Legal Question in Workers Comp in California

I live in California. I was injured on the job May 2013. I was placed with a permanent and stationary disability in my left knee. I was informed by work that I could no longer do my job with my disability. So I went for reasonable accommodation. All other positions I tried for under my original job title were denied because of my limitations. I was given a medical demotion in order to return to work. I came across a workers� comp pamphlet that stated under

Alternate Work: This work is different from your job and meets the doctor�s work restrictions. It must pay at least 80 percent of the wages and benefits that you were paid at the time of injury.

I have been back to work since January 2015 I have been working in the demoted alternate position since then. My pay was based on that positions tier not that of my former position. So I�m trying to clarify if I am entitled to the 80% of pay. A response from my HR Dept was this:

Hello Robert, thank you for bringing this to my attention and allowing me an opportunity to review and respond. If I may draw your attention to the Memorandum you attached from Mike Vautrin, H&SO;, to Debi Moore, Personnel Officer; it states the following in pertinent parts, "Should DSH-Napa be able to provide this employee with modified or alternative job placement within 30 days of the termination of TD... paying at least 85% of the salary at the date of injury...DSH-Napa would not be liable for the SJDB."

Because you were placed in a position that did not meet the 85% threshold, you maintained your eligibility for the Supplemental Job Displacement Benefit (SJDB). I contacted the Health & Safety Office to inquire whether this benefit was extended to you and was told that it was issued to you as a voucher to be presented to an accredited school for retraining or skill enhancement.

It is assumed that employees will use these vouchers to obtain the training/skills necessary to meet the minimum qualifications for vacant positions within the target salary range. However, after the initial accommodation/alternate placement, it is up to you to identify the vacancies, and apply for positions that interest you and for which you qualify.

Feel free to contact me if you have additional questions.

I�m just trying to get this straightened out and determine if I should be making more by roughly $550 more a month than I am now. This is huge difference that I can�t ignore. Thank you for your time.


Asked on 2/14/17, 11:48 am

1 Answer from Attorneys
Nancy Wallace Nancy Wallace Atty at Law

It depends upon HOW you came to accept this current position.

It sounds like you received written notice the company separated you, it could not accommodate the permanent work restrictions... you were given a notice you could get the Supplemental Job Displacement Voucher. This is what the note from the employer claims happened.

Maybe that's wrong. Maybe you received and signed an Offer of Modified Work. If so, then it should show the pre-injury salary and the new modified work salary and the new one should be 85% of the pre-injury number. This is a specific Workers Comp document the Workers Comp judge would require to be signed by all parties.

I don't know what a 'medical demotion' is. It may be that you were terminated, you had to re-apply and were re-hired starting as a brand new hire in the new position.

But if you are trying to say you were presented with the Division of Workers Compensation Form 10133.35 https://www.dir.ca.gov/dwc/forms/SJDB/10133.35.pdf Offer of Regular, Modified or Alternative Work and you signed it and the employer signed it and you started on the specific start date on this permanently modified position, then you need to file a Petition for benefits under Calif. Labor Code 132a for discrimination and for an order of payment of back wages...and since you won't be able to do this, you need a lawyer who can (which means a Certified Specialist... use the www.caaa.org website, the California Applicant's Attorney's Association).

Read more
Answered on 2/16/17, 12:26 pm


Related Questions & Answers

More Workers' Compensation Law questions and answers in California