Often, the parties to a workers' compensation case will be motivated to resolve a case quickly and expediently, foregoing the full discovery process in favor of early settlement. While it can certainly be great to close a file, failing to adequately address the Supplemental Job Displacement Benefit in settlement can force a claim to reopen months or years after the claim settled.
The WCAB recently issued two opinions regarding the SJDB. In Singerman v. Nike, Inc. the WCAB allowed discovery regarding the SJDB to continue more than two years after the claim settled by Compromise and Release. In this case, the WCJ determined that the report of the primary treating physician was not substantial evidence to establish entitlement to the SJDB. The Applicant appealed this finding, and the WCAB agreed, remanding the matter to the WCAB for further proceedings to cure the defects in the report.
In another case, Garcia v. Riverside Magnolia Corp., the WCAB found that the primary treating physician's issuance of a "Physician's Return to Work and Voucher Report," even without a comprehensive permanent and stationary report, was sufficient to trigger liability for the SJDB. In that case, the parties settled the claim settled by Compromise and Release a month prior to the issuance of the form by the primary treating physician. Applicant argued that requiring the issuance of both a narrative report, and the required SJDB form was essentially "form over substance." The WCAB agreed and awarded the SJDB to the Applicant.
These two cases provide a glimpse into the importance of addressing the SJDB in settlement if the file is truly to be closed. Within the span of one week, the WCAB
1. Ordered the record developed when a narrative report did not justify entitlement to the SJDB.
2. Found that a narrative report was not even necessary to substantiate entitlement to the SJDB.
In Garcia, the WCAB noted un-ironically that "[t]he issue of applicant's entitlement to an SJD voucher was specifically excluded from the settlement." Anyone who has been practicing for more than a couple months after 2013 is well aware of what would result from any attempts to settle the SJDB in a compromise and release. This does not mean there is no hope in actually being able to close a file. It would be the undersigned's recommendation that all settlement documents specifically reflect whether or not the Applicant is entitled to the SJDB. Alternatively, documenting any timely offers of work or obtaining a stipulation to no permanent disability effectively preclude entitlement to the SJDB, thereby allowing these issues to be disposed of quickly without formally "settling" the SJDB on a post-2013 claim.