, it is essential that employers issue the Notice of Regular, Modified, or Alternative Work [Injuries on or after 1/1/13] and/or Notice of Modified or Alternative Work [Injuries occurring between 1/1/04-12/31/12] in the manner prescribed by the Administrative Director and in accordance with the California Code of Regulations, if such offer is a viable option, to mitigate exposure for multiple vouchers, thus, creating another incentive for employers to offer regular, modified, or alternative work.

The forms prescribed by the administrative director are available online at: http://www.dir.ca.gov/dwc/forms.html