Gibson: A Layoff Before a Hearing-Loss Claim Did Not Eliminate the Retraining Voucher

Some work injuries become the subject of a claim after the job has ended. If you were already laid off, you may have missed no scheduled shifts because of the injury. That does not necessarily answer whether permanent disability entitles you to help retraining for other work.

In Gibson v. Apex Envirotech, Inc., Nos. ADJ13603159 and ADJ16641427 (WCAB Apr. 26, 2023), the employer argued that a “no time lost” regulation excused it from providing a job offer or a Supplemental Job Displacement Benefit voucher. The Board upheld the voucher award. The worker had been laid off before filing his latent hearing-loss claims, rather than remaining in the employer’s regular job.

The parties agreed on the hearing loss and permanent disability

The adopted report in Gibson describes a trial concerned only with the voucher. The parties stipulated to the material facts: He had an industrial hearing-loss injury, it caused permanent partial disability, and he had been laid off before filing the claims.

He had no period of temporary disability from the injury. He also lost no time from work during the litigation because he was not employed then. The employer relied on that last fact to argue that he should be treated as having received and accepted a qualifying offer of regular work.

As the Gibson report’s footnote explains, there were two injury claims, but the parties stipulated to one joint permanent-disability award because the hearing loss was inextricably intertwined. The judge awarded one voucher on that record. The number of claim files was therefore different from the benefit award the parties had presented for decision.

The regulation addressed an employee who remained at work

Rule 10133.31(c) says that an employee who lost no time from work, or returned to the same job for the same employer, is deemed to have been offered and accepted regular work. Read by itself, “lost no time” might appear to cover Gibson. The judge read the provision together with the statute and the purpose of the voucher program.

The report adopted in Gibson explained that the provision presumes an employee who is actually working for the employer. Someone who continues in the same position throughout the claim has a different employment history from someone laid off before a latent injury claim is filed.

Gibson’s lack of missed shifts came from having no job during the claim. It did not establish that the employer had kept him working or genuinely offered him work. Applying the rule in that setting would have turned his prior layoff into a reason to deny help returning to employment.

The statute tied the benefit to permanent partial disability and a qualifying work offer

For injuries on or after January 1, 2013, Labor Code section 4658.7(b) begins with permanent partial disability. An employer can avoid the voucher by making a qualifying offer of regular, modified or alternative work within the statutory framework.

In the report adopted in Gibson, the judge applied the Board’s en banc Dennis decision: An employer’s inability to make a genuine offer does not, by itself, release it from the voucher obligation. On Gibson’s stipulated facts, permanent partial disability was established and no return-to-work offer had been made. The judge awarded the voucher, and the panel denied the employer’s reconsideration petition in Gibson.

The benefit can fund a return to work, but it has defined uses

The current voucher statute provides up to $6,000 for specified retraining and related expenses. Those uses include qualifying education or skill enhancement, occupational licensing, required tools and limited computer-equipment and counseling expenses. It can be a useful resource when a lasting impairment affects the next stage of a working life.

It is a distinct benefit from temporary-disability wage replacement. Gibson’s lack of a temporary-disability period did not resolve the voucher question; the decision examined permanent disability and the employer’s work-offer obligation.

Current Rule 10133.31 still contains the no-time-lost provision and the voucher’s administration requirements. Read the work history, medical findings and offer documents together to assess whether the regulation applies.

Show why there were no missed shifts

If a voucher is denied because you “lost no time,” establish what that means in your case. Did you keep performing the same job, return to it, or leave employment before a later claim? Keep the layoff notice and employment dates alongside the medical reports establishing the injury and permanent disability.

Then identify any actual offer of regular, modified or alternative work, including the duties, restrictions and duration. In Gibson, the absence of a job during litigation could not stand in for a genuine offer. The stipulated hearing-loss facts and employment history supplied the reason the worker qualified.

Our Dennis analysis examines what makes a work offer genuine. Our SJDB spending guide explains permitted expenses and timing. For a disputed voucher or work offer, see our California workers’ compensation practice.