Parker, Kern, Nard & Wenzel
Legal Updates


Settling SJDBs Post-2013 and Thomas v. Sports Chalet Inc.

By
David H. Parker

I get the following question a great deal:

“Can you settle a post-2013 Supplemental Job Displacement Benefit?”

The answer is “procedurally no.” Vouchers cannot be settled or commuted for cash for injuries on or after January 1, 2013 pursuant to Labor Code 4658.7(g).

I recently had an MSC regarding a 2014 injury. The matter was resolved via C&R including in its terms Supplemental Job Displacement Benefits. However as explained to the WCALJ checking the box was appropriate as was resolving “the legal issue of entitlement” that was still in dispute.

Applicant was offered by and accepted a return to work with the same employer. The “SJDB” box was checked as an “issue” being settled. The C&R included the following language next to and under the box:

“This benefit not settled for cash value or commuted for cash. Applicant stipulates and agrees there is no legal entitlement based on return to work and employer’s job offer.”

A Thomas finding limited to the SJDB only was requested. Included with the proposed C&R was the medical upon which it was based, as well as the applicable Title 8 California Code of Regulations 10133.35 form “Notice of Offer of Regular, Modified, or Alternative Work.”

The WCALJ rightfully inquired about the settlement pursuant to Labor Code 5001. In fact I appreciate that he not only inquired but was open minded about legal support for approving the document as submitted.

The WCALJ initially indicated he was not sure he could approve the settlement but was open-minded about the possibility in light of the case entitled Thomas v. Sports Chalet Inc. (1977) 42 Cal.Comp.Cases 625, decided en banc (often referred to as Thomas and parties requesting Thomas findings).

There was a detailed discussion about legal as well as factual support for approval. The WCALJ reviewed Title 8 California Code of Regulations 10133.31(b), then engaged in a discussion about analogy to the Thomas case. He concluded the settlement could be approved and issued a limited Thomas finding noting “This Finding Applies to SJDB only.”

You may wish to keep this in mind as you run into post-2013 settlements. The judge and I discussed this being a “case of first impression” but in the end he agreed with resolution of the issue via C&R under these factual circumstances. I think it helped greatly that applicant and the applicant attorney; both agreed on all the facts including the employer’s offer and the examiner’s complete compliance with all applicable regulatory notice issues documented as part of the resolution.