“Section 4658.7(b) provides that an injured employee with permanent partial disability is entitled to a SJDB voucher unless the employer makes an offer of regular, modified, or alternative work that is made no later than the specified period provided by section 4658.7(b)(1), and the offer is for regular work, modified work, or alternative work lasting at least 12 months. (§ 4658.7(b).)”
(Dennis v. State of California (2020) ADJ9346293, 85 Cal.Comp.Cases 389 (Appeals Bd. en banc), at p. 17.)
“(a) “Regular work” means the employee’s usual occupation or the position in which the employee was engaged at the time of injury and that offers wages and compensation equivalent to those paid to the employee at the time of injury, and located within a reasonable commuting distance of the employee’s residence at the time of injury. (b) “Modified work” means regular work modified so that the employee has the ability to perform all the functions of the job and that offers wages and compensation that are at least 85 percent of those paid to the employee at the time of injury, and located within a reasonable commuting distance of the employee’s residence at the time of injury. (c) “Alternative work” means work that the employee has the ability to perform, that offers wages and compensation that are at least 85 percent of those paid to the employee at the time of injury, and that is located within reasonable commuting distance of the employee’s residence at the time of injury. (§ 4658.1(a) – (c).)”
(Lab. Code, § 4658.1(a)–(c), as quoted in Dennis, supra, at p. 18.)
“A bona fide offer is therefore an offer made in good faith or a sincere offer.”
(Dennis, supra, fn. 19, citing Merriam-Webster and Black’s Law Dict. definitions; Leach v. Home Savings & Loan Assn. (1986) 185 Cal.App.3d 1295, 1301–1302; Merrill v. Dept. of Motor Vehicles (1969) 71 Cal.2d 907, 920–921, at p. 18.)
“we conclude that in order to qualify as an exception to the entitlement to a SJDB voucher, the offer of regular, modified, or alternative work must be bona fide.”
(Dennis, supra, at p. 18.)
“The Court of Appeal held that defendant’s offer of the invoicer job did not constitute an offer of alternative work that satisfied defendant’s vocational rehabilitation obligation because defendant did not actually offer applicant the alternative position of invoicer when it used the phrase “would have offered.””
(Dennis, supra, describing Robertson v. Workers’ Comp. Appeals Bd. (2003) 112 Cal.App.4th 893, 901 [68 Cal.Comp.Cases 1567] [underline in original omitted], at p. 19.)
“We, therefore, conclude that an offer of regular, modified, or alternative work must be bona fide.”
(Dennis, supra, at p. 19.)
“Our review of statutes and case law, however, leads us to conclude that 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. (§ 4658.7(b).)”
(Dennis, supra, at p. 19.)
““Labor Code section 3202 requires the courts to view the Workers’ Compensation Act from the standpoint of the injured worker, with the objective of securing the maximum benefits to which he or she is entitled.””
(Rubalcava v. Workers’ Comp. Appeals Bd. (1990) 220 Cal.App.3d 901, 910 [55 Cal.Comp.Cases 196], as quoted in Dennis, supra, at p. 19.)
“Thus, 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.”
(Dennis, supra, at p. 19.)
“To hold otherwise would lead to absurd results. An inmate worker released from prison would not have a bona fide offer to return to work and at the same time would not receive a SJDB voucher to develop new skills to re-enter the workforce.”
(Dennis, supra, at p. 20.)
Cross-references: § 15.1 (entitlement); § 1.4 (construction canons applied).
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