Grinberg: Released Prisoner Wasn't Really Offered Work
Wednesday, September 12, 2018 | 320 | 0 | min read
There are a lot of crazy movies and shows out there about prison. They all include the same general prison themes, which I won’t repeat here.
But if you’re watching reruns of the HBO show "Oz" and the neo-Nazi gang is planning its next move against the warden and the Italian gang that has cornered the smuggled cigarette trade, one thing you won’t hear any of the characters mention is that they hope they can still get a voucher when they get on “the outside.”
So consider, if you will, the case of Dennis v. State of California, a recent panel decision.
Applicant sustained an admitted injury while working as an inmate laborer. He was given an offer of regular work but advised that he could not accept the offer because he had been released.
One would think the sweet smell of freedom would make a person so happy he wouldn’t care about a voucher, but not so. Applicant requested dispute resolution before the administrative director, but the AD made no response. Applicant then filed a DOR 140 days after initially requesting dispute resolution before the administrative director.
The judge found that applicant’s DOR was not timely, as section 10133.54(f) holds that any request not responded to within 60 days shall be deemed denied, while subsection (g) allows a party to file a DOR within 20 days of any adverse determination by an administrative director to seek an appeal.
The panel, however, rejected the idea that the administrative director has the final say on whether applicant is entitled to a voucher. Furthermore, it found that the offer made by the prison was not a bona fide job offer because applicant was released from prison and could not return for employment.
The petition for reconsideration was granted and the defendant was ordered to provide applicant with a voucher.
Now, this is frustrating for a number of reasons. The incentive for returning an injured worker to work is escaping liability for a voucher (and advances). But there are lots of situations in which the employer could accommodate the permanent work restrictions, but the employee cannot accept the job.
Sometimes workers get deported; sometimes they get fired for cause; sometimes they move to the other side of the country; sometimes the business closes and everyone loses their jobs.
None of these scenarios warrant a voucher. In the instant case, it was not applicant’s industrial injury that precluded a return to work, but circumstances that fell equally on other inmates released from prison who lost their jobs without having sustained an industrial injury.
I respectfully submit that so long as an employer could have accommodated applicant’s industrially caused work restrictions, its liability for a voucher should be cut off.
Gregory Grinberg is workers' compensation defense attorney at the Law Office of Gregory Grinberg, based in the San Francisco Bay Area. This post is reprinted with permission from Grinberg's WCDefenseCA blog.