Judge Colleen Casey states: "There has been some confusion lately, as to when a decision is considered binding precedent and upon whom it is binding." In her brief primer on this topic, Judge Casey answers the following questions:

A. What is a "decision"?

B. Which decisions are citable and considered binding precedent?

C. Is a "decision" nullified if a Petition for Writ is filed?

D. What if Writ of Review is granted by Supreme Court?

> Read the article.

The Supplemental Job Displacement Benefit, at its core, is a very simple concept that assigns a dollar value to a case based on the permanent disability rating. Labor Code Section 4658.5 provides:

"(a) Except as provided in Section 4658.6, if the injury causes permanent partial disability and the injured employee does not return to work for the employer within 60 days of the termination of temporary disability, the injured employee shall be eligible for a supplemental job displacement benefit in the form of a nontransferable voucher for education-related retraining or skill enhancement, or both, at state-approved or accredited schools, as follows:

"(1) Up to four thousand dollars ($4,000) for permanent partial disability awards of less than 15 percent.

"(2) Up to six thousand dollars ($6,000) for permanent partial disability awards between 15 and 25 percent.

"(3) Up to eight thousand dollars ($8,000) for permanent partial disability awards between 26 and 49 percent.

"(4) Up to ten thousand dollars ($10,000) for permanent partial disability awards between 50 and 99 percent."

In Barnes v. American Best Company [free pdf], 2011 Cal. Wrk. Comp. P.D. LEXIS 202 [lexis.com subscribers], the WCJ found that applicant suffered a 15% permanent partial disability but was not entitled to the supplemental job displacement benefit. Applicant filed a Petition for Reconsideration, contending that the WCJ erred in not finding him entitled to a supplemental job displacement voucher arguing that the employer could not accommodate his work restrictions.

In the underlying case, applicant's primary treating physician, Dr. Coker, found that applicant had reached maximum medical improvement and was able to return to modified work as of September 29, 2009. He permanently restricted applicant from lifting, pushing, pulling, or grasping more than 10 pounds with his left hand and found 8% total body impairment.

Thereafter, applicant underwent an orthopedic panel QME with Dr. Witczak. In his report, Dr. Witczak diagnosed injury to applicant's left index finger and left middle finger and noted that applicant had continuing problems including pressure, numbness, cold intolerance, grip loss, and pain.

In connection with the WCJ's denial of the SJDB voucher, the commissioners noted:

"Finally, we note that for injuries occurring on or after January 1, 2004, if the injury causes permanent partial disability and the injured employee does not return to work for the employer within 60 days of the termination of temporary disability, the injured employee is eligible for a supplemental job displacement benefit in the form of a nontransferable voucher of up to $6,000.00, for permanent partial disability awards between 15% and 25%, to be used for education-related retraining or skill enhancement, or both, at state-approved or accredited schools. (Lab. Code, �4658.5(a). (d).) However, the employer is not liable for the supplemental job displacement benefit if the employer offers the applicant modified or alternative work within the statutory time frame as outlined in section 4658.6. (Lab. Code, � 4658.6.) In its Answer, defendant argues that neither Dr. Witczak nor Dr. Coker found applicant 'unable' to return to work. However, section 4658.5 does not require applicant have an 'inability' to return to work. Rather, benefits are available to an injured worker who 'does not return to work' so long as the other statutory requirements are met. At trial, applicant provided uncontroverted testimony that he did not return to work. This testimony is corroborated by Dr. Witczak and Dr. Coker. Moreover, there is no evidence in the record that defendant offered applicant modified or alternative work pursuant to section 4658.6 within the statutory time period. Thus, applicant is entitled to a $6,000.00 voucher pursuant to section 4658.5."

Thus, in determining whether or not an employee is entitled to a supplemental job displacement voucher, the distinction must be made between the applicant's incapacity to return to work verses the applicant's not returning to work. It is the latter that determines the entitlement to the benefit, not the former.  

Reminder: Practitioners should verify the subsequent history of a panel decision before citing to it.