Borrelli: Disability Benefits Continued After an Injury-Related Resignation

If you leave a job because the work keeps aggravating an injury, losing the paycheck can make an already difficult situation worse. The reason you left, your medical restrictions and the employer’s response all deserve careful attention. In Borrelli v. Dollar General, No. ADJ16808800 (WCAB Jan. 11, 2024), the Workers’ Compensation Appeals Board upheld temporary disability after a retail manager resigned. His credited testimony and medical record showed work restrictions that went unaccommodated, and the employer presented no trial evidence of a modified-work offer.

The employer argued that the resignation defeated his claim. The Board instead examined why the wages were lost, the medical support for the period claimed and the absence of suitable work offered to him. It also rejected the employer’s attempt to add evidence after trial by calling the worker’s testimony a surprise.

The knee restrictions conflicted with the manager’s actual duties

Frank Borrelli had worked for Dollar General for six years and was a retail manager at its Ceres store. On September 3, 2022, he injured both knees while squatting with a case of store product and hearing a pop in both knees. The injury was accepted. Borrelli. Borrelli.

He testified that Concentra gave him restrictions on September 13 against stooping, bending, climbing, walking on uneven ground and using stairs. He faxed the note to the employer and risk manager. The adopted judge’s report states that the qualified medical evaluator had reviewed that early note and supported temporary disability throughout the claimed period. Borrelli. Borrelli.

The restrictions needed to be compared with the work itself. Borrelli described stocking cartons weighing from three to 100 pounds, handling up to 250 cases a day, and repeatedly lifting, carrying, bending, stooping and squatting. He also said he could not sit as needed. His account explained why continuing in the same manager’s position was difficult despite his efforts to notify the employer. Borrelli.

Medical reports from October 2022 described bilateral meniscus tears shown by MRI, internal knee problems, a referral to an orthopedic surgeon, and medication for pain and swelling. Those findings were part of the medical record the judge considered with the restrictions and job duties. Borrelli. Borrelli.

The judge credited his explanation for quitting

The employer argued that Borrelli had ended his own employment on January 6, 2023, and therefore was entitled to no temporary disability. The judge credited a different explanation for the separation: He continued reporting knee pain and asking for help, received no modified-duty offer, and was berated by his manager in front of coworkers after his complaints. He felt compelled to quit as the working conditions became untenable. Borrelli. Borrelli.

The employer supplied no witnesses or testimony at trial to contradict his account. The judge found his detailed testimony about the restrictions, duties and employer’s response credible. Borrelli also testified that, during his six years as a manager, he had not seen anyone placed in a modified position at the store. The adopted report found that the employer still had supplied no evidence of an alternative or modified position by trial. Borrelli.

The Board gave substantial weight to the judge’s opportunity to observe the witness and found no evidence sufficient to reject that credibility determination. That evidentiary assessment supported the result: The decision rested on the medical and work record, together with a credited explanation of an injury-related resignation. Borrelli.

The medical evidence supported benefits beginning with the period claimed

The disputed claim at trial was temporary disability beginning February 6, 2023, and continuing. On that date, Dr. Hammer examined Borrelli, documented tenderness in both knees and a limp, and imposed restrictions against kneeling, squatting and climbing ladders. The judge also relied on the evaluator’s conclusion that Borrelli remained temporarily disabled throughout the claimed period. Borrelli. Borrelli. Borrelli.

The report discussed a January 11 visit with Dr. Giang, who made no work-restriction recommendations at that appointment. The judge noted Borrelli’s frustration with the treatment process and his report that he had quit a few days earlier, which might explain the absence of work recommendations. That entry was considered alongside the earlier restrictions, the later examination and the work history. Borrelli.

The judge found entitlement from the requested February 6 start date. Keep that date distinct from the January resignation when reading the outcome. For another worker, the claimed weeks need their own medical support and wage-loss analysis. A chronology should show when restrictions applied, what work was performed or offered, when wages stopped and which reports support the period being claimed. Borrelli. Borrelli.

A resignation was not a refusal of work that had never been offered

The Board applied the temporary-disability framework it quoted from Huston v. Workers’ Compensation Appeals Board, 95 Cal.App.3d 856 (1979). A worker may be unable to perform all work or may retain the ability to perform some tasks. When the worker has a partial physical capacity, the availability and offer of suitable work matter to whether the wage loss is treated as total. The discussion in Borrelli sets out that distinction.

Applying it here, the Board explained that a resignation could not be treated as refusal of modified work when no such work had been offered. It also emphasized the connection between the injury and the decision to leave. It agreed with the judge that the employer needed to offer modified work or remain liable for temporary disability on this record. Borrelli.

For temporary partial disability, Labor Code section 4657 measures wage loss by comparing average weekly earnings with what the worker probably can earn during the disability. The nature of the injury and ability to compete in the open labor market inform that assessment. That helps explain why a medical statement that someone can perform limited tasks needs to be considered alongside the actual work and earning evidence.

The employer needed its work-offer evidence before trial

The Board rejected the employer’s proposed supplemental pleading. It cited Rule 10964, which requires Board approval for supplemental pleadings beyond the permitted answer and requires a petition explaining good cause, with the proposed pleading attached. The Board then addressed the separate requirements for newly discovered evidence. Borrelli. Borrelli. Borrelli.

Under Labor Code section 5903(d), the proposed evidence must be material and something the party could not have discovered and produced at the hearing with reasonable diligence. Rule 10974 requires a specific, detailed offer of proof identifying the witnesses, expected testimony, documents, effect on the record and decision, and why the evidence could not reasonably have been produced earlier.

The employer characterized Borrelli’s testimony as a surprise. The Board was unpersuaded: Continuing temporary disability was the principal issue identified for trial, and the employer bore the burden of showing a modified-work offer. It had not established why the evidence it later proposed could not have been produced with reasonable diligence before the mandatory settlement conference and submission of the case. Borrelli.

On January 11, 2024, the Board denied reconsideration. Its order left the judge’s decision in place, with the judge’s report adopted as part of the Board’s reasoning. The Board’s opinion and that report should therefore be read together to understand the factual basis for the outcome. Borrelli. Borrelli.

Match the work, medical and separation records before the hearing

If you left because the assigned work exceeded your restrictions, preserve the actual notes and the communications showing when the employer received them. Identify the duties that caused difficulty, what help or modified work you requested, and what response you received. Keep any work offers and your responses with those records.

Also preserve the resignation communication and your explanation at the time. Then match the medical reports and wage history to the particular weeks for which benefits are disputed. In Borrelli, the judge had a detailed account of the physical work and medical restrictions; the employer’s lack of contrary trial evidence also mattered.

Our Medina analysis examines a different record in which the medical evidence supported a limited period after a dairy closed. The Hillmon analysis considers injury-driven retirement and willingness to work. Each requires attention to the actual reason wages stopped and the medical period being claimed.

Questions about the decision

Why did the work duties matter as much as the restriction note?

The note identified the physical limits. Borrelli’s testimony described duties involving repeated bending, stocking and substantial lifting that he struggled to perform within those limits. Together, they helped explain the need for different work and the reason he left. Borrelli. Borrelli.

Did the award begin on the resignation date?

The period at issue began February 6, 2023, and continued; the resignation was in January. The judge found benefits due from the requested February date based on the record presented. The separation date and the medically supported period of wage loss should be identified separately. Borrelli. Borrelli.

Why was calling the testimony a surprise insufficient?

The Board noted that temporary disability was the principal trial issue and that the employer needed to prove a modified-work offer. The employer failed to establish the required diligence explanation for producing its evidence only after the case had been submitted. Borrelli.