California: Supplemental Job Displacement Voucher Entitlement: No Form Over Substance

In Fndkyan v. Opus One Labs, 2019 Cal. Wrk. Comp. P.D. LEXIS --, the WCAB, reversing the WCJ, held that applicant was entitled to supplemental job displacement voucher (SJDV) benefits and, contrary to the WCJ’s finding, was not precluded from receiving SJDV based on the fact that the Physician’s Return-to-Work (Physician’s RTW) form was not sent to or received by defendant, when it was undisputed that defendant received the qualified medical evaluator’s report, which informed defendant that applicant’s condition was permanent and stationary following his cumulative industrial orthopedic injuries to multiple body parts and that applicant was industrially permanently disabled, and also informed of applicant’s work capacities and restrictions as a result of his industrial injuries. The WCAB concluded that, in this instance, defendant had the burden to obtain a Physician’s RTW because defendant was apprised of applicant’s permanent disability status and work preclusions in the qualified medical evaluator’s report, and that to conclude otherwise would impermissibly place form over substance.

Practice Point: Counsel is advised to read the panel decision in Fndkyan as it emphasizes the important obligation placed upon claims administrators to provide qualified injured workers benefits they are entitled to receive under California workers’ compensation, a benefit delivery system, without placing form over substance.

Here, the PQME found the applicant P&S with ratable permanent disability and need for prophylactic work restrictions. The defendant upon receipt of the PQME report, was placed on notice of the industrial PD and work restrictions, but apparently did not provide the PQME with the required Physician’s Return-to-Work & Voucher Report (Form DWC-AD 10133.36), a form designed to provide defendant with notice the injured worker has become P&S, with industrially-caused PD, and of applicant’s work restrictions. (Labor Code § 4658.7(b)(1), (h)(2); Cal. Code of Regs., tit. 8, § 10133.31(b).)

While acknowledging the form is described as a “mandatory attachment” to a medical report and serves the function of placing the employer on notice of the employee’s work capacities and restrictions relevant to regular, modified or alternate work, the panel observed in this instance, the defendant had the burden to obtain the form upon learning of the applicant’s PD status and work preclusions upon receipt of the PQME report. Because defendant had the report which provided information otherwise communicated by the RTW form, it was error for the WCJ to have denied the applicant the SJDV benefit on the basis there was no evidence that a Physician’s Return-to-Work & Voucher Report Form had been sent to or received by defendant. Citing County of Kern v. T.C.E.F., Inc. (2016) 246 Cal.App.4th 301, 321, the board panel noted, “To conclude otherwise would place form over substance.” The applicant was awarded the SJDV.

Claims administrators must also be mindful of their obligations under Title 8, Cal. Code of Regs. § 10109 to conduct good faith investigation of claims and to provide benefits where due. See, e.g., Czech v. Bank of America, 2016 Cal. Wrk. Comp. P.D. LEXIS 257; 81 Cal. Comp. Cases 856, wherein a board panel affirmed a WCJ’s finding that a defendant failed to timely complete utilization review where defendant asserted the time to conduct UR had not been triggered because the RFA had only been served upon defense counsel rather than the claims administrator. The board reasoned defendants have a continuing affirmative duty under Rule 10109 to conduct good faith investigation of a claim and to provide benefits where due such that the defendant having had knowledge a treatment request was made should have taken steps to obtain and review the missing RFA rather than object to treatment on the basis that an RFA had not been received.

PDF for the panel decision: see end of this post.

Practitioners should check the subsequent history of any cases before citing to them.

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