Recent WCAB panel decisions (non binding), have shed some light on entitlement to SJDB vouchers. 

In Schmidt v. Fremont Swim School, 2022 Cal. Wrk. Comp. P.D. LEXIS, applicant was returned to modified work duties however applicant voluntarily resigned almost three years after returning to work. Defendant argued the voucher was not owed as applicant had returned to work in a modified capacity and resigned.

The WCAB found applicant was entitled to a SJDB voucher. The WCAB noted that applicant had permanent partial disability and the employer failed to show that they offered regular, modified, or alternative work. They found that applicant’s resignation had no bearing on his entitlement to a voucher pursuant to Dennis v. State of California (April 30, 2020) 85 Cal.Comp.Cases 389, 406. In Dennis, the WCAB concluded that absent a bona fide offer of regular, modified, or alternative work, regardless of an employer’s ability to make such an offer, and regardless of an employee’s ability to accept such an offer, an employee is entitled to a SJDB voucher.

The message from these cases is that the burden of proof remains with defendant to show that it offered regular, modified or alternative work, irrespective of whether defendant received a Physician’s Return to Work & Voucher Report. Furthermore, the offer of regular, modified or alternative work must be bona fide. An employer’s inability to offer regular, modified, or alternative work does not release an employer from the statutory obligation to provide a SJDB voucher. An employer’s inability to offer regular, modified, or alternative work does not release an employer from the statutory obligation to provide an SJDB voucher and applicant’s resignation has no bearing on their potential entitlement to an SJDB voucher.