Does hernia surgery make employee eligible for supplemental job displacement benefits?

Employee returned to work after medical procedure, had difficulty performing his job, resigned

Does hernia surgery make employee eligible for supplemental job displacement benefits?

A physician’s opinion on an employee’s whole person impairment (WPI) should constitute substantial evidence upon which the Workers’ Compensation Appeals Board of California can rely and should explain the reasoning behind the assessment, a recent ruling said.

In September 2015, the applicant in the case of Schmidt vs. Fremont Swim School, Security National Insurance Company, administered by AmTrust N.A. sustained an industrial injury while working for the defendant, the Fremont Swim School. He had industrially-related hernia surgery in October 2015. He returned to work, experienced difficulty performing his job, and voluntarily resigned in June 2018.

Dr. Davidson, the qualified medical evaluator, issued a December 2019 report explaining that a strict application of the American Medical Association (AMA) Guides resulted in the applicant having a 0% WPI because he no longer had a palpable defect or hernia due to surgical treatment.

However, Dr. Davidson said that a strict application of the AMA Guides was not an accurate depiction of the applicant’s permanent impairment since he did have surgical scarring and persistent pain. The doctor identified 10% WPI.

Dr. Davidson did not give a physician’s return-to-work form. The swim school did not provide an offer of alternative or modified work.  The parties settled the case via compromise and release in September 2020. But they disputed over whether the applicant was eligible for a supplemental job displacement benefit (SJDB) voucher.

The defendant argued that the applicant was ineligible for the benefits because there was no substantial evidence that he sustained any permanent disability. The applicant contended that he was entitled to the voucher because the employer did not offer him any alternative or modified work.

In August 2021, the workers’ compensation administrative law judge determined that the applicant was not entitled to a SJDB voucher since there was no substantial medical evidence of permanent partial disability. The applicant asked for a reconsideration.

A panel of the Workers’ Compensation Appeals Board of California rescinded the workers’ compensation judge’s factual findings and returned the matter to the trial level for further proceedings.

According to the panel, the applicant was entitled to a SJDB voucher upon showing that he sustained permanent partial disability and that the employer failed to show that it offered regular, modified, or alternative work, regardless of whether the evidentiary record included a physician’s return-to-work and voucher report.

The applicant’s resignation had no bearing on his entitlement to a voucher, the panel added.

Dr. Davidson’s reasoning and conclusions were substantial medical evidence, the panel ruled. The panel found that the doctor:

  • explained why he deviated from the permanent disability schedule
  • stayed within the framework of the AMA Guides
  • used his judgment, experience, training, and skill to determine a more accurate WPI for the applicant

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