ANTHONY DENNIS, Applicant,
v.
STATE OF CALIFORNIA – DEPARTMENT OF CORRECTIONS AND REHABILITATION INMATE CLAIMS; STATE COMPENSATION INSURANCE FUND, Defendants.
No. ADJ9346293
California Workers Compensation Decisions
Workers’ Compensation Appeals Board State of California
April 13, 2020
(Sacramento
District Office)
OPINION
AND DECISION AFTER RECONSIDERATION (EN BANC)
KATHERINE A. ZALEWSKI, Chair.
We
granted reconsideration on October 26, 2018 and on January
13, 2020, we issued a notice of intention (NIT) to affirm our
July 31, 2018 decision and to allow the Administrative
Director an opportunity to provide briefing on the issue of
the validity and authority of Administrative Director (AD)
Rule 10133.54
1 (Cal. Code Regs., tit. 8, § 10133.54)
in light of the exclusive jurisdiction of the Workers’
Compensation Appeals Board (WCAB)
2 to adjudicate compensation
claims under Labor Code
3 section 5300. Having considered the
Administrative Director’s response, we now issue our
Opinion And Decision After Reconsideration (En
Banc).
4
To
secure uniformity of decision in the future, the Chair of the
Appeals Board, upon a unanimous vote of its members, assigned
this case to the Appeals Board as a whole for an en banc
decision.
5
Based
upon our review of the record, SCIF’s Petition,
applicant’s Answer, the Administrative Director’s
response, and the relevant statutes, rules, and case law, we
hold that:
(1) A.D. Rule 10133.54 is invalid because it exceeds the
statutory authority granted to the Administrative Director
under sections 4658.5, subdivision (c), and 4658.7,
subdivision (h)6, and restricts the exclusive adjudicatory
power of the WCAB to adjudicate compensation claims,
including disputes over supplemental job displacement
benefits; and
(2) an employer must show that it made a bona fide offer of
regular, modified, or alternative work in order to avoid
liability for a supplemental job displacement benefit
voucher.
As our
decision after reconsideration (en banc), we affirm our July
31, 2018 decision.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Applicant
sustained industrial injury on October 29, 2013 to his right
wrist while working as an inmate laborer for the California
Department of Corrections and Rehabilitation. The parties
resolved applicant’s workers’ compensation claim
via Stipulations with Request for Award and an Award was
issued on September 11, 2017. This settlement did not include
applicant’s claim for a SJDB voucher.
[7](Stipulations with
Request for Award dated September 7, 2017, p. 7.)
Prior
to the settlement, on May 15, 2017, defendant sent applicant
a Notice of Offer of Regular, Modified, or Alternative Work.
(Joint Exhibit 1, Notice of Offer of Regular, Modified, or
Alternative Work.) The letter accompanying the Notice states,
“We are advising you that your employer has either your
regular work or a modified or an alternative job available
for you.” (Id. at p. 2.) The Notice, however,
also states, “SUBJECT TO APPLICANT VERIFYING THEY ARE
LAWFULLY QUALIFIED TO ACCEPT EMPLOYMENT AS AN INMATE LABORER,
YOU HAVE VOLUNTARILY TERMINATED YOUR EMPLOYMENT DUE TO YOUR
RELEASE FROM PRISON AND ARE NO LONGER AVAILABLE FOR
EMPLOYMENT [sic].” (Id. at p. 4,
capitalization in original.)
On
September 19, 2017, applicant filed a Request for Dispute
Resolution Before Administrative Director, requesting that
the Administrative Director resolve the issue of
applicant’s entitlement to a SJDB voucher and the issue
of applicant’s objection to defendant’s offer of
regular, modified, or alternative work. (Joint Exhibit 2,
Request for Dispute Resolution.) The Administrative Director
did not issue a determination, and pursuant to A.D. Rule
10133.54(f),
8 the request was therefore deemed denied on
December 8, 2017. The Administrative Director, however,
contends that applicant’s Request for Dispute
Resolution Before Administrative Director was not properly
filed and that therefore the denial by operation of law under
A.D. Rule 10133.54(f) never came into effect. (AD’s
Response, p. 9:12-11:21.)
On
February 6, 2018, applicant filed a Declaration of Readiness
to Proceed with an accompanying petition at the Sacramento
District Office requesting resolution of his entitlement to a
SJDB voucher. (Declaration of Readiness to Proceed; Petition
for Grant of Supplemental Job Displacement Benefit.)
The
parties proceeded to trial on March 27, 2018 on the issues of
whether applicant’s appeal of the presumed denial by
the Administrative Director of the request for dispute
resolution was timely and whether applicant is entitled to a
SJDB voucher. (Minutes of Hearing/Summary of Evidence
(MOH/SOE), p. 2:7-8.)
On May
9, 2018, the WCJ issued a Findings and Award finding that
applicant’s appeal of the Administrative
Director’s decision was untimely, and that applicant
was not entitled to a SJDB voucher.
Applicant
filed a Petition for Reconsideration on May 15, 2018,
contending that he is entitled to a SJDB voucher. We granted
reconsideration on July 16, 2018 to allow sufficient
opportunity to further study the factual and legal issues
raised in the Petition.
In our
July 31, 2018 Opinion, we rescinded the May 9, 2018 Findings
and Award, and substituted a new Finding that applicant is
entitled to a SJDB voucher. In our Opinion, we concluded that
the WCAB maintains exclusive jurisdiction to adjudicate SJDB
disputes irrespective of A.D. Rule 10133.54, which provides
that the parties may request a dispute resolution with the
Administrative Director before appealing the Administrative
Director’s decision to the WCAB. Accordingly, we found
in our July 31, 2018 Opinion that applicant is entitled to a
SJDB voucher even though he did not file an appeal of the
Administrative Director’s presumed denial within the
20-day time period set forth in A.D. Rule 10133.54(g).
Defendant,
newly aggrieved, now seeks reconsideration of our July 31,
2018 decision, which we granted on October 26, 2018.
Defendant
contends that: (1) the Administrative Director has the
authority to set the timeline for filing an appeal; (2) A.D.
Rule 10133.54 does not abrogate the WCAB’s ability to
adjudicate SJDB voucher claims; (3) if there is a statutory
conflict, the specific statute granting the Administrative
Director power to administer the SJDB program is paramount to
the general statute granting the WCAB adjudicatory power over
compensation disputes; (4) it complied with its obligation
under the plain meaning of the Labor Code; (5) an employer is
not required to make a showing of a bona fide offer when
issuing a return to work offer; (6) requiring defendant to
provide a SJDB voucher in this instance is a violation of the
equal protection clause; (7) it was not the intent of the
Legislature to afford inmate employees greater access to SJDB
vouchers than non-inmate employees; (8) the Appeals
Board’s decision could invalidate all prior decisions
of the Administrative Director regarding SJDB vouchers
resulting in a greater number of cases to be adjudicated by
the WCAB; and (9) the Appeals Board should invite the
Administrative Director to file a brief before making a final
decision in this case.
We
received an Answer from applicant. Applicant contends that:
(1) defendant owes applicant a SJDB voucher because it did
not provide him with a bona fide offer of regular or modified
work within 60 days of Agreed Medical Evaluator (AME) Thomas
S. Pattison, M.D.,’s report finding that applicant had
reached maximum medical improvement; (2) defendant is not
disproportionately burdened by providing a SJDB voucher to
applicant because the Labor Code otherwise disproportionately
benefits defendant by reducing benefits to inmate laborers;
and (3) denying applicant a SJDB voucher on the ground of
timeliness is inappropriate because A.D. Rule 10133.54(g),
which governs appeals of the Administrative Director’s
decision, is permissive, not mandatory.
We
granted reconsideration on October 26, 2018 and on January
13, 2020, we issued an en banc NIT to affirm our July 31,
2018 decision and to allow the Administrative Director an
opportunity to provide briefing on the issue of the validity
and authority of A.D. Rule 10133.54.
We
received a response from the Administrative Director. The
Administrative Director contends that: (1) it has the
adjudicatory authority to resolve disputes over the SJDB and
that its dispute resolution process is valid; (2) its dispute
resolution process is voluntary and does not usurp the
jurisdiction of the WCAB; and (3) the WCAB cannot invalidate
A.D. Rule...
