Recent Cases Affecting Return to Work Issues

Saturday, May 10, 2003 | 0

In our December 2002 I reported on a WCAB decision that held an employer liable for several years of retroactive VRMA when a treating physician reversed his QIW determination.

In Queen of Angels/Hollywood Presbyterian Hospital v. WCAB (Gabri), the treating physician released the employee to his usual and customary occupation and the employee, in fact, returned to his position. However, he was terminated for cause a month or so later and then asked for VR services; the employer declined based on the non-QIW determination of the treating physician.

Approximately five years later, the physician reversed his opinion after reviewing a job analysis. On that basis, the Board ordered payment of retroactive VRMA benefits to the date of the employee's request. The District Court of Appeal (2nd) annulled and remanded the Board's decision, finding that the employer denied the initial request in good faith based on the information it had at the time. The DCA found that the physician's original opinion was consistent with the employee's return to his usual and customary duties and the employer incurred no obligation to provide notice, further evaluation, or benefits until there was actual evidence of a need for services. (see Queen of Angles/Hollywood Presbyterian Hospital v. WCAB (Gabri) (2002) 67 CCC 1569).

Is an employer obligated to search for available work throughout its various locations before providing notice to an injured employee? In Patricia A. Fox v. WCAB (2003) 68 CCC 75 (writ denied), the District Court of Appeal (4th) let stand a Board decision finding an employer obligated to search for available work only within a "reasonable geographic area."

The employee argued that her employer's (Delta Airlines) failure to tell her about potential openings at other business locations did not provide her with the opportunity to make an informed choice. The Board had rejected her argument, citing the employer's obligation under L.C. section 4644(a)(6)(D) to offer work that is within a "reasonable commuting distance." The DCA agreed with the Board that the employee would have to file under L.C. section 132a* if she believed the employer acted in bad faith by not informing her about available positions at other locations.

* Under the Americans with Disabilities Act and the California Fair Employment and Housing Act, an employer generally is required to inform the disabled employee regarding the availability of alternative positions (for which the employee is qualified) at other business locations.

Contributed by vocational rehabilitation expert Allan Leno, Leno & Associates, (818) 370-8859 mailto:allanleno@leno-assoc.com.