Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 4658.7(b)
An injured worker is entitled to a Supplemental Job Displacement Benefit voucher if the industrial injury causes permanent partial disability and the employer fails to make an offer of regular, modified, or alternative work within the required time.
The applicant sustained 20% permanent disability and defendant did not prove an offer of work, so applicant is entitled to the voucher.
From the decision · page 4Turning to the issues raised in the Petition, we disagree that Rule 10133.31(c) applies in
this matter and that its elements were met, and conclude that applicant is entitled to a SJDB
voucher. Section 4658.7(b) provides that 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. (§ 4658.7(b).) Section 4658.7(b)(1) and (2) and Rule
10133.31(b) provide that the offer of regular, modified, or alternative work must be made no later
than 60 days after receipt of the Physician's Return to Work & Voucher Report (Form DWC-AD
10133.36) that last for at least 12 months. (§ 4658.7(b)(1) and (b)(2); Cal. Code of Regs. tit. 8, § 10133.31(b).) However, an "employee who has lost no time from work or has returned to the same
job for the same employer, is deemed to have been offered and accepted regular work in
accordance with the criteria set forth in Labor Code section 4658.7(b)." (Cal. Code of Regs., tit.
8, § 10133.31(c).)
Cal. Code of Regs. tit. 8, section 10133.31(c)
Rule 10133.31(c) deems an employer to have offered regular work if the employee lost no time from work or returned to the same job for the same employer.
Rule 10133.31(c) does not apply because applicant lost time from work and did not return to the same job.
From the decision · page 4Turning to the issues raised in the Petition, we disagree that Rule 10133.31(c) applies in
this matter and that its elements were met, and conclude that applicant is entitled to a SJDB
voucher. Section 4658.7(b) provides that 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. (§ 4658.7(b).) Section 4658.7(b)(1) and (2) and Rule
10133.31(b) provide that the offer of regular, modified, or alternative work must be made no later
than 60 days after receipt of the Physician's Return to Work & Voucher Report (Form DWC-AD
10133.36) that last for at least 12 months. (§ 4658.7(b)(1) and (b)(2); Cal. Code of Regs. tit. 8, § 10133.31(b).) However, an "employee who has lost no time from work or has returned to the same
job for the same employer, is deemed to have been offered and accepted regular work in
accordance with the criteria set forth in Labor Code section 4658.7(b)." (Cal. Code of Regs., tit.
8, § 10133.31(c).)
Labor Code section 5705
The burden of proof is on the employer to show it offered regular, modified, or alternative work.
Defendant did not meet its burden to prove an offer of work.
From the decision · page 4The Findings of Fact found that Rule 10133.31(c) applied and were met and therefore
applicant was not entitled to a SJDB voucher. (Findings of Fact dated May 13, 2021, Findings
nos. 6, 7, and 8; Opinion on Decision, pp. 1-2.) We disagree. It is undisputed here that applicant
sustained 20% permanent disability from her October 25, 2013 industrial injury and is thus entitled
to a SJDB voucher under section 4658.7(b), unless her employer made an offer of regular,
modified, or alternative work. (§ 4658.7(b); Findings, Orders and Awards dated December 1,
2017.) The employer holds the burden of proof to show that it offered applicant regular, modified,
or alternative work. (§ 5705.) We conclude that defendant did not meet its burden of proof here.