Supplemental Job Displacement Benefits: Two Vouchers for Separate But Overlapping Injuries Is Not Double Recovery

In Silva v LSG Sky Chiefs and Liberty Mutual Insurance Company, 2015 Cal. Wrk. Comp. P.D. LEXIS --,  the WCAB provided guidance on supplemental job displacement benefits by interpreting the Labor Code and related Administrative Rule to entitle qualifying applicants to one voucher at the applicable value for each injury sustained, and declining to merge an applicant’s multiple but separate injuries into a single incident so that the applicant’s recovery would be limited to one benefit voucher instead of two.

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The WCAB affirmed the WCJ’s award of two supplemental job displacement benefit vouchers pursuant to Labor Code § 4658.5 [LC 4658.5] (one in the amount of $6,000 and the other for $8,000) for each of the applicant’s separate injury dates. The WCAB disagreed with the defendant’s position that the applicant’s receipt of two benefit vouchers was an impermissible double recovery and determined instead that the plain language of the Labor Code supported the WCJ’s award.

The WCAB noted that Labor Code § 4658.5—and in particular 8 Cal. Code Reg. § 10133.56(b)(1) [R 10133.56] which discusses eligibility for job displacement benefit vouchers—refer to “the injury” and provide that the employee “shall be eligible” for a benefit if requisite criteria are met. Because a benefit is associated with and triggered by each qualifying “injury,” the WCAB reasoned that each injury claim must be considered on its own merits in terms of an applicant’s entitlement to a voucher. Given the statutory scheme and the express statutory and regulatory language, the WCAB concluded that there was no basis to interpret the statute and the rule as merging multiple injuries into one for purposes of awarding a single as opposed to multiple vouchers.

The WCAB also emphasized the employer’s failure to provide any relevant authority to support its “double dipping” theory, noting that both of the cases that the employer cited predated the supplemental job benefit scheme by decades. In addition, the WCAB determined that Travelers Insurance Co. v Industrial Accident Commission (Grace), 240 Cal. App. 2d 804, 31 Cal. Comp. Cases 72 [31 CCC 72], did not apply because that case involved an applicant who had sustained one injury rather than two, and that State Compensation Ins. Fund v Industrial Accident Commission (Hunter), 43 Cal. App. 2d 236, 6 Cal. Comp. Cases 52 [6 CCC 52] involved the denial of a credit for duplicate and overlapping temporary disability awards, which was in no way equivalent to the award of two benefit vouchers to the applicant in this case.

The WCAB took special note of the WCJ’s finding of two distinct injuries involving some different body parts and separate dates of injury, which resulted in a concurrent period of temporary disability. Nevertheless, in light of the clear and unambiguous language of the statute and rule, and because of the existence of two separate injuries that both met the qualifying levels for a permanent disability award, the applicant’s inability to return to work within 60 days of the termination of temporary disability in each case, and the employer’s failure to offer modified or  alternative work within the timeframe outlined by Labor Code § 4658.5, the applicant’s receipt of two benefit vouchers was proper and not a double recovery.

We’ve asked Robert G. Rassp, Esq., the Editor-in-Chief of Rassp & Herlick, California Workers’ Compensation Law, about this case. As he states, his reaction to the Silva noteworthy panel decision “can be summarized by a well known phrase:  ‘What is good for the goose is good for the gander.’ " 

According to Rassp:

“This case is simply based on the plain language of the SJDB statute, Labor Code Section 4658.5.  Since the Applicant sustained two separate injuries - a specific and a cumulative trauma injury with overlapping parts of body - he was entitled to two awards - 25% for one injury and 30% for the other.  If this case had resulted in the inability for the AME physicians to "parcel out" disability between the specific injury and the cumulative trauma injury, the Applicant's award would have approached a life pension level and certainly would have been much more money than the separate awards issued in this case.  Whether or not the Applicant gets two vouchers in this instance is a no brainer.  Since Defendant (a large company that services airplanes and that provides the gourmet meals for them) benefits from the separate awards mandated by Benson vs. WCAB (2009) 170 Cal. App.4th 1535, 74 Cal. Comp. Cases 113 [74 CCC 113], so should the Applicant by receiving two separate SJDB vouchers, one for each injury.”

Read the Silva noteworthy panel decision.

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