ADJ10887310 · January 30, 2023

Applicant sustained a 3% permanent disability to the lower extremity and did not receive an offer of regular, modified, or alternative work lasting at least 12 months from the same employer, entitling him to a SJDB voucher.

From the decision · page 5The burden of proof remains with defendant to show that it offered regular, modified or alternative work. (Opus One Labs v. Workers' Comp. Appeals Bd. (Fndkyan) (2019) 84 Cal. Comp. Cases 634, 636 [2019 Cal. Wrk. Comp. LEXIS 51] (writ denied).) We conclude that defendant has not met its burden of proof to show that it offered regular, modified, or alternative work to applicant for at least 12 months. The subsequent employment cannot be added to meet the 12 months requirement because the subsequent employment was with a different employer. Accordingly, we amend the March 13, 2020 Finding and Order to find that applicant is entitled to a SJDB voucher.

Applicant sustained a 3% permanent disability to the lower extremity as found by PQME Dr. Khosrow Tabaddor.

Favours Applicant prevailed

This established the threshold for entitlement to a SJDB voucher under Labor Code section 4658.7(b).

From the decision · page 4According to Khosrow Tabaddor, M.D., panel qualified medical evaluator (PQME), applicant sustained a 2% whole person impairment to the lower extremity. (Joint Exhibit FF, Dr. Tabaddor report dated October 1, 2018.) This apparently results in a 3% permanent disability to the lower extremity. (See Joint Exhibit DD, Notice Regarding Permanent Disability Benefits.) Defendant contends that Dr. Tabaddor's report is not substantial evidence because of applicant's ankle inversion and eversion measurements. (Answer, p. 5:9-22.) Defendant notes that the discrepancy between eversion and inversion findings were noted in the Disability Evaluation Unit's consultative rating. (Ibid.)

Applicant returned to his regular job without restrictions but worked less than 12 months before being laid off and subsequently worked for a different employer doing essentially the same job.

Favours Applicant prevailed

The employer did not meet the burden to show an offer of regular work lasting at least 12 months from the same employer, entitling applicant to the SJDB voucher.

From the decision · page 5Defendant does not contend that it made an actual offer of regular, modified, or alternative work to applicant. Rather, defendant relies on Rule 10133.31(c) for its position that it should be deemed to have offered regular work. (Answer, pp. 6:7-8:12.) Rule 10133.31(c) deems an employer to have offered regular work when the employee lost no time from work or has returned to the same job for the same employer. Here, applicant lost approximately one month of work following the injury. Although applicant returned to his regular job with the same employer, without restrictions, he worked for approximately five months before he was laid off, thus failing to meet the requirement that the offer of regular work last at least 12 months. While he performed essentially the same job in his subsequent employment, it was with a different employer. Rule 10133.31(c) specifically states that an employee must return to the same job for the same employer in order for the employer to be deemed to have offered regular work.

Applicant is capable of performing his job duties without any restrictions and sustained a 2% whole person impairment to the lower extremity, resulting in a 3% permanent disability.

The panel relied on Dr. Tabaddor's report to find applicant's permanent disability and work capacity.

From the decision · page 2The applicant was injured on 05/03/17, and after treatment was released to return to work by Dr. Abdo on 06/02/17 and 6/12/17 full duties. (See Joint Exhibit II at page 3, EAMS Doc ID 72342584). He returned to work for employer Security America doing the same duties as before the date of injury. (See MOH dated 2/26/20 at page 4 lines 6-9, EAMS Doc ID 72342920). Thereafter, the applicant was evaluated by Panel Qualified Medical Examiner Dr. Khosrow Tabaddor who issued a report dated 10/01/18. The PQME Dr. Tabaddor opined that the applicant is capable of performing his job duties without any restrictions. (See Joint Exhibit FF at page 6, EAMS Doc ID 72342487). In PQME Dr. Tabaddor's 12/18/17 report he indicated that "he is currently working in his job duties within his ability. He may continue to do so without any restrictions". (See Joint Exhibit II at page 6, EAMS Doc ID 72342584). Additionally, In [sic] PQME Dr. Tabaddor's Physician's Return-To-Work & Voucher Report dated 12/22/17 he opined that the applicant can return to regular work and no restrictions noted. (See Joint Exhibit HH EAMS Doc ID 72342559.).

Labor Code section 4658.7(b); Cal. Code Regs. tit. 8, section 10133.31

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 lasting at least 12 months from the same employer.

The Board applied these standards to determine entitlement to the SJDB voucher based on the permanent disability rating and the employer's failure to meet the offer requirement.

From the decision · page 5The burden of proof remains with defendant to show that it offered regular, modified or alternative work. (Opus One Labs v. Workers' Comp. Appeals Bd. (Fndkyan) (2019) 84 Cal. Comp. Cases 634, 636 [2019 Cal. Wrk. Comp. LEXIS 51] (writ denied).) We conclude that defendant has not met its burden of proof to show that it offered regular, modified, or alternative work to applicant for at least 12 months. The subsequent employment cannot be added to meet the 12 months requirement because the subsequent employment was with a different employer. Accordingly, we amend the March 13, 2020 Finding and Order to find that applicant is entitled to a SJDB voucher.

Applicant returned to his regular job without restrictions but worked less than 12 months before being laid off and subsequently worked for a different employer doing essentially the same job.

From the decision · page 5Defendant does not contend that it made an actual offer of regular, modified, or alternative work to applicant. Rather, defendant relies on Rule 10133.31(c) for its position that it should be deemed to have offered regular work. (Answer, pp. 6:7-8:12.) Rule 10133.31(c) deems an employer to have offered regular work when the employee lost no time from work or has returned to the same job for the same employer. Here, applicant lost approximately one month of work following the injury. Although applicant returned to his regular job with the same employer, without restrictions, he worked for approximately five months before he was laid off, thus failing to meet the requirement that the offer of regular work last at least 12 months. While he performed essentially the same job in his subsequent employment, it was with a different employer. Rule 10133.31(c) specifically states that an employee must return to the same job for the same employer in order for the employer to be deemed to have offered regular work.