ADJ20709426 · April 20, 2026

The employer did not make a bona fide offer of modified work in writing and did not appropriately accommodate the applicant's work restrictions. The resignation was due to the effects of the industrial injury, not a voluntary non-industrial reason. Therefore, the applicant is entitled to temporary disability benefits.

From the decision · page 7The holding in Huston requires that in order to be relieved of potential liability for temporary disability for an injured worker capable of returning to modified duties, the employer must establish that work within applicant's restrictions is both available and offered. An offer of regular, modified, or alternative work must be bona fide. (Dennis v. State of California (2020) 85 Cal.Comp.Cases 28, 43 (Appeals Board en banc).) A resignation cannot be interpreted as a refusal of modified work and cannot be used as a basis for denying temporary disability if modified work was not offered. (City of Seaside v. Workers' Comp. Appeals Bd. (Sanchez) (1991) 56 Cal.Comp.Cases 598 (writ den.).) Moreover, where an injured worker's resignation is a result of the injury, the worker cannot be said to be unwilling to work. (See Gonzales, supra, at p. 1479.)

No bona fide written offer of modified work was made by the employer.

Favours Applicant prevailed

Employer failed to meet burden to show offer of modified work, supporting applicant's entitlement to temporary disability benefits.

From the decision · page 7Here, by the defendant's own admission, no offer of modified work was ever made in writing, thus employer cannot meet its burden that an offer of modified work was ever made. While applicant did go back to work for some period, there is no evidence that he was actually working in a modified capacity. There is no evidence that parameters were set by the employer for the capacity in which applicant would work or that any meaningful discussion was had regarding accommodation of the restrictions. Further, each of defendant's witnesses testified that they either saw him working beyond the restrictions or knew that it was likely that he was working beyond the restrictions. Thus, it is apparent that applicant could not modify his position, and the employer did not make clear the manner in which he would be accommodated. Defendant is unable to show that either an offer was made or that applicant's restrictions were appropriately accommodated.

Applicant's resignation was due to health reasons related to the industrial injury.

Favours Applicant prevailed

Resignation was not a voluntary non-industrial act but due to worsening injury effects, supporting entitlement to benefits.

From the decision · page 7Moreover, the language of the resignation alludes to applicant's physical health being affected thereby leading to his resignation. While the resignation does not specifically mention the injury to the right wrist as being the cause for the resignation, applicant testified that he was having, "ongoing progressive damage to his body, particularly his arm" and that the "injury to his arm was getting worse due to the heavy lifting." (MOH/SOE, 10:2-7.) Thus, the resignation following the period of regular work is not a bar to temporary disability where there is no evidence that a bona fide offer of modified work was made and where the resignation was due to the effects of the industrial injury.

Employer witnesses observed or suspected applicant working beyond restrictions but did not provide clear accommodation or written modified work offer.

Favours Applicant prevailed

Lack of clear accommodation and written offer supports applicant's claim for temporary disability benefits.

From the decision · page 7Here, by the defendant's own admission, no offer of modified work was ever made in writing, thus employer cannot meet its burden that an offer of modified work was ever made. While applicant did go back to work for some period, there is no evidence that he was actually working in a modified capacity. There is no evidence that parameters were set by the employer for the capacity in which applicant would work or that any meaningful discussion was had regarding accommodation of the restrictions. Further, each of defendant's witnesses testified that they either saw him working beyond the restrictions or knew that it was likely that he was working beyond the restrictions. Thus, it is apparent that applicant could not modify his position, and the employer did not make clear the manner in which he would be accommodated. Defendant is unable to show that either an offer was made or that applicant's restrictions were appropriately accommodated.

Diagnosed sprain of right elbow; imposed work restrictions of no gripping, grasping, twisting, or lifting more than 5 pounds; recommended temporary total disability after surgery on April 9, 2025, continuing through August 12, 2025.

Supports the finding of temporary disability and work restrictions.

From the decision · page 2FACTS Applicant sustained an injury on August 3, 2024, arising out of and in the course of employment to his right arm, wrist, and hand while working as an executive chef for defendant. The job description of executive chef outlines in relevant part, that the position is, "responsible for planning, purchasing, and preparation of all foods in the manner and variety most pleasing to the members and their guests." (Defendant's Exhibit A.) The document notes that the executive chef reports to the General Manager and receives "general" supervision. (Id.) Applicant was seen by his primary treating physician, Richard Heiss, M.D., on August 3, 2024. While the full report is not entered into evidence, the work restrictions include: No gripping, grasping, twisting and/or lifting more than 5 pounds.

Lab. Code, §§ 4650-4657; Huston v. Workers' Comp. Appeals Bd. (1979) 95 Cal.App.3d 856; Dennis v. State of California (2020) 85 Cal.Comp.Cases 28 (Appeals Board en banc); City of Seaside v. Workers' Comp. Appeals Bd. (Sanchez) (1991) 56 Cal.Comp.Cases 598 (writ den.); Gonzales v. Workers' Comp. Appeals Board (1998) 68 Cal.App.4th 843

Temporary disability indemnity is payable during the healing period until return to work or permanent and stationary status; partial disability payments are based on wage loss; employer must offer bona fide modified work to relieve liability.

Applied to determine entitlement to temporary disability benefits and employer's burden to offer modified work.

From the decision · page 5Temporary disability indemnity is a workers' compensation benefit that is paid while an injured worker is unable to work because of a work-related injury and is primarily intended to substitute for lost wages. (Gonzales v. Workers' Comp. Appeals Board (1998) 68 Cal.App.4th 843 [63 Cal.Comp.Cases 1477]; J. T. Thorp, Inc. v. Workers' Comp. Appeals Bd. (Butler) (1984) 153 Cal.App.3d 327, 333 [49 Cal.Comp.Cases 224].)

Applicant testified he reported work restrictions to HR and continued to perform all aspects of his role without modification; no offer of modified work was made; defendant's witnesses acknowledged applicant likely worked beyond restrictions.