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    Monthly Articles on Vocational Rehabilitation
    by Alan Leno

           
    April 2004 Article
    May 2004 Article
    June 2004 Article
    July 2004 Article
    August 2004 Article
    January 2005 Article
    February 2005 Article


    January 2006 Article
    February 2006 Article
    April 2006 Article
    May 2006 Article
    July 2006 Article

    January 2007 Article
    February 2007 Article
    March 2007 Article
    April 2007 Article
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    April 2008 Article
    May 2008 Article
    June 2008 Article


    January 2009 Article
    February 2009 Article
    March 2009 Article
    April 2009 Article
    May 2009 Article
    (added 6/8/09)

    September 2004 Article
    October 2004 Article
    November 2004 Article
    December 2004 Article
    June-August 2005 Articles
    Sept.-Oct. 2005 Articles
    December 2005 Article
    August 2006 Article
    September 2006 Article
    October 2006 Article
    November 2006 Article
    December 2006 Article

    July 2007 Article
    August 2007 Article
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    November 2007 Article
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    July 2008 Article
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    April 2004:

    SB 899 - Vocational Rehabilitation & Return to Work

    SB 899, signed by Governor Schwarzenegger on Monday, makes substantial changes that will take many months, perhaps years, for the workers' compensation industry to understand and assimilate. The provisions impacting vocational rehabilitation and return-to-work were relatively minor compared to those effecting physician selection, medical treatment, and PD rating. However, like those other issues, some of the VR and RTW changes have been misinterpreted and misunderstood. For example, there have been rumors that "VR is back" and the "voucher is gone." Neither is true. SB 899 primarily provided clarification on VR and RTW issues, although it may also have provided some cost-saving opportunities for employers and insurers who understand the RTW provisions, as well as the RTW professionals who are prepared to assist them.

    The following are the significant VR/RTW provisions of SB 899:

    Vocational Rehabilitation: When the Legislature repealed the VR benefit via AB 227, many believed that vocational rehabilitation had disappeared for all injured workers, regardless of date of injury. The reasoning went that neither the benefit nor the Rehabilitation Unit could exist without the statute that created them. To insure clarity and continuity, the Legislature repealed the "voucher" language in L.C. 139.5 created by AB 227 and replaced it with the "old" 139.5 language. This does not mean "VR is back" but, instead, reinstatement of the old 139.5 language allows the industry to "run out" VR benefits and services for QIW injured employees whose date of injury occurred prior to 1/1/2004. Reinstatement of the VR benefit is distinctly limited: note that paragraph (k) of 139.5 specifies the section applies only to pre-2004 injuries and paragraph (l) states that L.C. 139.5 will remain in effect until 1/1/2009, absent intervening action by the Legislature.

    NOTE: The Legislature did not reinstate L.C. 4635 - 4646. Although these sections will not appear in the Labor Code, the industry should proceed as if these sections were present. Clearly, the Legislature intended that the VR benefit should be available for eligible injured workers with a pre-2004 DOI; the absence of 4635-4646 will not support denials of benefits, services or processes dependent on these sections.

    Supplemental Job displacement benefit (voucher): Some people have apparently assumed that the SJDB "voucher" is gone because the legislature repealed the AB 227 voucher language it had placed in L.C. 139.5. In fact, the voucher still exists because identical language for the voucher exists in L.C. 4658.5 and that language was not repealed by the Legislature. It is therefore essential for employers and carriers to continue providing the notices required by 4658.5 and for these entities to promptly evaluate and offer medically appropriate work within the 30 day time frame specified by the statute to injured employees who have PD. If the employer cannot offer medically appropriate work, the employee will be entitled to a voucher with a value between $4,000 and $10,000 depending on that employee's level of permanent disability, as determined at the time of a settlement or award. The DWC is expected to issue regulations by the end of the current year that will specify notice formats and procedures.

    RTW Incentives: Early in 2003, the Legislature created monetary incentives for employers to retain injured employees in temporary light duty, modified jobs, alternative positions. L.C. 139.48 allowed for reimbursement of wages up to $1250, reimbursement of job modification costs up to $1250, and a combination of reimbursements for wages and the cost of job modification up to $2500. This section specified that funding for this RTW program was to come from the General Fund, meaning that the Legislature must approve a budget line item for this purpose. Considering the State's dire financial condition, no one expected the program to be funded which, unfortunately, rendered a good idea meaningless.

    SB 899 makes some significant changes to the RTW program. Effective for injuries on or after 7/1/04, employers with 50 or fewer employees on the date of injury can seek reimbursement of job modification costs for job accommodations provided to employees who return to work while still temporarily disabled or to those who need, and are provided with, permanent job modifications due to permanent disability. In each case, the maximum reimbursement is $1250 and total reimbursement may not exceed $2500. Note that employers may seek reimbursement for the cost of job modifications only: the provision for reimbursement of wages was eliminated.

    The Legislature "fixed" the funding dilemma by earmarking L.C. 5814.6 ("business practice") penalties to support the 139.48 RTW program. The maximum penalty in this category is now $400,000 so this would seem to be an effective funding mechanism. However, only a half dozen or so of these penalties have been assessed by the DWC Audit Unit since inception of the penalty more than 10 years ago. At one penalty per year, there would be insufficient funds to reimburse 500 employers a single $1250 request. Unless the Audit Unit seeks these penalties more aggressively (unlikely since the intent of SB 899 was to ease the workers' comp burden for employers), the DWC Return to Work unit will have the difficult task of distributing a very limited resource to (we hope) many deserving employers.

    PD Incentives for RTW: SB 899 creates an additional financial incentive for employers who retain their injured employees in medically appropriate positions - and a disincentive for those who do not. Effective 1/1/2005, L.C. 4658(d)(2) provides for an increase in PD payments of 15% to injured employees whose employers are unable or unwilling to provide medically appropriate work within 60 days of P&S (applies only to employers with 50 or more employees). L.C. 4658(d)(3) allows for a decrease of 15% in PD payments to employers who do offer medically appropriate work within 60 days of P&S (applies to all employers). The increase/decrease in payments begins at 60 days after P&S and is not retroactive. "Medically appropriate work" includes regular duties, modified jobs, or alternative positions as dictated by the employee's work restrictions. Any work offered must last for 12 months or the employee is entitled to the 15% increase from the time the position becomes unavailable (the employee would then become eligible for a voucher as well 15% increase in PD payments). The 15% decrease applies on an employer offer of employment and is not dependent on the employee's acceptance of the offer. Since litigation can be expected on this provision, job descriptions/analyses for modified and alternative positions would be advisable to demonstrate that assigned duties are within work restrictions.

    This Section could provide a significant financial incentive for employers to offer their injured employers regular duties, modified jobs, or alternative positions, as needed. The difference between a 15% increase and a 15% decrease can easily be $70 per week. An employee who is offered a medically appropriate position and is entitled to 52 weeks of PDAs after the 60th day from P&S would receive $3640 less than an employee who is not offered such work. This savings, along with the other savings realized by retaining an injured employee (reduced replacement and training costs, higher productivity, higher employee morale, reduced exposure to FEHA complaints, etc.), will have a positive impact on the employer's workers' compensation costs. Employers and insurers who want to control claim costs need to collaborate to develop and implement effective RTW programs.

    RTW Definitions: SB 899 adds L.C. 4658.1 that includes several definitions relevant to the RTW process. Unfortunately, there is a problem with the definition of "modified work" (L.C. 4658.1(b)). This definition indicates, among other things, that a modified position must pay the employee at least 85% of his/her pre-injury wage. The 85% criterion has always been applied (and still is) to the definition of an alternative position: it is inappropriate to include it in the definition of modified work. Both state and federal statutes require that an employee should be paid the same wage as other employees performing the same job; the fact that the injured employee performs the job in a somewhat different manner does not justify a reduction in wages. To avoid problems (i.e., litigation), employers and insurers should maintain an equivalency of wages for modified work offers to injured employees.

    Training Programs

    NAADAC will present its Spring 2004 ADA national conference in Las Vegas May 3-6, 2004. Program details and registration forms are available through the NAADAC website (http://janweb.icdi.wvu.edu/naadac/index.htm).

    The IEA CA-14 vocational rehabilitation class for the San Fernando Valley begins on May 11, 2004. Class instructor Allan Leno will incorporate SB 899 provisions, the new Supplemental Job Displacement Benefit (voucher) requirements, and the Pebworth decision into the program to help claims specialists address 2004 requirements, as well as existing pre-2004 cases. There will also be an emphasis on problem resolution as VR disputes will be much more common during the next couple of years. Contact IEA at (949) 223-2103 or visit the IEA website at http://www.ieatraining.com for class registration information.

    Paul Hagle and Allan Leno are developing a workshop for FEHA/RTW (including SB 899 provisions) requirements and issues for presentation during Fall 2004. The program will address FEHA and 2004 workers' compensation RTW requirements, the potential conflicts between the two statutes, and the how RTW professionals can assist employers in meeting their multiple obligations. We are evaluating several potential sites; if you would be interested in attending a workshop in your area, please let us know at allanleno@leno-assoc.com.


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    Monthly Articles on Vocational Rehabilitation
    by Alan Leno

    May 2004:

    The Supplemental Job Displacement Benefit (voucher) process

    The Supplemental Job Displacement Benefit (voucher) was intended to replace vocational rehabilitation as the vehicle by which disabled injured workers could prepare themselves for employment if their employers were unable (or unwilling) to provide medically appropriate work. Unfortunately, legislators did not discuss return to work and training process needs with the professionals who must make it work. The result is a benefit requirement that confuses and confounds employers and insurers and is unlikely to provide significant assistance to injured workers who need it. In this issue, we will examine the voucher process and some of its inherent problems (discussion of problem areas are in italicized text).

    First we need to identify the basic provisions (and requirements) for the voucher. L.C. 4658.5 & 4658.6 provide for the following:

    An injured employee is potentially entitled to a non-transferable voucher if s/he has a PD rating from 1-99%.

    The value of the voucher ranges from $4,000 to $10,000 and is based on the PD award (or C&R).

    Injured employees who are expected to have PD are due a Notice of (potential) Rights within 10 days of the termination of temporary disability (TD) payments. An offer of medically appropriate work must be sent to the injured employee within 30 days of the termination of TD payments. The employee must be provided a return to work date that is within 60 days of the termination of TD payments.

    An employee is entitled to a voucher if the employer fails to provide a timely offer of medically appropriate work OR fails to provide timely notice. An employer is not liable for a voucher if it makes a timely offer of modified or alternative work, expected to last at least one year, to an employee in need of job modification. The voucher may only be used for retraining or skills enhancement at approved training facilities (see CCR 10126(k) for approving agencies).

    Fees for the services of a vocational counselor may not exceed 10% of the voucher's value.

    Obstacles in the Process

    If all workers' comp indemnity claims could be handled identically, doctors reported promptly, job duties and work restrictions were clear, employers responded promptly, etc., designing a system to meet the preceding requirements would be relatively easy. TD stops, the treating doctor provides ratable work restrictions, and a Notice of Rights is sent to the claimant within 10 days. The employer responds promptly to the claims examiner's inquiry regarding the availability of modified or alternative work. If work is available, the employer provides a list of job duties and the treating doctor responds promptly where clarification is required. An offer of medically appropriate work is sent to the employee and s/he accepts and returns to work within 60 days OR s/he rejects the offer or fails to respond and the issue is closed. If no work is available, the employee is notified that s/he is eligible for a voucher and the voucher will be mailed within 30 days of a PD award or C&R. Simple. Except that cases are not identical and many do not proceed smoothly through the system. Let's consider the requirements that present compliance problems for insurers and employers:

    An injured employee is potentially entitled to a voucher if s/he has a PD rating from 1-99%. The claims examiner isn't always going to know if the employee will have, or is likely to have, permanent disability at the point TD ends. Many injured workers return to work while still treating for their injury. Some return to their regular duties while others are assigned to temporary light duty positions or are provided temporary modified work. Some of these injured workers will fully recover (no PD) while many others will have PD. The examiner can incur a notice obligation (i.e., a Notice of Rights must be sent within 10 days of the last TD payment) without knowing the notice is actually due.

    Injured employees who are expected to have PD are due a Notice of (potential) Rights within 10 days of the termination of temporary disability (TD) payments. See above. In a practical sense, it will often be difficult for a claims examiner to know whether a Notice of Rights is truly due the injured employee. Many doctors do not respond to inquiries within this time frame so examiners will often be beyond the 10 day time frame when they received their first notice that TD should end.

    Employers/Insurers are faced with several possible solutions, none of which is especially attractive. One possible solution is simply to send a Notice of Rights on all indemnity cases. This solves the notice problem but may make it more difficult to identify those cases where an investigation is necessary to identify the availability of modified or alternative work. Another alternative is to tie the Notice of Rights to any "last payment of TD." That means that a lot of "extra" letters will go out (many injured workers are on and off TD several times) and each letter must be sent via certified mail - an extra expense when the goal is to reduce the cost of workers' compensation. The Notice could be tied to the first PD letter but this would almost guarantee that the Notice is late - unfortunate since this is probably the most efficient alternative. The problem with this requirement, as with the requirement for modified/alternative work offers, is that the Legislature used the end of TD as the initiating point for the Notice rather than knowledge of P&S, which would have been more appropriate and workable.

    An offer of medically appropriate work must be sent to the injured employee within 30 days of the termination of TD payments. As with the Notice of Rights, this requirement should have been associated with date of knowledge of a P&S determination, not the end of TD. To make matters worse, this provision requires knowledge of the employee's work restrictions, which are rarely available within 30 days of the end of TD. During this same 30 day period, the examiner must also contact the employer to determine if modified work is available AND accumulate the necessary forms and get them in the mail to the employee. We should assume that the offer must include the job title, a list of duties, the wages and hours worked, date the job starts, etc. (see Jack in the Box v. WCAB (Morrison)(2003) 68 CCC 9). Injured workers still have due process rights so evaluating available work may often include completion of a job description.

    An additional problem with this requirement is that the statute requires the employee to respond to the offer within the same 30 day window the employer has to make an offer. This creates a situation where the employee would be required to respond the same day the offer is made if the employer doesn't send the offer until day 30. We can hope the DWC resolves this potential absurdity through regulation.

    This requirement may force insurers and employers to work more closely with employers to anticipate the need for modified and alternative work (it is unclear if there will be a regulatory provision for "delays" while the defendant obtains necessary information from employers and doctors). Doctors will need to be more responsive as well - perhaps the new treatment protocols will encourage timeliness (we can hope). To facilitate the return to work process, employers and carriers may find it useful to develop structured relationships with vocational counselors who have demonstrated skills in job descriptions/analyses and the return to work process.

    The employee must be provided a return to work date that is within 60 days of the termination of TD payments. The intent of this requirement is to assure a timely return to work for the employee; to be valid, the employer's offer must allow the employee to return to work within 60 days of the last TD Payment. If the employer can meeting the preceding 30 day requirement, meeting this requirement will be simple - unless the employee is a seasonal worker.

    This problem has been presented to the DWC; perhaps the DWC can address the seasonal work problem in its regulations.

    An employee is entitled to a voucher if the employer fails to provide a timely offer of medically appropriate work OR fails to provide timely notice. The statute appears to make an employee eligible for a voucher if the employer fails to meet the preceding time requirements, even where the employee actually returns to work in a regular, modified, or alternative capacity. As noted, the employer may not control the circumstances that result in the failure to meet timeliness requirements.

    It seems inequitable to penalize the employer for not providing medically appropriate work when it has, in fact, done so and for failing to meet time requirements in a process it does not entirely control. On the other hand, there should be incentives (and costs) built into the process to insure timely offers of work to injured employees. As with the previous points, this is an area begging for correction with the Legislature's next "clean-up" effort.

    The value of the voucher ranges from $4,000 to $10,000 and is based on the PD award (or C&R). Most workers' comp claims are settled by C&R for a dollar amount without a PD rate specified. C&Rs for dates of injury on/after 1/1/2004 will have to specify a PD rating (if the employee was not timely offered medically appropriate work) in order to determine the value of the employee's voucher. This is one more point of contention in an already difficult negotiation.

    Compliance will clearly be difficult for employers and insurers, particularly now when there are no regulations to provide guidance. Past VR reform attempts generally didn't require substantial attention for a year or so after their effective dates. Even the VR provisions that did take effect soon after the effective date (such as the 90 day QRR requirement in the 1989 reform) didn't require substantial adjustments. The voucher is an entirely different benefit with entirely new requirements. There are already thousands of injured workers potentially due a Notice of Rights and employers/insurers have no idea what constitutes a viable Notice, when it is due, or how the notice process that follows should work.

    The Process

    Before an employer/insurer can set up its voucher process, it must first make some decisions about how it will handle the notice (i.e., Notice of Rights) issue. When making this choice, it may help to remember that the Notice of Rights is really a Notice of (Potential) Rights; the notice advises the injured employee that s/he is entitled to a voucher IF (1) there is permanent disability, AND (2) the employer is unable to offer medically appropriate work. Since the voucher does not become available until there is an award (or C&R), it is unlikely the voucher will be considered as attractive a benefit as vocational rehabilitation has been for pre-2004 cases. Since this Notice must be sent via certified mail, the advantages of broad distribution (e.g., the notice is sent soon after creation of an indemnity file) must be weighed against the administrative workload incurred by send notices to injured workers who aren't entitled to them (i.e., those who zero PD).

    Once the notice decision has been made, the voucher process would look something like this:

    STEP 1: Although job descriptions/analyses are not required for a QIW determination, it is still necessary to determine a need for modified or alternative work. Claim administrators should therefore obtain a job description or analysis on all cases where the employee's ability to return to regular duty is in doubt and submit the document to the treating physician for review and comment.

    There is no requirement to obtain agreement on a counselor to obtain a job description/analysis. However, using a knowledgeable vocational specialist to complete the document and providing the employee an opportunity to comment on the description of duties can save time and money in the long run. Employers and insurers may want to consider structured agreements with vocational counselors of proven ability to complete their JD/JA assignments on a volume basis. The same counselor to assist with the return to work process for those employees who require job modification or reassignment.

    STEP 2: At the termination of TD (which, hopefully, coincides with P&S), determine the existence or probability of PD and send the applicant a Notice of Rights, within 10 days of the termination of TD, unless it has previously been sent (see above).

    STEP 3: Contact the employer to confirm either (a) the employee's return to work, or (b) the availability of medically appropriate work. If the employee has returned to work, a congratulatory letter documenting that the employer has made work available and the employee has returned to work would be a good idea. If work is available but the employee has not yet returned, see Step 4. If no work is available, the employee should be sent a letter indicating that the employer does not have medically appropriate work available and s/he will be receiving a voucher within 30 days of settlement or a WCAB award (if no work is available, go to Step 8).

    STEP 4: If work is available, obtain a list of duties from the employer and confirm that the duties are within the employee's work restrictions as provided by the treating physician. Note that it may be necessary to send the list of duties or a job description to the physician if it is unclear that the duties are within work restrictions (a structured agreement with a competent RTW counselor could be helpful in completing this task timely). STEP 5: Compile the appropriate paperwork and send the offer to the employee within 30 days of the end of TD. The offer would include the required form (it appears the DWC will develop a "DWC Form RU-94a"), a list of the job duties (or job description), and a cover letter providing additional details including wages, hours, and a start date (which must be within 60 days of termination of TD).

    STEP 6: Confirm that the employee has accepted the offer and returned to work, rejected the offer, or failed to respond. Note that no action is required to 'close" the case, but the documentation must be retained in the event of a subsequent dispute regarding the offer.

    STEP 7: If the employee does return to work at the position offered, it would be a good idea to follow up with the employer to confirm the employee is continuing in the modified position and the work restrictions continue to be observed. Note that failed return to work efforts may result in increased PD per L.C. 4658(d)(2) and entitlement to a voucher (see below).

    STEP 8*: If medically appropriate work is unavailable, the employee will be entitled to a voucher, probably within 30 days of the C&R, F&A, or Stipulation. The voucher will advise the employee of its value (between $4,000 and $10,000 based on the level of PD). It will also contain directions for use and instructions for obtaining reimbursement for educational expenses. Once the voucher has been sent to the eligible employee, the employer/insurer need take no further action until the employee chooses to use the voucher (see Step 9).

    * The DWC proposes to make the voucher available to the eligible injured employee within 30 days of the start of PD payments based on the employer/insurer's estimate of permanent disability (see proposed 10133.55(b)). This is consistent with the goal of returning an injured worker to productive employment as soon as possible and could also be beneficial to employers (more on this subject next month). However, it is not clear if the AD has statutory authority to require provision of the voucher prior to an award. There is an additional problem with this section as written. An employer who provides a temporary light duty assignment cannot make an offer of permanent modified/alternative work to an injured employee until permanent work restrictions are available; 10133.55, as written, would require the employer/insurer to send the employee a voucher in these cases. This is inequitable for an employer who is clearly trying to comply with the spirit of the law and does not seem consistent with legislative intent.

    [Note: Injured workers may seek advice from claims administrators on the selection of QRRs and/or training facilities. Providing this information could create a potential exposure for a second voucher so these individuals should be referred to their legal counsel, the DWC web site, professional organizations such as CARRP or OBRA, or career counseling services available through some community colleges and adult education facilities.]

    STEP 9: Injured workers who use their voucher at public institutions (such as Community Colleges) will likely seek reimbursement for registration costs and books and training materials. Most are likely to take their vouchers to private vocational schools that will submit their invoices directly to the employer/insurer based on the worker's enrollment. Vocational counselors selected by an injured worker will also submit their invoices directly to the employer insurer. Injured workers attending vocational schools may submit requests for reimbursement for the cost of books and training materials not included in the school's tuition.

    STEP 10: To avoid problems, the employer/insurer should process payment requests as soon as possible. The claims examiner will need to verify that the school possesses the appropriate approval, vocational counselors have an agreement with the injured worker, and the books/materials for which the employee is seeking reimbursement are in fact required by the training program.

    STEP 11: The employer/insurer's liability ends once the maximum value for the voucher has been reached. There currently is no requirement to advise the injured worker that the funds have been exhausted but it may ultimately cause less work to send the employee a brief letter and a copy of the pay screen at the point of final payment.

    The most difficult part of this process occurs at the beginning when the claims examiner must insure that the Notice of Rights and any offer of medically appropriate work is sent timely. Overall, the process is simpler than the vocational rehabilitation process but the time frames are more stringent and there are potentially four or five times as many injured workers due timely notices. To make matters worse, the DWC hasn't issued its regulations governing this process so employers/insurers face the prospect of implementing a process now that may not meet DWC requirements a few months from now. However, a failure to implement a comprehensive to address this liability is certain to incur future liability so employers/insurers should implement the most efficient process possible within their own systems and plan on fine-tuning that process once DWC regulations become available.

    Consulting services are available to assist employers and insurers in developing and implementing a process compatible with existing claims procedures.

    SB 899 - Vocational Rehabilitation & Return to Work - Correction

    The discussion in the April Newsletter of the 15% PD increase/decrease contained in L.C. 4658 omitted a significant provision and erroneously reported the 15% PD increase as applying to employers with "more than 50 employees." The section is reproduced here with appropriate corrections.

    PD Incentives for RTW: SB 899 creates an additional financial incentive for employers who retain their injured employees in medically appropriate positions - and a disincentive for those who do not. Effective 1/1/2005, L.C. 4658(d)(2) provides for an increase in PD payments of 15% to injured employees whose employers are unable or unwilling to provide medically appropriate work within 60 days of P&S (applies only to employers with 50 or more employees). L.C. 4658(d)(3)(A)) allows for a decrease of 15% in PD payments to employers who do offer medically appropriate work within 60 days of P&S (applies to all employers - although this is the subject of some debate). The increase/decrease in payments begins when the employer advises the employee regarding the availability, or lack thereof, but not later than 60 days after P&S; the increase/decrease is not retroactive. "Medically appropriate work" includes regular duties, modified jobs, or alternative positions as dictated by the employee's work restrictions. The 15% decrease applies to an employer offer of employment and is not dependent on the employee's acceptance of the offer. Since litigation can be expected on this provision, job descriptions/analyses for modified and alternative positions would be advisable to demonstrate that assigned duties are within work restrictions.

    If the employer terminates the regular, modified, or alternative position prior to the end of PD payments, L.C. 4658(d)(3)(B) provides that the employee is entitled to the 15% increase from the time the position becomes unavailable (this provision does not apply to employers with fewer than 50 employees). Note that this section applies to the period during which PD payments are made and not to the one year specific in L.C. 4658.6. Thus, an employee could return to work for the pre-injury employer, lose his/her position due to a lay-off two years after returning to work, and become eligible for the 15% increase; the employee probably would not be eligible for the voucher as long as the employer's termination of employment occurs more than one year from the return to work date. This section does not indicate that the termination must be "other than for cause." Logic would seem to dictate that "for cause" terminations would be exempted - expect litigation to clarify the issue.


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    Monthly Articles on Vocational Rehabilitation
    by Alan Leno

    June 2004

    The Supplemental Job Displacement Benefit - Who will use vouchers?

    Last month we discussed process and procedural requirements for the SJDB voucher along with some of the inherent obstacles impacting an employer/insurer's ability to efficiently provide this benefit to injured workers. Hopefully the DWC's proposed regulations governing the voucher will be in place by summer's end to provide the guidance payer's need to establish and implement their internal procedures. The other piece of the puzzle for all parties is, How many injured employees will be eligible for a voucher and likely to use the benefit?

    Before we attempt to estimate usage, we need to recognize that there are a number of issues with the potential to impact both eligibility and usage patterns. These include employers' willingness to offer modified or alternative positions to injured workers who need job modification, availability of vouchers proximate to the injured employee's P&S date, and the possibility of settlement.

    SB 899 certainly demonstrates Legislative intent to encourage and reward employers who offer modified or alternative positions to injured employees who require job modification. L.C. 139.48 provides reimbursement for costs related to job modification to small employers (50 or fewer employees) who might otherwise lack the necessary resources. L.C. 4658.6 exempts employers (regardless of size) from the requirement to provide a voucher where a modified or alternative position is offered to the injured employee who needs job modification or reassignment. L.C. 4658.1(d)(2/3) provides for increases or decreases in weekly PD payments depending on whether the employer offered (15% decrease in PD payments) or failed to offer (15% increase in PD payments for employers with 50 or more employees). One would think that these incentives would encourage most employers to routinely offer modified or alternative work when needed: however many employers are used to having vocational rehabilitation relieve them of return to work considerations. It is therefore unclear how many injured employees will have the voucher as their only return to work option; the potential exists for the number to be substantially greater than the 45,000 or so who were determined QIW in past years.

    Use of the voucher will also be governed by the timing of its availability to injured workers who are not offered modified or alternative positions. L.C. 4658.5 seems to tie the voucher to a Permanent Disability award. In its proposed regulations, the DWC is attempting to make voucher monies available within 30 days of the first PD payment. It certainly makes sense for the voucher to be available close to the injured worker's P&S date; unfortunately, tying the voucher to the end of TD or the beginning of PD does not necessarily coincide with a P&S determination and thus does not mean it will be available to the injured worker when s/he most needs, and can use, the retraining assistance. If the voucher is only available when there is an award (which typically occurs 1-2 years after P&S), it may be viewed as useless and thus may go unused by the majority of injured workers. The necessary solution for this problem is for the Legislature to tie the modified/alternative job offer requirements and availability of the voucher to the P&S determination.

    If the voucher is viewed as unusable by injured workers and too difficult to administer by employers/insurers, settlement of the benefit becomes probable. In fact, many attorneys - both applicants and defense - believe the benefit will be routinely settled. The statute certainly doesn't prohibit settlement. If the benefit is viewed as unusable by injured employees and their attorneys, it will become a vehicle to augment settlement of the case in chief. The only possible obstacle to routine settlement may be that employers/insurers also believe the benefit to be unusable and they may not be willing to offer sums acceptable to injured workers. This is clearly a benefit in need of Legislative "cleanup."

    If the DWC does manage to iron out some of these wrinkles, who would be most likely to use their voucher? The only "guidance" we have is the profile of injured workers who have used the VR benefit in the past. The California Workers Compensation Institute's pending VR study reflects some characteristics of injured workers using the VR benefit that may give us some clues to those most likely to use a voucher. Approximately two thirds of QIW injured workers have PD under 30%. One half of all QIW injured workers had been employed at their pre-injury job for one year or less and almost 60% made less than $10 per hour. This does not, however, mean that QIW injured workers are primarily entry level workers - approximately one half of this population is in the 30-49 age group. This data suggests that many injured workers have used the VR system to escape low paying, unskilled jobs as much as to avoid returning to physically inappropriate work.

    Considering this profile, we should expect there will be some injured workers who will see the wisdom of using the voucher as a vehicle to obtain new skills and escape unskilled, low-paying jobs. These will be the same types of people who demonstrate the motivation to successfully complete rehab plans in the VR system (Despite anecdotal cynicism, there are many injured workers who use the system as intended. A 1989 CWCI study indicated that approximately half of those using the benefit returned to work in the occupation for which they were trained). If the voucher becomes available early enough in the process, some will in fact use their PD for support during retraining. Others will attend classes during the evening and on weekends. And still others will manage to attend training due to family support.

    Some additional users will come from the population of very young workers and those who are approaching, or have reached, retirement age. Some younger workers will still have family support that will allow them to attend training programs. Or they may use the voucher as a means to complete vocational or college training already in progress. Older workers, on the other hand, may use the voucher for an entirely different purpose. Some in this group may use the voucher for personal enrichment rather than as a return to work vehicle. Others may seek skills to facilitate part-time employment. Keep in mind that there are essentially no limits on choices other than the requirement for training programs to have either BPPVE or Western Assoc. of Colleges/Universities approval.

    There will also be those in the over 30% PD population who have no choice but to seek an alternative occupation due to their physical limitations. These injured workers are also more likely to have sufficient PD to see them through a vocational training program. Injured workers in this category represent approximately one third of the population historically using VR services.

    If prior use patterns still apply, approximately two thirds, or 30,000, of the approximately 45.000 QIW injured workers in 2003 will use some VR services and 20,000 or so will start VR plans (we have no idea how many complete plans since a plan ends when the cap is exhausted and not necessarily when training or placement is complete). Should we expect 20 -30,000 to attempt use of their voucher?

    The number of workers who are eligible for, and willing to use, a voucher will be impacted by a variety of factors including employer return to work practices, the employee's motivation to return to the pre-injury occupation/employer, timing of voucher availability, the employee's financial imperatives, physical need to seek a new occupation, motivation, family support, current educational status, etc. It is too early to tell if employer incentives will improve return to work rates or if more injured workers will elect to return to pre-injury jobs or accept modified/alternative work offers rather than take their chances with a voucher. We will therefore assess potential voucher use based on past use of the VR benefit.

    Of the estimated 20,000 annual VR plans, approximately 6,500 are written for injured workers with more than 30% PD. As noted above, most of these individuals need a change of occupation so it is likely that many will at least attempt some form of retraining. We might conservatively assume that at least half, or 3000, will attempt to make full use of their voucher.

    Two thirds of the annual number of VR plans, or approximately 13,000, are written for injured workers with less than 30% PD. For one or more of the reasons enumerated above, it seems unlikely that more than 3,000-4,000 will attempt to use a voucher. Workers in this group have more employment options open to them than the preceding group and many will elect to return to regular duties or accept modified/alternative job offers rather than pursue a voucher of unknown timing and value.

    We noted that very young workers might use the voucher to complete programs in progress and some older workers might use the voucher for personal enrichment purposes. Between the two, we might see an additional 1,000 or so vouchers utilized.

    This brings us to 7.000-8,000 vouchers utilized annually or about 25% of the current VR utilization rate (counting all use and not just plan cases). This use rate will be very optimistic if vouchers are routinely settled for cash, if the are not available timely, or if they are difficult to use. The use rate might go somewhat higher if schools, counselors, and attorneys find a way to efficiently deliver appropriate training programs to injured workers who need and want them.

    There are some inherent problems with the voucher concept for both injured employees and employers. Very little (10%) of the voucher can be spent for counseling services. It is not hard to imagine injured workers entering into training programs that are physically inappropriate or for which they are academically unprepared. The statute contains no provisions for second vouchers so counselors, schools, and applicant attorneys must develop the means to quickly assess worker attributes and match their skill sets and interests to available programs. Without active cooperation among these three parties, the voucher concept will have no chance to serve the needs of injured workers and will quickly be viewed as a waste of resources - and will suffer the same fate as its predecessor.

    The simple availability of a voucher will not protect employers from FEHA claims of disability discrimination. The voucher is not vocational rehabilitation and will not serve as a kind of shield against FEHA claims as did VR. Employers must engage in an "interactive process" with the employee to evaluate and identify legitimate modified or alternative job opportunities - or face the consequences and costs associated with an FEHA claim. The employer's best strategy to control workers' comp costs and minimize FEHA exposure will continue to be an active and equitable return to work program.

    This may seem to be a pessimistic assessment of potential voucher use; in fact, the utilization estimate may be quite optimistic. The process was poorly designed for injured workers who will need return to work assistance as well as for claims administrators who must initiate the benefit. Favorable DWC regulations and a concerted effort by counselors, schools and applicant attorneys may help some workers benefit from the voucher but the best solution would be for the Legislature to revise L.C. 4658.5 & 4658.6 to initiate notice and job offer requirements from P&S rather than the last payment of TTD and to allow the voucher to be accessible after 60 days from P&S.


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    Monthly Articles on Vocational Rehabilitation
    by Alan Leno

    July 2004

    Supplemental Job Displacement Benefit (Voucher) Regulations

    A number of people have indicated that they heard the new Supplemental Job Displacement Benefit (voucher) regulations have been finalized by the DWC and will become effective on August 1, 2004. This is not true! The industry is desperate for guidance on how to administer vouchers but the DWC must follow a very structured process in developing and implementing regulations. Although few people attended the public hearing in San Francisco on July 8th, a great many people submitted written testimony. The DWC must review all documents (and public testimony) submitted by 5:00 PM on July 8, 2004; the Division is still involved in that review process. If any substantive changes are made to the regulations proposed by DWC (and it is highly probable that there will be substantive changes), the revised regulations must be published for a 15 day public review period. If no further changes are made, the regulations are then submitted to the Office of Administrative Law (OAL) for review; OAL has 45 days to complete its review. Once OAL approves the regulations, they are submitted to the Secretary of State for certification and become effective immediately thereafter.

    Considering the steps remaining in this process, it is highly improbable that the voucher regulations will be available before mid-September. Employers/insurers are already encountering circumstances where injured employees are clearly eligible for vouchers. Until regulations are available, employers/insurers should provide eligible injured employers with more rather than less information. The proposed audit penalties for voucher notices range from $1000 to $5000; it may help to view your actions from the perspective of a DWC Auditor when deciding what notices, forms, and information to provide injured employees regarding their rights to this benefit.

    The 2004 Return-to-Work (RTW) Process

    When the Supplemental Job Displacement Benefit and the return-to-work process were created in L.C. 4658.5 & 4658.6 (via AB 227), the initial defense reaction was, "Great! No more QIW dance!" While it is true that defendants no longer have to have to act affirmatively to determine whether an injured employee is "....precluded from the usual and customary occupation," the statute does require a determination regarding the need for job accommodation. Potential eligibility for the SJDB voucher, the + 15% PD payment provisions of L.C. 4658(d)(2)(3), and the probable DWC penalties of $1000-$5000 for L.C. 4658.5 violations place considerable pressure on insurers to promptly determine the appropriate means of returning injured employees to the workplace. FEHA exposure places employers at substantial risk for damages dwarfing workers comp costs and create the potential for employer legal action against insurers who fail to timely discharge their obligations under these Labor Code sections. The importance of the Return-to-Work process has thus increased under AB 227 and SB 899.

    Unfortunately, the Legislature used the "last payment of TD" as the point to initiate the mandatory RTW requirements rather than the much more appropriate "P&S date." This creates some real problems for insurers and employers for those cases where the last payment of TD and P&S are not synonymous (perhaps 30% of the total). We will therefore address the "normal" (i.e., cases where the end of TD and P&S are the same date) first and then the "exceptions."

    P&S Date and End of TD coincide

    For injuries prior to 1/1/2004, claims administrators were required to send a NOPE within 10 days of P&S and an offer of modified or alternative work within 30 days of the NOPE - a maximum period of 40 days. This required a QIW determination by the P&S date and a determination of modified/alternative work availability in no more than 40 days from P&S. For injuries on/after 1/1/2004, the claims administrator must determine the need for job accommodation and (if needed) the availability of modified or alternative work, all within just 30 days of the last payment of TD/P&S. If the claims administrator is going to meet this more stringent requirement (and avoid the probable $1000-$5000 DWC penalties), s/he will need to submit a job description of the U&C position to the treating physician before P&S. It would also be advisable to query the employer regarding the potential availability of permanent modified or alternative work before P&S. Does this remind you of the process for pre-2004 cases? The more things change, the more they seem to remain the same.

    This does not mean that claims administrators must obtain job descriptions or analyses for all cases where TTD is paid. As with the QIW determination, the administrator needs to assess the probability that the employee will need a permanent job accommodation. Cases where the injured employee has no PD, has low PD and a relatively "light" job, and those who quickly return to work without difficulty probably do not require job descriptions/analyses for review by a treating physician. And there usually will be no need to obtain a description/analysis of the employee's usual position where the need for permanent job accommodation is obvious (e.g., the warehouse worker who needs a laminectomy). But, wherever there is doubt about the employee's ability to return to work at regular duties, the physician will need a job description/analysis to assist him or her in rendering an opinion on the need for job accommodation. In fact, many physicians may insist on reviewing a job description since this will be their only means of controlling a safe return to work for their patient. The need for a job analysis of the employee's regular job should be determined no later than the 90th day of TTD.

    As noted above, the claims administrator should also determine the employer's ability to provide modified or alternative work before P&S. The availability and offer of modified/alternative work affects the employers claim costs as well as their FEHA exposure since the VR benefit no longer exists to shield them from their FEHA liability. Once the employee is P&S and TD ends, several things must then happen during the next 30 days if the employee has PD and needs job accommodation:

    1. a Notice of Potential Rights must be sent within 10 days.
    2. identify a modified or alternative position within the employee's work restrictions.*
    3. obtain a job description of the modified/alternative position - if needed.**
    4. offer the modified/alternative position via RU-Form RU-94a within 30 days (note that the return to work date must be within 60 days of the last TD payment, which allows some time for medical review if needed).
    5. send the mod/alt job description to the treating physician for review.

    * Employers are required to engage in an "interactive process" with employees when developing a modified or alternative position. Claims administrators may wish to suggest that employers obtain information about their obligations by contacting their labor attorney. contacting the Dept. of Fair Housing & Employment, or by reading DFEH pamphlets available at http://www.dfeh.ca.gov/Publications/postersEmp.asp (DFEH 184 or DFEH 208DH).

    ** There is no need to obtain a job description if the job duties are clearly with work restrictions. However, a job description should be submitted for review where duties and work restrictions are close. The job description can be submitted concurrently with the offer of modified or alternative work.

    If the employer agrees, offers of modified or alternative work should contain a statement that "...the employer reserves the right to further modify a position consistent with changes in the employee's work restrictions." Claims administrators should also note that the offer of work (RU-94a) is due within 30 days of the last payment of TD but the RTW date can be delayed up to 60 days from the last payment of TD. Although the earliest possible date is preferred, delays may be necessary where the parties require medical review of the proposed modified or alternative position.

    The "Exceptions"

    When it created L.C. 4658.5, the Legislature failed to consider that the "last payment of TTD" and P&S often did not occur at the same point in time. There are many cases with numerous "last" payments of TTD because the employee was on and off work on several occasions. Which payment incurs the obligation to send a Notice of Potential Rights and an offer of modified/alternative work? Many injured workers return to "temporary light duty" positions while recovering from their injuries. Since they are still TD, starting the permanent modified/alternative job offer process is premature because there are no permanent work restrictions. What kind of notice is required for these injured employees?

    Temporary light duty or transitional work assignments are beneficial for both the employee and the employer so this form of RTW certainly should not be discouraged simply because it does not fit the scheme created by the Legislature. Employees tend to recuperate more quickly and retain important employment benefits while employers can control their claim costs and improve employee morale with effective RTW programs. We would hope that employers become more receptive to RTW programs as they come to recognize the positive impact of such programs on their claim costs as well as potential FEHA exposure. Doctors also need to be educated on the benefits of RTW programs now that the vocational rehabilitation "safety net" no longer exists. The problem for claim administrators is to address documentation requirements sufficient to avoid audit penalties and claims for increases in PD payments pursuant to L.C. 4658(d).

    It does not appear that the DWC regulations will address the many cases that fall into this "never-never" land. The best that a claims administrator can do is send a Notice of Potential Rights and a "delay" letter documenting that the employee is TD so an offer of permanent modified or alternative work is premature, and indicate that the employer will evaluate options for permanent job modification or reassignment, if needed, when the treating physician supplies permanent work restrictions. It would also be advisable for the claims administrator to attach a brief description of the temporary light duty or transitional work duties. This is as close as the administrator can come to a "good faith" approximation of the permanent offer process, considering that there are no permanent work restrictions.

    It is understandable that claims administrators want certainty and structure to the RTW/voucher process but the reality is that the process and requirements are new to everyone, including the DWC. We are going to have to learn as we go along and we need to be ready to adjust processes at a moment's notice as structure develops via regulations and - unfortunately - the courts.

    Case Law Update

    At what rate should VRMA be paid to an injured worker, who was employed on a seasonal basis, during the "off-season" portion of his or her VR program? A recent (unpublished) District Court of Appeal opinion confirms a previous WCAB en banc decision that determined VRMA could be paid to QIW injured workers in the same manner TTD benefits are paid.

    In Kimberly Davis v. WCAB (STK 118850/STK 126030), the 5th DCA cited Jimenez v. San Joaquin Valley Labor (2002) 67 CCC 74 (en banc) which found that L.C. 139.5(d) required a QIW injured worker to be paid TTD until permanent and stationary and then to be paid a VRMA benefit at the same rate as TTD to a maximum of $246 per week. The Board determined it was difficult to escape the conclusion that the benefits were to be paid according to the same rules as TTD and thus a seasonal worker who earned $0 during the off season would receive $0 TTD and $0 VRMA during the off season. The 5th DCA declined to reverse the Board's en banc decision.

    This decision means that claims administrators can reduce VRMA during the off season for seasonally employed injured workers - but the real question is, should they? We often argue that VR is akin to working so injured workers in the VR process are supposed to keep appointments, complete assignments, and attend all scheduled classes. Reducing or eliminating VRMA during the off season weakens that argument. But, more importantly, reducing or eliminating VRMA during the off season is likely to prolong cases - cases that we want closed. Stopping VRMA is likely to result in the injured worker participating in VR during "the season," resulting in six month plans lasting for a year or more. The plan won't cost any less and, the longer the plan is pending, the more that can go wrong. Despite the finding in Davis, it would appear to be in the employer/insurer's best interests to continue VRMA and get the case closed as quickly as possible. Keep in mind that post 1/1/04 cases will be difficult to manage and are likely to become more difficult as we get into 2005.


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    Monthly Articles on Vocational Rehabilitation
    by Alan Leno

    August 2004

    Supplemental Job Displacement Benefit (voucher)

    Liability Issues

    An injured worker with a 2004 date of injury cannot return to his pre-injury employer because there is no medically appropriate work available that would accommodate work restrictions resulting from a surgical back. The case settles with a Compromise & Release agreement and he decides to use his SJDB voucher at Maude's International Truckers' School. While practicing with one of the school's trucks, he aggravates his back injury to the point where he cannot continue with the training program. The employee demands a new voucher for another training program or he will sue. Who, if anyone, has liability to replace his voucher?

    You know that a scenario like this will happen. We thought we were finished with such issues with the demise of vocational rehabilitation but that is not necessarily the case; this is, after all. California where anyone can sue for anything at any time. And the voucher process is so unstructured it is inevitable that some injured workers will use their vouchers for physically inappropriate programs (as in our example above). Or some will enter programs for which they lack the requisite academic skills. Etc., etc. When the inevitable happen, who will bear the responsibility?

    With the advent of the voucher and L.C. 4658.5 & 4658.6, most assumed that there would be one voucher and the injured worker would bear the responsibility for his or her decisions. But we should not be so hasty in arriving at this conclusion. Under L.C. 139.5, we know the insurer/employer could be required to provide a second plan where the injured worker was allowed to pursue a plan that the parties knew to be inappropriate (see Bussear v. WCAB (1986) 51 CCC 240 (DCA published)). But there is a difference between vocational rehabilitation and the SJDB voucher. In VR, the insurer bears a responsibility to insure that the injured worker pursues a physically appropriate VR plan (see L.C. 4635(f)) but there is no such responsibility with the voucher. In fact, the insurer/employer has nothing to say about the employee's choice of training. L.C. 4658.5 specifies only that the defendant pay training fees where the employee enrolled in an approved facility. It seems likely that a defendant who declined to pay tuition costs based on a belief that the employee's selected program was physically inappropriate may be subject to penalties. It thus seems unlikely that the insurer/employer would be held accountable for a failed training program.

    But does that mean no one is at risk except the injured employee who makes a poor choice? Do schools, doctors or attorneys have any potential liability?

    A school could have potential liability if it was aware of the employee's work restrictions and knowingly accepted the individual for a physically inappropriate program. In our example above, a QRR would not place an injured worker with a surgical back into a truck driving program - at least not without medical clearance. Where there are known hazards, a school should exercise equal caution. A prospective student with an SJDB voucher is known to have a work injury. There are, of course, Privacy Act and HIPAA limitations but a school can provide the prospective student with a copy of a (good!!) job description and a release form to be signed by the treating physician prior to enrollment. Failure to take reasonable steps to help ensure safe participation in a training program would leave the training facility at substantial risk.

    What about physicians? We have all seen physicians release injured workers to programs that we knew to be inappropriate. It may have seemed "safe" enough to the physician under L.C. 139.5; if it didn't work out, the employee could get a second plan. But there is no longer a VR "fallback." Injured workers who cannot continue in a program for physical reasons may look to their physicians (i.e., their malpractice insurers) for a solution. It would therefore behoove physicians to ask for a job description/analysis of the proposed occupation.

    Applicant attorneys could also be at risk. Insurers are not going to recommend training programs or vocational counselors. Injured workers will therefore turn to their attorneys (or the attorney's paralegal) for advice on training programs and/or vocational counselors. The attorney may have a liability exposure similar to schools and doctors where their clients' re-training effort fails. Here, the argument would be that the attorney made a recommendation without having the requisite skill in assessing the client's abilities and training needs. An attorney would therefore be well advise to recommend a vocational assessment to their clients. Even here, care should be exercised. The attorney should consider providing each client with a list of three vocational counselors in his/her area and recommending they interview each before making a decision.

    Vocational counselors could also be at risk if they (like doctors) acquiesce to a vocational goal they know to be inappropriate for any reason (physical, academic, labor market, etc.). Most injured workers need a vocational assessment before selecting a training program but it is more important than ever to exercise good professional judgment. When an injured worker insists on pursuing a program the counselor knows to be inappropriate, the applicant must be told "No" and the reasoning documented.

    When it comes to liability for second vouchers, the defendant probably has the least exposure. This means that the remaining parties are at greater risk and must take steps to insure they provide appropriate counsel to the injured worker who chooses to pursue retraining under the Supplemental Job Displacement Benefit voucher.

    Case Law Updates

    L.C. 139.5 doesn't apply to injuries after 12/31/03 - but there are still plenty of cases left in the courts with issues to be resolved.

    Is a modified job offer valid if made via letter rather than a DWC Form RU-94? There are previous cases indicating that an RU-94 may not be critical in some circumstances, such as when an employee has already stated an intent to reject the job offer (see Kimberly Allen v. WCAB (1998) 63 CCC 1270 (Writ denied)) or where the employee is undocumented (see Del Taco v. WCAB (Gutierrez) (2000) 65 CCC 342 (DCA Published)). In American Home Assurance/AIG v. WCAB(Pacey)(2004) 69 CCC 378 (writ denied), the defendant sent the applicant a letter indicating that modified work was available but did not send an RU-94. The Board determined that the applicant could not be deemed to have rejected an offer that was not properly made. Although the vocational rehabilitation benefit is winding down, it is still important for defendants to comply with statutory and regulatory requirements if we hope to properly close the VR liability.

    Is a defendant required to provide notice of potential rights to VR benefits and services (i.e., the 90 day notice) where the applicant is not temporarily disabled for 90 days? In Jim Shepherd v. WCAB (2004) 69 CCC 290 (writ denied), the applicant alleged he was entitled to VRMA benefits at the TTD rate because the defendant had failed to provide him with a mandatory notice after an AME determined that he was "...possibly disabled for three months." The Rehab Unit and an arbitrator found the applicant not QIW but entitled to VRMA at the TTD rate from 9/3/93 through 8/26/02. Defendant appealed, arguing that the applicant was not paid 90 days of TTD nor did any physician ever find him to be a QIW. The WCAB agreed, noting that the AME only estimated the duration of temporary disability three years after the fact and also finding that applicant was not a QIW. An employer/insurer certainly should not take liberties with notice requirements but there are minimum requirements to start the notice obligation, including payment of 90 days of TTD and/or specific medical information that the applicant is (or is likely to be) a QIW.

    Training Programs

    Paul Hagle, Allan Leno, and Andrea Rosa (formerly Deputy Director of the Dept. of Fair Employment & Housing) are presenting an FEHA/RTW workshop to be held on September 29-30, 2004 at the Buena Park Holiday Inn. The program will cover new workers' comp requirements (including the SJDB voucher), impact of SB 899 on employers, Fair Employment & Housing Act requirements for employers, interaction between WC requirements and FEHA employer obligations, and marketing strategies for service providers who wish to supply essential return-to-work assistance to employers. Program and registration details are attached to the newsletter (you can also e-mail allanleno@leno-assoc.com for additional copies if your antivirus or spam program deletes attachments). Anyone interested in attending should note that the "Early Bird" registration savings (10% off the regular registration price) ends September 3rd. Lunches are included and the room rate for participants is $69 per night. Organizations interested in sending three or more employees should contact Paul Hagle at (800) 423-2529 for group rates.


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    Monthly Articles on Vocational Rehabilitation
    by Alan Leno

    September 2004

    Supplemental Job Displacement Benefit (voucher)

    The SJDB voucher process continues to be a source of confusion and frustration for claims departments charged with implementing the various notices and processes mandated by L.C. 4658.5 and 4658.6. It doesn't help that we still don't have AD Regulations to provide necessary guidance and structure and it now seems unlikely that we will have regulations before the end of the year. With the pressure on the AD to finalize and issue regulations on PD rating, medical treatment, and medical networks, it may be optimistic to expect voucher regulations until sometime next year.

    This leaves claims administrators with no choice but to act in "good faith" consistent with the intent and plain language of the statute. Put simply, this means sending a Notice of Potential Rights within 10 days of the last TD payment, determining the availability of mod/alt work if needed for injured employees with PD and offering such work within 30 days of the last TD payment, advising the employee of entitlement to the voucher where mod/alt work is not available, and providing the employee with the voucher within a reasonable period (probably 20 days) from resolution of the case by F&A or C&R. There are all sorts of "exceptions" of course and there cannot be "answers" for these situations until we have regulations - and probably some case law.

    In the interim, claims administrators need to deal with the usual or routine cases. The attached "SJDB Action Table" is intended to assist claims staff in responding to situations where the employee is P&S (and P&S coincides with the last payment of TD) and has (is likely to have) some degree of permanent disability. Claims managers and supervisors should note that use of this table requires some policy decisions so appropriate adjustments should be made to the table to insure that your examiners' responses are consistent with company policy. Leno & Associates is available to work with claims departments that wish to arrange for staff training.

    QRRs and Formal Conferences

    I attend several formal conferences each week and have noticed in certain venues that vocational counselors regularly fail to appear, even though they were provided notice by the RU Consultant. Consultants in these venues have indicated that it is the exception, rather than the rule, when a QRR does appear for the conference. This failure to appear is of little consequence where the issues do not involve the counselor. However, in many cases the counselor's input is critical to the outcome and his or her failure to appear could mean substantial cost to the carrier or a loss of benefits and services to an injured worker. This was the situation when a QRR failed to appear at a recent conference in Santa Monica. The RU Consultant was furious with the QRR and was prepared to order a significant extension in benefits and services for the injured employee because the counselor was not present to substantiate his efforts on behalf of the injured employee. The parties were able to resolve the matter without an Order from the Unit. However, if the Unit had issued the expected Order, my advice to the carrier would have been file a complaint with CARRP and to sue the QRR and the firm for whom he worked. The reason for the suit - if the QRR had appeared and testified consistent with his reports, there is a good chance the case would have been closed at no additional expense to the carrier.

    A good reputation is hard to earn - but very easy to lose. When a QRR is served with a conference notice but the issues do not involve the counselor, it is entirely appropriate to ask the parties to be released from attending. In all other cases, professionalism and ethical conduct require the QRR to be present to explain his or her view regarding the issues in dispute. A counselor's failure to appear for a formal conference tends (unfairly) to reflect poorly on our piece of the industry. The counselor in the situation above has lost the respect of the RU Consultant and both he can expect to receive no further referrals from the carrier, which may also be the case for his employer. I realize that this sounds like a lecture - but I know too may people in this industry who have worked very hard for many years to build and maintain solid reputations. We owe it to them, as well as ourselves, to meet our obligations and to conduct ourselves as professionals.

    Case Law Updates

    Are FEHA issues resolved when a C&R settles "....all claims and causes of action" related to the industrial injury?

    In Mary J. Jefferson v. California Dept. of Youth Authority (2002) 67 CCC 727, No. S097104 (CA Supreme Court), the Supreme Court determined that an FEHA claim was settled when the employee signed a stock C&R form containing language that resolved all causes of action related to the applicant's worker's compensation claim. A recent District Court of Appeal (2nd) came to a different conclusion with a similar but slightly different set of facts.

    In Dorothy Wimberly Mitchell, The Union Central Life Insurance Co. et al (2004) 69 CCC 586 (reversed and remanded with directions), the 2nd DCA found that a C&R with the "...all causes of action" language did not resolve an FEHA claim where there was no evidence of intent by the applicant to settle the FEHA claim. The Court found evidence that the applicant did not intend to settle her case because she had a second attorney for her FEHA claim, the FEHA action was not mentioned in the C&R, the WCALJ and both attorneys conceded that the FEHA claim was not discussed during settlement, the employer had a $1 million offer on the table at the time of settlement, and the employer offered to settle the FEHA case for $1.1 million after the C&R. Since the workers' comp case was settled for $57,500, the DCA was convinced that there was no intent on the part of the employee to include her FEHA claim.

    In the Jefferson case, the employee had filed an FEHA claim but there had been no discussion of settlement and the Court believed the applicant was aware that "...all claims and causes of action" would include her FEHA claim. In some respects, this seems like a very fine distinction from the Mitchell case. It will be interesting to see if Mitchell is appealed to the Supreme Court for further clarification. [The facts suggest that this would be a poor case for the employer to appeal.]

    Training Programs Paul Hagle and Allan Leno are considering a second WC/FEHA workshop for Northern California (the first program was in November 2003) if there is sufficient interest. Like our program this week in Buena Park, the program would cover new workers' comp requirements (including the SJDB voucher), impact of SB 899 on employers, Fair Employment & Housing Act requirements for employers, interaction between WC requirements and FEHA employer obligations, the FEHA "interactive process" requirements, marketing strategies for service providers who wish to supply essential return-to-work assistance to employers, and liability issues for service providers. The proposed dates for the program are March 2&3, 2005 with San Francisco as the most likely location. We have had a half dozen inquiries to date but need to determine if there is sufficient interest to support the workshop. If you would be interested in attending this program, please contact Allan Leno at allanleno@leno-assoc.com or Paul Hagle at NAADAC@aol.com. Please pass this newsletter on to interested co-workers and friends. Anyone wishing to be added to (or removed from) our distribution list should send an e-mail to allanleno@leno-assoc.com and indicate their preference.


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    Monthly Articles on Vocational Rehabilitation
    by Alan Leno

    October 2004

    4635-4647 Wherefore Art Thou? Is a defendant still required to pay VRMA at the L.C. 4642 delay (TD) rate even though there is no more L.C. 4642? Some believe the requirement to pay VRMA at the delay (penalty) rate ended when AB 227 repealed L.C. 4635-4647 in 2003. Some believe the Legislature's failure to reinstate these sections when SB 899 reinstated the pre-2004 VR language in L.C. 139.5 was further proof that the requirement to pay a punitive delay benefit had ended. We took the opposite position (and still do) in this newsletter, arguing that defendants must act as though 4635-4647 still exist. There are two compelling reasons for this point of view.

    First, the Legislature made its intent clear regarding the availability of benefits for injured workers with pre-2004 dates of injury. By reinstating L.C. 139.5, it created the means to insure the availability of benefits and services for the pre-2004 QIW population. Surely the Legislature intended for injured workers and the industry to have the means to implement the VR benefit - the failure to reinstate 4635 - 4647 was nothing more than an oversight. The recent decision in Godinez v. Buffets, Inc., Specialty Risk Services (2004) 69 CCC *** (rescinded and remanded) would seem to signal support from the courts to this effect. In Godinez, the Board noted that these sections "...have a shadowy existence..." and, quoting Hamlet, that these sections are "....doomed for a certain term to walk the night..." The logic in this decision is consistent with Legislative intent in reinstating 139.5 so we should expect subsequent appeals to produce a similar result.

    Secondly, an assumption that 4635 - 4647 no longer exists leads to some very significant incongruities. L.C. 139.5 creates the VR benefit and the Rehab Unit, specifies benefits to be paid, and also provides some limits on services (e.g., the length of placement services). But, if there is no 4635-4647:

    - We cannot define who is (and who is not) a QIW (see 4635(a)),

    - We have no definitions for "services," "plans," or 'suitable gainful employment" (see 4635(d)(e)(f)),

    - The requirement to obtain job descriptions and follow-up with the treating physician no longer exists (see 4636),

    - There is no requirement to send the Notice of Potential Eligibility (see 4637),

    - We may lose the RU-94 process (CCR 10126(a) is based on 4638),

    - There is no delay penalty (see 4642)

    - There cannot be second plans (see 4644(c)(d)(e))

    Defendants may think these 'losses" aren't so bad but consider that defendants also:

    - have no support for declining services via the RU-107a (see 4641)

    - have no way to close cases (see 4644(a)(1-7)),

    - cannot settle cases (see 4646(b)(c))

    - have no limitations on out of state cases (see 4644(g))

    - have no means to terminate liability for an RU-94 case where the applicant voluntarily terminates his/her employment in less than 21 months (see 4644(f))

    We can't have it both ways. L. C. 139.5 sunsets on 1/1/2009 but, until then, we have to administer the benefit as it was before 1/1/2004 or suffer the consequences. The "consequences" will be substantial penalties for acting as though 4535 - 4647 no longer exist.

    Voucher Regulations

    The DWC Administrative Director, Andrea Hoch, has indicated that new regulations required to govern the administration of the Supplemental Job Displacement Benefit (voucher) will become a primary order of business early in 2005. Finalization of these regulations has been delayed due to pressures on the DWC to develop and issue regulations for medical treatment and medical networks as well as the new PD rating schedule. Assuming there are no implementation problems with these items (a HUGE assumption), the voucher regulations could be ready as soon as April 2005.

    Since substantive changes as a result of the July 8, 2004 hearings seems virtually certain, the DWC will be required to post proposed voucher regulations for a 15 day comment period. Assuming no further substantive changes, the regulations would then be sent to the Office of Administrative Law (OAL) for review to insure that the proposed regulations are consistent with all state laws; OAL has 45 days to complete its review. Once DWC has approval from OAL, the regulations are sent to the Secretary of State for certification, at which point they become effective. If there are no "glitches," this process would take approximately 90 days. Further substantive changes by the DWC would cause an approximate 30 day delay and any problems identified by OAL could cause an additional 60-90 day delay. L. C. 4658.5 & 4658.6 are very poorly drafted so such delays should come as no surprise. It would seem more realistic to expect the voucher regulations in July or August 2005.

    Voucher Notices

    Since there are no voucher regulations, there are also no "official" voucher notices. Unfortunately, that does not relieve claims administrators of the obligation to send required notices to injured workers who have PD and who are not returned to medically appropriate work. Failure to send notices could subject the claims administrator to substantial DWC penalties so employers and insurers must make at least a good faith effort to protect themselves from DWC assessments.

    Leno & Associates has drafted a set of four letters to meet the intent of L. C. 4658.5 & 4658.6. This set includes the "Notice of Potential Rights," "Offer of Modified or Alternative Work," and the "Supplemental Job Displacement Nontransferable Training Voucher Form" plus a fourth (optional) letter to assist claims administrators in addressing situations that do not fit neatly into notification scheme envisioned by L. C. 4658.5. The set is available in Word format for $100. Purchasers will automatically received updates to these letters at no additional charge. Current customers who are interested in these letters and have not received copies should contact me by e-mail at allanleno@leno-assoc.com or by phone at (818) 370-8859.

    Training

    Allan Leno and Paul Hagle will be presenting their two day WC-RTW/FEHA workshop in Sacramento on March 2/3, 2005. Details will be available in December.


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    Monthly Articles on Vocational Rehabilitation
    by Alan Leno

    November 2004

    Supplemental Job Displacement Benefit (voucher)

    VR services for 2004 cases

    Many physicians are not fully aware that they no longer should be making QIW determinations. These physicians still include language in P&S reports indicating a need for vocational rehabilitation where they deem the injured worker incapable of performing their usual and customary job duties. Some claims examiners have reported demands for VR services from applicants' attorneys and one recently received a copy of an RU-103 Request for Dispute Resolution after declining to provide VR services. The Rehabilitation Unit issued a Data Mailer recognizing receipt of the RU-103 but the Unit will ultimately have to reject the attorney's request for dispute resolution.

    All parties (including physicians) need to understand that the vocational rehabilitation benefit no longer exists for dates of injury on or after January 1, 2004. L. C. 139.5, as reinstated via SB 899, specifically applies to dates of injury prior to 1/1/2004. L. C. Section 139.5 also contains the authority for existence of the Rehabilitation Unit; the preceding limitation means that the Unit has no jurisdiction for dates of injury on pr after 1/1/2004. The Unit therefore cannot hear disputes of any sort for dates of injury on/after 1/1/2004 (this includes voucher disputes).

    Where an examiner receives a demand for VR benefits and services for a 2004 case, s/he might want to send a brief letter to the attorney noting that VR is not due for dates of injury on or after 1/1/2004. If the attorney files an RU-103, simply send a copy of your letter to the Unit with a copy of the attorney's RU-103. The Unit will respond with a notice indicating that it lacks jurisdiction on the case.

    "Forced" VR Settlements

    Some claims examiners have advised that a few applicant attorneys have been very aggressive in demanding settlement of prospective VR benefits and services for their client pursuant to L.C. 4646(b) and Pebworth. These attorneys have threatened to file an RU-103 with the Unit if these examiners decline to sign an RU-122. One attorney apparently has acted upon his threat and filed with the Unit; I have not heard the outcome as yet.

    Once again, the Unit should respond with a notice indicating that it lacks jurisdiction in this matter. L. C. 4646(b) specifies that prospective VR benefits and services can be settled for represented injured workers by agreement. This means that neither party can be forced to sign an RU-122, even by the Unit. Threats to seek action by the Unit should be considered as nothing more than a negotiating tactic.

    Case Law Update

    Can the Legislature decide what laws were meant to say? The California Supreme Court says that the Legislature can make changes to laws but only the Courts can decide what the law previously meant. In Lesli Ann McClung vs. EDD (S121568, 11/04/04), the Court took issue with the Legislature's statement in the AB 2222 changes to the Fair Employment and Housing Act that its action (in AB 2222) was "declaratory of existing law." A lower court applied a provision of the 2001 amendments in AB 2222 allowing an employee to sue a co-worker for allegedly discriminatory acts based on disability. The lower court made its determination based on the "declaratory of existing law" language in AB 2222. The Supreme Court held that the analysis was not that simple and that it was up to the Court to decide what the law "meant" and not to the Legislature to decide what a previous Legislature had intended when it modified a statute.

    While this case applies to the Fair Employment & Housing Act, it has potential application to recent workers' compensation reforms and their potential for "retroactivity." Medical treatment and PD provisions of these reforms are being applied to cases with dates of injury pre-dating the reform provisions; to many, that constitutes "retroactivity." In light of the McClung case, it will be interesting to see how the Supreme Court deals with the workers' comp issues - and it will most certainly have to deal with these issues.

    Training Programs

    A two day workshop designed for VR counselors and RTW Specialists presented by Allan Leno and Paul Hagle will be presented on March 2 and 3, 2005 at the Doubletree Hotel in Sacramento. This workshop will address recent workers' compensation reforms and their impact on employers, FEHA and Return-to-Work requirements for employers, RTW strategies and procedures, and business opportunities and strategies for RTW specialists. A copy of the workshop agenda and a registration form are attached to this newsletter. Participants who register by January 5, 2005 are eligible for a 20% "early bird" discount on the program registration fee (see the attached registration form for details).

    This workshop provides essential information for rehabilitation counselors and return-to- work specialists who will be working with employers to develop detailed job descriptions, return-to-work programs and permanent modified/alternative jobs for injured employees. Employers who are developing "in-house" return-to-work programs will also find the workshop useful.

    Special Offer: Some attendees at the November 2003 workshop in San Francisco have inquired about an "update" to that program. The morning session on March 2, 2005 covers recent workers' compensation reforms and their impact on employers and employers' FEHA obligations. Participants from the 2003 workshop can attend the morning session for $195 ($220 with the lunch option). If you are interested in attending the half day session only, please use the attached registration form rather than the one you received in the mail. If you have questions, please contact Allan Leno at the address below.

    Allan Leno
    1560-1 Newbury RD #327
    Newbury Park, CA 91320
    Ph: (818) 370-8859
    Fax: (805) 241-0590
    e-mail: allanleno@leno-assoc.com


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    Monthly Articles on Vocational Rehabilitation
    by Alan Leno

    December 2004

    SJDB vouchers - FAQ

    We have neither regulations nor case law to guide us so there are a lot more questions than answers about vouchers and how to meet requirements. The following are the most frequent questions I get and my answers (subject to change when we get regs and case law, of course).

    1. Since the DWC has not issued regulations, do I really have to send notices on 2004 cases? The lack of regulations may serve to mitigate penalties does not excuse the employer or insurer from its obligation to provide statutorily required information to the injured worker. Employers/insurers must make a "good faith" effort to provide eligible injured employees with a Notice of Potential Rights, an Offer of Modified or Alternative Work (if required and appropriate), and a Voucher where the employee is eligible. Since there are no regulations, the employer can draft its own letters and forms or use existing ones such as the RU-94 for an offer of modified or alternative work. Failure to provide any notices or offers will likely subject the employer/insurer to the maximum penalties, once these are established. [Note: The DWC initially proposed penalties ranging from $1000 to $5000 for failure to send the Notice of Potential Rights or a voucher when due.]

    If you need letters immediately, Leno & Associates has drafted a set of notices in Word format that can be used until the DWC finalizes its regulations sometime in 2005. The letters are available for $100 and can be sent to you via e-mail for immediate use.

    2. Is it really necessary to send the Notice of Potential Rights via certified mail? Certified mail is an expensive and time-consuming process. Sending so many letters via certified mail is expensive and it requires a lot of clerical time that could be used on other critical tasks. Unfortunately, the statute (L.C. 4658.5(c)) specifically requires the use of certified mail so there is no choice in the matter.

    3. Some of my cases are on and off TD multiple times; do I have to send a Notice of Potential Rights each time I stop TD? This is a very tricky issue. The technical answer is "No" - the Notice of Potential Rights is only due after the last payment of TD. The problem is, how do you know when the last payment will be? If you guess wrong, an injured worker might be eligible for a voucher even though s/he is able to return to their regular duties. Such an occurrence is certain to cause problems with your insured employer. The safe course of action, despite the expense and extra work, is to send the Notice each time TD ends.

    4. The injured worker is P&S and TD has ended but the treating physician has yet to provide work restrictions. What should I do? At minimum, send the Notice of Potential Rights. The real issue, of course, is whether the employee will need job accommodation and, if so, can the employer offer medically appropriate work and you need work restrictions to make these determinations. The statute doesn't address delays and it is unknown whether the regulations will for a 2004 equivalent to the pre-2004 "delay" notice. My suggestion would be to create a delay notice advising the employee that you need work restrictions from his/her doctor to assist with the return to work determination and you will provide an answer as soon as you can obtain the necessary information.

    5. What if it takes more than 30 days to obtain the necessary information to make the offer of modified or alternative work? My suggestion would be to make the offer anyway, even if it is late. Vouchers will not be available until the employee's workers' comp case is resolved so we may find many more workers motivated to return to work in the positions offered. The employee has the option to reject the offer and take his/her voucher. At worst, the employee accepts both the job and the voucher (it appears that an employee may be entitled to a voucher if mandatory notices are late). And this "worst case" may not be all that bad. Just because the employee gets a voucher doesn't mean s/he will use it. Even if the voucher is used, it seem likely that the comp case will be settled more quickly and amicably when the employ is back to work and has hope for the future because s/he is looking forward to improving his/her education and skills.

    6. The employer has modified work for the employee but the work is seasonal and the start date will not fall within 60 days from the last TD payment. Should we offer the job or just provide the voucher? The Legislature did not consider seasonal workers when it created the voucher so the 60 day return to work requirement would seem to require provision of a voucher whenever the seasonal employer cannot provide a start date within 60 days of the last TD payment. The DWC does seem inclined to make an exception for seasonal workers but, without final regulations, there is no guidance and certainly no guarantees. Nonetheless, I would suggest offering the job. If the employee accepts the offer, there is no problem. If the employee rejects the offer, the issue of the voucher remains "in play" until the case in chief is resolved.

    7. The injured employee is P&S, has permanent disability, and the employer is unable to offer modified or alternative work. When am I required to provide the voucher to the employee? L. C. 4658.5 indicates the voucher is available when the amount of PD is known and that happens at the time of a C&R agreement or an F&A by the Board. The voucher therefore is not due the employee until the case in chief is resolved. The insurer and employer can agree to provide the voucher earlier (preferably as soon as the employer determines it cannot provide modified or alternative work). Providing the voucher closer to the P&S date makes it more usable by the injured worker and may serve to provide the employer with a buffer against a discrimination claim under the Fair Employment & Housing Act.

    8. The injured employee is P&S, has PD, but is released to regular duties; however, the employer has had a substantial reduction in force so the employee no longer has a job. Is the employee entitled to a voucher? Probably not - but the issue will likely require clarification via case law. L. C. 4658.5(a) indicates that the requirements for a voucher are that the employee has PD and does not return to work for the employer within 60 days. This seems to suggest that the injured worker in this question is entitled to a voucher. However, the exception to the requirement involves offers of modified or alternative work, which our injured worker in this example does not need. An injured worker who is released to full duty presumably does not need to upgrade skills, unlike the worker whose injury requires job accommodation. Absent case law to the contrary, we would therefore assume that the worker who can return to regular duties does not receive a voucher, even where s/he has no job to return to. Note, however, that this employee would be entitled to a 15% increase in PDAs pursuant to L. C. 4658(d).

    9. Can the voucher be settled? Most attorneys (both applicants and defense) have assumed that the voucher can be settled because there is no prohibition against settlement. However, the voucher is described as being "non-transferable" which could serve as a bar to settlement. Note that the voucher does not allow payment of money directly to the injured employee, except as reimbursement for training obtained at an approved training facility. Otherwise, the only parties to be paid are approved schools and vocational counselors. It could be argued that these requirements serve as an effective bar to settlement. However, if both the applicant and the employer/insurer wish to settle cases, who would bring a case before the Board? It appears that cases will be settled, whether or not settlement was intended by the Legislature.

    10. The injured employee has submitted receipts for training; what are the requirements and criteria for payment? As long as the expense was incurred after injury and the school is an approved training facility, the employer/insurer must reimburse the training expenses with 45 days. Reimbursable expenses include tuition, required fees, and the costs for required books, training materials, and equipment up to the limits of the voucher. Employers/insurers should note that the employee can continue to register for and take classes or training programs to the limit of the voucher. Reimbursement may not be denied simply because the employee previously completed a training program.

    If you have other questions regarding the voucher, please submit them via e-mail and we will attempt to answer them in future editions of the newsletter.

    The EARN Network

    Allan Leno & Larry Gordon announce creation of the Employer Assistance & Re-employment Network (EARN). The EARN network will match members who possess ergonomic or return to work skills and experience with employers who require assistance in returning disabled employees to medically appropriate work or in developing accommodations for current employees with disabilities. Earn will provide training to all members, identify employers in need of assistance, refer the case to a local EARN member, insure timeliness and compliance with quality standards, provide billing and collection services, and facilitate problem resolution for members and employers.

    Ergonomic and RTW specialists who are accepted for membership will be assigned a geographic service area on either a "right of first refusal" basis or an "alternative provider" basis (i.e., where the primary provider cannot accept the assignment). Information regarding EARN membership requirements and benefits will be mailed to service providers statewide within the next few days.

    Training Programs

    A two day workshop designed for VR counselors and RTW Specialists presented by Allan Leno and Paul Hagle will be presented on March 2 and 3, 2005 at the Doubletree Hotel in Sacramento. This workshop will address recent workers' compensation reforms and their impact on employers, FEHA and Return-to-Work requirements for employers, RTW strategies and procedures, and business opportunities and strategies for RTW specialists. A copy of the workshop agenda and a registration form are attached to this newsletter. Participants who register by January 5, 2005 are eligible for a 20% "early bird" discount on the program registration fee (see the attached registration form for details).

    This workshop provides essential information for rehabilitation counselors and return-to- work specialists who will be working with employers to develop detailed job descriptions, return-to-work programs and permanent modified/alternative jobs for injured employees. Employers who are developing "in-house" return-to-work programs will also find the workshop useful.

    Special Offer: Some attendees at the November 2003 workshop in San Francisco have inquired about an "update" to that program. The morning session on March 2, 2005 covers recent workers' compensation reforms and their impact on employers and employers' FEHA obligations. Participants from the 2003 workshop can attend the morning session for $195 ($220 with the lunch option). If you are interested in attending the half day session only, please use the attached registration form rather than the one you received in the mail. If you have questions, please contact Allan Leno at the address below. --------

    Allan Leno will be teaching the IEA CA 14 vocational Rehabilitation class in Woodland Hills (Zenith Insurance) beginning February 10, 2005. Classes will cover all aspects of the vocational rehabilitation process but will also include practical information on requirements and procedures for the Supplemental Job Displacement Benefit voucher. Anyone interested in the class should contact IEA at (800) 655-4432 or visit the IEA web site at http://www.ieatraining.com.


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    Monthly Articles on Vocational Rehabilitation
    by Alan Leno

    January 2005

    SJDB vouchers - More FAQ

    The Supplemental Job Displacement Benefit voucher continues to be a source of frustration to those charged with its administration:

    1. When an applicant is sent an Offer of Modified or alternative Work or a Voucher, should a Request for Dispute Resolution Form RU-103a be included?

    I suspect the Rehabilitation Unit would tell you that the form should be included and it certainly sounds like a reasonable assumption based on our past experience. However, there are a couple of problems with use of the RU-103a. First, the Rehabilitation Unit does not exist for cases with a date of injury on/after 1/1/2004 so it has no jurisdiction to address voucher disputes until or unless the Administrative Director delegates that responsibility to unit Consultants. Second (and this follows from the first point), it would misleading to lead an applicant to believe that he or she could seek assistance from the Unit on voucher disputes. Submitting an RU-103a to the Unit for a 2004/2005 case will result, at best, in a referral to their attorney or an I&A Officer. It would seem more appropriate to include a cover letter with instructions for the applicant to contact their attorney if they have one or to contact an I&A Officer (and provide the phone number) if they disagree with the job offer or the voucher. If you do choose to include a copy of the RU-103a, it would still be advisable to use a cover letter advising contact with their attorney or the local I&A Officer.

    2. Can I use the proposed "RU-94a" form to document an offer of modified or alternative work to an injured worker pursuant to L.C. 4658.6?

    It may seem odd to recommend use of this form, in light of the previous answer, but I do think this is a good one to use because it so clearly meets the intended purpose. A completed RU-94a* provides all the information necessary for properly documenting the job offer. It does not serve to mislead the injured as in the previous question (note modifications to the advisory language at the bottom of page one). The proposed form is also easily recognizable for its intended purpose and, for that reason, is likely to encourage compliance with the intent of L.C. 4658.6. The parties are free to utilize other formats, including job analyses, but considering all the changes in the system, it may best serve all concerned to stick with a reasonably familiar process.

    * Note that the proposed document is not actually designated as an RU-94a - this is just a convenient shorthand that is easily recognizable as a modification of the RU-94. Also, please note modifications at the bottom of page 1.

    3. The injured worker is eligible for an $8,000 voucher and is attending a $5500 training program. Is the carrier's liability for the voucher concluded when he completes the program?

    There is nothing in L.C. 4658.5 that substantiates ending the carrier's liability when an injured worker completes a particular training program. The statute specifies the value of the voucher, how it can be spent, and how much can be committed for the services of a vocational specialist. The carrier's liability ends when the voucher is exhausted or at five years from the date of injury (we assume, at least, that 5410 applies). If the worker in this example wishes to attend a second training program, he can do so as long as tuition does not exceed the $2500 remaining in the voucher and the reimbursement request is made within 5 years from the date of injury.

    4. The injured worker has registered for a training program that clearly exceeds her work restrictions. What obligation does the carrier have to reject the request for tuition reimbursement?

    The answer, unfortunately, is that the carrier has no right to refuse to pay tuition for the program as long as it meets the requirements of L.C. 4658.5. Unlike L.C. 4635, there is no requirement in 4658.5 for the carrier to reasonably assure that the proposed occupation is physically appropriate for the injured worker. The statute specifies only the value of the voucher, where it may be used (approved facilities), and the employer/carrier's obligation to pay or reimburse tuition and related costs. A carrier that refused to pay tuition for an approved facility would arguably face significant penalties in spite of legitimate concerns for the injured worker's welfare.

    5. Does a training facility have any obligation to determine whether a particular training program is physically appropriate for an injured worker?

    Schools that accept a voucher would (or certainly should) know that the person presenting the voucher has a workers' comp injury and has some physical limitations. It would be a good idea for schools to develop a representative job analysis for each of their programs* and have it reviewed by the injured worker's physician whenever there is a question regarding the individual's ability to perform a particular occupation. These job analyses should be completed by a professional who is skilled in performing job analyses and who is not a member of the school's staff. Injured workers receive one, and only one, voucher so schools that do not take reasonable steps to assess students' safety in the training program and subsequent jobs may have significant liability. Keep in mind that schools have historically had a significant degree of "protection" because programs were assessed by counselors prior to enrollment and counselors would obtain medical clearance wherever there was a question about the worker's ability to perform the occupation.

    * The job analysis should be performed for the occupation rather than the training program.

    6. Is it necessary to wait until the injured worker is P&S to send a Notice of Potential Rights and the SJDB voucher? If we know the injured employee will have significant PD and the employer cannot provide modified/alternative work, can we make the voucher available before TTD ends?

    Technically, the Notice of Potential Rights cannot be sent before TTD ends - the statute specifies that the notice is due within 10 days of the end of TTD and the injured worker becomes eligible for the voucher within 60 days of the end of TTD if the employer cannot provide modified or alternative work. However, getting an injured worker started with his/her training before TTD ends is an excellent idea so the parties should not be deterred by a "minor" technical obstacle. It probably is not a good idea to unilaterally send a voucher in this situation - but the parties can always agree that the applicant can use his/her voucher before TTD ends. The employer/insurer should advise the applicant that the employer cannot provide modified or alternative work* and ask the employee to sign a request/Reply form for his/her voucher. The request form must include a statement that the employee understands that this is the only voucher s/he will receive and that any necessary adjustments to the value of the voucher will be made at the time of settlement. If the injured worker is represented, this all would, of course, be accomplished via the applicant's attorney.

    But what about the Notice of Potential Rights? The Notice should be sent along with the request form noted above (the applicant should be advised regarding his/her rights before being asked to sign anything). However, you might want to send another Notice of Potential Rights within 10 days of the end of TTD to meet the letter of the law. You can note that this is just a formality since the parties have already agreed to use of the voucher.

    * The employer should be aware that making this decision before P&S could result in significant FEHA exposure. An early decision would only be appropriate where the employer goes out of business during the TTD period, has a significant reduction in force and the employee would have lost his/her job based on seniority, or the employee's likely work restrictions are known and the employer has conducted an appropriate evaluation of possible options.

    If you have questions regarding the voucher, please submit them to allanleno@leno-assoc.com . We will do our best to answer them in the newsletter

    The EARN Network

    Allan Leno & Larry Gordon wish to thank the more than 60 rehabilitation/RTW firms that have expressed their interest in working with EARN. For those practitioners and firms considering an application, we urge you to send in your material as soon as possible. If you have any questions regarding the EARN network and how an association with the network might work, please call us at (818) 727-9160 x3003 or (818) 370-8859 or send your question(s) via e-mail to rtwcoordinator@theearnnetwork.com.

    Starting 2/4/05, our committee will begin the process of evaluating applications and matching service providers to specific geographic service areas. Once that process is complete, we will contact all who submitted applications to discuss next steps.

    Training Programs

    A two day workshop designed for VR counselors and RTW Specialists will be presented by Allan Leno, Paul Hagle from the National Institute on Employment Issues, and Andrea Rosa of the Rosa Law Group (formerly Deputy Director of the California Dept. of Fair Employment & Housing) on March 2 and 3, 2005 at the Doubletree Hotel in Sacramento. This workshop will address recent workers' compensation reforms and their impact on employers, FEHA and Return-to-Work requirements for employers, RTW strategies and procedures, and business opportunities and strategies for RTW specialists. A copy of the workshop agenda and a registration form are attached to this newsletter. Participants who register by February 4, 2005 are eligible for a 10% "early bird" discount on the program registration fee (see the attached registration form for details).

    This workshop provides essential information for rehabilitation counselors and return-to- work specialists who will be working with employers to develop detailed job descriptions, return-to-work programs and permanent modified/alternative jobs for injured employees. Employers who are developing "in-house" return-to-work programs will also find the workshop useful.

    Special Offer: Some attendees at the November 2003 workshop in San Francisco have inquired about an "update" to that program. The morning session on March 2, 2005 covers recent workers' compensation reforms and their impact on employers and employers' FEHA obligations. Participants from the 2003 workshop can attend the morning session for $195 ($220 with the lunch option). If you are interested in attending the half day session only, please use the attached registration form rather than the one you received in the mail. If you have questions, please contact Allan Leno at the address below. --------

    Southern California: We have had a few inquiries regarding a repeat presentation of the WC/FEHA program from service providers in Southern California. If you would be interested in attending one or both days of this program (the location most likely would be in Orange County), please let us know via e-mail (allanleno@leno-assoc.com ). We have open dates in June/July and in September; please let us know your preference.

    -------- Allan Leno will be teaching the IEA CA 14 vocational Rehabilitation class in Woodland Hills (Zenith Insurance) beginning February 10, 2005. Classes will cover all aspects of the vocational rehabilitation process but will also include practical information on requirements and procedures for the Supplemental Job Displacement Benefit voucher. Anyone interested in the class should contact IEA at (800) 655-4432 or visit the IEA web site at http://www.ieatraining.com.

    Allan Leno
    1560-1 Newbury RD #327
    Newbury Park, CA 91320
    Ph: (818) 370-8859
    Fax: (805) 241-0590
    e-mail: allanleno@leno-assoc.com


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    Monthly Articles on Vocational Rehabilitation
    by Alan Leno

    February 2005

    SJDB vouchers - Proposed Regulations

    The Division of Workers Compensation recently re-released its proposed regulations for the Supplemental Job Displacement Benefit (voucher) for a 15 day public comment period. Copies of the proposed regulations and forms are available at the DWC web site (just click here). The deadline for comments on the proposed regulations is March 2, 2005. Your comments and recommendations should be sent to:

    Destie Overpeck
    Department of Industrial Relations
    Division of Workers' Compensation
    Post Office Box 420603
    San Francisco, CA 94142

    I have attached a copy of my comments and recommendations on the proposed regulations that has been submitted to the DWC. The items in red are my opinions; yours may be quite different. If you have opinions and recommendations that you wish to express to the DWC, you should feel free to modify the attached documents and submit them as your own. It is important that Administrative Director Andrea Hoch hear from the community at large. If there are few submissions, it is likely that the DWC will implement the regulations as written, which may not be in the best interests of injured workers or employers/insurers.

    Some of the key points of the proposed regulations:

    Voucher availability: Vouchers will be available within 25 days of a Findings & Award or Compromise and Release approval (Sect. 10133.52).

    Settlement: The Notice of Potential Rights advises employees that they have the right to settle their voucher (Sect 10133.52)

    Mandatory Notices: The regulations specify mandatory language and formats for the Notice of Potential Rights (10133.52) and the SJDB voucher (Sect. 10133.57). There is no provision for modification of language or inserting language to deal with specific circumstances.

    Voucher Disputes: Disputes regarding the voucher must be filed with the WCAB. A specific form and process has been developed for that purpose.

    These and other provisions and their impact on employers will be discussed in detail at the March 2/3, 2005 WC/FEHA workshop in Sacramento (see below). While these regulations are not final, it seems unlikely that the DWC will make substantial changes; we can therefore expect the regulations to be adopted sometime in April 2005. The regulations will have significant impact on the RTW process and those who work directly with employers will need to know the interaction between the workers comp return to work process and employers' exposure onder the Fair Employment & Housing Act.

    Notices and Forms

    Those who purchased the set of notices and the RTW form will automatically receive a set of the revised notices and forms once the regulations are finalized. Anyone wishing to purchase the set for immediate implementation upon approval of the regulations can do so for $100. The set includes the Notice of Potential Rights (10133.52), Notice of Offer of Mod/Alt Work (DWC-AD 10133.53), SJDB Voucher Form (10133.57), and the Request for Dispute Resolution (DWC-AD 10133.55). All notices and forms will be in a Word template form. If interested, please send an e-mail with your request and fax number (for invoicing) to allanleno@leno-assoc.com .

    Training Programs

    A two day workshop designed for VR counselors and RTW Specialists will be presented by Allan Leno, Paul Hagle from the National Institute on Employment Issues, and Andrea Rosa of the Rosa Law Group (formerly Deputy Director of the California Dept. of Fair Employment & Housing) on March 2 and 3, 2005 at the Doubletree Hotel in Sacramento. This workshop will address recent workers' compensation reforms and their impact on employers, FEHA and Return-to-Work requirements for employers, RTW strategies and procedures, and business opportunities and strategies for RTW specialists. A copy of the workshop agenda and a registration form are attached to this newsletter. The deadline for registration is February 25, 2005. Registrations will be accepted at the door with full payment but we may not be able to address accommodation needs.

    This workshop provides essential information for rehabilitation counselors and return-to- work specialists who will be working with employers to develop detailed job descriptions, return-to-work programs and permanent modified/alternative jobs for injured employees. Employers who are developing "in-house" return-to-work programs will also find the workshop useful.

    Special Offer: Some attendees at the November 2003 workshop in San Francisco have inquired about an "update" to that program. The morning session on March 2, 2005 covers recent workers' compensation reforms and their impact on employers and employers' FEHA obligations. Participants from the 2003 workshop can attend the morning session for $195 ($220 with the lunch option). If you are interested in attending the half day session only, please use the attached registration form rather than the one you received in the mail. If you have questions, please contact Allan Leno at the address below. --------

    Southern California: We have had a few inquiries regarding a repeat presentation of the WC/FEHA program from Southern California. If you would be interested in attending one or both days of this program (the location most likely would be in Orange County), please let us know via e-mail (allanleno@leno-assoc.com ). We have open dates in June/July and in September; please let us know your preference. --------

    Please pass this newsletter on to interested co-workers and friends. Anyone wishing to be added to (or removed from) our distribution list should send an e-mail to allanleno@leno-assoc.com and indicate their preference.

    Allan Leno
    e-mail: allanleno@leno-assoc.com

     

     

     

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    Monthly Articles on Vocational Rehabilitation
    by
    Alan Leno

    June 2005

    SJDB vouchers - Proposed Regulations

    The Supplemental Job Displacement Benefit voucher regulations have been approved by the Office of Administrative Law (OAL) and certified by the Secretary of State with an implementation date of August 1, 2005. The final version of the voucher regulations and the associated forms and notices can be viewed online (and downloaded) by clicking here. They regulations are available in either Word of PDF format; the forms are available in PDF format only.

    Proposed Penalty Regulations

    The DWC recently posted draft regulations for L.C. 5814.6. The proposed sections relevant to the vocational rehabilitation benefit (pre-2004 cases) and the Supplemental Job Displacement Benefit (voucher) are reproduced below. Please note that these are draft regulations only with no proposed implementation date. While it is possible that the final regulations may be significantly different than the items listed below, it should be clear that DWC intends to impose substantial penalties for failure to pay VRMA timely (pre-2004 cases) or failure to comply with the voucher process (2004 - cases). [The comment period ended 6/24/05]

    (3) For each finding of a failure to make a timely payment or proper objection to temporary disability benefits or salary continuation payments in lieu of temporary disability; vocational rehabilitation maintenance allowance, or death benefits:

    (A) $ 1,000 for 14 days or less of indemnity benefits;

    (B) $ 5,000 for 15 days through 42 days of indemnity benefits;

    (C) $ 15,000 for more than 42 days of indemnity benefits.

    (5) $ 2,500 for each finding of a failure to provide, or to deny responsibility for, a supplemental job displacement benefit voucher in a timely manner to an eligible employee.

    (6) $ 1,000 for each finding of a failure to make timely payment to an injured worker as reimbursement for payment for services provided for a supplemental job displacement benefit voucher, or where the failure to pay the training provider causes an interruption in the employee's retraining.

    It is interesting to note that DWC proposes a $2500 penalty for failure to deny responsibility for an SJDB voucher when the recently approved voucher regulations provide no requirement or vehicle to deny responsibility for a voucher. Section 10133.52 (Notice of Potential Rights) requires the claims administrator to advise injured workers of their possible right to a voucher and 10133.56 specifies when a voucher must be sent to an eligible injured worker BUT there is no requirement to tell an injured worker that s/he is NOT entitled to a voucher. The closest thing we have to such a requirement is the "Notice of Offer of Modified or Alternative Work" (10133.53) or the proposed "Notice of Offer of Work" (10003) which is only a proposed regulation.

    Case Law Updates

    Is an employee entitled to VRMA (and at what rate) while an out-of-state plan proposal is being evaluated?

    In SCIF v. WCAB (Nash) 2005) 70 CCC 266 (writ denied), the WCAB determined that the applicant was entitled to VRMA benefits at the TTD rate (based on the expected wage at the time of the decision) while the cost-effectiveness of the out of state plan was being evaluated. The Board required the defendant to develop a plan for Florida and for California to substantiate the cost comparison. This case is in marked contrast to Antonette Niedle v. WCAB (2000) 66 CCC 223 (DCA Published) where the District Court of Appeal found that the statute could impose different standards for in state vs. out-of-state VR cases. In Nash, it appears that the Board is imposing a higher standard for out-of-state cases compared to California cases (please note that Nash is a writ denied case and may not be cited as judicial authority).

    Can an injured worker request and receive VR services more than five years after the date of injury where services have been in an "interrupted" status?

    In Vernon Robertson v, WCAB & Zenith Insurance Co. (2005) 70 CCC 545 (writ denied), the applicant requested and received VR services which were subsequently placed in an interrupt status while the applicant had surgery. The Interrupt notice advised the applicant that services were interrupted, that he must contact the defendant when he was ready to proceed, and that the defendant would not initiate reinstatement of VR. The notice, as required by CCR 9813(a)(4), also advised the applicant that services must be requested within five years of his date of injury. The Board held that it did not retain jurisdiction where the applicant failed to request reinstatement within five years. Note that this case is a "writ denied" (and cannot be cited as judicial authority) and that it conflicts with Josephine Martinez v. WCAB (2000) 65 CCC 1253 (Reversed) which held that the defendant must file an RU-105 to terminate its liability.

    Is a late RU-94 invalid where the employer timely offered and provided modified work?

    In Terry D. Brown v. WCAB & Port of Oakland (2005) 70 CCC 624 (writ denied), the employer timely offered a modified position in a different location and the applicant worked at the position for two months prior to resigning for reasons unrelated to his industrial injury. The employer prepared and sent the RU-94 approximately one month after the employee's resignation, at which time the applicant attempted to accept the offer. The Rehab Unit and the WCAB subsequently found that the employer had satisfied its obligation by providing the modified work and the late preparation of the RU-94 did not result in an entitlement to additional benefits or services. The WCALJ determined that ordering VR services in this situation ".....would be to elevate form over substance." [Note that Brown is a writ denied case and may not be cited as judicial authority]

    Is an applicant entitled to VR benefits and services where he cannot return to modified work due to his undocumented alien status?

    In Horacio D. Hermosillo v. WCAB & Cambridge Integrated Services (2005) 70 CCC 632 (writ denied), the WCAB applied the principles in Del Taco v. WCAB (2000) 65 CCC 342 to find that the defendant was not obligated to provide VR benefits and services where the applicant's bar to returning to work in a modified position was his undocumented status. The applicant was dismissed from his employment - subsequent to injury - for failure to have a valid Social Security number. [Please note that the Del Taco case is published and citable as judicial authority while the Hermosillo case is not]

    Have Questions?

    Do you have a question or issue you would like to see addressed in the Newsletter? E-mail your question or issue to allanleno@leno-assoc.com . We will address issues with general appeal. If your question is too specialized for the Newsletter, you will be contacted to address your specific issue.

    Allan Leno
    e-mail: allanleno@leno-assoc.com

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    Monthly Articles on Vocational Rehabilitation
    by
    Alan Leno

    August 2005

    SJDB vouchers - More FAQs

    The SJDB voucher is a new benefit with only "bare bones" regulations and no case law to provide guidance. The following questions have been posed by claims and rehabilitation professionals. The answers provided are the opinion of the author and intended to promote discussion; they are not intended to provide legal advice.

    The injured worker utilized the services of a counselor to assist him in the selection of a training program. The counselor has submitted her invoice for the full 10% of the voucher but the injured worker has not yet selected a training program. Am I obligated to pay the counselor's bill?

    There is nothing in the statute or the new regulations that require the injured employee to select and enroll in a training program before the counselor's invoice can be paid. This seems counter-intuitive based on our experience with the rehabilitation benefit but we have to remember the voucher is not vocational rehabilitation. The injured worker "hires" the counselor to provide evaluation and advice. There is no rule or requirement obligating the injured worker to immediately enroll in the training facility recommended by the counselor. In fact, the injured worker does not have to enroll in the recommended facility at all; s/he could, in fact, enroll in a program the counselor recommends against! If the counselor has provided the vocational evaluation services requested by the injured employee, the counselor is entitled to payment irrespective of the subsequent actions (or inaction) by the injured employee.

    Is the vocational counselor required to itemize his/her invoice to show the services provided to the injured employee?

    There is no statutory or regulatory requirement for the vocational counselor to itemize his or her invoice. Claims professionals expect to see itemized invoices but they must remember that the invoice is not vocational rehabilitation and they have no control over the services provided other then the 10% cost limit imposed by L.C. 3658.5(b). However, I do believe vocational counselors have a professional obligation to the injured worker to itemize their invoices and it is to their advantage to do so. The injured worker is the customer and has a right to know what services that portion of his/her voucher purchased. Itemized invoices should also serve to minimize subsequent complaints about the nature and extent of services provided.

    Are there any guidelines on how the 10% allotted for counselor fees is to be spent?

    Absolutely none. Most injured workers will get a $4000 or $6000 voucher so the amount available for counselor fees will be only $400 or $600: this amount is sufficient to cover the initial evaluation, very basic testing and limited vocational exploration. The pre-2004 fee schedule allows up to $3000 to cover the initial evaluation, testing, vocational exploration and plan development and we typically see $1000 to $2000 spent for this purpose. $400-$600 clearly is not sufficient to provide the same level of service. Claims professionals need to remember that it is the injured worker who has to be satisfied with the counseling services, not us.

    Is the injured worker entitled to a $4000 voucher even though there is no PD rating? Presumably this question addresses cases where there was lost time but the injured worker had 0% PD per the 2005 rating schedule.

    This is an issue likely to be litigated at some point - my opinion is that the injured worker is NOT entitled to a voucher. This issue is not addressed directly in the statute so we must derive our answer from what the statute does say. L.C. 4658.5(a) indicates that an injured worker with less than 15% PD would be eligible for a $4000 voucher if s/he needs accommodation and the employer cannot provide an appropriate accommodation. The key here is that the employee must have PD and 0% PD is not an award of PD - i.e., the injured worker does not get an award if his/her PD rates at 0%. Further, the Legislature created the voucher to assist injured workers who had reduced ability to compete in the labor market. Presumably, someone with 0% PD has not lost any of his/her ability to compete in the labor market - thus no voucher.

    We do know, however, that some injured workers, under the new rating schedule, will have work restrictions but 0% PD. It will be up to the courts to decide if these individuals are entitled to a voucher based on their work restriction. [The courts will also determine if work restrictions create an FEHA liability for employers despite the absence of PD.]

    An applicant is on and off TTD several times; when is the Notice of Potential Rights due? This happens with some frequency when the employee returns to work (regular duty or light duty) but experiences flare-ups in his/her condition.

    It is the DWC's position that the notice is due the first time TTD stops and that is consistent with the statute; L.C. 4658.5(c) does not specify the reason that TTD stops - it just says the Notice is due within 10 days after TTD ends. It is also the DWC's position that the notice needs to be sent once only so you do not have send a notice each time TTD ends (unless you are trying to cure a timeliness problem and we aren't certain that a second timely notice supersedes a previous late notice).

    The Notice of Potential Rights isn't the problem; the Offer of Modified or Alternative Work is. DWC expects that the offer will be sent within 30 days of the last payment of TTD but the employer isn't in a position to offer permanent modified or alternative work until the injured worker is P&S and final work restrictions are known. Unfortunately, the statute does not seem to provide us (or the DWC) with any latitude in this matter; it simply says the offer is due within 30 days of the last TTD payment. The only suggestion I can make is to send the Offer (AD Form 10133.53) and specify on the form that the light duty or temporary work is being offered on a temporary basis and a final offer will be made - if possible and appropriate - once the employee reaches P&S status and final work restrictions are known. There is no guarantee this option will stand up to judicial challenge but it would seem to be the only available option (anyone have other suggestions?).

    Case Law Updates Is the defendant required to file an RU-105 to terminate the applicant's right to rehabilitation benefits and services when an agreed interruption extends beyond the five year statute?

    In Jimmy Adams v. WCAB (2005) 70 CCC 881 (writ denied), The Board held that the defendant was not required to request termination of its liability for VR benefits and services (i.e., file an RU-105 with the Unit) where the applicant had twice been given deadlines to reinstate services (via Interruption Notices) after the five year statute. This result is in contrast to Josephine Martinez v. WCAB (2000) 65 CCC 1253 (Reversed) which held that the defendant must file an RU-105 in order to terminate its liability for VR services, even where the five year statute has expired and the applicant has been sent a conforming Interruption Notice pursuant to CCR 9813(a)(4). The Adams case makes more sense but the Martinez case is published and therefore may be more persuasive when arguing cases with similar fact patterns. Another recent writ denied case, Pete's Burger Shop v. WCAB (Worknhe)(2005) 70 CCC 943 (writ denied), cited the Martinez case in finding that the applicant's request for VR benefits and services was timely where defendant failed to file for case closure. Defendants may therefore wish to file an RU-105 at the conclusion of the first interruption period that expires beyond the five year statute.

    Allan Leno
    e-mail: allanleno@leno-assoc.com

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    Monthly Articles on Vocational Rehabilitation
    by
    Alan Leno

    September 2005

    SJDB vouchers - More FAQs

    The injured worker has PD and accepts an offer of modified work. Before one year elapses, he is terminated for cause. Is he now entitled to a voucher under L.C. 4659.6(a)? The Labor code requires the modified job to last for one year but does that requirement extend protection to employees who are terminated for violating company policy or criminal laws?

    It is my belief that injured workers would not be entitled to a voucher in this situation but we should expect this circumstance to be litigated because the statute does not specify any exemptions. Logically, we would not expect injured workers to be protected when they violate legitimate company policies (e.g. repetitive tardiness, violence or drug use in the workplace, etc.) or criminal statutes (e.g. theft of company property). Since this is an issue certain to be litigated, employers must fully and appropriately document "terminations for cause." A failure to properly document a termination is almost certain to result in a requirement to provide the employee with an SJDB voucher.

    The injured worker has PD and accepts an offer of regular/modified/alternative work. Before one year elapses, he is terminated for cause. Is he now entitled to a 15% increase in weekly PPD benefits? L.C. 4658(d)(3)(B) provides that an injured worker's weekly PPD payments shall be increased by 15% where a regular, modified, or alternative job does not last at least one year.

    It is hard to imagine that the Legislature intended to reward individuals who violate legitimate company policies or criminal laws. However, the Labor Code is not clear on this issue so we should expect the matter to be litigated. I do not believe the statute intended to reward injured workers in such situations but employers must properly document their terminations if they hope to prevail in cases where they have fired employees for cause. Employers should consult their labor attorneys if faced with this type of scenario.

    As a claims examiner, what is my obligation to inform our insured accounts to engage in the "interactive process" when offering modified or alternative work to their injured employees? Offer of modified or alternative work are made on a "take it or leave it" basis under California's workers compensation laws and that is perfectly legal and acceptable - for the insurance carrier. Unfortunately, such offers do not protect the employer from actions under California's Fair Employment & Housing Act (FEHA).

    So what is the insurance adjustor or rehab coordinator's obligation to the insured employer? Your corporate attorney will tell you that you have no obligation and do not discuss the matter with the assured - and s/he is right. Providing advice on FEHA requirements could expose insurers to liability, which is why your corporate attorney doesn't want you giving advice on FEHA issues. What you CAN do safely is to advise your employers to consult with their labor attorney, contact their local Chamber of Commerce office, or visit the Department of Fair Employment and Housing (DFEH) web site at http://www.dfeh.ca.gov . The DFEH web site has good brochures to advise employers regarding their obligations to address reasonable accommodation issues under FEHA.

    Is this an important issue for employers? The law firm of Boxer & Gerson in San Francisco recently hired five new attorneys; two of these attorneys are labor specialists. Boxer et al has made it known that they believe the FEHA provides an applicant's firm with an opportunity to assist their clients with return to work efforts and applicant firms with the means to survive the recent workers' comp reforms. Other applicant firms around the State are also taking notice of FEHA requirements as a means to serve their clients. Employers who ignore their FEHA obligations do so at considerable peril. A recent Riverside County FEHA case cost the employer nearly $900,000 - because they didn't talk to their employee about return to work options. That would pay for 16 average comp cases or 56 rehab plans. A word to the wise?

    Allan Leno
    e-mail: allanleno@leno-assoc.com

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    Monthly Articles on Vocational Rehabilitation
    by
    Alan Leno

    October 2005

    SJDB vouchers - More FAQs

    You said a claims examiner should not get involved in the FEHA "interactive process" with their insured employers. Does this mean we should refuse to be involved in this process even where the employer requests assistance with a return to work effort? This question comes from a counselor with insurer clients who have been willing to support the interactive process as part of a return to work effort.

    The problem isn't the interactive process - it's giving advice on the FEHA or indicating, in any way, that the interactive process satisfies the employer's FEHA obligations. We are neither lawyers nor judges so claims examiners and RTW specialists need to be very careful to avoid giving legal advice or making representations that the interactive process will satisfy FEHA obligations.

    Having said that, an insurer who is willing to support the interactive process as part of the return to work effort is to be commended. An interactive return to work effort involving the employer, employee, and a RTW specialist is far more likely to be successful. There is no problem with the examiner making a referral to an RTW specialist to facilitate this effort nor is there a problem with documenting the effort - as long as it is not presented as having the intent to satisfy the FEHA requirement. Just do - and document - the return to work effort - call it a workers' comp interactive return to work process. If the employer gets an inquiry later from DFEH, it has documentation of an RTW process, including the employee's involvement. DFEH doesn't care what we called the process; it only cares that the employee had the opportunity to be involved and to provide his or her input. The only person who would care is the employer's attorney if the employer is sued under FEHA and the return to work effort was presented to the attorney's client (the employer) as a means to eliminate FEHA liability.

    The claims examiner and RTW specialist should stick to the workers' comp benefits of a timely and appropriate return to work effort and an interactive process is certainly important in the success of the effort. The documentation of that effort is completed as a part of the process with copies available to each of the parties. The employer's can and should retain a copy for its records and that copy can be provided as a part of the employer's response in the event of an inquiry by DFEH. No warranty is implied - but documentation of a good faith RTW effort should speak for itself.

    If employers do want more detailed information regarding their obligations under FEHA, they should be referred to their labor attorney, their local Chamber of Commerce office, or the Department of Fair Employment and Housing (DFEH) web site at http://www.dfeh.ca.gov . The DFEH web site has good brochures to advise employers regarding their obligations to address reasonable accommodation issues under FEHA.

    The treating physician has given the injured worker work restrictions based on subjective complaints but there is 0% PD under the new PDRS. What notice do I send to the injured worker? What is the employer's return to work obligation? If the employer doesn't take the worker back, do I owe a voucher? This is becoming a common set of questions from claims examiners. We didn't have this problem with the old PD schedule but the new Permanent Disability Rating Schedule does produce a 0% PD rating where there are subjective complaints but no objective factors of disability.

    At present, there is no required notice that must be sent to an injured employee who has 0% PD. If they were paid TTD, the worker would have been sent a Notice of Potential Rights within 10 days of the last TTD payment. This notice tells the injured employee what their rights will be IF (1) they have PD, (2) they need job accommodation, and (3) the employer does not timely offer appropriate modified or alternative work. Since the worker has no PD, they do not meet the requirements specified in the notice and you do not owe the employee a voucher. You also do not owe them a notice of any sort. Remember that the voucher is due at the end of the case. If they have PD and are entitled to a voucher, you must send it within 25 days. But the statute and regulations are silent on those situations where there is no PD. Given our experience under vocational rehabilitation, it may not seem right but the voucher is not vocational rehabilitation - no notice is required.

    The employer's exposure is another issue entirely. Under the FEHA, a work restriction may be considered proof of disability, even if there is no PD rating (see Case Law Update below). This means the insured employer can have FEHA liability where the insurer got this new type of "take nothing" result on the workers' comp case. So what does the insurer tell the employer? Explain (carefully) that the 0% PD result applies only to the workers' comp case and that the employer could still have liability under other state laws - and then refer them to the resources outlined above. Better yet would be a standard letter, developed by an expert in labor law, that would explain to the employer that results in workers' comp do not eliminate liabilities under other statutes such as the FEHA.

    Can an injured employee use his/her voucher in Mexico? This question was from a counselor who has developed Mexico plans in the past.

    Unlike vocational rehabilitation, the SJDB voucher has no limitations on use of the voucher outside California. The statute and regulations do, however, require that training facilities must be approved by the BPPVE, Western Association of Colleges and Universities, or the FAA - or equivalents in other states or regions. Presumably, a training facility in Mexico (or any other country) would have to have comparable approval for the voucher to be used. The question has been posed to DWC and the answer - if there is one - will be posted in a future newsletter.

    Assuming an out-of-country was approved and the voucher could be used, there would be one or two other problems such as acceptance of the voucher by the training facility, exchange rates for payment, timeliness of payment, etc. If anyone has already dealt with these types of problems, please let us know so we can share your experiences.

    Case Law Update

    We have noted in past newsletters that employers need to engage in the interactive process and evaluate options for reasonable accommodations when an employee with a disability is ready and willing to return to work, including cases where there may be no ratable disability. Employers who fail to do so are at great economic risk as in Green v. State of California (Super.Ct.No. RCV 60816).

    The plaintiff in this case worked as a stationary engineer for a State of California correctional facility. He was under long term care and treatment for non-industrial Hepatitis C and two back injuries which were work related. A stationary engineer is responsible for the maintenance of boilers, air conditioners, and refrigerators. The job description for the position indicates that it is heavy work but it is common practice to use inmates to assist with the heavier activities. The Interferon treatments for Green's Hepatitis caused fatigue and his physician asked that he be placed on light duty; the employer accommodated this need. In 1999, Green injured his back and had a restriction to light duty but later went on disability leave because the light duty assignment was limited to 120 days. He was later released to full duty by the physician treating his back injury but he continued to need a light duty assignment at the time because he was once again receiving Interferon treatments. At this point, the employer determined that Green did not meet the qualifications for his job and commenced the process for a disability retirement. Green filed a complaint with the Dept. of Fair Employment and Housing.

    After trial, Green was awarded $597,000 in compensatory damages and $2 million in punitive damages (later reduced to $1.8 million). These damages resulted because (1) the employer did not discuss Green's ability to perform his job with him but, instead, made a unilateral decision about his ability to perform his job, and (2) there was no attempt to evaluate the availability and effectiveness of job accommodations (i.e., reasonable accommodations). Testimony at trial revealed that he had been able to effectively work around his limitations for a number of years.

    The lesson here for employers is that they need to understand FEHA requirements and implement procedures to facilitate the interactive process and reasonable accommodation. They should also be working closely with their insurers to facilitate a return to work for injured employees. While the insurer's RTW program does not, by itself, protect an employer from FEHA liability, an affirmative RTW program is a step in the right direction. The alternative is an exposure that makes the cost of a VR plan look like pocket change.

    Allan Leno
    e-mail: allanleno@leno-assoc.com

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    Monthly Articles on Vocational Rehabilitation
    by
    Alan Leno

    December 2005

    Proposed SJDB Voucher Penalties

    Insurers, employers, and third party administrators who fail to provide a Notice of Potential Rights, the SJDB voucher, or payment for supported voucher training may find the oversight expensive if the proposed DWC penalty regulations are implemented. These proposed regulations provide for the following penalties related to the voucher:

    (5) $ 2,500 for each penalty award finding by a Workers' Compensation Administrative Law Judge of for a violation of Labor Code section 5814 for a failure to provide, or to deny responsibility for, provide the Notice or to provide the a supplemental job displacement benefit voucher, as required by section 10133.51(b) and section 10133.56(c), respectively, of Title 8 of the California Code of Regulations, in a timely manner to an eligible employee.

    (6) $ 1,000 for each penalty award finding by a Workers' Compensation Administrative Law Judge of for a violation of Labor Code section 5814 for a failure to make timely payment to an injured worker as reimbursement for payment for services provided for a supplemental job displacement benefit voucher, or where the failure to pay the training provider causes an interruption in the employee's retraining.

    Note that these penalties are assessed based on a finding by a WCALJ and not the DWC Audit Unit. That means the applicant can ask for the penalty assessment - we suspect this would result in more frequent penalty assessments since discovery of the oversight will rest with an applicant's attorney and not a DWC auditor who is looking at just 1-2% of the claim files. These proposed regulations may be in place as early as this Spring so claim operations that do not have a system in place for the SJDB Voucher need to develop and implement a process ASAP.

    SJDB vouchers - More FAQs

    Can the SJDB voucher be settled in a Stipulation with Award? This question has been raised by several claims examiners who note that a Stipulation is little more than a C&R with an Order for future medical care.

    According to the new voucher regulations (10133.52), the voucher can only be settled via a Compromise & Release agreement - the language is specific. The parties therefore cannot include a resolution of the voucher liability within the agreement language is a Stipulation. When the parties are resolving a claim via a Stipulation with Award and want to simultaneously settle the voucher liability, it appears that it will be necessary to complete a separate C&R agreement to resolve the voucher issue.

    Can the parties use the DWC Form RU-122 to settle the voucher? This question keeps coming up, perhaps due to the lack of information about this new benefit.

    The answer, in a word, is "No." Remember that the Rehabilitation Unit does not exist for 2004 cases and the RU-122 is one of the Rehab Unit's forms. The Unit has no jurisdiction whatsoever on the SJDB voucher so it cannot approve a voucher settlement agreement, irrespective of the form used. RU-122s completed on 2004 (or later) cases will be returned to the submitting parties.

    The RU-122 also cannot be used as a settlement document and submitted to the WCAB. The voucher is not rehabilitation so use of a rehabilitation form is inappropriate. If the parties wish to settle the voucher, it will be necessary, as noted above, to complete a C&R and submit the document to a WCALJ for approval. Pursuant to CCR 10133.52, there is no other acceptable vehicle for resolving voucher liability.

    How long does an injured worker have to use his/her voucher? Counselors (VRTWCs) have raised this question for clients considering some long term training options.

    There is no statute of limitations for the voucher. This may sound crude (my apologies) but the voucher "expires when the funds do or the applicant does, whichever occurs first." L. C. 5410 does not apply to the SJDB voucher because the voucher is not rehabilitation. There is also no language in L. C. 4658.5 or 4658.6 to suggest that the Legislature intended to limit the time period during which the voucher can be used. Applicants therefore do not need to be concerned about training programs (e.g., a college degree program) extending beyond five years from their date of injury. Insurers and employers, on the other hand, will have concerns about the reserve and payment implications for injured workers who elect to use their vouchers more than five years after their date of injury.

    Are we obligated to send a Notice of Potential Rights and the voucher when the applicant returns to full time work (whether modified or regular duty) but is not yet P&S? We do not yet have final work restrictions so how can we know if the applicant needs a permanent modified job is entitled to the voucher? This is a common recurring question from claims examiners, perhaps because there is so little guidance in the regulations and we have no case law to establish structure for this benefit.

    There are actually three issues here. The first is when the Notice of Potential Rights (NoPR) is due. The NoPR is due within 10 days of termination of TTD payments. The obligation to send the notice has no relationship to the existence of work restrictions - the obligation is incurred when you stop paying TTD. The easy way to remember is: "Stop TTD, send the Notice - no exceptions." Remember that sending the NoPR does not commit you to anything; it is simply an explanation to the injured worker regarding the benefits and conditions that might apply if the injured worker (1) has PD, (2) needs job accommodation, and (3) the employer cannot provide job accommodation.

    The second issue relates to the obligation to send the "Notice of Offer of Modified or Alternative work (DWC Form AD 10133.53)." Here you would need to know the applicant's work restrictions and it is quite true that the work restrictions are not available and the physician will not supply them until the applicant is P&S. Unfortunately, L. C. 4658.5 specifically requires the offer of mod/alt work to be issued within 30 days of the termination of TTD so the regulations do not address situations where the applicant is released and returns to full time work (which may be modified or transitional work) prior to P&S. You do not have final work restrictions and you do not know if the applicant will need permanent job accommodation or will be able to return to regular duty. However, the regulation requires the insurer/employer to issue the 10133.53 form within 30 days or incur liability for a voucher, even if the applicant eventually returns to full duty or the employer can offer a permanent job modification. Since we have no case law on this issue, the best I can recommend is to issue the 10133.53 with language clearly stating that the "Current assignment is being provided on a temporary basis and the need for permanent job modification or return to regular duties will be re-evaluated upon provision of final work restrictions by the treating physician." Please note that this procedure and language cannot guarantee the employer will be exempt from liability for a voucher; it is simply an option for the employer who does not feel comfortable offer a permanent job modification (or reassignment) where the medical need has yet to be established.

    The final issue is the voucher. Remember that the voucher is not due until the case resolves at the WCAB so the defendant does not incur an obligation to send the voucher at the time the applicant is released to return to work. You therefore do not have to worry about the voucher - or its value - until you have an approved C&R, Stip, or F&A.

    Can we use a functional capacity evaluation (FCE) to get the work restrictions that need to be accommodated? Many physicians are now dropping work restrictions and using only the "whole person impairment" language. Employers, of course, are still asking claim examiners for work restrictions because whole person impairment language is useless for assessing return to work options.

    A functional capacity evaluation (FCE) cannot provide work restrictions but it can provide measured work capacity or ability, which is even more useful is assessing return to work options than work restrictions. FCEs would be especially useful to employers who need to worry about potential FEHA return-to-work issues and the documentation of "fitness for duty" and job accommodation assessments. FCEs can also be useful to treating physicians who may be asked to participate in the return to work evaluation.

    A series of three FCEs can be useful to examiners who are having problems with the P&S determination for an injured worker. The FCE assessments are typically done at two week intervals. If the applicant's performance is essentially unchanged among the three evaluations, the applicant should be determined to be P&S. Further treatment is justified where the applicant shows improvement or results vary significantly between evaluations.

    Allan Leno
    e-mail: allanleno@leno-assoc.com

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    Monthly Articles on Vocational Rehabilitation
    by
    Alan Leno

    January 2006

    SJDB vouchers - More FAQs

    The injured employee is eligible for a $4000 voucher. He enrolls in a BPPVE approved program with a tuition cost of $1500.00. He purchases a $1000 computer and computer software valued at $500 to facilitate his studies. Is the carrier required to reimburse the $1500 for the computer and software as well as pay for the school, tuition? A number of claims examiners have asked how they are to determine what constitutes a "reimbursable" expense.

    By statute (L.C. 4658.5(b)), a voucher may be used to pay for school tuition and related expenses required by the training facility for that program. Claims examiners should check to see if the training program has been approved by BPPVE (see https://app.dca.ca.gov/bppve/school-search/default.htm). Claims examiners should not pay for ANY expenses (including tuition fees, and supplies) unless the training program is approved by BPPVE. If the program is approved, the school's catalog should list all materials and equipment required for the program. Many approved programs include the cost of required equipment and materials, including computers and software.

    What is to prevent unscrupulous persons from creating phony school receipts for injured workers that are presented to claims examiners for reimbursement? Claims examiners will not have the time or means to check out such receipts. Claims professionals are legitimately worried about the potential for fraudulent misuse of the SJDB voucher.

    As noted above, a voucher may only be used at BPPVE approved training facilities. Claims examiners can visit https://app.dca.ca.gov/bppve/school-search/default.htm to determine if a training program is approved and if a training facility is currently certified and the school's catalog should specify all costs including tuition, books, fees, and equipment. An invoice for training and requests for reimbursement must be paid within 45 days, which should allow adequate time to verify that a facility is in good standing with BPPVE. Where there is doubt, the claims examiner can object to the payment/reimbursement request in writing and ask the training facility or injured employee for additional documentation.

    How do we determine if a training program has been approved for a voucher program?

    Vocational schools know that they must include a current BPPVE approval number on the injured worker's SJDB voucher in order to receive payment for tuition and approved fees. As noted above, the claim examiner can check for current certification by going to https://app.dca.ca.gov/bppve/school-search/default.htm on the internet. Tuition bills should not be paid unless the training facility's approval code is entered on the voucher and that approval number corresponds to the number found at this site. If the number does not correspond, return the invoice to the facility with a brief letter explaining that the invoice cannot be paid without a current approval number.

    Can the SJDB voucher be settled via the RU-122? This is a common question from examiners who want to resolve voucher liability so they can close the claim file.

    The RU-122 applies only to the vocational rehabilitation benefit and falls within the jurisdiction of the Rehabilitation Unit. For injuries on or after 1/1/2004, there is no vocational rehabilitation benefit and no Rehabilitation Unit. The RU-122 therefore CANNOT be used to settle the voucher because (a) the RU-122 is not valid for injuries on/after 1/1/04, and (b) the Unit has no jurisdiction for the SJDB voucher. An RU-122 completed and submitted to the Unit for a date of injury on/after 1/1/2004 will be returned to the submitting party. If the parties wish to settle the voucher, they must do so via a Compromise & Release (C&R) agreement. It should be noted that this is specified in CCR 10133.52; no other document will satisfy this requirement.

    What is the penalty for late voucher notices?

    There is currently no penalty for late Notice of Potential Rights or late SJDB vouchers. HOWEVER, the DWC has proposed a $2500 penalty for a late notice or voucher; the public comment for the proposed penalty regulation (CCR 10225.1(g)(4)(C)(5-6)) ended on December 15, 2005. It is likely that the regulation will be finalized and implemented some time during the Spring 2006.

    There are still many insurers, third party administrators, and employers who have yet to implement a process to insure compliance with the SJDB voucher requirements, perhaps assuming there is no pressing need to do so until penalty regulations are in place. It is likely that penalties will apply to failures to send the Notice of Potential Rights (CCR 10133.52), the voucher (CCR 10133.57), and to pay voucher expenses timely per CCR 10133.56(h) as of August 1, 2005. This is the point at which defendants knew their obligation to provide the NoPR, the voucher, and to pay voucher expenses; it therefore seems probable that penalties will be assessed by the DWC Audit Unit as of that date.

    What is the time frame for a response on a voucher dispute? Several people have advised that they are aware of disputes filed in December 2005 and an Order has yet to issue.

    As previously reported, Otis Byrd has been appointed by the Administrative Director as the DWC official responsible for resolving SJDB voucher disputes. Mr. Byrd indicated in December 2005 that nearly 200 DWC-AD Form 10133.55 Request for dispute Resolution forms had been submitted.

    CCR 10133.54(d) provides that the "opposing party" has 20 days to respond to when a DWC-AD 10133.55 form has been filed requesting dispute resolution. Presumably, five days for mailing can be added to this period. Once the response period has passed, Mr. Byrd has 30 days to review the record and issue a decision pursuant to CCR 10133.54(f). It should be noted that this period can be extended where Mr. Byrd believes one or both parties have not submitted all required information or he needs additional information to render a decision.

    Parties should therefore expect that it will take 50-60 days to receive a decision after the initial submission of a DWC-AD Form 10133l.55 Request for Dispute Resolution. These early requests make take somewhat longer since many parties will submit incorrect forms or may fail to attach all relevant documents.

    Case Law Update

    Does the provision of a temporary work assignment create an obligation for the employer under the Fair Employment & Housing Act (FEHA) to make the assignment permanent when the temporary disability becomes permanent?

    In Raine v. City of Burbank (No. B180615, 1/25/06), the California court of appeal (2nd district said "No." The City of Burbank accommodated a police officer by assigning him to a light duty position at the front desk while he recovered from a knee injury. At P&S, the officer was not able to meet all the physical requirements for a police officer at full duty status. He sued under the FEHA, arguing that the City was obligated to make his temporary assignment permanent once it was determined that he needed a permanent accommodation. The 2nd DCA determined that assignment to a light duty or transitional work assignment did not obligate an employer to make that assignment permanent. In this case, the employee wanted the front desk position to be made permanent while retaining his status as a police officer. After engaging in the "interactive process" required by FEHA, the city determined that there were no positions as a police officer for which the employee qualified with his limitations. It could assign him permanently to the front desk position by changing his status from police officer to police technician, a move the employee found unacceptable. The 2nd DCA determined that the employer acted appropriately.

    An employer can safely implement temporary light duty and transitional work assignment programs as long as it observes all of the requirements of the FEHA reasonable accommodation process, as did the city I the case above. Employers who ignore FEHA requirements do so at their own peril.

    Does settlement of an employee's workers' compensation case mark the end of the employment relationship?

    A compromise and release agreement does not resolve all employment issues. In Albertson's Inc. vs. Fair Employment and Housing Commission (FEHC), et. al., B175816 (1/20/06), the employer settled her case for $48,000. The C&R included language that specified the document applied to "...all unknown and unanticipated injuries and damages from such accident...." The employee made several attempts to return to work but was advised that she could not due to the terms of her settlement. The employee argued that she could perform almost all aspects of her job with a need for only infrequent assistance with some heavier aspects. The employer continued to refuse to re-employ her. A DFEH Administrative Law Judge found that the employer had unlawfully discriminated against the based on her disability, a determination upheld by the 2nd DCA on appeal. The DCA noted that the employer had complied with its obligations under workers' comp law but failed to comply with concurrent obligations under the FEHA.

    The message for employers is clear - failure to engage in the interactive process and reasonable accommodation evaluations required by the FEHA may prove to be an expensive additional cost. In this case, the employer was order to: (1) pay the employee back-pay and emotional distress damages, (2) reinstate the employee, (3) provide antidiscrimination training, and (4) post compliance notices. It is likely that these damages exceeded the value of the C&R and perhaps all workers' comp costs on this case.

    Allan Leno
    e-mail: allanleno@leno-assoc.com

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    Monthly Articles on Vocational Rehabilitation
    by
    Alan Leno

    February 2006

    SJDB vouchers - More FAQs

    Once we know an applicant with a 2004 date of injury is entitled to a voucher, how long do we have to issue the voucher? There continues to be much confusion in claims departments regarding the time frame for issuing vouchers to eligible injured workers.

    Per AD Reg. 10133.65(c), a voucher is due an eligible applicant within 25 calendar days from the issuance of a permanent partial disability award... by the WCAB. There are some stories circulating that a few applicant attorneys are pressuring claims examiners to issue a voucher immediately after it is determined that the injured worker will not be offered a modified/alternative position and threatening dire consequences if the examiner does not comply. There may be good claims management reasons for issuing a voucher immediately after modified/alternative work is ruled out but the requirement for issuing the voucher is incurred when the case in chief is resolved at the WCAB. As noted above.

    Where can we get the voucher form? This question has been raised by both claims and rehabilitation professionals, although in somewhat different contexts. Claims examiners want the document so they can send it to eligible injured workers but counselors want to know where an injured worker can obtain the form.

    Unlike rehab forms, the voucher and related documents are not available at the Unit. The voucher is actually a Regulation section (10133.57) and is available on line in PDF format. Go to http://www.dir.ca.gov/dwc/forms.html#1 and click on the DWC AD 10133.57 item under the heading "Supplemental Job Displacement Benefit." If you would prefer the forms in Word format, you can order them from Leno & Associates (see below).

    If we cannot obtain the necessary information to make a modified/alternative job offer within 30 days of the last TTD payment, is there any point in continuing the effort? A sharp-eyed VR Coordinator has pointed out that there is an incentive to continue the effort.

    L.C. 4658.5/4658.6 indicate that the offer of modified/alternative work must be sent to the applicant within 30 days of the last TTD payment or the applicant is entitled to a voucher. This is often an impossible task because the necessary information regarding work restrictions is not available from the treating doctor within 30 days and/or the employer does not provide an agreement to provide such work timely. It is therefore very tempting to discontinue the effort once the time frame has been exceeded.

    However, L. C. 4658(d)(2) provides that the offer of modified or alternative work must be made within 60 days or weekly PD benefits must be increased by 15% (employers with more than 50 employees). L. C. 4658(d)(3) allows PD to be decreased by 15% where such an offer is made (acceptance by the injured employee is not required). The effort to offer modified/alternative work should therefore continue for the full 60 days from P&S or until the employer indicates it cannot provide such work, whichever occurs first. The employee will be entitled to a voucher BUT there is a 30% difference in the weekly PPD payment to the injured employee.

    How long must a claim file be kept open to pay approved tuition costs? This question has been asked before but there is on-going concern among claim departments that it may be necessary to keep files open indefinitely. There is no L. C. 5410 limit on the use of the SJDB voucher. It may sound crude but the only limits on use of the voucher are the full expenditure of the face value of the voucher or the injured employee's death, whichever occurs first. It is entirely possible that a voucher issued today might not be redeemed for 20, 30, 40 years. Does this mean the insurer/employer must keep their claim file open that long?

    Our experience with the vocational rehabilitation benefit tells us that an injured worker is unlikely to use the benefit at all when participation is deferred for more than one year. Our experience with the voucher is likely to be very similar. Those who are motivated to pursue a retraining program will most likely do so within a few months of receiving the voucher. If the eligible injured worker does not begin using the voucher within one year, it is unlikely the voucher will ever be used. Each insurer, TPA, and self-insured employer will have to make a policy decision about when a claim file should be closed, vis--vis the voucher, based on their own experience. Several carriers are closing their file immediately after all other expenses have been paid unless there is current voucher activity.

    Can vocational schools charge different amounts for the same program based on the value of injured workers' vouchers? If not, what should I do? This question comes from a rehab coordinator who has noticed invoices in different amounts for identical programs.

    A school cannot charge different students different amounts for identical programs except for published variations. For example, a school might allow a 10% discount for those students who pay their tuition in full at least two weeks prior to classes or there may be tuition breaks for low income students. Information about tuition variances must be readily available to any student (such information is usually published in the school's catalog). Any school that adjusts the cost of a specific program based on the value of a voucher would be in violation of BPPVE standards and risks losing its certification. Evidence of such practices should be submitted to BPPVE (http://www.bppve.ca.gov/) or CAPPS (http://www.cappsonline.org/), the professional organization representing vocational schools.

    I have a claimant who wants to use his voucher at an out of state vocational school. Where can I find out if this school is accredited? Since out of state training is not prohibited by the voucher statute, this is a matter of concern for examiners.

    BPPVE has a list of accrediting agencies in other states. The list is not currently available on the BPPVE web site but you can the name and telephone number for the agency for the state in question.

    My attorney has included "Rodgers" language in C&Rs for 2004 voucher cases. Will this protect us against second vouchers? Since we have so little guidance on voucher issue, either through regulation or case law, defendants are naturally concerned protecting themselves from unforeseen liability.

    Rodgers waivers were actually intended to protect defendants from further liability for TD, PD, and medical treatment; the waiver never precluded second rehabilitation plans. The voucher is not vocational rehabilitation and it isn't clear if a Rodgers waiver with "voucher" substituted for "vocational rehabilitation" would serve the same purpose. Defendants cannot control where and how a voucher is used so there is a good argument against further liability when the applicant is injured during the course of training. However, if a case involving injury during training under a voucher was brought to the Board, where would they turn for guidance? The closest parallel to voucher training is VR training and it is quite possible the courts would rely on Rodgers et al for guidance. It therefore makes sense to include a Rodgers waiver in a C&R - just be sure to specify that the waiver is addressing the voucher and not vocational rehabilitation.

    How would the voucher work for a homeowner's policy? For example, the applicant is injured working for Mrs. Jones, receives treatment and TTD for 2 months and then is released to the work being done for Mrs. Jones. However, the applicant cannot perform the work required for a subsequent job with Mrs. Smith. Does he get a voucher? Since the statute and regulations provide little guidance for situations such as this and there is no case law, the best we can do is try to "reason out" an answer based on what little we do have.

    L. C. 4658.5/4658.6 address only the employment with "the employer." This is quite different than L. C. 4635(a) that required consideration of the applicant's "usual and customary occupation or job at time of injury." In vocational rehabilitation, we would have to consider the impact of the injury on a temporary employee's overall employability (i.e., his usual & customary occupation) so the applicant could be QIW if he could not do the work for Mrs. Smith. Under the voucher, the situation is quite different. Mrs. Jones is the employer and the applicant has been released to the work he was doing for Mrs. Jones. Since he can perform that work, he is not entitled to a voucher - even if Mrs. Jones has no more work for him to do.

    This does not seem like an equitable resolution but it is consistent with statutory language. It is possible that the courts will decide this interpretation is too narrow and grant entitlement to a voucher based on legislative intent (e.g., the Legislature intended the voucher to address a loss of capacity to compete in the labor market). Absent case law, it appears that we can only address a return to work for a specific employer and not a return to work in the general occupational group.

    Changes at the Rehabilitation Unit

    We knew it had to come but we hoped it would not happen at the current pace. The Rehabilitation Unit will be losing a number of Consultants before the end of the current year.

    In Northern California, Bob Lytel (Oakland) retired this past week and James Stafford (Sacramento) will retire this week. Bruce St. Cyr Oakland) and Craig Berry (Redding) will retire later in the year. The Unit also lost Fred Avina (Bakersfield) several days ago; Fred passed away from complications due to a medical condition.

    In Southern California, Louise Jordan (Los Angeles) will retire in March and Ron Cortes (Van Nuys) later in the year. The Unit will also lose Chris Clark (Oxnard) and April Tanner (Santa Ana) who are currently in training to become raters. They will continue to hold conferences one or two days per week until their training is completed. Caran Skoff (Anaheim) is going over to information & Assistance but will continue to hold conferences one or two days per week for the foreseeable future. Paul Crews (Area Supervisor based in Long Beach) left the Unit approximately one month ago.

    These losses leave the Unit at about half strength. In some locations I&A Officers are being trained to assist with conferences but the bottom line for both applicants and defendants is that it will take longer to get to a formal conference in 2006 than it did in 2005. Parties may therefore want to consider other means to resolve disputes including informal conferences and arbitration.

    Allan Leno
    e-mail: allanleno@leno-assoc.com

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    Monthly Articles on Vocational Rehabilitation
    by
    Alan Leno

    April 2006

    SJDB vouchers - More FAQs

    The applicant has an accepted 2005 CT claim that overlaps two policy periods by different insurers. The treating physician has determined the applicant has permanent disability and work restrictions that preclude a return to his regular duty; the employer cannot provide modified or alternative work so the injured worker is entitled to an SJDB voucher. As the insurer managing the claim, can we seek contribution from the other insurer for the voucher? Can we seek contribution for the 15% PD adjustment?

    With respect to contribution, the voucher is no different than vocational rehabilitation. Employment during both policy periods contributed to the applicant's permanent disability so the insurer managing the claim can seek contribution from the other carrier for the proportionate share determined by the WCAB (or by agreement). The same should apply for the 15% PD increase resulting from the employer's inability to provide modified or alternative work.

    When an employer cannot provide a modified or alternative job, when does the 15% PD increase begin - at 60 days or as soon as it is determined that no modified or alternative work is available? Also, the 15% increase in PD will mean that the applicant's PD rate will exceed her TD rate - do I have to pay at the higher rate?

    L. C. 4658(d)(2) indicates the 15% increase in the PD rate begins at the end of the 60 day period (from the P&S date) so the employer/insurer is not obligated to commence the PD adjustment at the time it is determined that modified/alternative (or regular) work is not available. This may seem counter-intuitive but the statute seems quite clear that the requirement to pay the 15% increase does not begin until 60 days after the P&S date.

    The applicant was released to modified duties while still TD. The employer was able to provide appropriate work and the employee returned to work at his pre-injury wage rate. Can I reduce the applicant's PD payments by 15%?

    No. L. C. 4658(d) is quite clear that the +/- 15% PD adjustment can only commence after the applicant becomes P&S. Applicants who return to regular, modified or alternative work prior to P&S must be paid applicable PD advances but the employer/insurer cannot reduce those payments by 15% until an offer of work is made after the applicant becomes P&S (see 4658(d)(3)(A)). There are three important conditions to note here before there can be a reduction in PDAs: (1) the applicant must be P&S, (2) there must be an offer of work after the P&S date, and (3) the 15% reduction in PDAs can begin immediately after the offer is made. This means that the employer must make an offer of employment even where the employee is working but, once an offer is made, the reduction in PD payments can begin immediately.

    I have heard that the employee must be sent a 10133.53 Notice of Offer of Modified or Alternative Work where TD payments have stopped because the employee returned to work in a temporary or transitional job. Is this true? What if the employer can provide temporary work but the availability of a permanent modified or alternative job is unknown?

    There are many reasons why such a requirement might be onerous for the employer and misleading for the injured worker but Otis Byrd at the DWC has confirmed that the 10133.53 Notice must be sent for temporary or transitional job offers or the employer/insurer will lose the option to avoid a voucher obligation by offering modified or alternative work after the applicant becomes P&S. The DWC legal staff believes the statute leaves the Division no choice in the matter because it requires an offer to be made within 30 days of the last payment of TD (rather than after a P&S determination). In creating the statute, the Legislature clearly failed to contemplate that many injured workers return to work before they are P&S and that there are many employers who provide temporary and transitional jobs for their injured employees. Unfortunately, employers who provide temporary/transitional may not be certain they can provide a permanent position once final work restrictions are known. This requirement may also have the potential for creating an FEHA exposure for the employer

    This requirement can also be misleading to injured workers. The 10133.53 form indicates they have 30 days to respond to the offer; there is no such time frame. When an applicant is released to temporary or transitional work, they must immediately accept the work and return or learn to subsist on PDAs; their TTD benefits will terminate on the return to work date provided by the employer. There is no requirement for a temporary or transitional position to last twelve months. In fact, such positions usually do not last more than 45 days and should never last more than 90 days without a full review and agreement by the parties. Finally, there is no 85% wage requirement; the position can pay any amount allowed by law as long as the employer/insurer pays wage loss where applicable.

    Editorial note: I disagree with the DWC Legal assessment that it had no options here. It seems to me that DWC could have created a requirement to document a temporary/transitional job with some sort of offer form (let's call it a 10133.53(temp)) and specified that failure to properly document a temporary/transitional job would require a voucher, even where a permanent job is documented by a 10133.53. The effect of requiring use of the 10133.53 for temporary/transitional jobs may be to discourage employers from providing such work and that would be unfortunate for injured workers. It would also serve to increase claim costs and that runs counter to the intent of SB 899 and its progenitors.

    Is a voucher due if the injured worker moves out of state? How about out of the country? If the voucher is due, how do we determine if the training facility is approved?

    There is no prohibition in L. C. 4658.5/4658.6 against using the SJDB voucher in another state or another country. Technically, the injured worker can use his/her voucher at any training facility in the world as long as that facility is approved by a recognized agency.

    There have already been a number of cases where the injured worker has elected to use his/her voucher at institutions outside the State of California. CCR 10133.58 provides guidance on the types of institutions that may be used and the accreditation expected. Colleges and universities must be accredited by a Regional Association similar to the Western Association of Colleges and Universities that accredits California institutions. Vocational facilities must be approved by an agency similar to the Bureau for Private Postsecondary and Vocational Education (BPPVE). The Bureau can provide a list of such organizations (you must call the Bureau - the list is not available on-line). FAA approved institutions are also acceptable.

    Determining accreditation for training institutions outside the U.S. presents a greater challenge. Institutions supported by the local government are probably acceptable. If in doubt, start by calling the Bureau ((916) 574-7720). If the parties cannot agree on the out of country institution, they can file a 10133.55 Request for Dispute Resolution and present their respective arguments.

    The 10003 Notice of Offer of Regular Work indicates that it is to be used for injuries on or after 1/1/2005 only. Does this mean I do not have to worry about documenting regular work offers for pre-2005 dates of injury?

    You do not have to document regular work offers for 2005 cases - yet. The 10003 Notice of Offer of Regular Work is a proposed form and has not yet completed the regulatory review process. Employers and insurers are therefore not required to use the form. However, it is clear that the DWC intends to require the use of a form to document return to work offers for regular work, as well as offers of modified and alternative work. The basis for this requirement is the 15% PD adjustment contained within L. C. 4658(d); to justify a 15% reduction in weekly PD payments, the employer must make an offer of regular, modified or alternative work. There is already a form that documents offers of modified or alternative work (the 10133.53); the proposed 10003 is the corresponding form for regular work. Although the form is not yet required, it might be a good idea to start using the proposed form, or a form of your own design, to get your staff ready for the time when a variant of the 10003 becomes a requirement. This will be an adjustment for claims administrators because we have never had to document a return to regular work.

    There is no requirement to document a return to regular work for 2004 cases because injured workers with a 2004 date of injury are not entitled to the PD adjustment.

    And a VR Question

    Is an employer obligated to pay the 10% self imposed penalty (SIP) on a late payment of VRMA?

    L. C. 4560 does not identify VRMA as an indemnity benefit so DWC has not imposed administrative penalties where the SIP was not paid. A couple of years ago, it appeared that this situation would change when the Board, in Rivera/Crump, determined en banc (among other things) that VRMA was an indemnity benefit and there was no reason it should be exempt from the SIP requirement. The District Court of Appeal reversed and remanded the Board's decision; the SIP issue for late VRMA payments was not revisited. So the simple answer to this question is that there is no requirement to pay the SIP for late VRMA payments.

    However, late VRMA payments are subject to 5814 penalties and these may be significantly more expensive than the SIP. A claims administrator may need to make a financial decision to pay the SIP as the lesser of two evils.

    Case Law Update

    Does a workers' compensation settlement agreement relieve an employer from its obligation to consider job modification for an injured employee?

    In Albertson's Inc. v. Fair Employment and Housing commission (FEHC) et al, B175816 (1/20/06), the District Court of Appeal determined that the employer failed to respond properly to the employee's request for reinstatement as a disabled worker. The employee settled her workers' compensation via a C&R for $48,000. The C&R indicated that it applied "to all unknown and unanticipated injuries and damages resulting from the accident......" Subsequent to the C&R, the applicant made several requests to return to work. Albertson's representative placed the burden of proving she could return to work on the applicant. The applicant informed the Albertson's representative that she had performed her duties for several months after her surgery, requiring infrequent assistance only with heavy pallets. She also provided copies of medical reports from her treating physician and the AME. The Albertson's representative determined that he had received no new medical information and did not respond to the applicant's request for reinstatement.

    The employee filed a complaint with the Department of Fair Employment & Housing. The DHEH administrative law judge found that Albertson's had discriminated against the applicant and ordered reinstatement, payment of back wages, provision of anti-discrimination by Albertson's, and posting of compliance notices. Albertson's appealed.

    The Court of Appeal upheld the DFEH finding, noting that the ALJ had properly recognized that Albertson's had an obligation with concurrent but independent legal requirements intended to protect the injured worker's rights. Albertson's chose to recognize only its workers' compensation obligations but it had a concurrent obligation to meet with the employee (the interactive process) to discuss any discrepancies between medical reports and to assess the employee's return to work options.

    While this case is not certified for publication, it does send a message to employers that they need to meet with their injured employees who require job modification and properly assess potential accommodations and return to work options. This case is likely to have cost Albertson's at least $200,000 (or more) in back wages plus at least $100,000 in legal fees. A return to work assessment, using outside consultants, would cost less than 1% of Albertson's costs for defending this case and might even have been free had the employer complied with the FEHA interactive process requirement. Workers Compensation is still not the place for employers to resolve their personnel issues.

    Allan Leno
    e-mail: allanleno@leno-assoc.com

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    Monthly Articles on Vocational Rehabilitation
    by
    Alan Leno

    May 2006

    SJDB vouchers - More FAQs

    It seems (unfortunately) that there are far more questions than answers on the voucher and the related issue of the PD adjustment. Here are a few more.

    What constitutes an acceptable offer of modified/alternative work for a seasonal worker. What if the "season" lasts for just 10 weeks? Does this mean the employer must bring the employee back for 5 plus years to meet its obligation?

    This is a difficult question - and the statute and regulations provide little guidance. Is the intent to guarantee 12 months of employment? Or 12 months of equivalent employment (i.e., 10 weeks employed and 42 weeks unemployed)? My interpretation is that the statute and regulation intend to provide an equivalent situation for the injured worker. That is, an acceptable offer of modified/alternative work for a seasonal employee must return them to their comparable pre-injury situation. That might mean 10 weeks working and 42 weeks not working, which is the situation the worker was in prior to injury. I do not believe the statute requires, or intended to require, that the injured worker must work a cumulative 52 weeks (or 5.16 years) in order for the employer to meet its obligations under L.C. 4658.6. I am also quite certain an applicant's attorney would view this situation quite differently. I expect it will require case law to resolve the issue.

    My suggestion for employers is to bring injured workers back for as long as it makes business sense for you to do so. I would hope that case law will not be established by an employer who brought the employee back with the intent to dismiss them on the 366th day.

    I have a case (2005 DOI) where I estimated PD at 5% and paid PD advances to 4% (i.e., 80% pf the estimated PPD). Much later, the Board determined PD to be 10%. The employer was unable to provide mod/alt work so some PDA's (those paid after the 60th day from P&S) were increased by 15%. When the Board found a higher PD level, is that PD subject to the 15% increase?

    The short answer is "Yes." The Board's decision results in an obligation to make weekly PD payments retroactively. Weekly PDAs are subject to the 15% adjustment so you would have to make any retroactive payments at the increased rate. For that matter, PD payments made weekly as the result of an F&A or Stipulation with Award are also subject to the 15% adjustment. Only a C&R is exempt from the 15% PD adjustment requirement in L.C. 4658(d) because a C&R provides for a lump sum payment, not weekly payments.

    Are defendants required to send copies of offers of modified/alterative work to the DWC? What about offers of regular work? Why would this be necessary? What does the DWC intend to do with the information?

    Copies of all offers of modified or alternative work must be sent to the DWC Administrative Director as indicated at the bottom of the DWC Form AD 10133.53 Notice of Offer of Modified or Alternative Work (page 1). We should expect that a failure to send copies of these forms to the DWC will result in administrative penalties. To date, the DWC has not indicated that it intends to do any data collection from the forms submitted but this knowledge does not relieve defendants from the obligation to comply with the regulatory requirement.

    There is no current requirement to file copies of offers of regular work with the DWC. The form for documenting offers of regular work is still in a "proposed" state so insurers/employers are not required to use it. And there is no indication - yet - that the DWC is going to require a copy of the form to be filed with the Administrative Director

    When do we have to send the DWC Form AD 10133.53 Offer of Modified or Alternative Work? Is it only after the employee is paid 90 days of TTD?

    One of the dangers of administering two benefits simultaneously is that it is difficult to keep the requirements separate. The 90 day requirement applies only to pre-2004 cases; there is no 90 day requirement for the SJDB voucher. A 10133.53 Offer form is required for a 2004 (or later) case where (1) TD has been paid, (2) the applicant has PD, and (3) the applicant requires a modified or alternative job. If these conditions exist, the offer must be made within 30 days of the last payment of TD. It doesn't matter if the applicant has been paid 90 days of TD - or just one day of TD.

    The employer provided a modified job to the injured employee but has to fire her 'for cause before the 12 month period has expired. Does the employer now owe the employee an SJDB voucher?

    There is no guidance on this issue in the statute or regulations so the answer depends on who you ask - and the courts will have the final word. I would argue that the employer does not owe a voucher as long as it can properly document a "for cause" termination. I do not believe the Legislature intended to reward employee behavior that resulted in a legitimate "for cause" termination. However, I suspect an applicant's attorney would argue that statute makes no distinction regarding the reason for a modified or alternative job not lasting for 12 months and his/her client should be entitled to a voucher irrespective of the reason for termination. The courts will have the last word on this issue.

    So what should an examiner do when faced with this dilemma? Find out what kind of documentation your employer has and discuss the matter with your attorney. If your employer properly documented its actions, you can deny the voucher in good faith. If not, you may want to provide the voucher (remember that bad cases make bad case law).

    I have received an invoice from a school that is not on the BPPVE approved list and from a counselor who is not on the DWC list. Do I have to pay them?

    There is no question that the school should NOT be paid. The statute is quite specific that a school must be approved by BPPVE, the Western Association of Colleges and universities, or the FAA. The Regs expand approval to include out of state institutions approved by similar agencies (you can get a list of approving agencies for other states by calling BPPVE at (916) 574-7720.

    The counselor is a different issue. At present, the DWC has converted the old IVE list to be its temporary "approved" list for VRTWCs. However, DWC has not established an application procedure yet for counselors who would otherwise meet the requirements of CCR 10133.50(a)(15). If the counselors meet the requirements of this section, you may need to pay them. If in doubt, you or the counselor can submit a DWC Form AD 10133.55 Request for Dispute Resolution to Otis Byrd at the DWC.

    I just received an invoice from a counselor along with a report documenting the evaluation and advice given to an injured worker (2005 DOI) for various training programs. The invoice is within the 10% allowed by L.C. 4658.5(b). Should I pay the invoice?

    You should not pay the invoice unless it was accompanied by a copy of the SJDB voucher signed by the injured worker. A signed copy of the voucher is your indication that the injured worker has agreed to retain the counselor to assist him/her with vocational choices. Without a signed copy of the voucher, the injured worker could challenge the counselor's invoice and guess who gets left holding the bag?

    Case Law Update

    An injured worker's injury is contested AOE/COE. On the Application for Adjudication of Claim, applicant's attorney indicates that Rehab is at issue. Three years after injury, the applicant's treating physician finds the applicant QIW. Four years after injury, an AME finds the injury industrially related and the applicant a QIW. Is the applicant entitled to retro VRMA?

    One of the dangers in contesting a case AOE/COE is that all benefits come immediately due upon a determination by the Board that an injury is industrial (i.e., that in jury is AOE/COE). This means you owe all the benefits not paid during the AOE/COE dispute. That is exactly what happened in Robinson-May Department Stores, PSI, Petitioner v. WCAB (Scott Schwartz) (Jan 2006) 71 CCC 302 (writ denied). We have case law supporting the proposition that identifying rehabilitation as an issue on the Application constitutes a request for services. A defendant might argue that no VRMA should be due prior to a determination that the applicant was a QIW which, in this case, happened some three years after injury. However, we have L.C. 139.5(d)(2) that says an applicant is entitled to VRMA benefits where s/he prevails in a QIW dispute. Here the applicant prevailed at an AME exam so benefits were due retroactively. An AOE/COE defense should not be undertaken lightly - and this case demonstrates why.

    Allan Leno
    e-mail: allanleno@leno-assoc.com

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    Monthly Articles on Vocational Rehabilitation
    by
    Alan Leno

    July 2006

    RTW Regulations

    The Office of Administrative Law (OAL) has given a green light to some of the proposed Return to Work regulations while sending others back to the Division of Workers' Compensation for further revision.

    OAL has cleared proposed RTW Regulations 10004 and 10005 that provide the means to implement L.C. 139.48 provisions for reimbursing small employers for the cost of job accommodations, effective August 18, 2006. Employers with fewer than 50 employees can apply to DWC for reimbursement for the cost of physical job modifications for their employees who become disabled as a result of work injuries. The employers can apply for reimbursement of accommodation costs for temporarily disabled employees (up to $1250) or permanently disabled employees (up to $2500) by completing Form DWC AD 20005 and submitting the form, along with proof of expenditures, to the DWC at 1515 Clay Street 17th Floor Oakland, CA 94612. [Editor's Note: The text for these regulations is available on the DWC site, accessible through the WCAB links tag on our main page.]

    Proposed Regulations 10002 and 10003, intended to document the 15% PD reduction available to employers pursuant to L.C. 4658(d) for offers of regular work, have been returned to the DWC for further clarification: DWC has released the revised versions of these regulations for a 15 day public comment period ending at 5:00 P.M. on August 7, 2006. Written comments should be addressed to:

    Maureen Gray, Regulations Coordinator
    Department of Industrial Relations
    Division of Workers' Compensation
    Post Office Box 420603
    San Francisco, CA 94142

    I would urge claims administrators to write to the DWC regarding Section 10003 in particular as it represents an unnecessarily onerous requirement for claims administrators. While it isn't unreasonable for DWC to expect employers/claims administrators to document offers of regular work in some way, a three page document (the DWC AD Form 10003) that must be sent to two to four times as many injured workers as the voucher and 10133.53 Mod/Alt Offer forms combined is excessive. The necessary documentation could easily be accomplished by a one page "check the applicable box" letter. The proposed form is also misleading to injured workers, suggesting that assignment to different shifts or locations can be remedied at the WCAB. If the DWC believes the Board has jurisdiction in such matters, it needs to publicize the applicable codes and remedies.

    Finally, OAL approved minor changes to the DWC AD Form 10133.53 Notice of Offer of Modified or Alternative Work and the DWC AD Form 10133.55 Request for Dispute Resolution Before the Administrative Director. While the changes are small (the zip code for the DWC office in Oakland and the effective date of the form), potential users should be aware that use of the existing forms will eventually be disallowed. These forms become "official" on August 18, 20006; DWC has historically allowed a grace period before disallowing use of the obsolete forms.

    VRTWC Applications Now Available Online

    DWC has established an application procedure for counselors who wish to assist voucher-eligible injured workers with their re-training effort. To qualify as a VRTWC, an applicant must meet the education and experience requirements of AD Reg. 10133.50(a)(15):

    A person or entity capable of assisting a person with a disability with development of a return to work strategy and whose regular duties involve the evaluation, counseling and placement of disabled persons. A VRTWC must have at least an undergraduate degree in any field and three or more years full time experience in conducting vocational evaluations, counseling and placement of disabled adults. The application procedure and form are available at the DWC web site. Go to http://www.dir.ca.gov/dwc/SJDB/SJDB_Main.html and click on "Procedure for application for appointment as a vocational return to work counselor acrobat icon version." Qualified VRTWCs will have their contact information listed at the DWC web site (the current list can be found at http://www.dir.ca.gov/dwc/SJDB/VRTWC_list.pdf).

    SJDB vouchers - More FAQs

    I have a claim with a June 2004 date of injury. The injured worker was recently released to return to his regular duties. I thought I had to issue a DWC AD 10003 Notice of Offer of Regular Work but the form says it applies only to dates of injury on/after 1/1/05. Should I send the form - or not?

    You are not yet required to send the form to anyone, regardless of the date of injury, since the DWC AD 10003 Notice of Offer of Regular Work has not yet been approved (it is still in the "proposed" stage - see above). Once the form is approved, it will apply only to dates of injury on or after 1/1/2005 because this form will form the basis for documenting L.C. 4658(d) PD reductions. The current estimate is that the DWC AD Form 10003 notice will become effective in September or October of this year. Until then, a simple letter offering the injured worker his/her regular job should suffice.

    Can an "in house" counselor for an insurer, third party administrator, or employer qualify as a Vocational Return to Work Counselor (VRTWC)?

    An "in house" counselor can qualify as a VRTWC as long as s/he meets the requirements of AD Reg. 10133.50(a)(15). I'm just not convinced that it would be a good idea for the in house counselor to work on a voucher case for the insurer/TPA/employer.

    First, there could be a conflict of interest issue where the in house counselor works on a voucher case for the defendant and certainly where the in house VRTWC bills for the counseling services. The defendant would be open to charges that it has a vested interest in how and where the voucher is used, particularly where there are differences in tuition charges at the training facilities under consideration. The in house counselor's services may be beyond reproach - but that doesn't mean they will be perceived in that manner if the recommended program doesn't work out.

    Second, what happens if the recommended program doesn't work out (the school closes, there are problems with instructors, the injured worker doesn't like the program, etc.)? As far as we know, an eligible injured worker gets one - and only one - SJDB voucher but there isn't anything in the statute or regulations to prevent the applicant from seeking a second voucher. If such a case came before the Board, how would the WCJ view the services of a VRTWC employed by the defendant? In my view, the defendant is in a much better position if the VRTWC is an independent counselor selected by the applicant.

    Public safety employees are entitled to salary continuation payments for up to one year in lieu of TD. Prior to 1/1/04, those payments would continue for up to one year even where the injured employee became P&S and started a VR program. Now that there is no more vocational rehabilitation and no benefits due during use of the SJDB voucher, can we stop 4850 payments once the injured employee becomes P&S, if that should occur before the end of the one year period?

    In the City of Oceanside v. WCAB (Woodall)(Feb 2006) 71 CCC 25 (Writ Denied), the Board confirmed that 4850 payments would continue during a VR program for the portion of the program falling within the one year limit. The Board noted that a police officer is not considered P&S until s/he is both medically and vocationally stable, citing the City of Martinez v. WCAB and Government Code 21164. It therefore appears that you cannot terminate 4850 payments until the public safety employee is medically P&S and has completed a vocational program, accepted a disability retirement, or you have reached the end of the one year period provided in 4850, whichever occurs first. Defense attorneys with whom I have discussed this issue indicate that the SJDB voucher does not change application of L.C. 4850.

    I have an account where the employer routinely takes injured workers back in a modified or alternative capacity. In a recent case (2005 injury), the employee voluntarily terminated his employment and moved out of the area. Do I owe the employee a voucher? This employer has more than 50 employees - can the employer take the 15% PD reduction per 4658(d)? Or would it owe a 15% increase? I have not been able to find anything in the statute or regulations on this issue and I get different answers from the defense attorneys I have asked.

    There isn't any guidance in the statute or regulations and we have no case law on the subject so the different answers are not a surprise. The best we can do at this point is take a logical, good faith approach - and wait for the inevitable case law.

    It seems illogical to "reward' an injured employee with a voucher and/or a 15% increase in weekly PD payments when s/he voluntarily resigns from the employer, especially from an employer with a track record for retaining injured employees. To allow the voucher and/or PD increase defeats Legislative intent which was to encourage and reward employers who did retain their industrially injured employees. It also creates an artificial means for those employees who do not want to return to modified or alternative work (for whatever reason) to quit - and receive a reward for doing so. L. C. 4658(d), 4658.5, 4658.6 seem rather pointless if the employee is allowed to resign, avoid returning to work in an available modified or alternative position, and receive a voucher and a PD increase.

    If the employer, in fact, can offer medically appropriate modified or alternative work, I would recommend that the employer/insurer take the following steps:

    1. The employer should invite the employee in to discuss a return to work in a modified or alternative capacity (the employer has "interactive process" obligations under FEHA),

    2. The employer//TPA/insurer should complete DWC AD Form 10133.53 Notice of Offer of Modified or Alternative Work and send it to the employee,

    3. Once the offer is made (and the employee is P&S), the employer can reduce weekly PD payments by 15%. If the employer is uncomfortable with the PD reduction, it could choose to do so but it would have to act in the same manner for all similarly situated injured employees).

    It is likely the employee will reject the offer or fail to respond in which case s/he is not entitled to the voucher and the 15% reduction is justified. I would caution that the employer had better be ready to provide the job in the event the employee accepts the offer and returns to the area. If the employer failed to provide the job it had offered, workers' compensation would be the least of its problems.

    I cannot provide details but I can tell you that a case with similar facts is likely to go up on appeal within the next couple of weeks. Stay tuned.

    Case Law Update

    Can an injured worker with a 1995 date of injury still be eligible for vocational rehabilitation benefits and services where such services have not previously been requested?

    We may be getting a little rusty on our QIW determinations, especially where relevant portions of the Labor Code are (apparently) no longer in existence. McDonald's Corporation, PSI, Gallagher Bassett Services v. W.C.A.B. (Margaret George) 71 CCC xxxx (writ denied) is a case in point. The applicant had three injuries in 1995 but did not request VR services until 2004, well after the five year statute on her case had expired, and the employer denied VR benefits and services relying on L.C. 5410. The WCAB found the applicant entitled to VR benefits and services pursuant to L.C. 5405.5 which provides that an eligible injured worker can make an initial request for services within one year of a finding of permanent disability. Since there was a judicial finding of PD on 11/23/03, the applicant's 10/19/04 request was timely. What may have confused the defendant was the fact that L.C. 5405.5 was repealed in 2003 so it no longer appeared in the Labor Code in 2004. However, reinstatement of L.C. 139.5 by SB 899 effectively reinstated 5405.5 for pre-2004 cases. When evaluating exposure for pre-2004 cases, we need to consider the Labor Code and case law as they were prior to 1/1/04 and that includes the existence of 5405.5, Bekins, and Youngblood.

    Allan Leno
    e-mail: allanleno@leno-assoc.com

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    Monthly Articles on Vocational Rehabilitation
    by
    Alan Leno

    August 2006

    Proposed RTW Regulations

    The comment period for proposed AD Regulations 10002 and 10003 for offers of regular work ended August 7, 2006. These proposed regulations are being revised by the DWC and returned to the Office of Administrative Law (OAL) for further review. Final approval is expected sometime in September. Once OAL signs off on the proposed regulations, they will be registered with the Secretary of State and an effective date published.

    Claim administrators should note that the DWC AD Form 10003 Offer of Work is not yet required; however, it would be advisable to send the applicant a brief letter to document a return to regular duties where weekly PD payments are reduced by 15% pursuant to L.C. 4658(d).

    SJDB vouchers - More FAQs

    An injured worker (2004 DOI) is entitled to a voucher if precluded from his/her usual and customary duties and the employer cannot provide modified or alternative work. Can the employer/carrier settle the voucher by giving the applicant the allotted amount? Does the employee have to be represented by an attorney?

    There is no prohibition in the Labor Code against settlement of the voucher so the DWC has taken the position that the voucher can be settled via a Compromise and Release agreement (see AD Reg 10133.52). The new C&R agreement form includes a provision for settling either VR (pre-2004) or the SJDB voucher (DOIs on/after 1/1/2004). The voucher cannot be settled via an F&A or Stipulated Award. Claims administrators should note that there are no rules on the amount of settlement; it is up to the parties to negotiate the amount of settlement, just as they do for the case in chief. I have seen the voucher settled for as little as $1.00 up to the full amount of the injured worker's entitlement.

    Unlike VR, there is no requirement for the injured worker to be represented by counsel in order to settle his/her voucher entitlement. In pro per injured workers can, and do, settle their voucher rights.

    The Labor Code and AD Regs require the claims administrator to send an injured worker the Notice of Offer of Modified or Alternative Work (AD Form 10133.53) within 30 days of the termination of TD. Injured workers often go back to work in transitional jobs prior to P&S. Is the claims administrator required to send the 10133.53 form? Does the employer have to engage in the "interactive process" when the employee returns to transitional work?

    This really two questions. First, the Labor Code should have said the 10133.53 was due within 30 days of P&S but, unfortunately, it says within 30 days of the last payment of TD. Because the wording is specific, the DWC believes the 10133.53 form must be sent within the 30 day time frame whether the employee is returning to transitional work or permanent modified or alternative work. This makes no sense for transitional work but the DWC's attorneys believe the statutory language leaves them no choice. If the employer/claims administrator does not send the 10133.53 for a transitional job and the employee later needs a permanent modified/alternative job, the employer loses the right to use the 10133.53 (If the employee returns to regular duty, the 10133.53 becomes irrelevant) and the employee will be entitled to a voucher, even if s/he returns to work in a permanent modified or alternative position..

    This presents a problem for employers, particularly those with unions and/or civil service type employment rules. It is also a problem for injured employees because the conditions stated on page 1 of the 10133.53 do not apply to transitional or temporary assignments (transitional jobs do not last for one year, there is no 85% wage requirement, etc.). We also do not have final work restrictions so how can the employer offer a "permanent" modified/alternative job? The best advice can give to an employer is to use the 10133.53 as DWC requires but be sure to specify in the "Duties Required" and "Description of Activities" sections on page 2 that the transitional job is temporary (it would be appropriate to specify the time frame) and that the need for permanent job modification or reassignment will be evaluated when final work restrictions become available and a permanent offer considered at that time. If permanent job modification is required after P&S and work is available, the employer/claims administrator can then send a "revised" offer to the employee.

    Regarding the second question, an employer is not required to engage in the "interactive process" for a temporary or transitional work assignment, although it wouldn't hurt. An employer has the right to assign any employee to temporary work, as long as the nature of the assignment isn't demeaning or punitive. Please note that the "interactive process" is an FEHA requirement and generally is not within the purview of a claims administrator (unless the employer is permissibly self-insured/self-administered).

    What is the "interactive process?" How does it work?

    A complete description of the interactive process would take too much time and space to discuss here. And it would be bad for business (my business) to spell out every detail of the process. The essential elements of the process include the following: (1) recognize the need for job accommodation or reassignment, (2) invite the employee to participate, (3) review the employee's job duties and work limitations, (4) obtain a job analysis/use available resources as needed to assess return-to-work options, (5) identifying and procure any required assistive or adaptive devices required for the workplace, and (6) offer the modified or alternative position to the employee. And, of course, document everything. This process can take as little as an hour or two or it can take many hours spread over days or weeks. Available case law suggests that an employer must be very thorough to meet its obligations under FEHA

    What Labor Code or Regulation addresses the requirement to send an SJDB voucher within 25 days of an Award? We are getting requests for tuition reimbursements prior to an award - sometimes we don't even know what the value will be for the voucher. Are we obligated to pay prior to an award?

    In a word - No. The requirement to pay within 25 days of the award can be found in AD Reg 10133.56(c). A claims administrator is not required to pay tuition to a school or reimburse the employee for tuition paid prior to the award.

    If an employee is returned to work immediately in a modified position and there is no lost time but the employee has PD, at what point is the Notice of Rights due? When is the 10133.53 Mod/Alt Offer due? How would this situation impact the L.C. 4658(d) +/-15% requirement?

    Where no TD has been paid (as in this no lost time case), the claims administrator should send the Notice of Potential Rights (10133.52) as soon as there is evidence of the existence or probable existence of permanent disability. For those who may be hesitant to send the notice prior to ironclad evidence that there will be PD, remember that the Notice of Rights is informational only; it is not like the Notice of Potential Eligibility that we sent on pre-2004 QIW cases. The NOPE was an offer of benefits and services where the SJDB Notice of Potential Rights tells the applicant a bout a benefit s/he might get if all conditions are met.

    Since no TD has been paid, you can send the 10133.53 Notice of Offer of Modified or Alternative Work as soon as you have final work restrictions. While this situation is not addressed by statute or regulation, I would recommend sending the offer no later than 30 days from your knowledge of the final work restrictions.

    The 15% PD adjustment cannot be taken until the employee is P&S, even though the employer provided modified or alternative work immediately. L.C. 4658(d) specifically uses the P&S date to start the PD adjustment process. You also cannot start the 15% PD reduction until there has been an actual offer of the position (in this case via the 10133.53).

    Can an employer take the 15% reduction in weekly PD payments where the employee opts to retire rather than returning to work in available modified or alternative work? Also, what is the employer's obligation to engage in the interactive process with this employee?

    The employer should be able to take the 15% PD reduction IF it makes an offer of available modified or alternative work. This means the employer needs to complete the DWC AD Form 10133.53 Notice of Offer of Modified or Alternative Work and send it to the employee. The employee has 30 days to accept, reject, or not respond to the offer. The employer can take the 15% reduction when the offer is made. Absent case law or further regulations, I think it would be a mistake for the employer to forego the 10133.53 because the employee has already retired or has made his/her intent to retire known.

    Regarding the FEHA requirement to engage in the "interactive process," an employer could argue that there is no need for this process because the employee has already removed him/herself from employment consideration by virtue of the retirement decision. However, I would suggest that the employer invite the employee in to discuss return-to-work (i.e., initiate the interactive process). If the employee is serious about retirement, it is probable that s/he will decline which provides documentation for the employer. It would also help remove any argument that the retirement was "forced."

    Is an employer required to offer a modified or alternative position to an employee who has been terminated for cause? Must this employer engage in the "interactive process?"

    These questions get into the realm of policy decisions for employers. L.C. 4658(d), 4658.5, 4658.6 do not address what we might think should be logical exceptions to the statutory requirements for 15% PD increases and the obligation to provide a voucher. If an employer has fired an employee for "cause," it would not want to offer a modified or alternative position and it could argue that such an employee should not be "rewarded" with a 15% PD increase or with an SJDB voucher. These seem like very logical and reasonable arguments and conclusions but there is no specific support in the stature or regulations. This means that the employer/claims administrator must make a policy decision about how it wishes to address such situations and then wait for case law (which will most certainly follow). At my company, I would not offer an employee terminated for cause a modified/alternative job and I would also not adjust PD upward nor provide a voucher. Of course, my company has no employees so my decision is safe. Employers need to consult with their attorney and make a good faith decision that will apply to all similarly situated employees (ex-employees).

    Must the employer engage in the FEHA interactive process? The interactive process requirement applies to employees. Assuming that the termination for cause is bona fide and defensible, that individual is no longer an employee and is not eligible for re-hire so the interactive process requirements would not apply. I would advise the employer that it must be very confident in its termination decision because having the termination over-turned by the courts could expose the employer to a charge of failure to engage in the interactive process.

    If an employee has 0% PD, is s/he entitled to an SJDB voucher? On one of my claims, the physician apportioned 75% of the disability to a 1995 claim, 15% to a 2004 claim, and 10% to a 2005 claim but apportions to non-industrial factors. The doctor goes on to indicate that the 2005 claim was an exacerbation and created no new disability.

    I would say you have an unratable report. If, when this report is clarified, there is disability of industrial causation occurring on/after 1/1/2004 that serves to preclude the applicant from returning to his/her regular position and the employer cannot provide modified or alternative work, the employee would be entitled to a voucher. If the net result is 0% PD attributable to injury on/after 1/1/2004, the applicant would not be entitled to a voucher. We are, in fact, seeing cases where there is 0% PD but the physician gives work restrictions but the employee is not entitled to a voucher because L.C. 4658.5(a) ties eligibility to the voucher to an award of PD.

    Reminder - VRTWC Applications Now Available Online

    DWC has established an application procedure for counselors who wish to assist voucher-eligible injured workers with their re-training effort. To qualify as a VRTWC, an applicant must meet the education and experience requirements of AD Reg. 10133.50(a)(15):

    A person or entity capable of assisting a person with a disability with development of a return to work strategy and whose regular duties involve the evaluation, counseling and placement of disabled persons. A VRTWC must have at least an undergraduate degree in any field and three or more years full time experience in conducting vocational evaluations, counseling and placement of disabled adults. The application procedure and form are available at the DWC web site. Go to http://www.dir.ca.gov/dwc/SJDB/SJDB_Main.html and click on "Procedure for application for appointment as a vocational return to work counselor acrobat icon version." Qualified VRTWCs will have their contact information listed at the DWC web site (the current list can be found at http://www.dir.ca.gov/dwc/SJDB/VRTWC_list.pdf).

    Allan Leno
    e-mail: allanleno@leno-assoc.com

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    Monthly Articles on Vocational Rehabilitation
    by
    Alan Leno

    September 2006

    RTW Regulations Finalized

    The proposed AD Regulations 10002 and 10003 for offers of regular work have been approved by the Office of Administrative Law (OAL) and have been registered with the Secretary of State. The effective date for these regulations is October 21, 2006. This means that claim administrators must document all situations where the applicant has been released and returned to regular duties before PD payments can be reduced by 15%.

    Please note that these regulations and the DWC AD 10003 form apply to cases with a date of injury on/after 1/1/2005 only.

    SJDB vouchers - More FAQs

    I received a referral to complete a job analysis for a 2006 case. I completed the assignment, obtained the required signatures, and sent the document to the carrier. The claims examiner now refuses to pay my invoice because my name does not appear on the VRTWC list at the DWC site. My name is not on the list because I do not want voucher cases but I do meet all the requirements in AD Reg. 10133.50(a)(15). The claims examiner says the JA I completed is not valid because my name is not on the list so she is not obligated to pay me.

    The VRTWC list has nothing to do with job analyses; it exists only to provide contact information for Vocational Return to Work Counselors (VRTWCs) who meet the requirements in AD Reg. 10133.50(a)(15) and wish to make their services available to injured workers who have been issued SJDB vouchers. There is no provision in the Labor Code or the Administrative Directors Regulations governing job analyses. The claims administrator contracted with you to obtain a job analysis and you provided the service requested. If the claims administrator does not honor the contract (i.e., the request to complete the JA), you should file a lien with the Workers' Compensation Appeals Board. You can find the lien form (DWC WCAB Form 6) at your local Board or at http://www.dir.ca.gov/dwc/forms.html.

    Management at my return to work firm (formerly a rehab firm) wants me to assist employers with the "interactive process" whenever we do a mod/alt job assignment for a carrier and to sell the concept to carrier's as a service we include on their behalf. I thought I remember you saying that counselors should not mix FEHA and workers' compensation issues.

    The "interactive process" is an FEHA/ADA concept and most definitely should not be something done by a workers' compensation insurance carrier, or a counselor on their behalf. Claims examiners are not expert on FEHA requirements and should not be providing advice or services vis--vis requirements that are unique to FEHA/ADA. QRRs and VRTWCs also should not be providing advice to employers on FEHA requirements while completing a workers' comp assignment for a carrier. Insurance carriers have little or no FEHA liability as long as they meet their workers' comp legal requirements. However, carriers can create an FEHA exposure by providing advice or services, such as the "interactive process" to the insured employer. The carrier has no way to know whether the counselor is well-versed on FEHA requirements or to know exactly how the counselor is advising the employer. The counselor, by virtue of the referral requesting "interactive process" as a service element, would be acting as an agent of the carrier. Should the advice be wrong, or be perceived as wrong, the insured might well sue to recover damages. The employer isn't likely to select the counselor as the primary target of the legal action because it is the carrier that has the "deep pockets."

    A carrier should stick to the services it has agreed to provide under its workers' compensation policy agreement with the employer. It certainly is appropriate to advise the employer it may have obligations under other state or federal laws but the employer should be referred to the enforcing agency (DFEH or EEOC) or its labor attorney for more information.

    I had an injury in 2005 and recently became permanent and stationary. I clearly cannot return to my regular job and my employer does not have any other work I can do. My attorney says I will get a voucher when my case settles a year or so from now. I want to start school immediately - I can pay the tuition from my savings. My attorney says I should wait because the voucher can only be paid directly to the school. Do I have to wait until my case settles? Isn't there any way I can be reimbursed for the tuition I pay?

    L. C. 4658.5(b) and AD Reg. 10133.56(d) do allow the injured employee to be reimbursed for tuition costs as long as certain conditions are met. You must, of course, be eligible for a voucher and the reimbursement cannot exceed the face value of the voucher ($4000, $6000, $8000, or $10,000 depending on your PD rating). You can only be reimbursed for training at an approved training facility: approval for vocational programs is through the Bureau for Private Post-secondary Vocational Education (BPPVE - see http://www.bppve.ca.gov/) and for colleges/universities through the Western Association of Colleges and Universities. In order to be reimbursed, you must request reimbursement from your claims administrator (after you have been issued a voucher) and attach copies of your receipts. You can only be reimbursed for the costs of tuition, books, fees, and other expenses required by the training facility ("other" costs must be specified in the schools course description).

    I have a case where the claimant had a 1999 back injury and was TTD for about 10 months. He was released to return to work with a prophylactic restriction of no lifting over 50 pounds. The treating doctor said the applicant would be a QIW if the employer could not accommodate the restriction. The claimant returned to his regular duties as a paramedic. The examiner at the time did not advise the employer about the work restriction and no notices were sent to the claimant. The claimant had a second back injury in 2005 and received a disability retirement earlier this year. He is now demanding vocational rehabilitation. Wouldn't he be eligible for the voucher and not voc rehab?

    I expect the applicant will be found eligible for vocational rehabilitation because there are some key errors with respect to the 1999 injury. First, the applicant was TTD long enough that he was due a 90 Day Notice and either a NOPE or Denial Notice. It does not appear that a job description was done as required by L. C. 4636 and no attempt was made to determine if his duties exceeded the prophylactic work restriction (as a paramedic, it is likely that he would lift more than 50 pounds). Because of these statutory oversights, I would expect the Unit and the WCAB to find the applicant a QIW based on the 1999 injury, the statute tolled, and the applicant entitled to VR services.

    An applicant has a 2003 injury but lost no time from work and was released to return to work at regular duty and did so until 2006 when he suffered a second injury to the same body part. An AME finds the applicant a "QIW" and apportions 25% of the current level of disability to the 2003 injury. Applicant's attorney demands VR benefits and services based on the apportionment. Is the applicant entitled to VR benefits and services? Or is the voucher his only option?

    In this situation, the applicant would be entitled to the SJDB voucher and not to VR benefits/services. Although there was apportionment to the 2003 injury, the applicant was released to regular duty in 2003 and performed his U&C duties until the 2006 injury. The 2006 injury is therefore the proximate cause of the need for a change of occupation so he is entitled to a voucher. He cannot be found entitled to VR services because the 2003 injury did not preclude him from his usual and customary occupation as required by L. C. 4635(a)(1).

    An injured worker (2005 injury) appears to be working at his U&C job but co-workers provide assistance whenever something heavy has to be moved. The employer says they would do this for any employee who needed help with heavy lifting. Should I do a 10133.53 Notice of Offer of Modified or Alternative Work just to be safe?

    It would depend on whether his physician has imposed a lifting restriction. If, for example, the physician said no lifting over 50 pounds and he is provided with assistance for any lifts over 50 pounds, his job has been modified and the 10133.53 should be completed and sent. The fact that the employer would provide the assistance for "anyone" does not change the fact that this employee needs the modification where other employees do not.

    The 10133.53 should not be used "to be safe" where there is no medical indication of a need for job modification. Keep in mind that accepting liability and sending the 10133.53 means that you are also agreeing that the job must last one year or you will provide a voucher.

    If someone has permanent disability but is returned to work with no restrictions...is there a form that I need to send notifying them that they are not eligible for the voucher? Sort of like a follow up to the notice of potential rights?

    With the recent approval of the Notice of Offer of Regular Work, we do have a requirement to advise injured workers regarding their eligibility - or lack thereof - for the voucher. If the applicant is released to regular work, s/he should be sent the new DWC-AD Form 10003 which does indicate that the individual is not voucher eligible. Similarly, the DWC-AD Form 10133.53 Offer of Offer of Modified or Alternative Work advises the applicant that s/he is not eligible for a voucher. Injured workers who need mod/alt work but are not offered such work have to wait until their cases are resolved at the Board to find out that they are eligible - they must be sent their voucher within 25 days of case resolution. Apparently the theory was that these people would remember the content of the Notice of Potential Rights (10133.52) that advised they would get a voucher if they had PD, needed mod/alt work, and their employer did not offer them mod/alt work.

    Are undocumented workers entitled to a voucher?

    I expect the principles in the Del Taco case will apply to the voucher as they did to the VR benefit. Undocumented workers will be entitled to a voucher unless the employer can demonstrate that it would be able to offer modified or alternative work but for the undocumented worker's illegal status. In voc rehab, the Unit expected the employer to make an offer of modified or alternative work via the RU-94 which included a proviso that the job depended on the worker providing proof of his/her legal right to work. We should expect the DWC to require the employer to send a 10133.53 with a condition that the job will only be available if the worker can prove a legal right to work. Employers may balk at such a requirement but I doubt that the DWC will allow employers to avoid a voucher requirement simply by stating that it would have had modified/alternative work available.

    Reminder - VRTWC Applications Now Available Online

    DWC has established an application procedure for counselors who wish to assist voucher-eligible injured workers with their re-training effort. To qualify as a VRTWC, an applicant must meet the education and experience requirements of AD Reg. 10133.50(a)(15):

    A person or entity capable of assisting a person with a disability with development of a return to work strategy and whose regular duties involve the evaluation, counseling and placement of disabled persons. A VRTWC must have at least an undergraduate degree in any field and three or more years full time experience in conducting vocational evaluations, counseling and placement of disabled adults.

    The application procedure and form are available at the DWC web site. Go to http://www.dir.ca.gov/dwc/SJDB/SJDB_Main.html and click on "Procedure for application for appointment as a vocational return to work counselor acrobat icon version." Qualified VRTWCs will have their contact information listed at the DWC web site (the current list can be found at http://www.dir.ca.gov/dwc/SJDB/VRTWC_list.pdf).

    Allan Leno
    e-mail: allanleno@leno-assoc.com

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    Monthly Articles on Vocational Rehabilitation
    by
    Alan Leno

    October 2006

    SJDB vouchers - More FAQs

    If an injured employee misses three days or less from work (i.e., the waiting period) and returns to regular or modified duty, is s/he due a Notice of Potential Rights (10133.52)?

    The injured employee is not due a Notice of Potential Rights unless s/he is paid TD so the worker in the scenario above would not be due a Notice - unless there is a subsequent determination that s/he has permanent disability.

    If the injured worker is released to - and returns to - work but is not yet P&S, are we required to send the DWC-AD 10003 (for regular work) or DWC-AD 10133.53 (for modified or alternative work)? The notices only indicate P&S but I thought I heard somewhere that the forms have to be sent out whenever the worker goes back to work.

    Only the DWC-AD Form 10003 Notice of Offer of Regular Work requires a P&S date. The reason is that the 10003 documents a return to work for the purpose of the 15% PD decrease (per L. C. 4658(d)(2)) and the decrease cannot be taken until the employee is P&S. You would therefore wait until the employee is P&S before sending the 10003 (employers with 50 or more employees only). If you send the 10003 before P&S, you will have to send it again after P&S in order to claim the 15% reduction.

    The DWC-AD Form 10133.53 Notice of Offer of Modified or Alternative Work is a different story. The statute requires the offer of modified or alternative work to occur within 30 days of the last payment of TD. As we all know, the last payment of TD and the P&S date can occur at different times. The DWC has determined that the offer process must comply with the "plain language" of the statute so a 10133.53 must be sent within 30 days of the last TD payment even where the employee is not yet P&S and may be returning to temporary duty. It appears to be the DWC's position that failure to send the 10133.53 for such a temporary position could invalidate a later offer of a permanent modified or alternative position and make their employee eligible for an SJDB voucher. This is an issue that seems likely to be tested at the Board.

    An insurer/employer thus has two choices. It can take its chances and wait until P&S to send the 10133.53 (or the 10003 if the employee is released to full duty at that time). Or it can send the 10133.53 within 30 days of the termination of TD and clearly indicate on the form that the work provided is on a temporary basis until the employee is P&S and permanent work restrictions are available. This is a policy choice for the insurer/employer and the choice may be dictated by union collective bargaining agreements, civil service rules, or employer personnel procedures. Employers may wish to discuss their options with an attorney.

    Are we required to tell the injured worker that they will not get a voucher?

    This is a recurring question - it seems unnatural to people familiar with the VR system to tell someone they may be eligible for a voucher (via the 10133.52 Notice of Potential Rights) and then have no requirement to tell them that they are not entitled when the determination is made. Pre-2004, we always sent either a NOPE or Denial notice once the employee had been sent the 90 Day Notice, but there is no similar notice for vouchers.

    Employees offered modified or alternative work via the 10133.53 are advised that they may not be eligible for a voucher (see the middle of page one on the form). There is no such advice on the 10003 Notice of Offer of Regular Work. All other injured workers have to wait until their case is resolved at which time they should find out about their voucher eligibility. Where an award issues, the eligible employee must be sent their voucher within 25 days. If the case is resolved by C&R, there should be a discussion about settlement of the entitlement (stay tuned on this one).

    The injured worker is still TTD but managed to find a job with another employer; the duties of the new position are within his existing work restrictions. The DOI employer cannot provide modified or alternative work. If the employee is precluded from his regular duties at P&S, will he be entitled to a voucher even though he found another job?

    When an injured employee is precluded from returning to his/her regular duties, eligibility for the voucher is determined by the pre-injury employer's ability to offer modified or alternative work. In this situation, the pre-injury employer is unable to offer modified or alternative work so the employee is entitled to a voucher. The fact that he found another job within his work restrictions does not eliminate the original employer's obligation to provide a voucher.

    Is an injured worker entitled to reimbursement for mileage as part of the SJDB voucher reimbursement? What training expenses does the voucher cover?

    Mileage is NOT one of the expenses covered by the voucher. The statute specifies that The voucher may be used for payment of tuition, fees, books, and other expenses required by the school for retraining or skill enhancement. "Other expenses" might include tools, equipment, clothing, etc. required for the program but please note that any such items must be required for all students and must be listed in the school's catalog as such. If you have questions about items billed under the voucher (e.g., the ubiquitous computer), request (in writing) a copy of the schools catalog or course description. You letter should also advise the school that payment will be delayed until the requested information is provided.

    Is there any requirement to include a DWC AD Form 10133.55 Request for Dispute Resolution with the Notice of Potential Rights 10133.52, the Notice of Offer of Modified or Alternative Work 10133.53, or the SJDB voucher 10133.57?

    There is no requirement in the regulations to include a Dispute Resolution form with any of these documents. Based on our previous experience with the Vocational Rehabilitation benefit, one might expect such a requirement but it is not present in either the statute or regulations. Claim administrators may include a copy voluntarily; otherwise the applicant must obtain a copy from an Information & Assistance Officer or via the internet.

    Other RTW Issues

    Employers with 50 or fewer employees can apply for reimbursement of job modification expenses for temporarily disabled employees (up to $1250) and permanently disabled employees (up to $2500). Is this reimbursement available to all employers or only private employers?

    L. C. 138.48(e)(1) specifies that an "eligible employer" is any employer, except the state or an employer eligible to secure the payment of compensation pursuant to subdivision (c) of Section 3700..... L. C. 3700(c) covers most public entities and joint powers authorities. With few exceptions, it is private employers who will be eligible for the program.

    In 2003, L.C. 4646 and 8 CCR 10131.2 allowed for settlement of VR. L.C. 4646 was repealed but the regulation is still there. Can VR benefits still be settled? Or did this end with SB 899?

    For pre-2004 cases, it is still permissible to settle prospective VR benefits and services for represented injured workers via the DWC Form RU-122. The Board determined in Godinez v. Buffets (2004) 69 CCC 1311 (remanded) that we still need to act as though L.C. 4646 (among others) was still in place. If we did not, it would be impossible to administer pre-2004 VR cases. Therefore, you can continue to settle these cases via the RU-122 and, in fact, many cases are still being settled in this manner.

    Allan Leno
    e-mail: allanleno@leno-assoc.com

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    Monthly Articles on Vocational Rehabilitation
    by
    Alan Leno

    November 2006

    SJDB vouchers - More FAQs Attendees at the recent California Workers' Compensation Institute (CWCI) Return to Work Seminars in Irvine (11/13/06), Woodland Hills (11/14/06), and San Francisco (11/16/06) posed a number of excellent questions regarding the Supplemental Job Displacement Benefit (voucher) benefit. Those questions and the responses provided at the seminars follow. Please note that the following responses are the opinions of the author and do not necessarily reflect the opinions or recommendations of CWCI.

    Can a VRTWC provide both counseling services and a training program to an injured worker with a voucher? (In other words, can a school counselor functions as the VRTWC and provide counseling services to enroll the injured worker in one of the school's training programs?).

    Unlike L.C. 139.5(h), there is no prohibition under the SJDB voucher statutes or regulations that would prohibit a VRTWC from evaluating a voucher eligible injured worker and referring that individual to a training facility in which the counselor has a proprietary interest (either as an employee or an owner), as long as the counselor meets the requirements for a VRTWC in CCR 10133.50(a)(15). HOWEVER, that does not mean that the counselor would be free from charges of conflict of interest or other liability considerations.

    Is there a statute of limitations for the SJDB voucher?

    In a word, No. For all intents and purposes, liability for the voucher terminates when the money expires or the worker does, whichever occurs first. The voucher is not vocational rehabilitation and is therefore not limited by L.C. 5410.

    Does the DWC plan to audit schools providing training programs to injured workers with SJDB vouchers? I have seen schools providing computers, furniture and other equipment even where such items do not seem to be logically required for the training program.

    The DWC has no authority to audit training programs. A claims administrator has the right to demand a copy of the schools catalog or course syllabus and there is no requirement to pay for items not required for all students for the particular training program. Complaints regarding a training facility or program should be directed to the Bureau for Private Post-secondary Vocational Evaluation (http://www.bppve.ca.gov) or the local District Attorney. Generally, training facilities may not require equipment or fees of voucher students that are not required of all students registering for the same program.

    A 10133.53 Notice of Modified or Alternative Work was sent to the employee for a modified job prior to a determination that the employee was P&S. Do we need to send this form again after the employee becomes P&S?

    It would be necessary to send the form again if the claims administrator intends to reduce weekly PD payments by 15% pursuant to the provisions of L.C. 4658(d)(3)(A). This section requires that the offer must be made within 60 days of the P&SD date, rather than 30 days from the last payment of TD as required by L.C. 4658.6(a)(b).

    Is the SJDB voucher due if the permanent modified/alternative position terminates after 12 months?

    No. L.C. 4658.6 requires that the modified/alternative job must last at least 12 months. If the job terminates after 12 months, there is no requirement to provide a voucher (or to adjust weekly PD payments). Employers should note that the reason for termination must be legitimate or the employee may have legal options under other statues including the Fair Employment & Housing Act.

    Do you see any pitfalls with the claims administrator making the job offer (i.e., the 10133.53) on behalf of the employer?

    There are no "pitfalls" for the claims administrator as long as s/he makes the offer consistent with the statutory/regulatory requirements of the workers' compensation system. The real exposure, as it was with RU-94 offers, is for the employer who fails to meet its obligations under the Fair Employment & Housing Act.

    How are vouchers affected by a C&R? Can the voucher be settled? Who issues the voucher?

    There is a debate regarding the voucher and Compromise and Release agreements. A C&R is technically not an award so some argue that the applicant is not entitled to a voucher if s/he agrees to resolve his/her case with a C&R. However, it is hard to imagine that the Legislature created a benefit for which 85% of injured workers are not eligible (85% of all cases are resolved with a C&R). It also makes little sense to tell an injured worker that there is no mod/alt work available - but you can't have a voucher if you settle your case via a C&R. It seems likely that we will need case law to resolve this dispute.

    It is generally agreed that the voucher can be settled in a C&R, especially since the new C&R format includes a line item to settle VR or the voucher.

    L.C. 4658.6(b)(4) provides that an alternative position must be within a "reasonable commute" of the employee's residence at the time of injury. What is a "reasonable commute?"

    Historically, the Rehab Unit has held that 25 miles or one hour (one way) was a "reasonable commute." But that is a guideline only and should not be considered absolute. If the applicant has a limitation of sitting for no more than 30 minutes, a one hour commute would not be "reasonable." The only "absolute" on this issue is a job offered at the same location as the pre-injury job and that is essentially by definition. It may be that the applicant commuted 50 miles or two hours (one way) pre-injury; if the employer offers a position at the same location, then offer would be reasonable. The only exception might be if the employer had a location closer to the employee's residence with appropriate work available.

    Is there liability for a counselor (VRTWC) who recommends or supports a physically inappropriate occupation? Shouldn't they be required to get medical approval?

    There should be - but there isn't anything in the voucher statutes or regulations that require physically appropriate recommendations by the counselor or prior approval of vocational goals by a physician. Parties impacted by inappropriate recommendations can seek compensation from the counselors E&O carrier and can report the VRTWC to the Division of Workers' Compensation and ask that the counselor be removed from the VRTWC list.

    Is there a per hour fee schedule rate for a VRTWC?

    There is no fee schedule limiting the hourly rate for counselors (VRTWCs) providing voucher counseling services. These counselors can charge any hourly rate they choose - as long as the total does not exceed 10% of the face value of the voucher.

    If there is no PD, do we still need to send a Notice of Potential Rights (NoPR)? L.C. 4658.5 indicates that there is no eligibility for a voucher if there is no PD so wouldn't that mean there is no need for a NoPR if there is no PD?

    L. C. 4658.5 also indicates that a Notice of Potential Rights is due within 10 days of the termination of TD payments. Remember that the NoPR is nothing more than an information letter; it is NOT a promise to provide services, unlike the NOPE for pre-2004 cases. If TD was paid, send the NoPR whether or not PD exists.

    Can you elaborate on tuition payment to schools under the voucher? Does the school have to show participation by the injured worker or is submission of an invoice sufficient? What if we paid but the employee never starts the program?

    First, the claims administrator should never pay a school for tuition unless the school's invoice is accompanied by a copy of the SJDB voucher form signed by the injured employee. If the employee drops out of the training program, the school is obligated to refund unused tuition to the payee according to the school's published refund policy. The claims administrator has no effective means to monitor the employee's participation in the training program but the school must comply with the criteria it established when certified by the Bureau for Private Post-secondary Vocational Education (BPPVE).

    Is a voucher due for an injured worker who is released to full duty but never returns to work? What if the reason for not returning is that the job no longer exists?

    A voucher is only due if (1) the injury caused permanent disability (PD), and (2) the employee's disability causes a need for job modification or reassignment, and (3) the employer cannot provide modified or alternative work. An injured worker who is released to his/her regular position is not entitled to a voucher because there is no need for modified or alternative work.

    Is an undocumented worker entitled to a voucher? How do we extend an offer of work to an undocumented worker?

    An undocumented worker is entitled to a voucher on the same basis as an undocumented worker was entitled to VR services (remember Del Taco)? A voucher would not be due if the employer is able to offer medically appropriate work. As with pre-2004 cases, the claims administrator should send the 10133.53 Notice of Offer of Modified or Alternative Work with language that indicates the job is available IF the employee can show a legal right to work in the U.S. within 30 days of the offer (i.e., a work permit or valid Resident Alien card).

    What should the claims administrator do when TD is terminated after 104 weeks of TD?

    The claims administrator must send the Notice of Potential Rights (NoPR) within 10 days of termination of TD as required by L.C. 4658.5(c). The modified/alternative work issue is more problematic since many injured workers in this situation will still be TTD and there are no work restrictions available to assess return to work possibilities. The best the employer can do at this point is send a letter to the employee advising that modified/alternative return to work possibilities will be assessed as soon as final work restrictions are available. W3e do not know, at this time, if such a letter would meet the requirements of L.C. 4658.6.

    You stated that a worker with PD from 1-14% is entitled to a $4000 voucher; we disagree. The worker is only entitled to the value of training up to $4000. Please explain.

    That is true but.... The claims administrator is only required to pay for training costs up to the limit of the voucher. However, the employee can use any remaining balance on the voucher for a subsequent training program (assuming it is approved by BPPVE) so the applicant actually is entitled to the maximum value of the voucher as long as his/her use of the voucher conforms to the rules for its use.

    You stated that the voucher is paid automatically within 25 days of case resolution at the Board. We were under the impression that the applicant must submit receipts or that the school must be paid directly.

    The voucher must be sent to the worker within 25 days of case resolution at the Board (if it was not settled), but payment is due only upon submission of receipts by the injured worker OR an invoice by the school. The claims administrator does NOT pay the voucher amount unless there is proof that the employee has paid tuition at an approved facility OR the approve facility submits an invoice with a copy of the voucher attached.

    An otherwise voucher eligible employee is terminated for cause. Is the employee now eligible for a voucher? What about the 15% PD adjustment?

    L.C. 4658.5 & 4658(d) do not include exceptions for terminations for cause but it certainly seems illogical to "reward" an employee who is terminated for cause. If the decision were mine to make, I would NOT provide a voucher or increase weekly PD payments. This issue will eventually be decided by case law so it will be critical that the employer properly document the "termination for cause." A termination that is not properly documented will almost certainly result in a decision favorable to the employee.

    The employee was injured in 2005 and a C&R was signed in 2006. The parties signed an RU-122 to resolve the SJDB voucher liability. Is there still a liability for the voucher? How can we correct the problem?

    Use of the RU-122 for a 2005 injury is not valid since it applies only to pre-2004 injuries; keep in mind that the Rehab Unit (and thus its forms) does not exist for injuries on/after 1/1/2004. Your RU-122 therefore did NOT resolve the voucher liability. The only way to "fix" this problem is to draft and obtain approval of a C&R for the voucher.

    If an employee refuses to participate in the "interactive process" to return to work and thus does not return to work, is s/he owed the 15% PD increase?

    The interactive process is an FEHA requirement of the employer and not the claims administrator. The employer should certainly invite the employee to engage in the interactive process (preferably in writing). The claims administrator should send an Offer of Modified or Alternative Work simultaneously. The 10133.53 offer enables the claims administrator to take the 15% PD reduction whether or not the employee engages in the interactive process or returns (doesn't return) to work.

    If a seasonal worker returns to work for only 3 months per season, how long before the employer's liability is satisfied under L.C. 4658.6?

    Four years. The employee must remain at the modified/alternative job for 12 months before the liability is satisfied (unless s/he voluntarily terminates employment).

    Can the Notice of Potential Rights (NoPR) be sent at the commencement of TD? If not, why not? Please cite the applicable statute or regulation.

    It would certainly make life easier for claims administrators if the NoPR could be sent at the beginning of the claims process but, unfortunately, the wording in L.C. 4658.5(c) does not allow us to use the simple, logical solution. The statute specifies that the Notice must be sent within 10 days of the last payment of TD so the Notice cannot be sent more than 10 days before the last payment of TD or more than 10 days after the last payment of TD. That requirement essentially eliminates routine mailing of the Notice at the beginning of the claim. Note also that the statute requires all Notice of Potential Rights to be sent by certified mail.

    Is a mod/alt form (i.e., a 10133.53) required where no TD was paid?

    It depends. If the employee eventually returned to regular duty, there would be no requirement to send a 10133.53 Notice of Offer of Modified or Alternative Work. HOWEVER, in the (rare) event that the applicant required a permanent job modification, the 10133.53 WOULD be required, assuming the applicant has PD. The 10133.53 is required where (1) the applicant has PD, and (2) there is a need for job modification or reassignment, and (3) the employer is able to offer modified/alternative work.

    The 30 day requirement to offer modified or alternative work - is that calendar days or work days?

    Since the statute does not specify calendar vs. work days, the offer must be made within 30 calendar days.

    Who pays for an ergonomics evaluation to determine if a job modification is needed or what modification is needed?

    Technically, the expense is the employer's responsibility BUT the claims administrator may want to pick up the expense to facilitate a return to work - as opposed to continuing to pay TTD.

    If an employee returns to modified/alternative work more than 60 days after TD ends, is the employee entitled to a voucher?

    The way L.C. 4658.5(a) is written, it does appear that the employee would be entitled to a voucher.

    Regarding worksite modification, is there a maximum reimbursement for eligible expenses?

    The maximum reimbursable expense for small employers is $2500. The requirements for reimbursement are contained in L.C. 139.48 and CCR 10004 & 10005.

    When should an employer begin the "interactive process?" Should the claims administrator provide names of VRTWCs or other specialists who can assist to the employer?

    The interactive process should begin as soon as the employer has information suggesting that the employee may be in need of job modification or reassignment. This would most likely happen when the claims administrator provides information that the employee has significant work restrictions or the doctor has indicated that the employee is a "QIW."

    The claims administrator should resist providing "recommendations" of specialists who can assist with the interactive process. The danger in providing names of such specialists is that an interactive process gone wrong could result in legal action by the employer against the claims administrator. At most, the claims administrator can provide the names of several individuals/organizations with a recommendation that the employer interview each and make their own selection.

    Does sending out the 10133.53 Notice of Offer of Modified or Alternative Work constitute an "interactive process" as required by FEHA?

    No. The interactive process requires that the employee have an opportunity to be involved in developing the modified/alternative return to work opportunity. A "take it or leave it" offer does not meet the requirement.

    If the employee returns to work with restrictions when TD ends, is the Notice of Offer of Modified or Alternative Work due?

    It depends. YES if the work restrictions require job modification or reassignment and NO if the employee is able to perform his/her usual and customary occupation.

    If the claims handler fails to send the Notice of Potential Rights timely, is the worker entitled to a voucher by default? If so, how does the insured recover the damages associated with the carrier's failure to meet the time requirement?

    My inclination is to say that the applicant in this situation is NOT entitled to a voucher as long as there is a return to work for the employer within 60 days of the last TD payment. However, this is an issue that is likely to be litigated at some point so the courts will make the final decision.

    As for recovering "damages," the employer would have a right to challenge how the carrier classifies the voucher expense (i.e., as an allocated or unallocated expense). These will not be easy disputes to resolve since the carrier often does not know when the injured employee was released to work until many weeks, even months, after the physician makes the determination.

    Are VRTWCs qualified to complete functional capacity evaluations (FCE's)?

    Generally No. Persons qualified to perform functional capacity evaluations are usually certified occupational or physical therapists or work evaluators.

    When was the VRWTC designation effective?

    The requirements for a VRWTC (Vocational Return to Work Counselor) are contained in CCR 10133.50(a)(15) which became effective 8/1/05.

    How do you use the SJDB process to refute EDD liens? Do the SJDB notices have the same clout as a NOPE?

    I doubt that SJDB notices or the voucher have any impact on EDD liens. A voucher eligible injured worker is not entitled to payment of any benefits except PD advances so there isn't anything for EDD to collect once the employee becomes P&S. The Notice of Potential Rights is NOT equivalent to the Notice of Potential Eligibility (for pre-2004 cases) because it does not signal the entitlement to anything - it is simply an informational letter.

    It should be noted that a voucher may have some value to injured workers in terms of receiving services from the EDD Department of Rehabilitation. The injured worker can receive counseling assistance and possible weekly benefits (on a "funds available" basis) from DR while using the voucher for training. Injured workers with vouchers should be referred to DR to determine if assistance is available.

    Allan Leno
    e-mail: allanleno@leno-assoc.com

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    Monthly Articles on Vocational Rehabilitation
    by
    Alan Leno

    December 2006

    Effective 10/21/06, insurers, third party administrators, and self insured/self administered employers must offer regular work via DWC AD Form 10003 Notice of Offer of Regular Work to injured employees who have been released to full duty before taking the 15% credit against the employee's Permanent Disability pursuant to L.C. 4658(d)(3)(A). This requirement applies to all dates of injury on/after 1/1/2005 for employers with 50 or more employees; the form must be sent to all employees returning to regular duties where the employee has PD or is expected to have PD. The form is not required where the employee is released without PD: however, the employer may owe PD at the +15% rate if the employee later is determined to have PD via the panel QME process. The "safe' policy decision would therefore be to send the 10003 form to ALL employees returning to regular duty (employers with 50 or more employees). For DWC AD Form 10003, CLICK HERE.

    Please note that insurers, third party administrators, and self insured/self administered employers can take the 15% PD credit for employees who are released to modified/alternative work only where the employee has been sent the DWC AD Form 10133.53 Offer of Modified or Alternative Work. This requirement became effective 8/1/2005 for dates of injury on/after 1/1/2005 where the employer has 50 or more employees. For this DWC AD Form 10003, CLICK HERE.

    Effective 8/1/06, small employers (50 or fewer employees per L.C. 139.48(e)(1)) can apply to the Return-to-Work Program for reimbursement of job modification costs up to $1250 for temporary job modifications and $2500 for permanent job modifications necessitated by the employee's work related disability. The injured employee's date of injury must be on/after 7/1/2004 and the request for reimbursement must be within 90 days of the expenditure(s) for job modification(s). The program is currently funded and the Administrative Director is accepting applications for reimbursement via DWC AD Form 10005 filed at "A.D., "10005 Reimbursement Request," Division of Workers' Compensation, P.O. Box 420603, S.F., CA 94102-3660." Note that it is the employer that must request the reimbursement (not the insurer) and proof of expenditures must be attached to the DWC AD Form 10005. For the 10005 form, CLICK HERE.

    SJDB vouchers - More FAQs

    More questions from those who have to implement the SJDB voucher statute and regulations:

    • The claimant has 4% PD (per rating of the P&S report - three is no Award yet) and was released to regular duty by her treating physician. However, the claimant decided on her own not to return to the employer. We sent the 10133.52 Notice of Potential Rights as required for someone who was paid TD. Do I now send a denial? Even though the treating doctor said the claimant was not a QIW, applicant is now demanding a voucher; do I owe one?

    First, there is no requirement to send a denial letter. A DWC AD Form 10003 should be sent to document that regular work was available but there is no requirement for a denial notice and, in fact, no such letter exists in the regulations.

    The applicant is NOT entitled to a voucher. Remember that a voucher is due when (1) the applicant has PD, and (2) the applicant needs modified or alternative work as a result of the disability, and (3) the employer cannot offer such work. Here, the applicant has PD (#1) but #2 and #3 do not apply so, no voucher. If applicant attorney does not agree with you determination, s/he can file a 10133.55 Request for Dispute Resolution with the Administrative Director.

    • L.C. 4658.5(c) requires that the 10133.52 Notice of Potential Rights to be sent to the applicant via certified mail. What if the applicant's address is a P. O. Box? How do we satisfy the requirement?

    Good question. The statute requires you to send the notice via certified mail but it does not require you to guarantee delivery. I would therefore go ahead and send the notice via certified mail, even though you know it will come back (but you will have proof that you sent it via certified mail). As a gesture of good faith, I would also send a copy to the applicant via regular mail. Hopefully the applicant is represented so the attorney will also be sent a copy of the notice.

    • If an eligible voucher recipient is collecting SSI benefits would they be entitled to the Voucher. Does it have any bearing after they settle their case?

    Entitlement to the voucher has nothing to do with receipt of Social Security disability or retirement benefits. As noted above, a voucher is due when (1) the applicant has PD, and (2) the applicant needs modified or alternative work as a result of the disability, and (3) the employer cannot offer such work. If your applicant has PD and the doctor finds a need for job modification and the employer cannot or will not offer such work, the applicant is entitled to a voucher (provided that s/he does not settle his/her right to a voucher). Settlement of the voucher extinguishes the right to the benefit.

    • Do we have to send an Offer of Regular Work if an employee misses no time from work and has no PD but the doctor determines that the employee should be entitled to future medical?

    No. The purpose of the 10003 is document the return to work offer for the purpose of taking the 15% credit against PD. If the applicant has no PD, there will be no credit taken and thus no need for the 10003. HOWEVER, if the applicant is later awarded PD via a panel QME or an AME, you may owe a 15% increase in weekly PD payments because the 10003 was not sent. The safe thing to do is send the 10003 for all cases where the applicant is released to regular work. This involves extra administrative work in many cases but will protect you for those cases where PD is awarded subsequent to a panel QME or an AME evaluation.

    • Can an employer with only part-time workers have eligibility for the RTW reimbursement under L.C. 139.48?

    The employee has to be full time - at least 32 hours per week - per CCR 10004(c) ("Full-time employee" means an employee who, during the period of his or her employment within the year preceding the injury, worked an average of 32 or more hours per week."). The Statute does not specify what "full time" is but does indicate that the employer must have 50 of fewer full time employees on the applicant's date of injury. Since different employers have different definitions for "full time" employment, DWC decided it was necessary (probably to insure equity and conformity) to specify the minimum number of hours to qualify as a full time employee.

    • Our training facility is having payment problems with insurance companies. They each seem to have their own set of rules when it comes to payment in regards to needing documentation as it relates to progress in the courses and/or completion in the courses. It's my understanding that payment in full is required upon enrollment.

    Per AD Reg 10133.56(h), payment is due, "....within 45 calendar days from receipt of the completed voucher, receipts, and documentation." Generally, you can assume your invoice was received 5 days after it was placed in the U.S. mail. The insurance company has a right to require that your invoice specify the type of course and cost and that a copy of a signed voucher is attached to demonstrate that the applicant has, in fact, registered for your program. To minimize problems, it would be a good idea to attach a copy of the applicant's registration document as well as the page(s) from your catalog providing details for the program for which the applicant has registered. Once your invoice has been presented, the insurer has 45 calendar days to pay you OR advise you in writing why it is not providing payment. Failure to do one or the other may subject the insurer to a $2500 5814.6 penalty once the regulation is approved (probably early in 2007).

    You can speed up payment by providing as much information as possible with your invoice. Unfortunately there have already been numerous instances of suspected fraud so insurers are hesitant to make full payment without what the claims administrator considers adequate documentation. For example, I have seen schools and counselors submitting invoices with vouchers attached in situations where the insurer never issued a voucher. We are also seeing schools submit invoices for the full amount of the voucher for programs that seem tailored to use up all voucher funds rather than to provide training truly tailored to the needs of the worker. "Full disclosure" up front can help allay fears of fraud.

    I am not aware of anything in the statute or regulations that allow the insurer to monitor the applicant's progress in training or completion of a program; there is also no prohibition and the insurer is writing the checks. I suspect a school can enhance its credibility with the claims administrator by cooperating with requests for such documentation. Remember that claims administrators are being asked to write checks from $4000-$10,000 without knowing whether the money will be used for the intended purpose.

    • Is there a place to check to see if a school or training program is certified?

    You can find out if a school is certified by visiting http://www.bppve.ca.gov. You can also get a list of schools by doing a search by program or by a geographical area.

    • Last month I attended a Seminar by the Department of Insurance, and they indicated that we are not required to send the SJDB Notice of Rights if the injured worker is on TD for 59 days or less, After 60 day or more of TD, we are required to send the notice within 10 days of termination of TD. I tried to look in the labor code, but I couldn't find anything to support what the instructor was saying.

    Nor can I. The statute indicates the Notice of Potential Rights must be sent within 10 days of the termination of TD. I suspect the instructor was confusing the 4658(d) PD adjustment requirements with the 4658.5(c) requirement to send the notice of rights.

    • Does the employer need a doctor's clearance for the employee to return to work in an alternate work position? The injured has a hand injury and the employer has an alternate position as a van security guard. The position requires no usage of the hands.

    There is no requirement in the statute or regulations requiring prior medical clearance of an offer of modified or alternative work. It is understood, of course, that any work offered must be within the applicant's work restrictions or the offer will not be considered valid. In this example, there should be no need to consult that physician prior to the offer. However, where there is some question about whether job duties will be appropriate, or where the applicant has complaints, I would immediately obtain a detailed job description or job analysis. Disputes over job duties for modified or alternative work are among the more common problems identified on DWC AD Form 10133.55s submitted to the AD for resolution.

    • Is an applicant entitled to reimbursement for mileage while attending a training program on an SJDB voucher?

    The voucher does not cover mileage. The statute specifies tuition, fees, and books. It could be stretched to include required equipment - but not mileage.

    • One of my claimants registered for a class and purchased a Microsoft software program that was required for the class. However, he dropped out of the class before it even started. Am I required to reimburse him for the software program?

    No. Because he dropped out of the class before it started, he would have no need for the software program so he would not be entitled to reimbursement. Per 4658.5(b), an applicant is only entitled to reimbursement for expenses related to enrollment at a certified program.

    Allan Leno
    e-mail: allanleno@leno-assoc.com

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    Monthly Articles on Vocational Rehabilitation
    by
    Alan Leno

    January 2007

    Correction In last month's edition, the effective date for the new return to work small employer reimbursement regulations ( 10004, 10005) was inadvertently shown as 8/1/06. The correct date is 8/18/06.

    PD-RTW Adjustments (L.C. 4658(d))

    The subject of the 15% return to work adjustments to Permanent Disability seem to be causing as much confusion among claim professionals as the SJDB voucher so this month we will take a look at some of the issues. As with the voucher, the language for L.C. 4658(d) fails to accommodate a substantial number of common situations.

    So what does the L.C. 4658(d) provide? The intent was to provide an incentive for employers to retain their industrially injured employers and a disincentive for employers who choose to let these employees go rather than providing a return to work opportunity. The following provisions apply only to dates of injury on/after 1/1/2005.

    Briefly, 4658(d)(2) requires the claims administrator to increase weekly PD payments by 15% if the employer does not offer regular, modified, or alternative work within 60 days of the employee becoming P&S. This section only applies to employers with 50 or more employees (effective on the date of policy inception or renewal). The offer of regular work must be made on DWC AD Form 10003 and offers of modified or alternative work must be made via DWC AD Form 10133.53. The 15% increase in PDAs begins on the 61st day after P&S and continues until all PD is paid out. If the case is settled via a lump sum (usually a C&R), the lump sum payment is supposed to accommodate the 15% PD adjustment for the remaining weeks including in the settlement. Note that the 15% adjustment applies to the weekly PD payment and NOT to the PD rating.

    Section 4658(d)(3)(A) allows the claims administrator to reduce weekly PD payments by 15% where the employer offers regular, modified, or alternative work within 60 days of the employee becoming P&S. As above, the offer of regular work must be made on DWC AD Form 10003 and offers of modified or alternative work must be made via DWC AD Form 10133.53. Once the offer is made, the claims administrator may immediately begin reducing weekly PD payments by 15%. Note that the PD reduction begins on the offer of work and is not dependant on an acceptance by the employee. The PD reductions continue as long as PD payments are made and any lump sum settlement should include the 15% reduction for the balance of the weeks of PD remaining. Note that 4658(d)(3)(B) provides for changes to the PD adjustment where employment terminates within one year (PD payments must be increased by 15% - that means going from a -15% to a +15%). If the employee voluntarily terminates employment, the claims administrator can continue taking the 15% PD reduction.

    Note that Section 4658(d)(3)(A) does not specify whether it applies to employers with 50 or more employees or les than 50 employees. Some claim administrators have taken the position that it applies only to employers with 50 or more employees while others believe it applies to all employers, regardless of size. Absent guidance from case law, this is a policy decision for employers and I would urge you to discuss this issue with counsel prior to establishing your company policy. My opinion (I am NOT an attorney) is that the language includes all employers, regardless of size. However, it does seem inequitable for small employers to be included because (1) they reap the benefits of retaining an injured employee without suffering the cost for not allowing an injured employee to return, and (2) the small employer gets to "double dip" in a way because they can be reimbursed for the costs of physical job modification via L.C. 138.48 (see also CCR 10004-10005).

    Like the voucher statutes and regulations, the PD adjustment statute and regulations seem to miss as many situations as they cover, as indicated by the following questions:

    • An employee returns to work at regular duties but no offer of regular work (DWC AD Form 10003) is sent. Do you increase weekly PD payments after 60 days?

    The statute (L.C. 4658(d)(3)(A)) says weekly PD payments are increased unless the employer offers regular, modified, or alternative work within 60 days of P&S. CCR 10001-10003 specifies that the offer of regular work is via the 10003 form so the answer to this question would be "Yes." Some argue that the actual return to work constitutes a de facto offer of work by the employer and an acceptance by the employee so the 10003 form should be irrelevant and requiring the form constitutes "form over substance." That is a very logical argument but the history of workers' compensation in California is replete with examples of cases where a failure to meet technical requirements (such as sending mandatory notices) has proven expensive to defendants. I therefore expect that a failure to send a 10003 form to offer regular work will result in a finding that the 15% PD increase is due after the 60th day.

    • If the offer of regular/mod/alt work comes through the employer via an interactive process, is the offer valid if not served by the claims administrator?

    Presumably the claims administrator does not serve a DWC AD Form 10003 so the answer would be the same as above. This question points out the absurdity of relying on "form over substance" and we can hope the courts will recognize that an employer that has utilized an interactive process resulting in a return to work has meet the intent of L.C. 4658(d). Until that happens, send the 10003 (or 10133.53 for mod/alt jobs) before taking your 15% PD credit.

    • L.C. 4658(d)(2)(3) indicates that you have 60 days to send an offer of regular work - do you than have to wait an additional 60 days to take the 15% credit?

    You have 60 days to send the offer; the credit can be taken immediately after the offer is made.

    • We did not send the Notice of Rights within 10 days but an offer of regular work was sent within 30 days of P&S. Are we entitled to take the 15% PD credit?

    Yes. The PD credit is not dependant on the timeliness of a Notice of Potential Rights (DWC AD From 10133.52). 4658(d)(3)(A) only requires that the offer of regular (10003) or mod/alt work (10133.53) be made within 60 days of P&S.

    • We just received the P&S report today but the doctor indicates the applicant was P&S three months ago. Do we now owe a 15% increase in PD even though we can send an offer or regular/modified/alternative work within 60 days of knowledge?

    The statute specifies the P&S date, not the date of knowledge so the injured worker would presumably be due a 15% increase for 30 days and then a 15% decrease when you send the 10003 or 10133.53. This is clearly not an equitable situation for defendants but, historically, the workers' compensation system has not made the applicant suffer for the errors or delays of others (see Gallagher Bassett v. WCAB (Lewis) (2001) 66 CCC 520 (writ denied)).

    • If we previously sent an offer of regular work (10003) based on the treating physician's P&S report but subsequently receive an AME report (or Panel QME report), do we have to send another 10003 form? What if the number of weeks of PD changes?

    There should be no need to send a second 10003 form, even if the number of weeks of PD changes. As long as the applicant is still released to regular duties, the original 10003 will suffice. Note, however, that you would need to send a DWC AD Form 10133.53 Offer of Mod/Alt Work if the AME imposes work restrictions that would re3sult in a need for job modification or reassignment.

    • An employee is released to regular, modified, or alternative work but is not yet P&S. Can we take the 15% PD credit if we send the 10003 or 10133.53 forms?

    No. The claims administrator cannot claim the 15% PD credit until AFTER P&S. The statute says that the credit can be taken "....within 60 days of becoming P&S..." and most attorneys are of the opinion this means after P&S only and not 60 days before or after. This may mean that all the PD has been paid out by the time the applicant becomes P&S and this certainly seems unfair to the employer. However, as we know, the law is always fair - it's just the law.

    • Our employee is P&S on 9/15/06 and returns to regular duty the following day. Unfortunately, we don't send the DWC AD Form 10003 until 12/15/06. Do we pay PD at the regular rate until 12/15/06 and then take the 15% credit?

    Good question. You would certainly owe PD payments at the regular rate for the first 60 days and (I would argue) you can take the 15% reduction effective 12/15/06. I believe you would owe a 15% increase for the period 11/15/06 to 12/15/06 because there had been no offer of regular work within 60 days as required by L.C. 4658(d)(2). Note that an applicant's attorney might argue that you cannot take the 15% reduction at all because there was no offer of regular work within 60 days. I believe these fine points will eventually be resolved at the Board.

    • If we do not get the 10003 or 10133.53 out by the 60th day, is it pointless to do so thereafter?

    This is a variation of the preceding question. I would go ahead and send the form and take the credit until/unless the courts tell us that the 60th day is an absolute deadline. I view the 15% credit as a return to work incentive for the employer so the employer should be able to take the credit once a job offer is finally made. The Board may eventually disagree but I see no reason why we should assume an outcome before they actually make a decision.

    • The employee is released to return to regular work and does so but the employer fails to send the 10003 offer notice. Does the employer owe the employee a 15% increase? What about the 10% self imposed penalty (SIP) if the employer doesn't pay the additional 15%? I don't think it is fair for the employer to be penalized twice (especially when the employee is working!).

    As above, I believe the statute requires the employer to increase weekly PD payments by 15% starting on the 61st day after P&S if there has been no offer of work via a 10003 or 10133.53, at least until the offer is made. And, if the employer fails to pay benefits properly, the SIP would be due. I agree this seems unfair when the employee has actually returned to work but, as noted previously, our system has numerous examples where technical requirements do not properly reflect real world situations.

    • An injured worker loses no time from work and becomes P&S on 11/15/06 but we do not find out until 12/15/06 at which time we immediately send out the 10003 regular work offer. The employee has PD and we owe 30 days of retro PD benefits. Can we take the 15% decrease since the payment is being made after the 12/15/06 offer? Of do we owe the 30 days at the regular rate?

    I suspect you all know the answer to this one. The retro PD amount needs to be paid at the regular rate; only the future weeks will be subject to the 15% credit. The system never holds the employee responsible for a reporting delay and the credit can only be taken subsequent to the actual offer of regular/modified/alternative work. Sorry.

    • An employee has retired from the employer and the work force but has PD at the time he is determined P&S. Is the employer required to increase PD by 15%?

    I would say no - a retirement is the same thing as a voluntary termination so the employee should not be entitled to a weekly PD increase (see L.C. 4658(d)(3(B)& CCR 10002(d)). Note that the Board may have a different view on this issue so stay tuned for case law.

    • An injured worker is released to temporary modified duty but is not yet P&S but we send the 10133.53 anyway. Later the employee is released to permanent modified duty; the employer is able to make the temporary position permanent. Do we need to send the 10133.53 again?

    Yes - for two reasons. When you offered the job on a temporary basis, you probably indicated on the 10133.53 that this was a temporary modified position (you should have). You now need to indicate that the job is being offered on a permanent basis. The second reason is that you need to send the 10133.53 '.....within 60 days of the applicant becoming P&S....' in order to take the 15% PD credit. Seems like unnecessary work but the RTW regulations do not contain a "you only have to do it once" clause as we have with the 10133.52 Notice of Rights.

    Allan Leno
    e-mail: allanleno@leno-assoc.com

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    Monthly Articles on Vocational Rehabilitation
    by
    Alan Leno

    February 2007

    SJDB-PD-RTW FAQs

    • I know injured workers with 2004 and later dates of injury can only use their vouchers at BPPVE (Bureau for Private Post-secondary and Vocational Education) approved training facilities. It appears that funding for the Bureau will end July 1, 2007 (see "Sunset Letter" by CLICKING HERE); what happens to vouchers and an injured employee's ability to use the voucher if the program does, in fact, end?

    It appears that vocational school BPPVE certifications should be good through the end of this year so there should be no problem with the use of vouchers at such facilities, as required by L. C. 4658.5, for 2007. Presumably, the Governor and the Legislature will either agree to extend the existence of BPPVE or transfer its responsibilities to another agency so that there will be a means to certify training facilities beginning in 2008. The language in the statute and Regulations may not change but there should be a mechanism to insure that vouchers can be used at "approved" facilities.

    Until a decision is made and the necessary legislation passed, the fact is that enforcement of certification requirements may be unreliable for the balance of this year so insurers/employers should watch for signs of inappropriate actions by training facilities. Complaints can be filed with BPPVE until 7/1/07 or with the local District attorney. We will follow developments and provide updates as information becomes available.

    • We have an admitted 2006 case with 27% PD; the employer is accommodating the employee's restrictions. Unfortunately, we did not get the AD Form 10003 out within 60 days. What rate do we owe the applicant on the 61st day from P&S - his regular rate of $230/week, plus 15% at $264.50, or can we take a 15% credit and pay $195.50 because the employer has actually provided modified work? Can we still send the 10003?

    First, you would the 10133.53 Offer of modified/Alternative work form if the employer is providing permanent modified work: the 10003 goes only to those employees who return to regular duties.

    There is no question that you will owe PD benefits at the $264.50 rate until the formal offer of modified work is sent to the applicant; the statute states quite clearly that the upward PD adjustment is do if there is no offer within 60 days of a P&S determination. What is less clear is whether the $264.50 rate must be pad until PD payments end - or, can the insurer/employer reduce payments (in your case to $195.50) once a 10133.53/10003 is sent to the employee. In my view, the Legislature intended to encourage employers to retain their injured employees so I believe you can take the 15% reduction as soon as the 10133.53/10003 is sent. Other may interpret the statute to mean that the offer must be made within the 60 day window or the opportunity to take the reduction is lost. Ultimately this issue will be decided by the WCAB.

    • We have an insured employer with hundreds of employees nationwide but only 30 or so are employed within the state of California. Does this employer meet the 50 employee requirement in L.C. 4658(d) for PD adjustments?

    The DWC has jurisdiction only over your employer's California location (i.e., the employees for whom the employer pays a workers' comp premium). The employer in this example would NOT meet the 50 employee requirement specified in the statute and therefore would not owe the PD increase OR be entitled to take the 15% decrease. The employer would be able to take advantage of the reimbursement provisions of L. C. 139.48 and CCR 10004-10005.

    • Do any of the SJDB voucher notices or forms need to be filed with the DWC?

    There is one form that must routinely be filed with the DWC. As noted at the bottom of page one of the DWC AD 10133.53 Notice of Offer of Modified or Alternative Work, a copy of the form must be filed with the AD (DWC Administrative Director) within 30 days from the date is was sent to the applicant or when the applicant signs and returns the document, whichever occurs first. Note that the form must be filed with the AD even if the applicant rejects the offer or does not respond.

    The DWC AD 10133.55 Request for Dispute Resolution must also be filed with the AD (and NOT the WCAB) by the party requesting assistance as well as by the responding party. This document, of course, would only be filed when a dispute exists between the employer and employee.

    The DWC AD 10133.52 Notice of Potential Rights and the 10133.57 SJDB voucher forms would not be filed with the AD except as part of a request for Dispute Resolution.

    • My insured account regularly completes a "temporary" 10133.53 Mod/Alt Work offer form when an injured employee returns to regular modified work. If any of these employees are released to full duty before P&S, do I need to send the DWC AD 10003 Offer of Regular Work immediately?

    The 10003 form must be sent AFTER P&S in order to take the 15% PD reduction for DOIs on/after 1/1/05. The statute (L. C. 4658(d)(3)(A)) and the regulations (CCR 10001-10003) would appear to require you to send the 10003 a second time if the form was initially sent to the applicant prior to a P&S determination.

    • I work for a training facility and we do have some students registering for programs using their voucher. We have had several claims adjustors tells us that they cannot pay our school directly - they require the applicant to pay their tuition and then seek reimbursement from the carrier. Is this legal?

    L. C. 4658.5(b) and CCR 10133.56(h) provide that the employee can be reimbursed for tuition and fees paid upon presentation of documentation OR the school can be paid directly upon presentation of an invoice, copy of the applicant's signed voucher, and proof of registration. The claims administrator cannot deny payment to the school and the practice you describe would most likely be determined a form of delay subject to a 5814 penalty.

    • I have several cases where the injured employee has work restrictions but no Permanent Disability. In some cases, the work restrictions actually require job modification. If the employer cannot provide modified work, is the employee entitled to a voucher?

    This is a common question and, unfortunately, the answer is counter-intuitive. It would make sense for an injured worker to be eligible for an SJDB voucher when they have work restrictions preventing a return to regular work. However, the statute requires the injured worker to have PD in order to be eligible for a voucher. Until/Unless there is a change in the PD Rating Schedule to allow for some PD where work restrictions require a change of occupation, we will continue to have these unfortunate cases.

    Remember that there are three eligibility criteria for the voucher - and all three must apply: (1) the applicant must have PD, (2) the applicant must need job modification or reassignment as a result of his/her injury(s), and (3) the employer is unable to provide the required modified or alternative work.

    Allan Leno
    e-mail: allanleno@leno-assoc.com

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    Monthly Articles on Vocational Rehabilitation
    by
    Alan Leno

    March 2007

    SJDB-PD-RTW FAQs

    • Prison inmates frequently work for the California Department of Corrections [CDC]. Inmates receive neither TD nor PD while in prison, but receive minimum TD and PD rates after their release from prison. An inmate is injured on 1-3-05. The injury is accepted. The inmate is released from prison and is receiving minimum TTD rates. The doctor now opines the applicant is P&S (MMI), and further opines the PD restrictions preclude applicant from returning to a job similar to the job the applicant had as a prison inmate. Do L. C 4658.5 and 4658 apply to (former) inmate claims? Can CDC [legally] make an offer of regular or modified work to an ex-prisoner to come back to prison to work as an inmate? Assuming CDC can not legally make an offer of reg/mod work, is CDC excused form the provisions of 4658.5 and 4658?

    As far as I know, L.C. 4658.5/4658.6 do apply to inmates. Prison inmates were eligible for VR services, if injured while incarcerated, and I am not aware of any exemptions for inmates vis--vis the SJDB voucher. I think it is a safe bet that you cannot offer a job the former inmate a job that would require him to return to prison as an inmate. Only the courts can assign someone to a penal institution so I do not see how the offer could be valid. CDC can argue that it has a modified or alternative position available so the applicant/inmate is not eligible but I expect the Courts will find that the release of the inmate is a goods thing and eligibility for an SJDB voucher is simply an unexpected cost. This situation is not similar to a voluntary termination or a termination for cause where we can argue that the applicant is ineligible for a voucher due to his/her own actions (i.e., the decision to quit a job or to violate company policies). I think this is just one of those "unintended consequences" and the CDC will have to provide vouchers to eligible inmates who have been released from custody.

    • I just came out of a meeting with personnel from our local school district on a case of an injured worker (bus driver) who has been on light duty work for 90 days, under their RTW program. All parties, including the IW, agree that she should not return to bus driving and have encouraged her to apply for other positions currently open within the school district. The IW has identified a clerk/typist opening in HR which she wants and while we are requesting clarification on her work restrictions, all medical reports indicate that she meets the physical demands of the work. The question is: Is she entitled to preferential hiring under the RTW guidelines as outlined by DIR? Is there anything in the Guidelines that addresses this issue?

    WC law does not address the issue of preferential hiring - but FEHA does. If the employee is (a) qualified for the job, (b) the job is physically appropriate, (c) the job is equal to or lower than the job she had as a bus driver, and (d) there are no union collective bargaining agreement (CBA) prohibitions to prevent her from taking the job, the school district must offer her the job without competition under the provisions of the FEHA. Failure to offer the job under workers' compensation results only in a requirement to offer VR services (pre-2004 injuries) or an SJDB voucher for injuries on/after 1/1/2004. Under the FEHA however, the applicant could be entitled to back pay, reinstatement, front pay, unlimited punitive damages, and payment of legal fees.

    • I read your posting on workcompcentral with the title "BPPVE vouchers Set to Sunset". The third comment in there discussed employers that employ fewer than 50 employees and not owing the 15% increase "OR be entitled to take the 15% decrease". Unless there has been an amendment I missed, if you look closely at LC4658, the paragraph in (3) (A) discusses the 15% decrease but does NOT indicate any limitation of application of this section regarding size of employer. The other sections (2) no offer of reg/mod/alt = +15% and (3) (B) reg/mod/alt work terminates before PD does - both clearly state "this paragraph shall not apply to an employer that employs fewer than 50 employees". Therefore, any employer, and especially an employer with fewer than 50 employees, is entitled to take the 15% decrease.

    The ability of small employers (fewer than 50 employees) to take the 15% reduction in PD is the subject of much debate. Many defense attorneys have taken the position outlined above, namely that small employers can take the 15% PD reduction when modified/alternative work is offered but are not subject to the 15% increase when no modified or alternative work is offered. A Workers' Compensation PJ responded to the same item indicating his conviction that small employers are not subject to the increase or the decrease. Clearly this is an issue that begs for resolution at the Board. Until then, all insurers/employers can do is obtain a legal opinion from a trusted source and then make a policy decision on how they wish to manage the issue until such time as there is definitive guidance from the courts.

    My interpretation of L.C. 4658(d) is the same as the reader above, namely that the language appears to say that small employers get the benefit when modified/alternative work is offered (a 15% reduction in PD) but do not suffer the penalty (an increase of 15% in PD) when they cannot offer modified/alternative work. But I am not an attorney - and such an interpretation makes no sense. Why should small employers get the 15% benefit but not be subject to the 15% penalty? Especially when only small employers can be reimbursed for the costs of job modification under L. C. 139.48? Since attorneys and WCJs cannot agree on this issue, claims administrators need to establish a good faith policy and apply that policy in all cases until there is case law on the subject.

    • I have an applicant with a 2003 date of injury and a 2005 injury to the same body part. The applicant was released to full duty and returned to work at his U&C job after the 2003 injury and worked at that U&C job until the 2005 injury. The AME finds the applicant a "QIW" and apportions 30% of the disability to the 2003 injury. Applicant's attorney is demanding vocational rehabilitation based on the 2003 injury. Is the applicant entitled to vocational rehabilitation? Or an SJDB voucher?

    This has become a common dispute in recent months. The SJDB voucher (unfortunately) is not a benefit of significant value to most injured workers eligible for it so their attorneys are seeking vocational rehabilitation whenever a portion of the disability originated before 1/1/2004. I know applicant's bar will disagree but there is no support in the statues or in logic for such a position.

    A determination of QIW eligibility under L.C. 4635(a) has always depended on the circumstances at the date of injury. In making the determination, we have always been required to consider (a) the effects of the industrial injury, (b) the effects of any prior injury(ies), and the effects of any non-industrial conditions existing on the date of injury. We never considered the effects of any subsequent injuries or medical conditions unless they were a direct result of the industrial injury (e.g., the result of a surgical procedure, side effects of medication, accident en route to a medical appointment, etc.). A second injury is not the result of a prior injury - it is an independent event unless the applicant was a QIW from the first injury and the carrier/employer failed to provide appropriate VR services. In the situation above, the applicant was released to full duty so there is no liability for the carrier vis--vis the VR benefit. The proximate cause for a need to change occupations is the 2005 injury - the benefit due the applicant is a voucher.

    It is enlightening to look at all the WC provisions available to the applicant for the 2005 injury. TD and PD benefits are based on the 2005 injury, not the 2003 injury. Medical control will fall under 2005 requirements, not the 2003 requirements - the applicant cannot assume medical control after 30 days as s/he could under the 2003 rules. PD will be determined under the 2005 PDRS, not the schedule in effect in 2003. To allow an applicant to "cherry pick" benefits would upend the entire workers' comp system. In the example above, the applicant would select the 2005 TD rate, take medical control and have his PD rated - for both injuries - under the 2003 rules, and, of course, take the VR benefit rather than the SJDB voucher.

    If your case ends up at the Unit, keep in mind that the Unit Consultant has jurisdiction over the 2003 injury only. S/he therefore can make a determination based on the evidence relating to the 2003 injury which, in this example was that the applicant was released and returned to regular duty after the 2003 injury. The ONLY way the applicant can be eligible for VR services is if the AME finds that the applicant was QIW in 2003 and should not have retuned to full duty.

    • Are undocumented injured workers entitled to a rehab voucher?

    That depends. Is the employer able to offer appropriate modified or alternative work but for the employee's undocumented status? If yes, the applicant would not be entitled to a voucher. Ideally, you would send the applicant the DWC Form 10133.53 Offer of Modified or Alternative Work form with a cover letter indicating that the job will be available for the 30 day period subject to the applicant producing proof of a legal right to work in the U.S. I know some employers do not want to send anything to an injured worker who is known to be undocumented. I expect the requirements will eventually be resolved by the courts.

    If your employer never offers modified or alternative work, you had better provide the voucher. The only defense the employer has for not providing a voucher is evidence that it would have offered modified/alternative work but for the employee's undocumented status. If no work is available, this would not be a good faith defense.

    • I have an injured worker who was hurt while working for one of my fairs. She was a full time state employee. She was released to return to work, but took a job at DGS instead. She then was off work from her current job do to the need for surgery on my claim. She just returned to full duty with no restrictions at DGS. I am paying PD to her. No indication of PD from her doctor. So, what form if any, am I required to send since she isn't working for my fair?

    Oh, please. Bring back voc rehab.

    Never thought I would live to see the day when a claims person would want Rehab to come back!

    I would treat this as a voluntary termination. The applicant was released to full duty so you would send the DWC Form 10003 Offer of Regular Duty if she was returning to the pre-injury agency. You could still send the 10003 if she left in good standing and you want to take the 15% PD credit. However, I suspect the original agency would rather not since she is no longer an employee. Since you probably will not send the 10003, you will need to forego the 15% credit.

    • I am a Vocational Return To Work Counselor (VRTWC) who submitted an invoice for $1,000 on a $10,000 voucher for counseling services. I received a letter from the insurance carrier asking me to detail "what services" I had provided to the injured worker. They withheld payment for 90 days and while I was not averse to providing this information, I certainly would not want this to be the case every time. What reporting requirements do counselors have regarding vouchers? And are carriers subjected to penalties if they delay payment on the counseling portion of the voucher?

    Claims administrators are entitled to receive your invoice and a signed (by the injured worker) copy of the SJDB voucher (schools should add a copy of the registration document signed by the applicant and a school administrator). It is appropriate to include some degree of detail on the invoice for the services provided (e.g., evaluation, testing, vocational exploration, etc.) - it looks rather odd for a $400 invoice and a $1000 invoice to indicate only "counseling services" as the billing item. However, the billing detail is not really for the claims administrator - it really is for the VRTWC and the injured worker. An injured worker has a right to know what s/he paid for in counseling services and the billing detail might prove useful to the VRTWC in a later dispute before the DWC.

    The claims administrator CANNOT demand progress reports from the VRTWC unless they are willing to pay for the reports outside the voucher. Claims administrators are no longer responsible for following the injured worker's progress through the training process.

    Voucher payments are due within 45 days of receipt of the VRTWC or training facility invoice pursuant to CCR 10133.56(h). If the claims administrator disputes the billing, s/he should pay the agreed amount and advise the VRTWC or school in writing within 45 days regarding the reason(s) for non-payment. Failure to pay timely may be subject to 5814.6 penalties (see below).

    Penalty Regulations

    The DWC sent its proposed 5814.6 penalty regulations to the Office of Administrative Law (OAL) on March 15, 2007. If the regulations are approved by OAL, the regulations could become effective as early as June 1, 2007. These regulations provide for penalties for up to $2500 for failure to comply with SJDB and VR requirements (among other things). You can review the proposed 5814.6 language by CLICKING HERE.

    Allan Leno
    e-mail: allanleno@leno-assoc.com

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    Monthly Articles on Vocational Rehabilitation
    by
    Alan Leno

    April 2007

    SJDB-PD-RTW FAQs

    • An insurance company adjuster has advised our training facility that payments for SJDB voucher training will be made according to a table they made up based on the "up to" language in Labor Code 4658.5. Their interpretation is they can pay amounts in between $4,000, $6,000 etc. based on their table. They believe payments can be pro-rated based on the amount of actual disability. Is this correct?

    Absolutely NOT!! The "up to" language in L.C. 4658.5 means nothing more than the $4000, $6000 amounts in the code are limits, just as $16,000 was a limit in vocational rehabilitation under L.C. 139.5. Defendants are not required to exceed the limits but must pay tuition and related costs up to the maximum amount for the PD category. For a $4000 voucher, the defendant MUST pay the full amount of a $3995 tuition bill (assuming there was no VRTWC involved in the case) but would pay only $4000 if the tuition bill totaled $4995. There is no provision in L.C. 4658.5 or in the AD Regulations ( 10133.50-10133.59) to "pro rate" tuition payments within a voucher category.

    If an applicant's tuition payment is short-changed by this company's payment policy, the applicant should be encouraged to file a DWC Form AD-10133.55 Request for Dispute Resolution immediately with the Administrative Director in Oakland.

    • I work for a public agency. At a recent professional meeting for public sector claims administrators, we were discussing the DWC AD-10133.53 Modified/Alternative Offer form. People from other agencies said they were not sending this form to injured employees on temporary duty because they could not offer temporary work for 12 months. We never offer temporary duty for more than 6 months so it appears that we cannot use this form because it requires that the job last 12 months. Do you agree?

    I agree that temporary duty assignments should never last 12 months and 6 months is a good time to make a decision regarding temporary vs. permanent modified/alternative work assignments. The problem you are describing, however, has to do with the requirements for use of this form and the statute itself.

    Unfortunately, L. C. 4658.5/4658.6 are poorly written. Among other things, they require an offer of modified or alternative work to be made within 30 days of the termination of TD payments; the requirement should have been within 30 days of a P&S determination. The DWC legal staff has determined that there is no choice but to require a 10133.53 to be sent to the employee within 30 days of the end of TD even if the employee is not yet P&S. If the defendant fails to send a 10133.53 for the temporary offer, they may lose the right to use the form later if the applicant needs permanent modified/alternative work and the employer is able to offer such work. This requirement places employers, particularly those with unions or civil service personnel requirements, in a very difficult position. It is also misleading to employees because some of the conditions on the 10133.53 absolutely do not apply prior to P&S (e.g., the 15% PD reduction, job must last for one year, job must pay 85% of pre-injury wage). We have suggested to the DWC that a revised form should be available for pre-P&S situations but, to date, have had no response.

    As an alternative, we have suggested that employers use the 10133.53 for these temporary jobs but very clearly indicate that the position is being offered on a temporary basis and the need for a permanent modified/alternative position will be evaluated once the employee becomes P&S. Even this may not meet the needs of some employers. Those employers will have to make a policy decision about using - or not using - the 10133.53 and take their chances regarding later use of the 10133.53 after P&S vs. providing a voucher.

    Problems regarding pre-P&S use of the 10133.53 should be directed to the AD since only the DWC can develop and implement regulations.

    • Recently a Judge at the LA WCAB awarded an applicant attorney a fee on the rehab voucher due the applicant. The applicant is due an $8,000 voucher based on his PD. The judge said the AA could get a 15% "fee" on this? I can't find anything that says an AA can get a "fee" on part of the voucher due to the applicant. What is your opinion on this?

    There is no provision in the Labor Code or the AD Regulations for attorney fees on a voucher. L. C. 4658.5 specifies that payment can be made to a school, a QRR (up to 10% of the voucher) or to the applicant as reimbursement for tuition paid at an approved training facility. No mention of an attorney or attorney fees. Attorneys have NEVER been able to get a percentage of anything except VRMA and the voucher is not a maintenance payment of any type. The WCJ was wrong. The only way an attorney can get a fee from the voucher is if the voucher is settled in a C&R - and I think even that is questionable since it represents, in a way, transference of the (non-transferable) voucher which is prohibited by 4658.5(a).

    • The date of injury is 3/9/04 and AME states the injured worker is able to return to work at his U&C. My adjuster forwarded notice of SJDB? I feel he should have issued a rehab denial? If work restrictions were assigned for this DOI - would we still use an RU-94?

    For a 2004 date of injury, the correct and required notice would be a Notice of Potential Rights (10133.52) which I suspect is what you mean by the "notice of SJDB." The Rehab Denial notice and the RU-94 are requirements for pre-2004 cases and cannot be used, under any circumstances, for a 2004 case. The adjustor was correct in this situation.

    • I have a woman who had an epileptic seizure at work. She did not injure herself - went to the emergency room for the seizure - not taken off work, was ready to come back to work immediately. However, apparently, there was discussion and an agreement between the employer, the employee, and her husband that it might be too dangerous for her to work there any more - i.e., fast food restaurant - hot oil, knives etc. - in case she had another fit and fell in the future. Is she entitled to the voucher - 2007 date of injury? She has not worked since the January DOI although she does intend looking for another job.

    There is no work injury so there can be no entitlement to an SJDB voucher. This woman's disability is not work-related so she would not be entitled to ANY workers' comp benefits. Remember the 3 conditions for SJDB eligibility: (1) the employee must have PD, and (2) there must be work restrictions necessitating modified or alternative work, and (3) the employer cannot provide modified or alternative work. All there conditions must apply. In your example, there is no PD (because there is no work injury) so there can be no eligibility for a voucher.

    • We have some questions regarding the (un)timely issuance of mod/alt work offers via the AD-10133.53:

    - Employee has been back to work for two years in a modified capacity and never had any period of Temporary disability Indemnity payments but does have a permanent partial disability; does it make any sense to issue the DWC-AD 10133.53 now?

    • - Employee had periods of temporary disability indemnity and has a permanent partial disability, but has been back to work in a mod/alt capacity for well over 60 days (sometimes 2 years). Since the DWC-AD 10133.53 wasn't issued in a timely matter, should it be issued now? The employer cannot benefit from a reduction in PD and isn't the employee still entitled to the voucher since the DWC-AD wasn't issued in a timely manner?

    Remember the old Rehab adage - "If in doubt, send it out?" Until we have more definition via case law (or additional regulations), this adage may serve us well vis--vis the voucher for the time being. With respect to the first question, it certainly won't hurt anything to document the modified/alternative position despite the fact that the documentation is late. As far as the applicant being entitled to a voucher, I expect the courts will find that an injured worker is entitled to a voucher when the offer is late but that issue has yet to be litigated. Until it is, I think you send out the 10133.53 irrespective of its timeliness.

    I think the message to the claims administrator has to be that the 10133.53 is owed - period. You don't get out of the requirement by being late.

    • In the Return To Work Regulations, I only see reference to the Notice of Offer of Regular Work Form DWC-AD 10003 and the Notice of Offer of Modified or Alternative Work Form DWC-AD 10133.53 under section 10002 - Adjustment of Permanent Disability Payments. If the claims adjuster misses the 60 calendar day window from permanent and stationary status and therefore, their ability to qualify for a 15% reduction of permanent partial disability, is there any need to issue either of those forms when the employee returns to work? Are those forms only to document the timely offers and therefore, the 15% reduction?

    As above, I think we need to send the forms out irrespective of the timeliness issue, although there would be an exception for the 10003 if all PD has been paid out by the time the timeliness error is discovered. The courts may well find that the defendant cannot take the 15% credit if the time requirement (i.e., 60 days from P&S) is missed but the issue has yet to be litigated. And there is an argument that the claims administrator should be able to take the credit once it corrects its error - the purpose of the section is to encourage employers to retain injured employees. If the employer has complied with the intent of the law, it should be able to claim the credit once the notice error is rectified. Until we have guidance in the form of case law, the message to claims administrators must be that the form is due - period.

    It should be noted that the claims administrator is obligated the 15% increase from the 61st day after P&S until the proper form is sent. Even if the WCAB eventually finds that the employer can take the 15% credit after an untimely 10003/10133.53, there is no doubt that the increase is due where the claims administrator has failed to send the 10003/10133.53 timely.

    • The employee with a 2006 DOI, has 0% PD but has not been able to return to work. Does she still get a voucher for $4000?

    If the employee has no PD, there can be no entitlement to a voucher. The 3 conditions for SJDB eligibility apply: (1) the employee must have PD, and (2) there must be work restrictions necessitating modified or alternative work, and (3) the employer cannot provide modified or alternative work. All there conditions must apply. In your example, there is no PD (there is no work injury) so there can be no eligibility for a voucher.

    Penalty Regulations (still pending)

    The DWC sent its proposed 5814.6 penalty regulations to the Office of Administrative Law (OAL) on March 15, 2007. If the regulations are approved by OAL, the regulations could become effective as early as June 1, 2007. These regulations provide for penalties for up to $2500 for failure to comply with SJDB and VR requirements (among other things). You can review the proposed 5814.6 language BY CLICKING HERE.

    Allan Leno
    e-mail: allanleno@leno-assoc.com

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    Monthly Articles on Vocational Rehabilitation
    by
    Alan Leno

    May 2007

    SJDB-PD-RTW FAQs

    There have been a number of questions about the status of training facilities and their certification if the Bureau for Private Post-Secondary Vocational Education (BPPVE) fails to obtain funding for the next fiscal year. At the present time, it does appear that BPPVE will cease to exist effective 7/1/07 and, at present, there are no known plans to transfer the Bureau's responsibilities and functions to another agency, although the Governor's office has indicated this will happen (but no plan or schedule has been published to date). Claims administrators are therefore wondering if they should be paying tuition bills after 7/1/07.

    BPPVE has indicated that school certifications are valid through the end of 2007 and there has been some discussion about extending those certifications through mid 2008. Claims administrators should therefore pay appropriate tuition bills as they are currently doing through at least the end of the current year.

    BPPVE has also indicated that schools are responsible for complying with the conditions of their certification. Failure to abide by those conditions will make the school subject to disciplinary action by the agency assuming BPPVE's functions.

    • I have a claimant with a 2003 injury with another carrier where VR was provided under the old rules. He has an injury in 2004 with us where he may be entitled to the voucher. Can he get both voc rehab and a voucher?

    There are circumstances where an applicant could get both VR and a voucher. For example, the applicant could be eligible for VR on a 2003 injury and a voucher on a 2004 injury where the injuries were with different employers and each injury required a change in occupation. It can also happen where each injury, by itself, would require a change in occupation. This will not be a common occurrence but I have seen it happen.

    • Our school offers a computer to injured workers that do not have a computer at home but we have encountered some pretty aggressive insurance companies that want to know where in the regulation it states that we can offer a computer. We have always said that since it is distance education, and they do not have a computer, that they need one as a tool necessary to complete the course. Are we in the right here or have we misinterpreted the meaning of the regulation and if not can you tell me where I can quote?

    L.C. 4658.5(b) provides that "The voucher may be used for payment of tuition, fees, books, and other expenses required by the school for retraining or skills enhancement." For a school offering distance (on line) learning, a computer is certainly a necessary tool for the student to enroll in and participate in the program. It is therefore appropriate for the school to provide a computer where the prospective student does not possess one.

    I would add that the computer provided should be appropriate to the program and provided at a fair price. I have noticed a couple of training facilities providing computers for $1500-$2000 when a computer system at half that price would be perfectly adequate for the program the injured worker selected. A few programs, such as CAD drafting and voice activation, require high end computers but most programs will work quite well on computer systems in the $750-$1000 range available from reputable manufacturers such as Dell and HP.

    • Permanent work restrictions were issued and the employer agreed to take the worker back to modified work permanently, but cut the hours. The worker states he cannot support himself and family on those wages. Does the worker have to take the job or is he eligible for a voucher?

    To meet the requirements for a modified or alternative job under L.C. 4658.6, the job must pay the injured worker at least 85% of his pre-injury compensation (see also L.C. 4658.1(b)(c)). If the employer reduces wages or hours by more than 15%, the applicant will be eligible for a voucher.

    • The injured worker has a 2006 injury but there was no lost time. The claimant is now P&S and the report states the injured worker can return to her U&C occupation even though she does have PD and some work restrictions. However, the employer did not renew the employee's contract so there is no job for her to return to. I'm assuming I owe the SJDB voucher because the insured did not renew the contract?

    There is no liability for a voucher because the applicant was released to her regular duties. You would, however, have to increase the applicant's weekly PD payments by 15% beginning on day 61 after P&S, assuming the employer has 50 or more employees.

    • We had a public safety officer who returned to work post wrist surgery in a light duty capacity. Upon his return, we sent him the Notice of Potential Rights and the Offer of Alt/Mod duty. He has now been released back to full duty. Do I now have to send him the offer of regular work?

    If the employee has PD, you would want to send the Offer of Regular Work (10003) so you can reduce PD by 15%. The 10003 form is meaningless if there is no PD but it may be a good idea to send one anyway as injured workers sometimes choose to go to a Panel QME who does find PD.

    • An injured worker has a 2002 injury and a 2004 injury. She returns to work at her regular duties and continues in that capacity until 2006: an AME found she was "QIW". The AME apportioned 50% of the disability to the 2002 injury and 50% to the 2004 injury. We sent a VR Denial Notice for the 2002 injury since the employee worked for four years at her U&C job and an SJDB Notice for the 2004 injury. Would the worker be entitled to VR benefits/services if the AME determination was after the five year statute?

    L. C. 5410 is not the issue here. The applicant was never a QIW based on her 2002 injury. It was the 2004 injury that ultimately resulted in the need for a change in occupation (doctors should not be using the "QIW" language for 2004 injuries). This injure4d worker is entitled to a voucher, not VR services. Remember that we cannot look into the future to determine if someone will be a QIW. L.C. 4635(a) required us to look at the person the way they were on the date of injury, we did not look into the future to see how they might be affected by some future injury.

    • I was selected by the IW to be the Counselor for purposes of the voucher. Carrier and AA are fine with it, but I received a message from the carrier saying that they don't issue vouchers to the IW's, only to the Counselor, and they requested I provide them with my name, etc. (I don't know what they do when there isn't a Counselor involved.) Is there any problem with that? I've never run into this before.

    AD Reg 10133.56(c) requires the claims administrator to send the SJDB voucher to the injured employee, not to any other party. Failure to comply with this section could subject the carrier to a $2500 penalty under the new 5814.6 penalty regulations (see below). I have not heard of a carrier doing this but it is ill-advised. It should be noted that the applicant needs the voucher to register for a training program so it really is not appropriate to withhold the voucher from him/her. And, as you point out, what would happen if the applicant chose not to use a counselor?

    • The injured worker is eligible for $6000 in vouchers. He wants to undergo training in 2 schools and the cost is split as $1500 for one school and $4500 for the other. Can we split the vouchers between the 2 schools?

    The injured worker can use the voucher at as many schools as s/he wants as long as the total cost does not exceed the value of the voucher. The injured worker in your question can, in fact, use his voucher for these two schools since the total tuition cost does not exceed the $6000 value of the voucher.

    • Our school is receiving the following objection with some frequency: "... the claimant must decide to go to a Bricks & Mortar location..." Is there a possibility that this is stated in any regulation?

    There is no such requirement in the statute or Regulations. The only requirement is that the training facility must be "state approved" (see L.C 4658,5(a) and AD Reg. 10133.56(g)). I am not aware of any prohibition against on line training. If the claims administrator will not provide payment for an approved training program, the injured worker should file a DWC AD Form 10133.55 Request for Dispute Resolution.

    • We are an employer who uses the position of a greeter to accommodate claimants with restrictions but it is also a needed position for the company. Once a claimant is P&S and there are permanent work restrictions which impede them to return to their U&C we offer the position of the greeter paying at least 85% of their pre-injury wages. My question is: if an applicant is RTW in a modified position and we offer the greeter position before they are P&S can we legally reduce their pay rate during that time? Or do we have to wait until they are P&S? I was under the impression that we can reduce the pay rate of anyone working modified duties but had to pay them at least 85% of their pre-injury wages, am I correct?

    If the applicant is paid less than their full pre-injury wage at this greeter position prior to P&S, you must do a wage loss calculation to correct for the reduced wage rate. After P&S, the job must meet the 85% requirement in L.C. 4658.6(b).

    • You may have addressed this in a prior Newsletter. I wanted to know if the employer can assert the 15% reduction in PD if the injured worker is declared P&S by an AME/QME retroactive 60 days, but the report is not received until after the 60th day. Can the employer argue that we have 60 days from receipt of the report finding P&S? I was unable to find case law on the point.

    You can't find any case law on the subject because there isn't any. I have yet to see any cases go up on either the 15% PD adjustment or the voucher.

    You cannot take the 15% credit retroactively because the statute requires an offer of work to be made BEFORE you can assert the credit. The Administrative Director has determined that an offer of work must be made via DWC forms AD-10003 (regular work) or AD-10133.53 (mod/alt work). This doesn't seem fair when it is the doctor who is responsible for the delay - but this is just a case where the law is the law.

    • My question is when an injured worker goes from TTD to TPD, do I send the Notice of Rights 10133.52 and the Mod/Alt Offer 10133.53?

    The time frames to send the 10133.52 and 10133.53 are not triggered until TD ends entirely. TPD is still TD so you would not be required to send either form until TPD ends.

    • I am a Vocational Return To Work Counselor (VRTWC) who submitted an invoice for $1,000 on a $10,000 voucher for counseling services. I received a letter from the insurance carrier asking me to detail "what services" I had provided to the injured worker. They withheld payment for 90 days and while I was not averse to providing this information, I certainly would not want this to be the case every time. What reporting requirements do counselors have regarding vouchers?

    There is no requirement for a counselor to submit reports to claims administrators on voucher cases. The counselor works for the injured worker in these cases; the claims administrator has no control over the services provided. I do believe that counselor invoices should be reasonably specific regarding the services provided and the injured employee should ALWAYS receive a copy of the invoice. Since payment is coming out of the applicant's voucher, s/he has a right to know what the got for their $400-$1000.

    Proposed Voucher Changes

    Assembly Bill 1636 by Tony Mendoza (D-Artesia) proposes to make vouchers available to eligible injured workers "74 days after termination of temporary disability payments." While making vouchers available sooner to injured workers whose employers are unable to offer them medically appropriate modified/alternative work is conceptually a good idea, this proposed modification will only cause more confusion unless the Legislature changes L.C. 4658.5 to begin the RTW/voucher process after P&S rather than the termination of TD payments. Assemblyman Mendoza and your local legislative representatives need to hear your problems with the administration of what should be a simple process. You can find contact information for your Legislator at http://www.assembly.ca.gov/defaulttext.asp.

    Penalty Regulations

    The DWC's 5814.6 penalty regulations have been registered with the Secretary of State and became effective May 26, 2007. These regulations provide for penalties up to $2500 for failure to comply with SJDB and VR requirements (among other things). You can review the new Regulation 10225-10225.2 language BY CLICKING HERE.

    Allan Leno
    e-mail: allanleno@leno-assoc.com

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    Monthly Articles on Vocational Rehabilitation
    by
    Alan Leno

    June 2007

    BPPVE

    The Bureau for Private Post-secondary Vocational Education ceases to exist as of midnight June 30, 2007. There are two bills pending in the Legislature to address the transition to a new agency (AB 1525) and the creation of a new agency to succeed BPPVE (SB 823). You can register to track these bills by going to http://www.leginfo.ca.gov/bilinfo.html. These bills are still in committee and it is unclear if they will be enacted prior to the end of the current session. As noted in previous newsletters, the uncertainty regarding the approval status for schools presents problems for eligible injured workers, claims administrators, and legitimate schools. Schools approved by BPPVE are approved through the end of the year but claims administrators and representatives of injured workers should bring problem situations to the attention of the DWC via the DWC 10133.55 dispute resolution process.

    SJDB-PD-RTW FAQs

    • We have a client who does not want the carrier to provide a voucher since the injured was terminated for drugs last year. Had he not been terminated for cause, the employer would have provided a modified or alternate position. Due to the employee's negligence of using on the job, they feel it's wrong to provide the voucher.

    Termination for cause is a common problem/question. Unfortunately, the statute (4658.5) does not provide any clear guidance. "Common sense" would suggest that we do not want to reward injured workers who engage in obvious illegal behavior. But, since there is no clear guidance in the statute or regulations, insures/employers need to make a policy decision regarding how they will respond in this situation. I would agree that the injured worker in this example should not be provided a voucher. But, in making its policy decision, the employer must be aware that the WCAB may reach a different conclusion if or when a case is presented for resolution before the Board.

    • Is a claimant entitled to reimbursement for mileage while attending a training program under the SJDB voucher process?

    L. C. 4658.5 provides for payment of school tuition and "related" fees required by the school. There is no indication in this language that would support payment of mileage to/from the school.

    • An injured worker attended and completed a training program at XYZ training facility. There is still money left on the voucher and the employee now wants to go back to the school to take an advanced course. Is the claims administrator required to issue a new voucher or can the school submit a second invoice based on the original voucher?

    The claims administrator can issue a modified SJDB voucher is s/he chooses but I see no requirement to do so. The employee is entitled to use his/her entire entitlement and can continue to enroll in training programs up to the limit for his/her voucher. The school can submit a second invoice for training up to the limit of the voucher and the claims administrator would be required to pay the invoice (assuming the school program is still approved) up to that limit. As an example, let us assume the employee has an $8000 voucher and enrolled in and completed a $5000 training program. The employee chooses to enroll in a subsequent (approved) $4000 training program. The claims administrator would be required to pay for $3000 in tuition for the second program; the remaining $1000 would be the employee's responsibility because the claims administrator is not required to exceed the $8000 face value of the original voucher.

    • The employee enrolls in a training program but never starts (or never completes) the course. Who gets the tuition refund?

    Logic would dictate that the refund should go back to the payer. Unfortunately, the DWC regulations are silent on the refund issue, indicating only that the school is required to issue a pro rata refund based on attendance. I would suggest advising the training facility that any refunds are to be returned to the claims administrator but there is little the claims administrator can do to enforce its requirement other than filing a DWC 10133.55 Request for dispute Resolution with the DWC.

    • Is an undocumented injured worker entitled to an SJDB voucher? What if the employer would be able to provide mod/alt work "but for" the worker's undocumented status?

    There is no case law on this subject vis--vis the SJDB voucher but we might expect the courts to find as they did for the rehabilitation benefit in the Del Taco case. In Del Taco, an undocumented injured worker was found ineligible for VR benefits and services where the employer was able to provide modified or alternative work. By extension, the injured worker would be entitled to VR benefits if the employer was not able to make such work available. The decision to provide a voucher - or not - is a policy matter at this point in time. I would apply the Del Taco reasoning, assuming the employer can demonstrate the availability of modified/alternative work, but keep a close eye on case law. While it would seem reasonable for the Board to follow the logic in Del Taco with respect to the voucher, keep in mind that this is a different benefit and the Board has been known to surprise us.

    • Would an injury incurred during training under the Voucher benefit be compensable, like it was under VR?

    Good question. I would argue that such an injury would not be compensable because the defendant has no control over the choice of program, choice of school, location of the school, etc. But I cannot say I have great confidence in the argument because the rationale for an injury during rehab being compensable was that the applicant would not have been in rehab but for the original injury. That argument also applies to a voucher program. The defendant's lack of control over training circumstances and the fact that the case in chief has been resolved might change might change the equation when a case is eventually argued at the Board - but I wouldn't bet on the outcome.

    • I thought one of your newsletters covered this but, if an employee resigns, before we have a P&S report with permanent work restrictions, is the employer obligated to increase the PD by the 15% since they can't offer a modified job since the employee resigned?

    The statute (4658(d)) and the Regs (10133.56/57) do not address this situation and we have no case law to provide guidance. Applicant attorneys, of course, would argue that you owe both the 15% increase as well as the voucher. As an employer/insurer, I would argue that the applicant has voluntarily resigned and is not entitled to either a PD increase or a voucher. Eventually the courts will decide this issue but I would not be inclined to provide these "rewards" where the employee has made a voluntary decision that takes the incentives out of the employer's hands. Ultimately though this is a policy decision you must make - all I can do is give you my opinion - and it may only be worth what you paid for it.

    • If an injured worker has been declared P&S with no work restrictions for the work comp injury, but has restrictions for a non-industrial condition, does the claims examiner send an offer of modified/alternative work or can the employer disregard the non-industrial work restrictions for the purposes of the RTW offer? It doesn't make sense to send an offer of regular work when there are restrictions, but it also doesn't make sense that the employer looses the 15% reduction if they cannot accommodate non-industrial work restrictions.

    The employer should have no obligation to offer modified/alternative work with respect to its workers compensation requirements BUT it does have an obligation to engage in an "interactive process" with the employee and to conduct a reasonable accommodation assessment under the Fair Employment and Housing Act (FEHA).

    This is one of the situations that simply make no sense under the new workers comp requirements. Technically, you would be required to send the applicant a DWC Form 10003 Offer of Regular Work so you could take the 15% PD credit. That offer will not make much sense to the employee who is precluded from returning to his/her usual duties by the non-industrial condition and that confusion might well lead to an FEHA complaint. Your employer needs to consult a labor attorney regarding its FEHA exposure; the 15% PD adjustment is pocket change compared to the potential FEHA costs.

    A question (or two) does come to mind here. I would assume the non-industrial condition existed prior to injury. Did the industrial injury exacerbate the condition to the point where it now prevents the employee from performing his/her regular duties? If so, the situation is much more complicated and the employer may need to offer modified/alternative work under its workers' compensation obligation.

    • If I accept work from my employer that pays less than 85%, does that disqualify me from receiving a voucher?

    Probably not - but the answer isn't clear in the Labor Code so we won't know for sure until there is at least one case argued before the WCAB. Assuming you have Permanent Disability and you cannot perform your regular duties, your employer escapes its liability to provide a voucher only if it meets the requirements of L.C. 4658.6(b)(1-4). Since 4658.6(b)(3) requires wages at 85% or better of pre-injury wages, your employer arguably would still owe you a voucher (4658.6 does not contain language equivalent to 4644(a)(7) allowing an employee to accept an offer that does not meet the usual modified/alternative work requirements). BUT 4658.5(a) says a voucher is only owed if the employee does not return to work within 60 days of the last payment of TD. Absent case law of a DWC determination, I would not expect the employer to voluntarily provide a voucher.

    Allan Leno
    e-mail: allanleno@leno-assoc.com

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    Monthly Articles on Vocational Rehabilitation
    by
    Alan Leno

    July 2007

    Vocational School Approvals - what do we do now?

    The Bureau for Private Post-secondary Vocational Education ceased to exist as of midnight June 30, 2007; you may have noticed that the school certification portion of BPPVE's web site is no longer available. This leaves students, schools, and payors in a quandary - how do we administer SJDB vouchers without an approving agency? L.C. 4658 and AD Reg 10133.56 require that all training programs must be state certified - but we no longer have an agency charged with that responsibility. The Legislature passed a bill (AB 2810) that would have extended the life of BPPVE for one year but it was vetoed by the Governor.

    The Legislature did pass a bill (AB 1525), signed by the Governor, that would preserve disputes pending before BPPVE as of 6/30/07; these disputes are to be resolved by BPPVE's successor agency. It is, at this time, unclear how much meaning this has to parties with pending disputes since neither the Legislature nor the Governor has moved to designate or create a successor agency.

    There are two other bills related to vocational schools and the SJDB voucher that are currently pending at the Legislature. SB 823 creates a means to extend the functions of BPPVE. Since the Governor has already vetoed a similar bill, it seems unlikely SB 823 will survive the current Legislative session. AB 1636 seeks to provide the SJDB voucher within 74 days after termination of TD where the employer has declined to offer modified or alternative work pursuant to L.C. 4658.6. The value for the voucher would be based on a "reasonable" estimate of PD pursuant to L.C. 4650. This bill is generally opposed by employers and insurers and it is expected that the Governor will veto the measure if passed by the Legislature.

    You can register to track these bills by going to http://www.leginfo.ca.gov/bilinfo.html.

    DWC has released an alternative means to determine if a school is "certified" within the meaning of L.C. 4658.5 via the following press release:

    Division of Workers' Compensation advises injured workers and claims administrators to use U.S. Department of Education Web site to access accredited school information

    The Division of Workers' Compensation (DWC) regulations for supplemental job displacement benefits (SJDB) require that private schools used by injured workers for retraining meet certain requirements through accreditation. Because the Bureau of Private Postsecondary and Vocational Education (BPPVE), which was part of the California Department of Consumer Affairs and regulated degree-granting and vocational schools, was abolished effective July 1, 2007, individuals are no longer able to determine if the school meets the BPPVE's standards.

    However, the SJDB regulations provided two other avenues for finding accredited schools: through the Regional Associations of Schools and Colleges authorized by the United States Department of Education or through the Federal Aviation Administration (FAA). The U.S. Department of Education's Web site provides access to a master list of accredited colleges, universities and career and trade schools. The database lists approximately 6,900 postsecondary educational institutions and programs, each of which is accredited by an accrediting agency or state approval agency recognized by the U.S. Secretary of Education as a "reliable authority as to the quality of postsecondary education."

    The U.S. Department of Education Web site is at http://www.ope.ed.gov/accreditation/ and the FAA's site is at http://www.faa.gov/.

    Any training outside of California must still be approved by an agency in that state that is similar to the BPPVE. The BPPVE has also posted information on the sunset of its program on its Web site at http://www.bppve.ca.gov/sunset_updates.htm.

    Our legislators may not be aware of the problems created for both injured workers and claims administrators by their failure to insure continuity from the demise of BPPVE to designation of a successor agency. If you want to let them know what you think of this "oversight," you can locate your Assembly/Senate representative at http://www.leginfo.ca.gov/yourleg.html. Send them a letter or e-mail to let them know how difficult it is to help injured workers get back to work when the Legislature fails to provide essential tools - such as certification of vocational training programs.

    SJDB-PD-RTW FAQs

    • Can a rehab claim on a DOI post 01/01/04 be resolved by an RU-122?

    Absolutely not! L. C. 139.5 was repealed for all dates of injury on/after 1/1/2004. Since 139.5 contains the authority for existence of the Rehab Unit, the Unit has no jurisdiction for a date of injury on/after 1/1/2004 which also means that all RU forms lack validity for dates of injury on/after 1/1/2004. If you use an RU-122 to "resolve" SJDB voucher liability, you have done nothing more than provided the injured worker with a gift. The only way to resolve SJDB voucher liability is to (a) provide the voucher to the applicant OR (b) settle the voucher via a compromise and release agreement. To settle the voucher, both parties must initial the last item on the list on page 3 of the standard settlement document.

    • Does the mere fact that the parties have entered into a C&R mean that the applicant is not entitled to the voucher? It is my understanding that there has to be ratable PD and no offer of mod work and the applicant is entitled. However, parties are taking the position that there has to be an AWARD of PD and since a C&R is not an award it automatically precludes the applicant from voucher entitlement. It seems to me that since it is an "option" on the C&R form, that the applicant can choose to still C&R the case (especially if the parties include a stipulation in the addendum as to the level of PD as most are on admitted injuries), not sign off on that "option" and then pursue a voucher. Which is correct?

    It is my opinion that an injured worker who chooses to C&R his/her case is entitled to a voucher if they (1) have ratable PD, (2) need modified or alternative work, (3) are not offered modified or alternative work by their pre-injury employer, and (4) do not settle their right to a voucher in the C&R. It makes little sense to offer settlement of the voucher as an option on the C&R form if there is no entitlement to the benefit. And injured workers who meet the first three conditions are just as much in need of the benefit as injured workers whose cases are resolved by F&A. Unfortunately, the wording of L. C. 4658.5(a) is unclear and does seem to equate the value of a voucher to an award. Most carriers/employers are providing the voucher to injured workers who C&R their cases without giving up the right to a voucher but some have taken the position that settlement of the case in chief via a C&R precludes any right to a voucher. The only way to resolve this issue is for a case to go to the Board; I am not aware of any such cases pending at this time.

    • Are there any statistics as to the percentage of applicants using the voucher system as opposed to those who participated in VR? It would seem to me that without the counselor guiding the applicant through, many applicants would be less than motivated to research what to do with a coupon. Am I wrong?

    There are no statistics at present on the usage rate for the SJDB voucher. The anecdotal information I have is that the usage rate is about 10% of those eligible. There is no requirement for insurers/employers to report the number of vouchers issued or the usage rate to the DWC so we will never get information similar to the QIW vs. number of plan cases we once received from the Division. We will have some information from the WCIRB regarding the amount of money actually paid out for vouchers but it will be of very limited value for several reasons. First, WCIRB data will tell us how much money the industry paid out for vouchers but not how many vouchers were issued or used. Second, many carriers and TPAs are not sending out vouchers at case resolution as required by CCR 10133.56(c) (the voucher must be issued by the claims administrator within 25 days of case resolution at the WCAB). Any data issued by the WCIRB is therefore likely to be understated. Third, the WCIRB has no way to determine the number of vouchers resolved in C&R agreements. We therefore have no way to determine how many injured workers were eligible for a voucher.

    • What if the employer at this time can't offer the employee the modified job on a permanent basis. Right now the employee is doing the modified job, but because of other issues, they can't offer the job on a permanent basis, what does the employer have to lose, they understand the employee may become eligible for the SJDB benefit, is there anything else? They will do their ADA/FEHA meeting at the appropriate time but I am at my 30th day and they can't give me an answer.

    The employee in this situation would definitely be eligible for the SJDB voucher, assuming s/he needs a permanent job modification or alternative work assignment. As you indicate, the employer would have to go through the interactive process/reasonable accommodation assessment to determine - and document - whether or not it can offer a permanent mod/alt assignment. The employer does need to be aware that the FEHA interactive process requirement does not have a specific 30 day limitation as we have in offering mod/alt work under workers' compensation. The Dept. of Fair Housing & Employment (DFEH) expects employers to continue their search for appropriate work for a "reasonable" period of time. "Reasonable" isn't defined but DFEH generally expects an employer to continue the process for an injured worker as long as they would for any other employee under any other circumstance.

    • A pre 2005 injury. Applicant declared QIW after she accepted a severance package. Is defendant released from liability from providing additional VR services and benefits?

    QIW only applies if the injury is pre-2004. If it is pre-2004, the employee would be entitled to VR unless the employer is willing to offer mod/alt work (not likely after providing a severance package). If the employer will not offer mod/alt, the worker gets rehab. A severance package is not usually a "termination for cause" so the employer has a very weak argument for avoiding VR liability.

    If this is a 2004 case, the same is probably true for the SJDB voucher. A severance package is usually not offered where there is a termination for cause and the employee is not terminating the employment relationship voluntarily. The employer is therefore likely to be eligible for a voucher.

    • If I accept work from my employer that pays less than 85%, does that disqualify me from receiving a voucher?

    Probably not - but the answer isn't clear in the Labor Code so we won't know for sure until there is at least one case argued before the WCAB. Assuming you have Permanent Disability and you cannot perform your regular duties, your employer escapes its liability to provide a voucher only if it meets the requirements of L.C. 4658.6(b)(1-4). Since 4658.6(b)(3) requires wages at 85% or better of pre-injury wages, your employer arguably would still owe you a voucher. BUT 4658.5(a) says a voucher is only owed if the employee does not return to work within 60 days of the last payment of TD. I know this seems as clear as mud - that's why we need a case at the Board to provide some clarification.

    • I have an IW who quit with our ER and had SX putting him on TD, and RTW with another ER. The IW is now RTW full duty with PD. How do I handle the Voucher and RTW offer to take the 15% credit.

    If the injured worker was released to full duty, I would argue that s/he is not entitled to a voucher. The purpose of the voucher is to assist injured workers who are displaced from the occupations due to their industrial injury. This person was released to full duty and has proved his/her ability to compete for similar work by finding another job. The individual also voluntarily terminated the employment relationship; by doing so, I would argue that the employee acted to end the employer's options in terms of offering re-employment.

    The 15% PD credit is another matter. L. C. 4658(d) indicates the employer can take a credit where it offers re-employment within 60 days of P&S. Here the employee has quit so it isn't reasonable to expect the employer to offer the employee his/her job back. But, because the employer isn't offering a job, it probably cannot take the 15% credit against PD. My suggestion would be for the employer to pay PD at the regular 4650 rate.

    • I had an interesting experience in court with a Judge who insisted that an employer's failure to attempt to modify and go through ADA interactive procedures may be a FEHA violation but was outside of his jurisdiction for LC 132A. I think he is wrong wrong wrong! A LC 132A action is found if the employer makes no effort to return applicant to work with either to another available job or to make job modifications. In other words failure to do the FEHA routine is a violation of LC 132A as well. Do you know of any specific cases addressing this?

    I am not an attorney - but I am inclined to agree that an employer's failure to engage in the interactive process would be a L. C. 132A violation, especially if it could be shown that the employer takes employees back when they return from non-industrial medical leaves. WCJs cannot find violations of FEHA but they certainly can determine violations of 132A. There actually is a case on point. In City of Moorpark v. Superior Court of Ventura County (Dillon), (1998) 63 CCC 944, the California Supreme Court found that FEHA was an additional remedy to workers compensation (i.e., workers comp was not an "exclusive remedy" where employment discrimination based on disability existed). The Court said, in essence, that the injured employee can pursue an FEHA complaint even where the Board has found a 132A violation. VR Case Law

    • Can an employer/insurer take credit for overpayment of VR benefits against workers compensation medical benefits?

    In Edna Williams v. W.C.A.B., Tam Thi Vo, D.C., Vo Chiropractic, Mid Century Insurance/Farmers Insurance Exchange, administered by Cambridge Integrated Services, Inc. Civ. No. H030837 6th App. Dist., the applicant was overpaid $96,000 in VRMA/VRTD benefits. The WCAB determined that the defendant was entitled to credit against other workers compensation benefits - except for medical benefits. This case confirms that the courts will support defendants' rights to recover overpayments but they will not act to limit the employees' access to medical care.

    Allan Leno
    e-mail: allanleno@leno-assoc.com

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    Monthly Articles on Vocational Rehabilitation
    by
    Alan Leno

    August 2007

    Vocational School Approvals The Bureau for Private Post-secondary Vocational Education ceased to exist as of midnight June 30, 2007. However, the statute (L.C. 4658.5(a)) still requires schools to be certified by a state agency in order to be eligible for payment of tuition and fees via the SJDB voucher. The DWC has suggested using the US Dept. of Education web site (CLICK HERE FOR THAT); schools accredited by DoE are accepted by the State of California as accredited here. The California Dept. of Rehabilitation uses http://etpl.edd.ca.gov/WiaEtplOcc.asp to find schools that are eligible to provide training under the EDD Work Force Investment Act. Since EDD is a State agency, approved schools for this program would qualify as "state approved" within the meaning of 4658.5.

    SJDB-PD-RTW FAQs

    • Are we allowed to settle the SJDB voucher for cash? If we do not settle the voucher, what is the carrier's obligation? How long does the claimant have to request his/her voucher?

    The voucher can be settled for cash pursuant to CCR 10133.52. All the parties need to do is initial the VR/SJDB line on page 3 of the C&R Agreement form and indicate the sum for which the voucher is being settled. If the voucher is not settled, form DWC 10133.57 must be sent to the applicant within 25 days of case resolution at the Board pursuant to CCR 10133.56(c). Claims administrators need to be aware that the applicant does not have to ask for the voucher - the AD's regulations require that it must be sent automatically within 25 days of case resolution at the Board. Failure to comply with this requirement can result in some substantial penalties per CCR 10225.

    • You have mentioned that there are 3 conditions for SJDB eligibility: (1) the employee must have PD, and (2) there must be work restrictions necessitating modified or alternative work, and (3) the employer cannot provide modified or alternative work. Where can I find these three conditions?

    The Legislature rarely makes it that simple; the conditions are not spelled out in the statute as directly as the "3 conditions" might imply. Item #1 is derived from L.C. 4658.5(a) which ties the value of a voucher to a PD award. Since 0% PD is not an award, the applicant must have at least 1% PD to be eligible for a voucher. Thus "the employee must have PD."

    Regarding item #2, there is no statement in the statute indicating that an applicant must have a need for modified or alternative work. However, L.C. 4658.6 tells us how an employer can avoid liability for a voucher - provide modified or alternative work. And who needs modified or alternative work? Persons with PD who cannot return to their regular duties.

    Item #3 applies when the employer cannot or does not provide modified or alternative work to a person with PD who is unable to return to regular duty.

    • A primary treating physician's report indicates P&S and no ratable disability; a Notice of Offer of Regular Work was not issued based on the current facts. The IW requests a panel QME evaluation and 6 months later the QME finds ratable disability. Would this be a new trigger to send the DWC AD Form 10003? Would we owe the 15% increase or are we able to reduce by 15%?

    You should send the 10003 Regular Work offer ASAP and can start taking the 15% reduction going forward. It is unclear if you can take the 15% reduction for any PD owed prior to sending the 10003. The statute (4658(d)(3)(A)) says you can only take the reduction after an offer is made (and the offer is likely to be defined as the 10003). Until there is case law however, you can argue that an offer was in fact made (the applicant is working) and you had no knowledge of disability until the QME report. Absent case law, this is a policy decision. Discuss with your attorney and decide on your policy (all cases of this nature would have to be handled the same).

    • An applicant attending a training program is given a loaner computer during the training program. Are we responsible to purchase a computer to use after the program - to continue practicing? Also, according to the school's director, the student may require 7-14 books at $250/ book. I am not sure why there is a range? Is the school required to give us additional information, or additional price breakdown for each supply?

    No. You are only required to purchase (within the limits of the voucher) a computer if one is required for the training program and the applicant does not already own a computer adequate for the purpose. Unlike rehab plans, the voucher does not provide funds for "tools of the trade" that would only be required once the applicant obtained employment. You would be required to pay for any books required for the program (again, within the limits of the voucher). There should not, however, be a "range" of books. Either the training program requires a book or it does not. You should ask the school to provide a class syllabus showing the tools and books required for the training program. Write the school a letter indicating you cannot approve payment for these items until you have evidence that these items are required for the program and for all students (not just those with a voucher!).

    • I have one claimant who filed one claim for several body parts, including hearing loss. He is P&S from hearing loss (w/no ratable impairment) but is not P&S from the other body parts. Would I send him an offer of regular work now or wait till he's P&S from all his body parts? We are utilizing AMEs so he should eventually by P&S from all his body parts.

    The claimant is not P&S and due a DWC 10003 until he is P&S on all body parts. L.C. 4658(d) indicates that the PD adjustments are not due until the applicant is P&S so you cannot take a credit nor are you obligated for an increase until the applicant is P&S on all body parts.

    • We have a 4/19/2005 date of injury wherein we (working with the employer) are currently exploring modified /alternate work for the represented injured worker. We just got the work restrictions and the employer called a meeting with the employee to discuss. The employee picked up the work restrictions from the doctor and delivered it the same day to the employer but could not stay to discuss. There are rumors that he is working elsewhere at a Pizza Delivery place. If surveillance identified the injured working elsewhere, are there any repercussions? Could the carrier not offer the voucher if it was proven that he is working elsewhere?

    In this situation, the "repercussions" relative to the voucher depend on whether your employer will be able to offer work within the employee's medical restrictions. If your employer offers a job within the work restrictions, no voucher. If your employer cannot offer mod/alt work, the employee would be entitled to a voucher despite the pizza delivery job. I do not see where there could be any repercussions for the employee - unless you are paying TTD.

    • I have a claimant with a DOI 7/12/05 which places the claim in the post 2004 DOI time period or SJDB voucher realm. Claimant has been P&S'd with restrictions and the employer accepted claimant back under a permanent modified position. Claimant has accepted the position and is currently working for the employer. Claimant was sent the letter which is an offer of Modified or Alternative Work (DWC-AD 10133.53). Once this letter is received back by us signed and dated by the claimant, what is the next step? For claims prior to 2005, the equivalent of this letter would be the RU-94. Eventually, the signed/dated RU-94 document would be F&S'd to the rehab unit with an RU-105 for formal closure of rehab. Do we do anything with the signed AD-10133.53 letter once it is received by me?

    • If I recall correctly, there was legislation in the works that would give the audit unit (Dep't of Industrial Relations) the right to assess penalties if either SJDB letters were sent late or not sent at all. Some of those fines were pretty steep. I don't recall receiving anything advising me that the proposed Legislation was enacted or if still pending? Do you know where we're currently at on this? If enacted or when enacted, who would be the one auditing the files and assessing those fines/penalties for the State? Would it be the audit unit as well?

    #1: There is no equivalent for the RU-105 within the SJDB voucher scheme. Once the claimant returns the 10133.53 to you (or in 30 days, whichever occurs first), send a copy of the 10133.53 to the Administrative Director in San Francisco (address is at the bottom of the form). That's it.

    #2: The regulations (CCR 10225) were just approved and become effective 5/26/07. The penalty is assessed by the Board (up to $2500 per infraction) - the money goes to the RTW fund (L.C. 139.48) and not the claimant. The applicant or A/A would have to file for the penalty at the Board - as far as I can tell, the Audit Unit will not be involved. While the DWC Audit Unit will not be involved in assessing the 5814.6 penalty, WCJs are required to report these penalties to the DWC Audit Unit and that process could lead to a targeted audit.

    • We have a crossing guard that was out on TTD about 6 months following rotator cuff repair surgery (2006 injury). Upon being released back to work, I provided him with both the Notice of Potential Rights and an offer of Regular Work (which he signed and returned to me). Well, evidently he wasn't released back to duty in time to claim one of the "full time" shifts for the new school year, and was therefore used only on an on-call substitute basis. He quit a few weeks later. In his resignation letter, he stated it wasn't worth getting up at 5:30 am for a 3 hour minimum wage shift here and there. Now we want to take the 15% 4658(d) decrease from his PD award, but he is asserting that although he agreed to the offer of regular work, his department never REALLY offered him the regular work he was performing at the time of injury.

    Since the applicant was not provided with work meeting the requirements in 4658(d)(3)(A), I believe you will owe him a 15% increase in his PD. The timing of his release was not your fault but the statute does not provide exceptions where the employer is in a situation such as yours. It simply says the employee gets +15% PD adjustment if the employer cannot provide work meeting specific conditions. In your case, the work he did get did not meet wage requirements so your offer was not a qualifying offer of modified work (see the 4658.1(a) definition of regular work).

    • We are a training facility and a number of our students use SJDB vouchers from the Workers' Comp system. We now have a number of carriers tell us that they require that the all documents come directly from the injured worker, not from the training facility. Is this a requirement in the law or regulations? What can we do?

    AD Reg. 10133.56(h) says the claims administrator shall issue reimbursement payments to the employee OR direct payments to the VRTWC (counselor) or training provider within 45 days of receipt of the completed voucher, receipts, documentation. There is no basis for requiring that documents come only from the claimant because, in effect, they would be requiring the claimant to pay first and that would serve to limit the claimant in seeking his/her training. You cannot file a Request for Dispute Resolution (Form DWC 10133.55) but the injured worker who is being inconvenienced by this practice can. You can file a lien and a request for a 5814.6 penalty under the new regulation CCR 10225 (effective 5/26/07). The WCAB can impose penalties up to $2500 for failure to comply with SJDB Regulations.

    • I have a 2004 DOI case with a $6,000 voucher. The claimant has carpel tunnel and the employer cannot accommodate him. He is in a vocational school for typing and computer work which will make the carpel tunnel worse. The vocational school said they do not need the QME's approval as this is a 2004 DOI. Is this true and do I just pay the school for his training?

    It is very unfortunate but the fact is we have no control over the program chosen by the applicant, even when we know it is a bad choice and one that would not have been acceptable under VR. We also cannot force the injured worker or the school to seek medical approval of the program. Regrettably, you do have to pay the school.

    • I have a Claimant who lost NO time from work. We just received the final report from the panel QME indicating she has 2 % permanent disability. We have not resolved the claim yet. Would she be entitled to the Notice of Potential Right to Supplemental Job Displacement Benefits letter now or wait until judge issues an award then issue the letter along with the voucher?

    There is some debate on the issue but I believe the claimant is entitled to receive the 10133.52 Notice of Potential Rights letter. The employee would not be entitled to a voucher unless his/her disability precludes a return to work at his/her regular job. Since the claimant has returned to regular work, you would send the DWC 10003 Offer of Regular Work.

    • I have a claimant with a 2005 injury. She was P&S in November of 2005. There is a TD overpayment until December (that is when the defendants started PDAs). She received notice of job displacement benefits sometimes in February. Are there any penalties for the delay in sending out the notice of Job displacement benefits/voucher?

    At present, the only specific penalty is the (up to) $2500 penalty under L.C. 5814.6 as provided in CCR 10225 which became effective 5/26/07 (you can find the language for the new regulation by CLICKING HERE). I am not aware of any specific audit penalties under CCR 10111 but I suspect the DWC Audit Unit will be looking for compliance with the SJDB requirements during its future audits. You should also be aware that WCJs are required to advise the DWC Audit Unit every time a 10225 5814.6 penalty is imposed.

    Allan Leno
    e-mail: allanleno@leno-assoc.com

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    Monthly Articles on Vocational Rehabilitation
    by
    Alan Leno

    September 2007

    Vocational School Approvals

    The Bureau for Private Post-secondary Vocational Education web site now lists schools that have agreed to comply with the conditions of their prior certification by BPPVE until the end of the year. To access the list CLICK HERE, then click on the flashing red banner that reads "Updates Regarding the Bureau's Sunset" and then click on the link that reads "List of Schools Eligible for the Voluntary Agreement updated 9/26/07." Schools on this list are considered "approved" for the purposes of L.C. 4658.5; vouchers used at these facilities should be honored.

    The DWC has also suggested using the US Dept. of Education web site (CLICK HERE); schools accredited by DoE are accepted by the State of California as accredited here. The California Dept. of Rehabilitation uses THIS LINK to find schools that are eligible to provide training under the EDD Work Force Investment Act. Since EDD is a State agency, approved schools for this program would qualify as "state approved" within the meaning of L.C. 4658.5.

    Pending Legislation

    Three bills impacting the SJDB voucher were considered by the Legislature during its recent session and two have been sent to Gov. Schwarzenegger for signature:

    AB 1525 that any institution, program or course of study that is approved as of June 30, 2007, to be approved as of February 1, 2008. This provision does not apply to any new institution, program or course of study offered after, but not approved as of, June 30, 2007. This bill was signed into law by the Governor and the BPPVE web site has a list of eligible institutions that have comply with its requirements. As noted, these institutions are considered "approved" so eligible injured workers can use their vouchers at these schools.

    AB 1636 provides that a voucher will be provided to injured workers whose injuries occur on or after 1/1/08 and who do not return to work for the pre-injury employer within 60 days of becoming permanent and stationary. If the extent of permanent disability is not known, the claims administrator is required to provide a voucher based on its estimate of PD with any final correction needed to be done at the time of case resolution. The bill has been sent to the Governor but his decision is still pending. Note that some details of this bill depend on whether the Governor also signs SB 942.

    SB 823 would have created a successor agency for BPPVE. This bill was suspended by the Legislature prior to its recess in Mid-September. This issue will be re-visited by the Legislature during the 2008 session.

    SJDB-PD-RTW FAQs

    • I have a Claimant who lost NO time from work. We just received the final report from the panel QME indicating she has 2 % permanent disability. We have not resolved the claim yet. Would she be entitled to the Notice of Potential Right to Supplemental Job Displacement Benefits letter now or wait until judge issues an award then issue the letter along with the voucher? If there was no lost time and therefore no TD paid, why would the notice letter have to be sent?

    It's a matter of interpretation. A claimant with PD is potentially eligible for a voucher, even with no lost time. I have seen two cases to date with PD, no lost time (the claimant was immediately provided mod work) but the employer says it cannot provide PERMANENT mod/alt work. I think the EE is entitled to information about the voucher in such situations. Also, remember that the Notice of Potential Rights (10133.52) is an information notice only - it does not, by itself, actually offer anything.

    • Would a city have to provide the voucher to a non-paid volunteer firefighter who has an injury and is covered for WC based on a city resolution to provide coverage, but who has no other job or income from the volunteer duties?

    That is a good question. IF this issue ever gets litigated, I expect the arguments will boil down to the definitions of "employer," "employee," and "work." Is the fire department an employer if it does not pay compensation? Is the person an employee if s/he is unpaid? Should a volunteer position be considered a job - or "work" - within the meaning of L.C. 4658.5?

    The only guidance we have on this issue is VR for pre-2004 cases. The Rehab Unit found volunteer workers eligible for VR services (but not VRMA) when their injury precluded a return to the volunteer work. If the courts used VR as a guide, they might order a voucher provided.

    • I have a situation where the injured worker is participating in the Sheriff Work Alternative Program. This program allows individuals to work for the Sheriff's department a certain number of hours or days in lieu of jail time. When one of the SWAP workers sustains an injury and suffers permanent disability and work restrictions would they be entitled to a voucher? Technically the department can have them do anything so the restrictions are not a problem - it's the ability to offer it for a year. This situation also comes into play for the eligibility of the 15% increase/ decrease.

    This question is similar to the one above it in that it is a fact pattern never anticipated by the Legislature; we thus have no real guidance in the statute or AD Regulations. Here, the employer (i.e., the Sheriff's Dept.) is receiving a benefit (the inmate's work) which is the same as in the preceding example (the Fire Dept. receives the benefit of the volunteer's work). However, the inmate is being compensated - in a manner of speaking - by having his sentence reduced where the volunteer firefighter receives no compensation. On that basis, I believe the Board would find that the inmate was "working" and s/he would be potentially entitled to a voucher if the "employer" Sheriff cannot provide medically appropriate modified or alternative work. Your problem is that the Sheriff can provide modified/alternative work but probably not for one year. It therefore appears you would be able to take the 15% PD reduction while the inmate is in the modified/alternative position but then would have to increase weekly PD payments once the inmate was released.

    I would suggest you get a legal opinion in this matter. This "employment" is not a job as contemplated by the Legislature and being released from jail really is not the same as having your employment terminated by an employer. Your attorney may be able to come up with a different theory that results in a different - and admittedly more rational - outcome. I doubt that the Legislature intended for prisoners who happened to be injured while in jail should be rewarded by receiving a voucher.

    • I have a case with a 12/86 date of injury. The applicant's doctor found the applicant QIW and the defense QME found the applicant could return to U&C but not for the same supervisor. At trial, the WCJ found PD based on the defense QME opinion but the QIW issue was not addressed. Applicant attorney is now demanding VRMA on a wage-loss basis from 1991-1994 amounting to $53,300; the applicant worked for another employer during this period earning less than his pre-injury wage. The RU initially indicated it had no jurisdiction in this matter but, in 2003, a WCJ determined that the RU does have jurisdiction and would have to make a Determination. Nothing further was done until recently when applicant's attorney demanded $26,700 to settle this matter or he would file an RU-103. L.C. 5405.5 no longer exists and AD Reg 10125.3 addresses retro VRTD for dates of injury after 1/1/90 so wouldn't the Unit - and the Board - lack jurisdiction to order retro benefits?

    L. C. 5405.5 does exist for pre-2004 cases but that is not the issue here. If the statutes were the only issue, the applicant's entitlement to benefits would be barred under both L.C. 5410 & 5405.5 ; the WCJ issued an F&A in "the early 90's" according to your question and there was no demand for services or benefits at the time. The problem is that the Unit still has jurisdiction according to the Board (I assume from your description that the WCJ's Order was not appealed) so the QIW issue - and the potential entitlement to retro VRTD - is still open.

    The basis of the problem here is that the QIW issue was raised prior to trial but was never resolved. The treating doctor said the applicant was a QIW and even the Defense doctor raised the possibility by indicating the applicant had to work for a different supervisor. You question does not indicate whether the claimant's U&C job was available - and offered - elsewhere within the Company. If so, that may have been sufficient to end the employer's liability. It appears that this is not the case and the WCJ issued an Order recognizing the RU's jurisdiction in 2002/2003; that Order was not appealed and there was no further effort to affirmatively resolve the matter - sooooooo I think the Unit still has jurisdiction. That doesn't mean applicant's attorney will prevail if the matter does go back to the Unit BUT there is always the risk so a negotiated resolution may be advisable.

    VR is Going - but not Gone

    Questions regarding the VR benefit are much less frequent these days but we do get them. The following are some questions recently submitted by our readers.

    • An RU-122 was signed by all parties and approved by the Rehab Unit. The TPA received the signed RU-122 on 07/02/07. Payment was made on 08/10/07, more than30 days later. Is a 10 % self imposed penalty is due even though this is not an Order?

    The RU-122 is a settlement of the Rehab benefit and should be treated the same as a C&R. There is nothing in the statute that would require a 10% self-imposed penalty but I expect the WCAB would impose a 10% penalty if the issue came before them. In fact, the WCAB might be able to impose up to a 25% penalty under the new 5814 and a $2500 administrative penalty under 5814.6. If applicant's attorney demands 10%, I would be inclined to give it to him to avoid having this issue addressed at the Board.

    • Has the statute run on this case? The applicant's date of injury is 10/16/01but the claim was not filed until 6/2004. The claim was found compensable and the claimant was deemed a QIW. VR services were offered but the claimant interrupted 6/2005; an Interrupt Notice was sent telling the claimant he must request re-instatement no later than 12/2005. He has not requested reinstatement to date. The case in chief has not been settled. Are services barred by L.C. 5410? Or is the claimant still entitled to services under L.C. 5405.5?

    It depends. You didn't say whether the applicant started VR services or deferred services. If he started services and then interrupted, further services should be barred by L.C. 5410 (although there is an argument that the statute is tolled unless you sent the claimant either a Denial Notice or RU-105 advising him that eligibility was ending because he failed to request reinstatement by the agreed date). If the applicant never really started VR services, he would continue to be eligible for VR under L.C. 5405.5 which provides that the applicant can request services within one year of the last finding of disability (i.e., C&R, Stip, or F&A resolving the PD issue).

    • The applicant was declared P&S and QIW by an AME in 2003. At that point, we referred applicant to a QRR who found applicant vocationally non-feasible. Based on that finding, we denied VR services. Soon after that, Applicant was placed back on TTD. We paid TD until applicant was again declared P&S and unable to return to usual and customary job by the same AME (the current work restrictions are little different than the prior ones). Although, applicant has not yet returned to work, the County confirms that the work restrictions are compatible with the employee's usual and customary job duties. Based on the above facts, my questions are: (1) Should we send out a NOPE indicating that a Mod/Alt job is available and refer applicant back to QRR to determine current vocational feasibility, or (2) Is the applicant entitled to a plan drawn around the mod/alt job?

    You have a fundamental conflict that needs to be resolved: the AME says QIW but your employer is telling you that the U&C job duties do not exceed the work restrictions. The first thing you need to do is get the AME to review a job analysis (not a job description) to determine if this injured employee is, in fact, a QIW. If the employee can perform the U&C job duties, s/he is not QIW and you would send a Denial Notice. If s/he is QIW, then you would send a NOPE and (if possible) build an RU-102 around modified or alternative work with the employer.

    As long as the AME says the applicant is QIW, you cannot send him/her back to the U&C job, no matter what the ER says about compatibility of the job duties and work restrictions.

    Allan Leno
    e-mail: allanleno@leno-assoc.com

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    Monthly Articles on Vocational Rehabilitation
    by
    Alan Leno

    October 2007

    Pending Legislation

    Two bills impacting the SJDB voucher were approved by the Legislature during its recent session and both have been vetoed by Gov. Schwarzenegger:

    AB 1636 and SB 942 would have required employers/insurers to provide an eligible injured worker with an SJDB voucher within 74 days of P&S where the employer failed to offer appropriate work within 60 days of a P&S determination. The voucher issued at that point would be based on the employer's estimate of PD and would be subject to increase if the final PD rating was higher than the employer's estimate. Gov. Schwarzenegger vetoed the bills because they were "flawed" in his view, in part because they contained no provision allowing an employer to recover overpayments on vouchers where the final PD rating was lower than the employer's estimate. He indicated that he wasn't opposed to the concept and invited Legislators to revisit the issue during the 2008 session.

    SJDB-PD-RTW FAQs

    • I know that there are some ways that we can get reimbursements from the State to pay for special equipment we have to provide when we accommodate someone and return them to work. Can help me in finding out how we go about applying for those reimbursements. We have returned a lot of people back to work this past year and some with some major overhauls of work areas...it would be nice if we could recoup some of the cost of this.

    You would use DWC AD 10005 to document the job modifications made and attach copies of the receipts for the expenditures. The employer also has to complete and submit STD204 which the state requires before it will pay you. The 10005 is available at the DWC web site and the STD204 at the CA State Treasurer's web site. At the present time, the DWC insists that a copy of the P&S report detailing work restrictions must be attached to the DWC AD 10005 form. Since claim administrators are prohibited from providing these medical reports to the insured employer, it would be necessary for the claim administrator to submit the DWC AD 10005 and STD204 on behalf of the employer.

    Per LC 139.48, the reimbursement applies only for companies with 50 or fewer employees. Most public agencies are not eligible for the reimbursement.

    • The injured employee chose to retire prior to the point he was determined to be P&S by his treating physician. Our insured employer always has modified work and would have had appropriate work for this employee but for his decision to retire. Is the employee due a voucher because he didn't return to work? Do we have to pay the 15% increase in PD because he isn't returning to work?

    Unfortunately, the statute and AD Regulations do not address this situation. The safest option would be to develop a DWC AD 10133.53 Offer of Modified or Alternative Work for the position the employer has available. Once the offer is sent to the employee, you can take the 15% PD reduction allowable under L.C. 4658(d) and you would not owe the employee a voucher.

    Many employers do not want to make such offers to employees who have terminated the employment relationship or they may be prohibited from doing so by union agreements or personnel rules. Without an offer, the claims administrator cannot take the 15% PD credit. I would argue that the employee is not due a voucher or the 15% PD increase because s/he has made a decision to leave the labor market.

    • The employee was entitled to a 15% PD increase because the employer was unable to offer modified or alternative work. We started to pay the increase but then reverted, without notice, to the statutory rate several weeks later. When we issue a check for the missing amount, is it subject to penalty?

    The 15% PD increase is still a disability payment and would therefore be subject to the same penalties applicable to permanent disability under L.C. 4650 & 5814. Arguably the applicant would be due a 10% self imposed penalty (SIP) on the entire amount of PD due for those payments paid without the 15% increase since each of those payments was made at an incorrect rate.

    • I have a claim that's wishes to use his voucher for $10k. The rehab counselor has called and wants to know how to go about this as both of us have never dealt with this issue. I was wondering if you could tell me how this is to be paid out and or how this should be billed to us.

    This is a very common question, perhaps because the statute and regulations fail to provide a clear guideline on how the process should work.

    1. You provide the applicant with a copy of the voucher (10133.57) within 25 days of case resolution at the WCAB.

    2. The applicant provides a signed copy of the voucher to the counselor.

    3. The counselor bills you for services up to $1000 (max allowed by law).

    4. The applicant chooses an approved school to attend and completes the enrollment. process.

    5. The applicant provides the school with a signed copy of his/her voucher.

    6. The school bills you for tuition and provides you with a copy of the signed voucher, copy of the enrollment form, and proof that it is an approved facility.

    7. You pay the school for tuition and required books, fees, and equipment, not to exceed the remaining money left on the voucher (i.e., $10K - counselor fees). You are required to pay for only those books, fees, and equipment specified in the school syllabus as being required for all students.

    Please note that the counselor is not required to provide progress reports. However, the services provided should be specified on the counselor's invoice and a copy of the invoice should be served on the injured employee and his/her attorney (if represented).

    • I have a few voucher cases where the carrier is refusing to pay tuition directly to the training facility: they are taking the position that the Labor Code only allows for reimbursement of tuition directly to the injured worker. The examiners are demanding that the applicant pay the tuition and then s/he will be reimbursed by the carrier. These injured workers do not have the funds to pay the tuition up front. Does the Labor Code really allow for reimbursement of tuition to the worker only?

    Both the Labor Code (4658.5(b)) and the AD Regulations (10133.56(h)) allow for direct payment of tuition to schools upon presentation of an invoice, signed copy of the voucher by the applicant, and proof of registration at an approved training facility. I know there are some examiners out there who are refusing to do anything other than reimburse injured workers but their position is definitely not supported by the statute or regulations. Applicant attorneys whose clients are the victims of this practice might want to use the following 5814.6 penalty regulation (effective 5/26/07) to discourage such behavior.

    10225.1(g)(7) $ 2,500 for each penalty award by the Workers' Compensation Appeals Board for a violation of Labor Code section 5814 for an unreasonable delay or refusal to make payment to an injured worker as reimbursement for payment for services provided for a supplemental job displacement benefit voucher, or where the unreasonable delay or refusal to pay the training provider causes an interruption in the employee's retraining.

    Both represented and unrepresented injured workers can file a dispute resolution form (DWC AD 10133.55) with the Division of Workers Compensation. The dispute will be resolved by Otis Byrd in Northern California and Sandy Cortes in Southern California. The DWC AD 10133.55 form is available at the DWC web site (CLICK HERE).

    • I have a voucher related question, concerning apportionment between 3 different employers. This applicant is entitled to a voucher(based on his inability to do his job) Doctor apportions the pd between 3 employers 25% each. I can't find anything anywhere on how we would deal with the voucher, would he be entitled to the overall amount for 15% impairment rating at $6000. Or is he entitled to a voucher based on each employers' liability. Which would actually net him a larger voucher and I don't think that was the legislative intent.

    The applicant gets a voucher of $6000 provided by the employer/carrier managing the claim. The employer/carrier managing the claim can seek contribution of $2000 each from the other 2 employer/carriers.

    • I have a claim that has PD, via the P&S report just received. We do not have mod/alt duty available, the claim was rated at 3%, or 9 weeks, and he has an atty. I have several charts that reflect PD levels (in the lower PD levels) of the 15% that do NOT add up to 15%. Example, PD of 2% of $1,380.00. Reduction is 15% or $1,173.00, but the column for increase of the 15% is the same or $1,380.00. Same for 3% PD, reduction is fine but the increase is NOT 15%, it adds up to about less than 1%. This doesn't make sense to me.

    The 15% PD adjustment is applied to the weekly payments, not to the PD rate or to the total PD paid to the claimant. The reason the amount doesn't change on your chart for 2% is that the 15% increase would not apply until the 61st day of PDAs. The 15% decrease in PD applies immediately when you send the DWC AD 10003 or DWC AD 10133.53 offer of work. I suspect it would make more sense to just remember when the weekly adjustment is due rather than relying on the chart.

    • The applicant was RTW modified duty after receiving TTD and a Notice of Rights to the voucher was sent. The Applicant then became P&S in 2006, but continues to work the modified duty which will be permanent. I understand that the notice of perm/mod/alt work is supposed to issue within the 60 days of P&S status to take the discount if the employer can accommodate. Here, the Applicant is still working the perm/mod job but no offer was sent to the employee within 60 days of P&S determination. Does the employer have to pay the 15% increase to the applicant until they send the official offer of perm/mod even if it is the same job they are working now? Can they send offer now even though after the 60 days and pay the decrease of 15% now, and can they take credit retroactively? What do they do for the period after P&S, decrease or increase, if no mod/alt perm offer was made?

    Since the employee has not been sent an offer of modified/alternative work (form DWC AD 10133.53), PD should be increased 15% from the 61st day from the P&S date and continuing until the employer makes the formal offer of modified work on form 10133.53. The statute (4658(d)) indicates that the offer must be made within 60 days of P&S so it is unclear at the present time if the employer can, in fact, correct its error. At its February 2007 seminar, the DWC advised employers that the increase would be due from day 61 until the error is corrected so there is a basis for this action. However, the WCAB may view the matter differently if the issue is ever litigated.

    VR is Going - but not Gone

    The temporary total disability (TTD) maximum rate will increase to $916.33 effective 1/1/2008. This change means the maximum delay rate for VRMA under L.C. 4642(a) will also be $916.33 per week.

    • I have a claim with a 10/2003 date of injury not filed until 6/2004. My client insists that date of filing determines eligibility for VR vs. voucher. LC 4658.5 (d) says vouchers apply to injuries occurring "on or after" 1/1/04. Nonetheless, the client believes date of filing controls. If my client is wrong and VR is in issue, we continue to accrue delay rate VRMA at max weekly, in excess of $30K per year, so we will need to correct promptly if that is the case. Do you have info on applicability of vouchers on pre-2003 DOI not filed until after 2004?

    The date of injury controls entitlement to vocational rehabilitation vs. the SJDB voucher. In most cases, the date of the claim filing is very close to the date of injury so we don't get into this argument. But a claimant has one year to file a claim so the date of filing can occur long after the alleged injury as happened in this case. Assuming the treating doctor and the WCAB agree that the injury actually occurred in 10/03, the applicant would clearly be entitled to VR services (assuming s/he is a QIW).

    If the claimant had a specific injury in 10/03 but continued working until 6/04 at which time s/he filed a CT claim, you would then have a strong argument for the claimant being entitled to an SJDB voucher only. The date of injury that resulted in a preclusion from the "usual and customary" occupation controlled entitlement to VR benefits/services under L.C. 4635(a). The same principle applies for the voucher; the claimant is entitled to a voucher when the injury results in a need for job modification or reassignment.

    Allan Leno
    e-mail: allanleno@leno-assoc.com

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    Monthly Articles on Vocational Rehabilitation
    by
    Alan Leno

    November 2007

    SJDB Voucher Problems

    The number of eligible injured workers using their SJDB voucher is increasing which is, in turn, increasing the number of problems and questions for claims administrators. This issue is devoted to the various questions related to payments to schools and counselors.

    • We are obligated to pay a 4K voucher. We received a bill from a state approved school for $3995. 2K of that is for tuition and $1995 is for a laptop computer. Am I obligated to pay the school for providing her with a laptop or why can't I just buy her a laptop for $499 so she can take her classes? Why do I have to buy a top of the line computer just because it's within the 4K voucher?

    This is, unfortunately, a common question and points to a couple of disturbing practices by a few training facilities. These few facilities appear to be engaging in practices designed to improve their profitability without regard to the welfare of injured workers who have this very limited benefit to support their re-employment effort. You may wish to consider the following to help determine whether reimbursement is due the school and if the charge is reasonable:

    First, the voucher does not automatically cover any and all purchases of equipment. The statute says, "The voucher may be used for payment of tuition, fees, books, and other expenses required by the school for retraining or skill enhancement." The requirement for a computer (or any other piece of equipment) must be specified in the school's syllabus or class description for the particular course. This requirement must exist for ALL students and not just those who happen to have a voucher; it is certainly unethical, and may even be illegal, for a training facility to require the purchase of a computer for a voucher student but not levy this requirement of other students in the program.

    Second, the school cannot require the purchase of a computer if the student already possesses a computer adequate for the class training purposes. The school syllabus can say (if it is, in fact, appropriate) that the student must have a computer that meets minimum requirements for the program (e.g., 1.2 gigabyte processor, 1 gigabyte of RAM, 100 gigabyte hard drive, 128 megabyte video memory, color monitor, etc.). If the student does not possess a computer meeting the reasonable requirements, the school can provide one at a reasonable cost - but the student must have the option of making the purchase on their own. A claims administrator can therefore agree to provide the necessary funds or reimbursement directly to the student for purchase of a computer appropriate to the training program. [Claims administrators should note that their reimbursement requirements must serve to facilitate appropriate purchases.]

    Third, the attributes and cost of the computer should correspond to the training needs of the program selected by the injured worker. Most training program requirements will be served quite handily by a computer system costing approximately $800. The question above mentions a $499 computer - that might be a little too basic. However, advertisements for Fry's Electronics, Circuit City, Best Buy, etc. routinely display name brand (HP, Toshiba, Sony, Gateway, Acer, Lenovo) laptops for $599 that are perfectly adequate for most training programs. You can purchase a name brand inkjet or laser printer for less than $100. $800 would cover the cost of both items plus sales tax and a cable or two. I would suggest allowing $1000 so the injured worker can purchase a service contract but that is not required by the statute (because the school cannot require the student to purchase a service contract).

    There are some exceptions to the above. Injured workers who enroll in a CAD drafting program, multimedia programs, programs involving voice activation software, and the like would need a more powerful computer - top end systems costing $1995 or more would be appropriate. These programs are rare in the SJDB voucher system, as they were in vocational rehabilitation so any time we see charges exceeding $1000 for a computer, we should examine the program closely. Regrettably, I have seen schools charge as much as $2200 for a computer that was to be used to learn Microsoft Windows and Office. My $700 laptop (Toshiba with a 1.66 Duo processor, 2 gigabytes of RAM, 200 gigabyte hard drive) handles these programs quite well along with PowerPoint, Adobe Photoshop, etc. If the questioner's injured worker was enrolling in a program to learn office software programs, the $1995 charge for a computer is absurd and should be challenged. You might want to ask for the specifications of the $1995 computer (make and model, screen size, RAM, HD, etc.). Then find the same model on line to see what it would cost at a retail outlet.

    Should the school be allowed to charge a fee for providing a computer system to the student where there is a demonstrable need? A modest fee is not unreasonable. The school fronts the money for the purchase and must wait for reimbursement by the claims administrator. And the school must pay for delivery or send someone to make the purchase. A reasonable "modest fee" would be 10%, particularly when we consider that the school probably obtains discounts for volume purchases that the injured worker could not obtain.

    • So what do we do when we receive an invoice that includes an apparently high charge for a computer?

    First, make sure the program actually requires a computer - ask for a copy of the program syllabus or published course description.

    Second, ask for the specifications (make, model, etc.) for the computer the school wants to provide to the injured worker. Find out what you can about the type of computer needed for the proposed training program. Do you have an IT person at your company you can talk to? Perhaps you have a co-worker who is very knowledgeable about computers. Or drop by your local computer store, find a $600-700 computer on display and ask the sales person if it would handle the software in question.

    Third, advise the school in writing that you will not pay the charge without an explanation regarding the need for the computer invoiced. I would fax or e-mail the letter as well as send it via regular mail. Be sure to send a copy to the applicant and applicant's attorney if there is one.

    Fourth, consider filing a DWC AD 10133.55 Request for Dispute Resolution to dispute the charge. You will need to attach a position statement and a copy of the invoice to the 10133.55. I would also attach copies of recent ads or information off the internet to support your argument.

    Finally, consider discussing the issue with applicant's attorney (if there is one) or directly with the unrepresented injured worker. This would be a good opportunity to negotiate for the direct purchase of a computer adequate for the injured worker's training needs.

    • What Labor Code or Regulation addresses the requirement to send an SJDB voucher within 25 days of an Award? We are getting requests for tuition reimbursements prior to an award - sometimes we don't even know what the value will be for the voucher. Are we obligated to pay prior to an award?

    In a word - No. The requirement to pay within 25 days of the award can be found in AD Reg 10133.56(c). A claims administrator is not required to pay tuition to a school or reimburse the employee for tuition paid prior to the award. The only exception would be where you voluntarily issued a voucher early - you would then be required to pay up to the value you placed on the voucher (usually $4000).

    • I have a claim that's wishes to use his voucher for $10k. The rehab counselor has called and wants to know how to go about this as both of us have never dealt with this issue. I was wondering if you could tell me how this is to be paid out and or how this should be billed to us.

    This is a very common question, perhaps because the statute and regulations fail to provide a clear guideline on how the process should work

    1. You provide the applicant with a copy of the voucher (10133.57) within 25 days of case resolution at the WCAB.

    2. The applicant provides a signed copy of the voucher to the counselor.

    3. The counselor bills you for services up to $1000 (maximum allowed by law - see L.C. 4685.5).

    4. The applicant chooses an approved school to attend and completes the enrollment. process.

    5. The applicant provides the school with a signed copy of his/her voucher.

    6. The school bills you for tuition and provides you with a copy of the signed voucher, copy of the enrollment form, and proof that it is an approved facility.

    7. You pay the school for tuition and required books, fees, and equipment, not to exceed the remaining money left on the voucher (i.e., $10K - counselor fees). You are required to pay for only those books, fees, and equipment specified in the school syllabus as being required for all students.

    Please note that the counselor is not required to provide progress reports. However, the services provided should be specified on the counselor's invoice and a copy of the invoice should be served on the injured employee and his/her attorney (if represented).

    • An applicant attending a training program is given a loaner computer during the training program. Are we responsible to purchase a computer to use after the program - to continue practicing? Also, according to the school's director, the student may require 7-14 books at $250/ book. I am not sure why there is a range? Is the school required to give us additional information, or additional price breakdown for each supply?

    No. You are only required to purchase (within the limits of the voucher) a computer if one is required for the training program and the applicant does not already own a computer adequate for the purpose. Unlike rehab plans, the voucher does not provide funds for "tools of the trade" that would only be required once the applicant obtained employment. You would be required to pay for any books required for the program (again, within the limits of the voucher). There should not, however, be a "range" of books. Either the training program requires a book or it does not. You should ask the school to provide a class syllabus showing the tools and books required for the training program. Write the school a letter indicating you cannot approve payment for these items until you have evidence that these items are required for the program and for all students (not just those with a voucher!).

    • Is an applicant entitled to reimbursement for mileage while attending a training program on an SJDB voucher?

    The voucher does not cover mileage. The statute specifies tuition, fees, and books. It also includes required equipment - but not mileage.

    • One of my claimants registered for a class and purchased a Microsoft software program that was required for the class. However, he dropped out of the class before it even started. Am I required to reimburse him for the software program?

    No. Because he dropped out of the class before it started, he would have no need for the software program so he would not be entitled to reimbursement. Per 4658.5(b), an applicant is only entitled to reimbursement for expenses related to enrollment at a certified program.

    • An injured worker attended and completed a training program at XYZ training facility. There is still money left on the voucher and the employee now wants to go back to the school to take an advanced course. Is the claims administrator required to issue a new voucher or can the school submit a second invoice based on the original voucher?

    The claims administrator can issue a modified SJDB voucher is s/he chooses but I see no requirement to do so. The employee is entitled to use his/her entire entitlement and can continue to enroll in training programs up to the limit for his/her voucher. The school can submit a second invoice for training up to the limit of the voucher and the claims administrator would be required to pay the invoice (assuming the school program is still approved) up to that limit. As an example, let us assume the employee has an $8000 voucher and enrolled in and completed a $5000 training program. The employee chooses to enroll in a subsequent (approved) $4000 training program. The claims administrator would be required to pay for $3000 in tuition for the second program; the remaining $1000 would be the employee's responsibility because the claims administrator is not required to exceed the $8000 face value of the original voucher.

    • The injured worker is eligible for a $6000 voucher. He wants to undergo training in 2 schools and the cost is split as $1500 for one school and $4500 for the other. Can we split the vouchers between the 2 schools?

    The injured worker can use the voucher at as many schools as s/he wants as long as the total cost does not exceed the value of the voucher. The injured worker in your question can, in fact, use his voucher for these two schools since the total tuition cost does not exceed the $6000 value of the voucher.

    • Our training facility is having payment problems with insurance companies. They each seem to have their own set of rules when it comes to payment in regards to needing documentation as it relates to progress in the courses and/or completion in the courses. It's my understanding that payment in full is required upon enrollment.

    Per AD Reg 10133.56(h), payment is due, "....within 45 calendar days from receipt of the completed voucher, receipts, and documentation." Generally, you can assume your invoice was received 5 days after it was placed in the U.S. mail. The insurance company has a right to require that your invoice specify the type of course and cost and that a copy of a signed voucher is attached to demonstrate that the applicant has, in fact, registered for your program. To minimize problems, it would be a good idea to attach a copy of the applicant's registration document as well as the page(s) from your catalog providing details for the program for which the applicant has registered. Once your invoice has been presented, the insurer has 45 calendar days to pay you OR advise you in writing why it is not providing payment. Failure to do one or the other may subject the insurer to a $2500 5814.6 penalty once the regulation is approved (probably early in 2007).

    You can speed up payment by providing as much information as possible with your invoice. Unfortunately there have already been numerous instances of suspected fraud so insurers are hesitant to make full payment without what the claims administrator considers adequate documentation. For example, I have seen schools and counselors submitting invoices with vouchers attached in situations where the insurer never issued a voucher. We are also seeing schools submit invoices for the full amount of the voucher for programs that seem tailored to use up all voucher funds rather than to provide training truly tailored to the needs of the worker. "Full disclosure" up front can help allay fears of fraud.

    I am not aware of anything in the statute or regulations that allow the insurer to monitor the applicant's progress in training or completion of a program; there is also no prohibition and the insurer is writing the checks. I suspect a school can enhance its credibility with the claims administrator by cooperating with requests for such documentation. Remember that claims administrators are being asked to write checks from $4000-$10,000 without knowing whether the money will be used for the intended purpose.

    • Our school is receiving the following objection with some frequency: "... the claimant must decide to go to a Bricks & Mortar location..." Is there a possibility that this is stated in any regulation?

    There is no such requirement in the statute or Regulations. The only requirement is that the training facility must be "state approved" (see L.C 4658,5(a) and AD Reg. 10133.56(g)). I am not aware of any prohibition against on line training. If the claims administrator will not provide payment for an approved training program, the injured worker should file a DWC AD Form 10133.55 Request for Dispute Resolution.

    • I have a few voucher cases where the carrier is refusing to pay tuition directly to the training facility: they are taking the position that the Labor Code only allows for reimbursement of tuition directly to the injured worker. The examiners are demanding that the applicant pay the tuition and then s/he will be reimbursed by the carrier. These injured workers do not have the funds to pay the tuition up front. Does the Labor Code really allow for reimbursement of tuition to the worker only?

    Both the Labor Code (4658.5(b)) and the AD Regulations (10133.56(h)) allow for direct payment of tuition to schools upon presentation of an invoice, signed copy of the voucher by the applicant, and proof of registration at an approved training facility. I know there are some examiners out there who are refusing to do anything other than reimburse injured workers but their position is definitely not supported by the statute or regulations. Applicant attorneys whose clients are the victims of this practice might want to use the following 5814.6 penalty regulation (effective 5/26/07) to discourage such behavior.

    10225.1(g)(7) $ 2,500 for each penalty award by the Workers' Compensation Appeals Board for a violation of Labor Code section 5814 for an unreasonable delay or refusal to make payment to an injured worker as reimbursement for payment for services provided for a supplemental job displacement benefit voucher, or where the unreasonable delay or refusal to pay the training provider causes an interruption in the employee's retraining.

    Both represented and unrepresented injured workers can file a dispute resolution form (DWC AD 10133.55) with the Division of Workers Compensation. The dispute will be resolved by Otis Byrd in Northern California and Sandy Cortes in Southern California. The DWC AD 10133.55 form is available by clicking here.

    • Can vocational schools charge different amounts for the same program based on the value of injured workers' vouchers? If not, what should I do?

    A school cannot charge different students different amounts for identical programs except for published variations. For example, a school might allow a 10% discount for those students who pay their tuition in full at least two weeks prior to classes or there may be tuition breaks for low income students. Information about tuition variances must be readily available to any student (such information is usually published in the school's catalog). Any school that adjusts the cost of a specific program based on the value of a voucher would be in violation of BPPVE standards and risks losing its certification. Evidence of such practices should be submitted to the successor agency to BPPVE (which should be designated by February 2008 - we hope!) or CAPPS (http://www.cappsonline.org/), the professional organization representing vocational schools.

    • As a vocational counselor (VRTWC), how do I insure that I will be paid for work I do on voucher cases? Should I develop a contract of some sort for the injured employee to sign at our first meeting?

    I have previously advised claims administrators that they should only pay training facility invoices that have a signed copy of the injured worker's voucher attached. The same advice would apply for a counselor's bill. The only way a claims administrator can determine that an injured worker has enrolled in a school or retained the services of a counselor is via a signed copy of the voucher.

    When you first meet with the injured worker, you should ask for a signed copy of the voucher (you can develop an additional agreement form if you wish but the voucher remains critical). As a professional, you would explain your fees to the worker. When you submit your invoice to the claims administrator, a copy of the invoice must be served on the injured worker and his/her attorney, if represented. Keep in mind that disputes over billing are between the counselor and the injured worker; the claims administrator will pay invoices accompanied by a signed copy of the voucher up to the statutory limit (10% of the voucher value). If there is a dispute over billing, it must be submitted to Otis Byrd via an AD Form 10133.55 Request for Dispute Resolution. The claims administrator will not be involved in the dispute other than to show it properly paid the invoice.

    • I am a Vocational Return To Work Counselor (VRTWC) who submitted an invoice for $1,000 on a $10,000 voucher for counseling services. I received a letter from the insurance carrier asking me to detail "what services" I had provided to the injured worker. They withheld payment for 90 days and while I was not averse to providing this information, I certainly would not want this to be the case every time. What reporting requirements do counselors have regarding vouchers? And are carriers subjected to penalties if they delay payment on the counseling portion of the voucher?

    Claims administrators are entitled to receive your invoice and a signed (by the injured worker) copy of the SJDB voucher (schools should add a copy of the registration document signed by the applicant and a school administrator). It is appropriate to include some degree of detail on the invoice for the services provided (e.g., evaluation, testing, vocational exploration, etc.) - it looks rather odd for a $400 invoice and a $1000 invoice to indicate only "counseling services" as the billing item. However, the billing detail is not really for the claims administrator - it really is for the VRTWC and the injured worker. An injured worker has a right to know what s/he paid for in counseling services and the billing detail might prove useful to the VRTWC in a later dispute before the DWC.

    The claims administrator CANNOT demand progress reports from the VRTWC unless they are willing to pay for the reports outside the voucher. Claims administrators are no longer responsible for following the injured worker's progress through the training process.

    Voucher payments are due within 45 days of receipt of the VRTWC or training facility invoice pursuant to CCR 10133.56(h). If the claims administrator disputes the billing, s/he should pay the agreed amount and advise the VRTWC or school in writing within 45 days regarding the reason(s) for non-payment. Failure to pay timely may be subject to 5814.6 penalties (see below).

    • I was selected by the IW to be the Counselor for purposes of the voucher. Carrier and AA are fine with it, but I received a message from the carrier saying that they don't issue vouchers to the IW's, only to the Counselor, and they requested I provide them with my name, etc. (I don't know what they do when there isn't a Counselor involved.) Is there any problem with that? I've never run into this before.

    AD Reg 10133.56(c) requires the claims administrator to send the SJDB voucher to the injured employee, not to any other party. Failure to comply with this section could subject the carrier to a $2500 penalty under the new 5814.6 penalty regulations (see below). I have not heard of a carrier doing this but it is ill-advised. It should be noted that the applicant needs the voucher to register for a training program so it really is not appropriate to withhold the voucher from him/her. And, as you point out, what would happen if the applicant chose not to use a counselor?

    • How long does an injured worker have to use his/her voucher?

    There is no statute of limitations for the voucher. This may sound crude (my apologies) but the voucher "expires when the funds do or the applicant does, whichever occurs first." L. C. 5410 does not apply to the SJDB voucher because the voucher is not rehabilitation. There is also no language in L. C. 4658.5 or 4658.6 to suggest that the Legislature intended to limit the time period during which the voucher can be used. Applicants therefore do not need to be concerned about training programs (e.g., a college degree program) extending beyond five years from their date of injury. Insurers and employers, on the other hand, will have concerns about the reserve and payment implications for injured workers who elect to use their vouchers more than five years after their date of injury.

    • Recently a Judge at the LA WCAB awarded an applicant attorney a fee on the rehab voucher due the applicant. The applicant is due an $8,000 voucher based on his PD. The judge said the AA could get a 15% "fee" on this? I can't find anything that says an AA can get a "fee" on part of the voucher due to the applicant. What is your opinion on this?

    The WCJ was wrong - there is no provision in the Labor Code or the AD Regulations for attorney fees on a voucher. L. C. 4658.5 specifies that payment can be made to a school, a QRR (up to 10% of the voucher) or to the applicant as reimbursement for tuition paid at an approved training facility. No mention of an attorney or attorney fees. Attorneys have NEVER been able to get a percentage of anything except VRMA and the voucher is not a maintenance payment of any type. The only way an attorney can get a fee from the voucher is if the voucher is settled in a C&R - and I think even that is questionable since it represents, in a way, transference of the (non-transferable) voucher, which is prohibited by 4658.5(a).

    Allan Leno
    e-mail: allanleno@leno-assoc.com

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    Monthly Articles on Vocational Rehabilitation
    by
    Alan Leno

    December 2007

    SJDB Voucher - FAQs

    Destie Overpeck, Chief Counsel for the Division of Workers Compensation, provided the following clarification for an item in last month's newsletter:

    I am writing to clarify some statements made in your November 2007 newsletter regarding Labor Code section 5814.6. While it is correct that a final award or order by a WCJ that an insurer or employer unreasonably delayed or refused to make a payment to an injured worker as reimbursement for payment of services provided for a SJDB voucher could subject an employer or insurer to penalties under Labor Code section 5814.6, it should be clarified that in order to impose any penalties under that section, there must first be a showing that the insurer or employer knowingly violated section 5814.6 with a frequency that indicates a general business practice. The regulations define general business practice: a pattern of violations at a single adjusting location that can be distinguished by a reasonable person from an isolated event. Also, the pattern of violations must occur in the handling of more than one claim. The audit unit has been (and will continue to) review final orders and awards in order to determine whether it would be appropriate for the Administrative Director to issue a Notice of Assessment under section 5814.6.

    Applicants' attorneys can help enforce timely payments by filing under section 5814 for penalties, and, if an employer or insurer has two or more 5814 judgments in more than one claim, they may also be subject to the penalties in 5814.6.

    • I have been asked to work with an injured worker for his SJDB. He has already signed his voucher over to a school and signed their enrollment form. Can he back out of this and use his voucher for another program? The program he has signed up for is overpriced and undervalued and includes training and equipment he can obtain at a substantially lower cost elsewhere. The agreement he signed has a non-refundable deposit of $75.00. I think he is out that the deposit and the insurance company is willing to pay. We are just not sure about if he can back out once he has signed the voucher.

    As long as he has not commenced the program and has declined to accept the equipment and its installation, he should be able to drop out of the program and forfeit only the "non-refundable $75 deposit." The training facility you referenced did sign the BPPVE "voluntary agreement" (see http://www.bppve.ca.gov/voluntaryagreelist.pdf) indicating that it would continue to abide by the rules under which it obtained its original certification which means that it is abound by the BPPVE refund policy which I believe requires a 100% refund if the student withdraws before commencing a program.

    There is no question that he can use the remaining funds at any other approved training facility. Use of the remaining funds is explicitly allowed under AD Reg. 10133.60(a)(2). If the employee runs into any problems, I recommend that s/he promptly file a Dispute Resolution form DWC AD 10133.55.

    • My client is a public agency and my clientele is law enforcement. As you know, these folks are entitled to disability retirement at half pay for life if they are too permanently disabled to perform the essential job functions. My client can provide alternate employment for permanently disabled officers in community service positions, but the pay difference is greater than 15%. However, their retirement system can approve partial disability retirements to make up the difference in pay between usual and customary and the new position. If the employer can make this offer on a timely basis, would it be enough to meet the AD mod alt RTW standards and/or defeat entitlement to voucher benefits?

    The statute indicates that the alternative position must pay at least 85% in "wages and compensation" so I would say the answer is yes. I cannot, however, guarantee you that the WCAB would agree, especially if the disability retirement benefit comes from an agency that is distinct from the employer or if the retirement funds include employee contributions.

    • I have inherited a file that was given the voucher (sent 08/08/07) up to $6000.00 for 25% of PD, not yet settled with approved award; after talking with IW she has indicated she is in school.. I do not have a request for tuition fees or a bill of any kind from the school.. I have called to the school they do not have a copy of the voucher document... Am I obligated to send a copy or are they out of luck for re-payment??

    The voucher should be sent to the claimant (as you did on 8/8/07); it is up to her to either provide it to the school so they can send you an invoice OR to ask you for reimbursement, which would require her to show you proof that she paid for tuition, books & fees. If she doesn't do anything with the voucher, you have no obligation to provide payment. If she has mis-placed her voucher, you would be required to send her another copy so she can present it to the school OR request reimbursement from you.

    • I saw this in the last newsletter and just had a carrier request a detailed report. Do you have any authority to cite on this?

    "The claims administrator CANNOT demand progress reports from the VRTWC unless they are willing to pay for the reports outside the voucher. Claims administrators are no longer responsible for following the injured worker's progress through the training process."

    There is no direct authority because there isn't anything in the statute or regulations that address reporting. The statute that created the voucher (4658.5) clearly identifies where voucher funds CAN be spent - tuition, fees, books, required by the training facility plus up to 10% to the VRTWC. The injured worker selects a VRTWC, not the employer/insurer. It is understood that the employee chooses the VRTWC because it is his or her option to use a counselor. Since it is the employee's choice, the employer/insurer cannot demand a written report (unless they want to pay for it outside the voucher) because to do so diminishes the amount of the voucher available to the applicant. So - no reports. Keep in mind that the VRTWC is accountable to the injured worker so you really have no option to spend any of your 10% on anything that does not directly benefit the applicant.

    • If we offer permanent modified work to an injured worker and she does not return to work do we still owe the Voucher if there's PD?

    The employer's obligation is satisfied by the offer of a mod/alt position; it doesn't matter whether or not the applicant accepts the offer (see L.C. 4658.6(a)(b)). This assumes, of course, that the offer is properly made via DWC AD 10133.53.

    Vocational Rehabilitation

    The mileage rate for injured workers increases to $0.505 (50.5 cents) per mile effective 1/1/2008. This rate change applies to medical mileage for all dates of injury and to mileage reimbursement for those injured workers currently involved in vocational rehabilitation services (pre-2004 injuries). The mileage rate for 2007 was 48.5 cents per mile. The rate was 44.5 cents per mile between July 1, 2006 and Dec. 31, 2006, and prior to that increase, the rate had been 34 cents per mile since 2001. Claims administrators should note that the changes in mileage reimbursement rate may impact payments due injured employees who are currently in a vocational rehabilitation plan or who may be reinstating vocational rehabilitation plans after a period of interruption.

    The maximum Temporary Total Disability benefit of $881.66 increases to $916.33 effective 1/1/2008 while the minimum benefit brings increases from $132.25 to $137.45.

    Claims administrators should be aware that these maximum/minimum changes may impact vocational rehabilitation costs. The increase in the TTD rate would apply in some pre-2004 cases where VRMA is due at the "delay" rate specified in L.C. 4642(a), including cases where retro VRMA is due an applicant who was a maximum earner at the new rate. The maximum rate might also impact VR services where the applicant has requested a PD Supplement pursuant to L.C. 139.5(d)(2) The change in the minimum rate may require a re-calculation of plan costs where total plan costs are at or very near the statutory $16,000 maximum.

    • I have a sunset question on the VR benefit. My client plans on enrolling in a community college this semester, and she will finish in May of 2009. It fits within the cap, but what about the whole sunset thing?

    That is a big unknown at the present time. DWC has indicated that everything related to the VR benefit will stop at midnight 12/31/08 because there will no longer be statutory authority for anything related to the VR benefit (including the Rehab Unit). It is therefore possible your client could find all benefits ceasing at that time including VRMA, tuition payments, mileage, etc. At present, IWs are allowed to complete plans when they go beyond the five year statute - but L. C. 139.5 is in place and we have case law allowing plans to continue beyond the statute. But your client's situation is different; this is the first time that we would have services continuing where the very reason for the existence of the benefit is gone. Sorry but we probably won't have an answer on this issue until a case is contested post 1/1/09. Is settlement a possibility so your client can control her training program?

    • If an applicant reinitiates V/R services just before the 5-year mark from the date of injury, does that "toll" the time? I have a client who started V/R a couple of years ago. She didn't get very far and had a back surgery. Per recent AME, she is still TD, but 5 years was running on V/R, so I made a request for services to protect the statute. But, since my client is still TD she doesn't really want to participate at this time. If we get another interruption now, how much time do we have to complete rehab???

    All you really have to do is ask for an extension of the current interruption period; that will toll the statute through the end date of the new agreed interrupt period. If the defendant will not agree to extend the Interrupt period, file an RU-103 and ask the Unit to order the extension. Keep in mind that the defendant is not required to agree to extensions beyond the 5 year statute and the Unit is unlikely to order repetitive interruptions after the statute.

    You also need to be aware of the 12/31/08 sunset date for VR - see the preceding question.

    FEHA Issues

    • You have indicated that FEHA doesn't care about what restrictions are agreed upon at the WCAB and that for safety's sake, a person should be accommodated based upon the treating physician's restrictions. My supervisor had me get the restrictions per the AME and my question is, for FEHA issues, does an AME supersede a treater? I am still inclined to go with the more severe restrictions; however, perhaps it should be the most recent restrictions and I believe that they came from the AME. I will double-check that.

    DFEH doesn't have a definitive policy on AME's but their attorneys told me they probably would go with the AME opinion because both parties agreed to abide by the decision of that physician. The AME's work restrictions would be used for any RTW effort under workers' comp and there is no logical reason to use other work restrictions for FEHA. Where the issue is a QME opinion vs. a treating physician's opinion, DFEH will always consider the treating physician's opinion as more compelling because the treating physician 9usually) has seen the applicant many times while the QME evaluated him/her only once.

    • I have a question that JAN was unable to answer. I am trying to reassign an employee. She has a bad hand so my anticipation is that where ever I put her, she will have to have special equipment to do her clerical job duties. I am not sure what I will help her with yet because it depends on the position. But there is a possibility of voice activated to help out.

    • A lot of positions I am looking at for her require a typing test. She can't compete that way and so I can't really get HR to say she is qualified. Yet, if we can figure out how to set her up, she might be able to do well in a position. But I need to get her past that point. But HR won't really budge that way. I know they don't have to change their qualification standards. But if I don't figure out a way around this it is going to block me/her out of a lot of jobs she might be successful in.

    Both the ADA and FEHA require an employer to make modifications to the job application process unless such modifications would present an "undue hardship." This means you either have to provide the equipment necessary for testing OR find a vendor who would be willing to administer the testing (under your supervision of course) in hopes of selling you the equipment if the employee meets requirements. Since this person is already an employee, I think your agency would have a very weak defense if it chooses to forego your recommendation.

    • I have an employer who has referred a file for an Interactive Accommodation Meeting. However, with the referral I received a form signed by the Health Care provider indicating that the employee is not currently able to perform work of any kind and it is anticipated that he will be off-work for 12 months. (Employee has metastasizes colon caner). Is an interactive accommodation meeting required in this case? Should the employer wait until they have a medical release statement from the health care provider or a request from the employee?

    The employer should wait until the employee is released to return to work. It certainly wouldn't hurt to tell the employee that the employer wants to have such a meeting when he is ready to RTW but there isn't much point in having one now when you don't even know what his final work restrictions will be.

    Allan Leno
    e-mail: allanleno@leno-assoc.com

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    Monthly Articles on Vocational Rehabilitation
    by
    Alan Leno

    January 2008

    SJDB Voucher - FAQs

    • An injured worker is released to return to work at modified duties working limited hours after being off work on TTD. When are we required to send out the SJDB Notice: at the end of Total Temporary Disability OR the end of Temporary Partial Disability?

    I assume you are asking when the Notice of Potential Eligibility (NoPR) is due. L.C. 4658.5 requires that the NoPR must be sent within 10 days of the last TD payment. Since the statute doesn't differentiate between TTD and TPD, the notice would be due within 10 days of the last TD payment of ANY type. Thus, if you progress from TTD to TPD without a break (as you would in a case where the employee is released to part time duty and later to full time duty), the Notice of Potential Rights 10133.52 letter would be due within 10 days of the last TPD payment.

    • The employee has an injury on 4/21/05 resulting in surgery on 7/1/05 and an eventual PD rating of 6%. He is TTD until 8/21/05 and returns to modified duty on 8/22/05. The employee is released to full duty on 11/10/05 and is P&S on 1/5/06. My counterparts and I have had a discussion regarding this scenario and whether a voucher is due when somebody is released to and returns to regular work for the employer and what notices are issued.

    This applicant was due a Notice of Potential Rights letter (DWC AD 10133.52) by 8/31/05. According to the DWC, he should also have been sent a DWC AD 10133.53 Notice of Offer of Mod/Alt Work by September 19, 2005 (I think that requirement is debatable because the form is misleading and inappropriate for temporary modified duty). If you were still paying PDAs after 9/2006, you would have owed the applicant a DWC AD 10003 Offer of Regular Work so that you could take the 15% PD reduction allowed by LC 4658(d)(3)(A). I expect you paid out the PD before CCR Sect. 10003 became effective (the 10003 form was not yet available) so you would have been able to take the reduction based on the fact that the applicant did return to full duty.

    • A quick question for you - is applicant's attorney entitled to 15% of the value of the voucher? I have an attorney making a demand for the same. I know that a portion of the voucher can be used for a QRR to assist - but attorney fees?

    There is no provision in the statute for an attorney to receive a portion of the voucher. L.C. 4658.5(b) specifies that the voucher money may be paid to (1) an injured worker to reimburse him/her for the payment of tuition at an approved facility, (2) an approved training facility can be paid directly when the eligible injured employee enrolls, and (3) a VRTWC (we don't use the QRR term for voucher cases) who can be paid up to 10% of the face value of the voucher for counseling services provided to the employee. Because the statute is specific, I see no argument for paying an attorney a fee from the voucher unless it is settled as part of a Compromise & Release Agreement. An applicant's attorney may argue that s/he is entitled to 15% based on efforts to obtain a voucher for his/her client and using the Roche principle. However, Roche allowed a 15% deduction for attorney fees against VRTD/VRMA; the SJDB voucher is a "non-transferable" training benefit. Absent case law to the contrary, I would deny payment of the fee.

    • We had a claim situation where it took us 60 days from the date of P&S to get the actual permanent work restrictions. We are in the process of determining whether or not we can offer her a permanent job. Problem: The employee is saying that because we did not offer her a job within 30 days of ending TTD benefits, we have no right to even think about offering her a job now.

    Of course you can, although it is possible you still may owe her a voucher. L. C. 4658(d) says you have 60 days to make the offer to take the 15% PD offset so you should go ahead and send either the DWC 10003 for a regular position or the DWC 10133.53 for Mod/Alt work (whichever is applicable). The 30 day requirement in L. C. 4658.5/4658.6 is pertains only to your liability for an SJDB voucher.

    • You have previously advised that the language in the SJDB notices cannot be modified in any way. We would like to add a paragraph at the beginning or the 10133.52 Notice of Rights and 10133.57 Voucher letters advising the applicant that "the undersigned is handling their workers' comp claim" and a paragraph at the end with the standard contact advise for the claims examiner, attorney, I&A Officer, etc. We would not make any changes to the 10133.52/10133/57 language which would be positioned between our two added paragraphs. Since we are not making any changes to the regulatory language, do you see any problems with our additions?

    The additions you propose make a lot of sense but it has always been my opinion that you cannot make any change to regulatory language no matter how noble your intentions. Because there have been so many questions on this subject, I provided copies of the proposed letters to Sandy Cortes at the DWC Return to Work Unit. The following is the relevant portion of her response:

    To answer your question, ........ Your letters are very professional and on their face appropriate. But, as you note, the notices are regulations and cannot be altered. Our legal unit is very steadfast regarding not altering them. Therefore, my response would have to be that they are NOT okay. So, no changes to the Notices or Forms. If you want to provide additional information to injured employees, you should do so with a cover letter.

    • Although the claim has not yet settled, it appears that employee has completed a 3 month training program and the school is asking for reimbursement. I have not paid them, so they have filed RU-103. Can you please clarify when the SJDB voucher is reimbursable? Can you give me case law or regs for reference?

    L . C. 4658.5(b) does allow for the applicant to be reimbursed for tuition and fees paid to an approved training program and CCR 10133.56(h) requires payment to be made to the employee, approved training facility, or VRTWC within 45 days of receipt of the appropriate documentation. No payment is due, however, until you issue the voucher at the time the case is resolved at the Board by C&R/Stip/F&A. Once the voucher is issued, you would have to reimburse the employee or pay the school within the allotted 45 days assuming (1) the training occurred after the date of injury, (2) the school is an approved facility, (3) the school or employee provides proof of enrollment, (4) there is an invoice for training and applicable fees, and (5) you are provided a copy of the voucher signed by the injured employee.

    Also, the Rehab Unit will reject the RU-103 because it has no jurisdiction for cases with DOIs on/after 1/1/04. Requests for dispute resolution must be submitted to the DWC (not the Rehab Unit) on DWC AD 10133.55 forms for dates of injury on/after 1/1/2004 (the address for submission is on the form). In addition, only applicants and employers/insurers can request dispute resolution using this form. If the school has an issue, it must file with the WCAB.

    • I have a question that an attorney asked me about today? If the client got injured initially in 2003 and then re-injured himself on 2004 does he get Rehab for the 2003 case and a voucher for the 2004 DOI. This is CT case. Please advise.

    The only way the injured worker could get both benefits is if s/he returned to modified duty after the 2003 injury that was not properly documented with an RU-94 and then was unable to perform the modified job after the 2004 injury. If the injured employee returns to regular duty after the 2003 injury, s/he would be eligible for the voucher only after the 2004 injury. PD Adjustments

    • Please provide your information regarding the 15% reduction applies only to the weekly benefit and not the entire PD value. I need to forward information to my defense attorney.

    Refer your attorney to L. C. 4658(d)(3)(A) which says that "each disability payment.....shall be reduced by 15%." The Labor Code says nothing about adjusting the PD rating.

    • Does the 15% increase/decrease apply to employers who have 50 or more employees in California only or Nationwide?

    The 15% applies if the applicant is covered under California workers' compensation law regardless where they work or where the employer is located. You would therefore look to the policy that covers the injury.

    Allan Leno
    e-mail: allanleno@leno-assoc.com

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    Monthly Articles on Vocational Rehabilitation
    by
    Alan Leno

    February 2008

    SJDB Voucher - FAQs

    The BPPVE web site (www.bppve.ca.gov) has a couple of videos that may be informative to injured workers, schools, and counselors.

    There were a lot of school-related questions this month.

    • Can an insurance carrier refuse to provide the injured worker with a SJDB form directly? Some carriers are requiring that a request for a voucher must come directly from the applicant's attorney.

    Per AD Reg 10133.56(c), the applicant does not have to request a voucher. The regulation requires that the claims administrator send the injured worker a voucher within 25 calendar days of case resolution at the WCAB (unless the parties settled the voucher entitlement as part of a C&R agreement). Claims administrators who fail to send the SJDB voucher form (DWC AD 10133.57) to the applicant within this time frame risk incurring DWC penalties. Any applicant who does not receive his/her voucher within this time frame has the right to file a Request for Dispute Resolution form DWC AD 10133.55; this form is available at the DWC web site.

    • Can an attorney send a counselor an injured worker's voucher without their knowledge? Can an attorney assign a particular counselor or school to the student? Some attorneys are sending them to a counselor or they are sending their vouchers directly to the counselors without the injured's knowledge of the 10% fee.

    And a closely related question......

    • Facts - 2005 date of injury case with 11% approved stipulated award. A timely $4000.00 voucher was offered to the claimant post stip. Applicant attorney chose a VRC to help with the voucher process. The claimant found her way to a different VRC and requested a voucher payment with appropriate validation (certified postsecondary and voc ed). Voucher payment issued per the claimant's signed DWC-AD 10133.57. Applicant attorney objects, still wanting her chosen VRC to work with the applicant to select a different training program. Question: Does the claims administrator have any responsibility to choose, refer, or direct a vocational rehabilitation counselor chosen by the applicant attorney to help the claimant with the voucher process? In this case, what recourse does the applicant attorney have?

    As noted above, the SJDB voucher is supposed to be sent directly to the injured worker. Further, L.C. 4658.5(b) makes no provision for the attorney to obtain a fee from the voucher so presumably the decision on counselor selection should be up to the injured worker alone. HOWEVER, the attorney has been representing the injured worker so any dispute regarding the selection of a counselor should be resolved between the attorney and the applicant. Where the claims administrator receives conflicting vouchers for the counselor expense, I would suggest filing a DWC AD 10133.55 Request for Dispute Resolution and ask the DWC to sort out the mess. I expect the DWC would tell the claims administrator to honor the voucher that reflects the injured worker's choices because the choice of training facility and the decision to use - or not use - a VRTWC is up to the injured worker.

    • There are some counselors who are given the injured workers vouchers by attorneys and make a call to the injured worker asking them to call in if they need help. For this they submit for their 10%. When a counselor bills the insurance for the 10% do they need to provide a signed voucher as well? What if the insurance pays the counselor even if there is no signed voucher?

    A claims administrator should not pay the counselor (VRTWC) unless the counselor's invoice is accompanied by a signed (by the worker) copy of the voucher. A claims administrator who pays an invoice without a signed copy of the voucher risks having that payment disallowed. Remember that the voucher is a benefit intended for the injured worker alone and it is up to him/her to decide how it is used within the parameters established by L.C. 4658.5. Note that the statute specifies the voucher as a "non-transferable" benefit.

    • Can an insurance adjuster call the injured worker to suggest they look for a different school? If they do make this suggestion what is the school's recourse?

    A claims administrator can make whatever recommendations they want - but I believe it is risky for them to do so. If the school (or counselor) recommendation they make turns out poorly for the injured worker, the worker could ask the DWC to allow a second voucher. We do not know at this point if the DWC would in fact order a second voucher but the best way of avoiding a decision by the DWC is to leave the choice of counselor and/or school to the injured worker.

    • Once a student enrolls with our school, we submit signed voucher and copy of invoice as stated in regs. We do have some insurance carriers asking to be provided with signed enrollment agreements for each course. Are we required to send these forms as well? Or Is the Voucher and Itemized invoice sufficient?

    The claims administrator has every right to request a copy of the signed enrollment form. Remember that your invoice and the signed voucher do not verify that the applicant actually enrolled for the course. We have seen some examples of unscrupulous schools and injured workers so it seems an appropriate precaution for the claims administrator to ask for some evidence that the injured worker has actually enrolled for a particular course or courses.

    • We recently started seeing some claim administrators stating to us that the voucher has been sent to the injured worker, but most of these injured workers say they never received the SJDB from the insurance carrier. When we or the injured call to request a copy the adjuster states that they are not able to send another. Can the claims adjustor refuse to send a duplicate voucher?

    I can see no basis for a claims administrator refusing to send the applicant a duplicate copy of his/her voucher. I suspect many injured workers have lost or even discarded the 10133.57 when the received it. Others may have set the document aside and then cannot locate it later when they want to use it. Some injured workers may wait years before deciding to use their voucher. I know it seems like unnecessary work for the claims administrator but I expect the DWC would order them to send a duplicate form if the injured worker filed a 10133.55 Dispute Resolution form.

    • Our client is a school district. One of their employees sustained a work related injury. While recovering from the injury, we had to pay wage loss because the employee also had a job at a restaurant and was unable to work at the restaurant although the school district was able to accommodate them. The employee is now MMI with 1% WPI and work restrictions. Our client, the school district, can accommodate the work restrictions but the restaurant can not. Do we have to issue a SJDB voucher to the employee since they are unable to return to their other employer?

    A strict interpretation of L.C. 4658.5 would suggest that you do NOT owe the applicant a voucher because he is able to return to his regular duties for your employer. HOWEVER, keep in mind that this was not the case under voc rehab where an employer could be held liable for VR services when the employee could return to his at injury position but could not return to a concurrent position (see Montenegro v. Hunt Wesson Foods (1980) 9 CWCR 45 (WCAB panel)). If this case went to trial, the Hunt Wesson case is the case the Board might look to for an analogy - which means they might find you owe the voucher. My answer is that you do not owe the voucher - but the final decision is likely to rest with the WCAB.

    • An injured worker returned to modified duty after the injury. Therefore, no TTD was ever owed/paid. The treater's P&S report indicated 0% WPI but permanent work restrictions, which the employer cannot accommodate. Since there was no TTD paid, a PD benefit notice is not due. I realize this case has not met the 3 requirements for being eligible for a voucher: (1) the employee must have PD, (2) there must be work restrictions necessitating modified or alternative work, and (3) the employer cannot provide modified or alternative work. Have you run across this type scenario where the injured worker lost his job due to the industrial injury but gets no type of retraining whatsoever? Is there case law?

    Under the new PDRS, this situation does occur with some frequency. But the answer remains - No PD, no voucher. There isn't any case law on this subject yet and case law may well change things because this is not an equitable result and would appear to be contrary to the Legislative intent for the voucher. But, at present, the law seems clear - you have to have PD to be eligible for a voucher.

    • The applicant was declared MMI and given a permanent work restriction. The employer indicated they could accommodate the work restriction but only with part time work. The doctor did not restrict her to part time work. With part time work, she will lose part of her salary and all of her medical benefits. She does not want to accept the position because of the reduction in hours and loss of medical benefits. If she declines, will she lose entitlement to a voucher as well? Isn't the employer required to offer a permanent position within 85% of her pay? Would the employer be in violation of ADA or FEHA or 132a lawsuit?

    She does not have to accept the offer if it does not meet the 85% requirement and she is entitled to a voucher even if she declines the offer. The employer is required to offer medically appropriate work if it has such work. To be in compliance with FEHA, the employer must engage in an interactive process with the employee to determine if there is work available that would be consistent with her work restrictions. FEHA also requires the employer to consider job modifications as well as assistive or adaptive devices that might enable the employee to work competitively on a full time basis. If the employer fails to do so, the employee has a cause of action under FEHA that could result in a substantial judgment. There have already been million dollar plus judgments under FEHA. The applicant can file a 132A but it would be up to the trier of fact to determine if the employer's actions were in violation of 132A.

    • I have two accepted claims, 1)Knee; 2)wrist. The applicant is P&S with work restrictions on both injuries that the employer cannot accommodate and there is impairment on both as well. Are vouchers owed on both files?

    If these injuries occurred as the result of the same industrial accident, the applicant would be entitled to only one voucher. However, if the injuries resulted from two distinct events AND each injury by itself resulted in PD and a need for modified or alternative work, the applicant would be entitled to two vouchers.

    • If we have a no lost time case where we've never issued a TD notice but the injured worker ends up with permanent disability and we advance permanent disability benefits does that trigger the need to send the SJDB notice?

    Technically there would be no requirement to send a DWC AD 10133.52 SJDB notice. The trigger for this notice is the act of ending TD payments. Since the applicant was never entitled to TD, you obviously could not terminate the benefit - thus no notice. The only way a notice might be required (or at least appropriate) would be if the applicant needs permanent job modification or reassignment and the employer is unable to comply. Seems like an odd situation but, surprisingly, it has happened on a number of occasions. In that situation, the applicant is entitled to a voucher and arguably should be sent the 10133.52 notice which explains what the voucher is and how the applicant qualifies.

    PD Adjustments

    • We were hoping you could clarify whether or not the 15%+/- PD adjustment would apply to employees' who have retired from the County.

    Unfortunately, LC 4658(d) does not address situations that should be exempt - such as cases where an employee is terminated for cause or where the employee chooses to voluntarily end the employment relationship (such as those who choose to retire). In my opinion, you have two options. (1) Offer the job and take the 15% credit when the employee fails to respond or responds that s/he has retired (could be a problem with unions though). (2) Pay PD at the regular 4650 rate. My preference would be for the latter since it is likely to create the least backlash from employees. I do not think you owe the 15% increase because the Legislature did not intend to reward employees who took the return to work option out of the employer's hands.

    • I have a question on the dates to be listed on the DWC-AD 10003 when an employee returns to their U&C based on the P&S report of the PTP.

    For the return to work date, show the date that the applicant actually returned to work. However, you must show the current date as the date the offer is made. Remember that the purpose of this form is to document the job offer so you can take the 15% PD credit in L.C. 4658(d)(3)(A). You can start taking the credit the day you send the form (although there is a WCAB case where the WCJ said the employer can take the credit the day the applicant returned to work since the return to work is the critical event and not the date of some form - seems logical to me).

    VR Issues

    The Division of Workers' Compensation recently revised some sections of AD Reg 9813 to make some necessary changes to certain VR notices. Changes in 9813(a) impact NOPE-Delay notices and the Denial notice. Section 9813(c) includes a change to the pre-1994 Intent to Withhold notice. Section 9813(d) includes changes to the 90 Day notice and the Intent to Withhold Notice for cases with dates of injury on/after 1/1/1994. The most common change among these notices is removal of any reference to use of the now defunct DWC Form RU-101 Case Initiation Document. While use of most of these forms is now rare, please note that failure to use the correct version of any of these notices after December 11, 2007 could result in exposure for payment of benefits at the TTD rate outside the VR cap and/or entitlement to additional services. You can find and download these revised rules at the DWC web site (by CLICKING HERE).

    Allan Leno
    e-mail: allanleno@leno-assoc.com

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    Monthly Articles on Vocational Rehabilitation
    by
    Alan Leno

    March 2008

    Supplemental job displacement bill reintroduced.

    State Senator Gil Cedillo (D-Los Angeles) has introduced SB 1189 which is intended to allow claims administrators to provide the SJDB voucher to eligible injured workers within 74 days of the P&S date when employers are unable to offer medically appropriate modified or alternative work. Currently, the SJDB voucher is not available to these injured workers until their case is resolved at the WCAB, an event that may not happen for years after their P&S date. The voucher is a useless benefit for most eligible injured workers because they cannot afford to wait a year or two or three to get the training they need and start putting their lives back together. The language in SB 1189 is presently identical to the language in AB 1636 which was opposed by employers and insurers and vetoed by Gov. Schwarzenegger. Both bills based the value of the voucher on a "reasonable estimate" of that injured worker's level of permanent disability. Employers, insurers and the Governor believe that requirement places too great a burden on the claims administrator because it could result in an overpayment of the voucher which the claims administrator might well be unable to recoup when the case settles.

    It clearly makes no sense to delay an injured worker's efforts to re-enter the labor market but it is equally inappropriate to require a claims administrator to pay out excess funds they cannot recover. I hope I am not the only one who sees the obvious solution. The median PD rating is now less than 15% which means that the majority of vouchers have a $4000 value. If the injured worker is otherwise eligible for a voucher (i.e., needs a change of occupation and there is no mod/alt work available), why not require the claims administrator to issue at least a $4000 voucher? You know you won't be getting any money back on the minimum value voucher. Higher value vouchers could be required where there is compelling evidence for the higher value (If the defense medical rates 20% and the treating physician rates 30%, what are the chances PD will be less than 15%?). A $4000 voucher lets the injured worker get started with his/her re-training. If PD ends up at 15% or higher, the claims administrator can always issue a revised voucher showing the final value (or a value less what has already been paid out).

    Some may argue that it is unfair to make the injured worker wait for a full value voucher. The problem with that argument is that they are already waiting - and then getting that $6000, $8000, or $10,000 voucher when it no longer has any functional value. And the majority of vouchers are for $4000 anyway. I would also be willing to bet that most training facilities would be quite willing to work with such a scheme because more workers would be likely to pursue a training option that is available shortly after P&S. This doesn't have to be rocket science; let's hope our elected officials can do the right thing for a change.

    Changes to SJDB Notices

    The DWC model notices (see VR Issues below) suggest that claims administrators cannot use their letterhead with the SJDB Notice of Rights (10133.52) nor with the SJDB Voucher itself (10133.57) because these are regulations and cannot be changed. The DWC model notices are just that - models - and I do not see any reason why a claims administrator should not be able to place these documents on their letterhead as long as they make no changes to the content of the regulation. With respect to the 10133.57 voucher, not using letterhead is an especially BAD idea because we know there are a small number of unscrupulous schools and counselors completing and submitting forms they got off the internet - how is a claims administrator to know at a glance whether they issued the voucher or it is one of these bogus vouchers?

    I will provide subscribers with 10133.52 and 10133.57 forms that are consistent with the DWC manual and you can decide which version you wish to use. In the interim, I will attempt to determine if the DWC Audit Unit intends to penalize claims administrators who place the documents on their letterhead. It escapes me why we should even have to ask this question. SJDB Voucher - FAQs

    • If there is a silent request for rehab on the application, does that mean it is a request for a supplemental job displacement voucher? And does a voucher automatically have to be sent? Or should there be another request for the voucher?

    I'm not sure what a "silent" request for rehab is but any request for rehab on a 2004 or later case has no meaning. The employee would potentially be eligible for a voucher and the SJDB voucher would not be due until the case is resolved at the Board - checking the Rehab box on the Application therefore has no effect. Unless settled in a C&R, the voucher must be sent automatically to eligible injured workers within 25 days of case resolution at the Board pursuant to CCR Sect. 10133.56(c).

    • If an employee is terminated after their industrial injury for cause (unknown) do we not owe the SJDB or the increase if he/she is not able to return to her usual job?

    The statutes do not address issues such as these so it is essentially a policy issue. Some carriers have adopted a policy that there will be no voucher and PD will be paid at the standard 4650 rate. Al I can suggest is that your company set its own policy and mandate that is followed in all cases where there is a termination for cause or a voluntary termination before P&S.

    I would be worried about an "unknown" termination for cause. If the termination isn't clean (i.e., readily understandable as in termination for acts or threats of violence, drug use, etc.), I would err on the side of caution and provide the voucher and 15% increase (my opinion - not a policy recommendation).

    • Would an FAA certified flight school be considered "state certified" under 4658.5? They were under 10126(k) for VR but there is no mention of FAA certification under 4658.5 or 10133.56. Since federal law generally supersedes state law (unless state law provides greater benefit), would an FAA certification be acceptable under the theory that the state would have no choice but to accept the federal certification?

    Sandra Cortes at DWC pointed out that there actually is an answer to this question in the regulations: "An FAA certified school is a certified California State school. You are correct that there is no mention in LC 4658.5 and AR 10133.56. You'll find it in AR 10133.58(b) (3)."

    NOTE: You can find out if a flight school is FAA certified by going to the following FAA web page: CLICK HERE.

    • The injured worker is a PhD who is eligible for an $8000 voucher. She intends to become a self-employed consultant and wants to use the voucher to pay for three professional seminars, air travel, lodging, meals, car rental, parking, etc. Can the voucher be used for seminars? Can we support a self-employment plan?

    A voucher can be used for seminars IF the seminars meet the requirements. This means they must be state certified (i.e., by California or another state's equivalent to BPPVE). Many professional seminars are certified by a professional association but not by the state vocational certification agency so arguably the voucher should not be used for such a program. You and/or the employee might want to pose this question to the DWC by filing a DWC AD 10133.55 Request for Dispute Resolution.

    The voucher probably cannot be used to pay for or reimburse airline tickets, meals, lodging, car rental, etc. The statute specifies that the voucher can only be used for tuition and required books and fees. These expenses are "required" because the programs are out of state but I am not convinced this allows them to slip in under the "required fees" catchall in the statute. The applicant can. Of course, file a 10133.55 and pose the question to the DWC.

    Finally, we need to stop thinking about "rehab plans" for 2004 cases. Here, you know what the injured worker's ultimate goal is but the programs she wishes to attend would fall under "skill enhancement" and would therefore be potential covered by the voucher (but for the problems noted above). How she ultimately puts the information obtained to use is not our concern.

    • On the DWC AD 10003 Notice of Offer what would be the DATE OF OFFER and DATE JOB STARTS?

    The Date of Offer is the date you are sending the form to the injured employee. The Date Job Starts would be the date the employee actually returned to work. It is quite common to send a DWC AD 10003 form to an injured employee who has been back to work for some time (some lost no time from work). Since we cannot send the 10003 until the employee is P&S, there is no way to chance this set of circumstances. Keep in mind that the Date of Offer is the date you use to begin reducing PD advances by 15% so the date has to be the date you are sending the form. The Date Job Starts has to be consistent with the employee's experience or the form will be confusing to him/her. If the employee lost no time, it may be most appropriate to put "continuing" on the Date Job Starts line.

    • I have a claim where as when the injured worker attempted to use his voucher at a school you assisted me and the school was not located on the BPPVE list of schools. We sent a denial out 11/6/07 as they never got this corrected. The school is now contacting me and they are now on the list and want to be paid. The school already provided services while they were not approved. Have you had any situations like this come up and what would you recommend?

    You probably owe the tuition payment because the "voluntary agreement form" the school signed indicates that it is retroactive to July 1, 2007 (CLICK HERE).

    • The injured worker is released to return to work with restrictions: the restrictions are within his regular job description. Do you make an offer of regular work or an offer of modified work and why?

    You would send the Offer of Regular Work (DWC AD 10003). The requirement to use the DWC AD 10133.53 Offer of Modified or Alternative Work occurs only where there is a medical need to modify the injured worker's usual position or to reassign him/her to another position. You are not going to modify a job that doesn't need to be modified so - use the DWC AD 10003.

    And finally, I posed the following question to Sandra Cortes at the DWC RTW Unit because this question has been asked in many forms via this Newsletter :

    • Have you had any voucher disputes yet where the applicant had 0% PD but the doctor imposed work restrictions that would prevent a RTW at U&C? This isn't uncommon for chemical sensitivity cases. At 0% PD, the applicant presumably wouldn't be eligible for a voucher but equity should dictate that the person gets one. If you have had such a case, what was the outcome?

    Sandra Cortes answer: I haven't had one myself yet. But I note that a strict reading of the statute would not allow a voucher on a "O" PD case. I hear you though. But perhaps case law might resolve the equity issue. VR Issues

    The Division of Workers' Compensation recently revised some sections of AD Reg 9813 to make some necessary changes to certain VR notices. Changes in 9813(a) impact NOPE-Delay notices and the Denial notice. Section 9813(c) includes a change to the pre-1994 Intent to Withhold notice. Section 9813(d) includes changes to the 90 Day notice and the Intent to Withhold Notice for cases with dates of injury on/after 1/1/1994. The most common change among these notices is removal of any reference to use of the now defunct DWC Form RU-101 Case Initiation Document. While use of most of these forms is now rare, please note that failure to use the correct version of any of these notices after December 11, 2007 could result in exposure for payment of benefits at the TTD rate outside the VR cap and/or entitlement to additional services. You can find and download these revised rules by CLICKING HERE .

    Note that these changes become effective on April 9, 2008.

    Allan Leno
    e-mail: allanleno@leno-assoc.com

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    Monthly Articles on Vocational Rehabilitation
    by
    Alan Leno

    April 2008

    Changes to SJDB Notices

    In last months issue, I noted that a revised DWC regulation (9810(c)) would require that SJDB Notice of Potential Rights (10133.52) and the voucher (10133.57) must be sent to the eligible applicant on plain paper and not on the insurer/employer letterhead. This is a particularly BAD idea with respect to the voucher because there are a few schools and counselors taking advantage of the fact that this form is readily available on the internet. Claims administrators are therefore receiving completed documents, attached to invoices, where it is not readily apparent that the voucher was actually issued by the insurer or employer. I do not understand why the DWC believes placement of AD Reg 10133.52 or 10133.57 on the claims administrator's letterhead is or should be proscribed by statute or regulation, especially when such placement is done WITHOUT CHANGE to the regulation. I posed this question to a senior official in the DWC Audit Unit and asked if they would impose an administrative penalty on those claims administrators who used their letterhead but made absolutely no changes to the language in 10133.52 and 10133.57. The response was:

    Mandatory forms are just that, mandatory, and are not subject to any modification. They are to be issued in compliance with the regulations 8CCR 10133.52 & 10133.57. Reference is also made to the acknowledgment of these forms as being prescribed in regulation under 8CCR 9810(c).

    Regrettably, this is bureaucratese for the DWC's intent to enforce AD Reg 9810(c) literally - if you use your letterhead and get caught, you will be penalized. Apparently enforcement of the regulation is more important than an information notice (10133.52) having the appearance of junk mail and a benefit document (10133.57) having an increased exposure for fraud. If you think, as I do, that the DWC should re-visit this issue, send a letter to the AD at:

    Administrative Director
    Division of Workers' Compensation
    1515 Clay Street, 17th Floor
    Oakland, CA 94612-1402

    Or, send her an e-mail at dwc@dir.ca.gov.

    SJDB Voucher - FAQs

    A number of people have noticed that the "voluntary agreement list" - the list of schools whose approval has been extended - no longer seems to be available at the BPPVE web site. The list is still there - it just has been moved. You can now find the list by CLICKING HERE.

    At the BPPVE web site home page, click on the "schools" tab and then on the "List of schools eligible for the voluntary agreement." If you don't want to go through this process every time you need to look up a school, you can save a copy of the list to your desktop (note that you will need a copy of the Adobe Acrobat Reader to open the list).

    //////////////////////////////////

    We have had a number of questions about workers eligible for vouchers taking them to the Department of Rehabilitation to see if they can obtain assistance there. A former DOR counselor (and former insurance company VR Coordinator) offered the following:

    • I thought I'd share with you that anyone with a VR voucher can use it as a "comparable benefit" to get services from Dept of Rehabilitation (DOR). When the changes were made to dissolve the comp VR service and replace it with vouchers, DOR issued a new code for this class of referrals in anticipation of more clients. I used it in that manner for a few individuals who came to DOR when I worked there as counselor. I used the P&S report as the medical documentation to qualify a person who has work limitations and can't return to U & C. I used the voucher funds towards a VR plan and provided supplemental services and expenses beyond the voucher to all required standards of a training plan. The training facility verified the use of the voucher to the insurance carrier and billed DOR for the difference. It's important to note that DOR does not provide funds for an individual to support him/herself during the VR plan but all required plan expenses are met by DOR with use of the voucher. If you feel this is appropriate to share with your readers, please feel free to do so. All potential clients should get this information during the DOR orientation.

    DOR may not be the best solution for all injured workers with vouchers but it probably should be their first stop.

    • Do the new regulations regarding the offer or regular work apply to an MO claim? Based upon the new regulations you will need to send out this form to offer regular work to the injured worker. This is in the system under SB899 Notice of offer of regular work. Subdivision (c) provides that the employer shall use Form DWC-AD 10133.53 (Section 10133.53) to offer modified or alternative work, or Form DWC-AD 10003 (Section 10003) to offer regular work. This subdivision also provides that the claims administrator may serve the offer of work on behalf of the employer.

    Medical Only (MO) claims have no lost time and no PD so the individual continues in his or her "usual and customary" job. Sending a mod/alt job offer form 10133.53 would therefore be inappropriate. Sending an Offer of Regular Work form 10003 would be unnecessary because the person has no PD and the 15% PD adjustment from LC 4658(d) does not apply. So, for MO claims, you do not need to worry about sending forms 10003 or 10133.53 EXCEPT....

    In rare cases, the applicant with an MO claim does end up with some PD and/or needs modified or alternative work. These cases should be converted to indemnity claims but, even if they are not, the applicant should be sent the form appropriate to his or her circumstances. The better way to remember when one of these forms is do is determine whether the person has PD and/or needs a job modification or transfer. If yes, a 10003 or 10133.53 is due. If no, you don't need to worry about the form unless/until s/he has PD and/or needs a job change.

    • I have a Claimant who was released to return to work modified duties - I completed the job description of the transitional work and DWC AD 10133.53 offer of temporary modified/transitional work and in the process of sending to the Claimant for his signature when I discovered Claimant has been released to return to work FULL DUTIES/DISCHARGED , laid off from work and obtained an attorney to represent him all in that order. Do I still send him the DWC-AD10133.53 and job description for his review and signature - or would that be a moot issue now ?

    The 10133.53 and the job description of the transitional work would no longer be appropriate since he was released to return to his regular duties. If he hadn't been laid off, you would have sent him the 10003 Offer of Regular Work instead. Since he was laid off, there isn't anything more you can do.

    • If an injured worker retires prior to the WC case settling would they still be eligible to obtain the training benefit to obtain training or skill enhancement?

    It depends. If he retired because he was ready to retire, he probably is not entitled to a voucher. As an employer, I would not give a voucher to someone who chose retirement rather than coming back to work, assuming appropriate work was available. On the other hand, if he retired because there were no return to work options for him, he arguably would be entitled to a voucher.

    • Do the regular duty (10003) and Mod/alt offer (10133.53) notices have to be submitted in Spanish?

    The 10133.53 and 10003 ARE available in Spanish. See the DWC forms page at http://www.dir.ca.gov/dwc/forms.html. So, the short answer is, "Yes."

    • The last I heard, there is no "statute of limitations" for an injured worker eligible to utilize the SJDB..... has that changed? If not, then the injured worker is entitled to the SJDB voucher until he/she dies correct?

    Correct. An SJDB voucher is good until the worker dies or the money runs out, whichever occurs first. There are no statutory time limitations on its use.

    • An adjuster just came to me to ask if we would owe an additional 15% on a previously denied case that went to an AME not too long ago, and the AME declared the injured worker P&S as of Oct 2006. The adjuster only received the AME report today--I told the adjuster it doesn't matter if we only received it today. We would still owe the additional 15% because the labor code "doesn't really care" about date of knowledge, but rather if and when a 10133.53 or 10003 was sent within 60 days of P&S. So I told her to pay IW the additional 15%. She came away thinking that wasn't reasonable but I told her bottom line is we owe the additional 15% because we didn't send an offer letter timely. Was I being unreasonable and too "by the book"?

    One of the problems with a case denied AOE/COE (if you lose) is that everything that would have come due during the denial period instantly becomes due when you lose. That includes offers of modified or alternative work. In your example, the adjustor would owe the 15% PD increase beginning with any payments due after the 61st day from the date the applicant was P&S by the AME report (assuming a DOI on/after 1/1/2005). It doesn't matter when you got the report. Steer your adjustor to L.C. 4658(d)(2) which measures the adjustment date from P&S, not receipt of the medical report.

    • Thought you would want to see what DWC put together - look at page 103 - it says that the Offer of mod mod/alt work needs to be sent within 30 days of the termination of TTD "AND/OR" within 60 days of the employee becoming P&S with PPD!! They are really confusing everyone!!! What do you think? If the new manual says "and/or" then I think we can wait 60 days until the employee is P&S!

    There are two different criteria: 30 days from last TD payment to send an Offer of Mod/Alt Work (10133.53) to avoid liability for the voucher under LC 4658.5/4658.6 BUT 60 days from P&S to obtain the 15% PD reduction available under LC 4658(d)(3)(A). If you miss the 30 day window under 4658.5/4658.6, there is still a good reason to try and get the 10133.53 out within 60 days so you can take your 15% PD credit under 4658(d)(3)(A).

    VR Issues

    • If an injured worker is P&S by the PTP with permanent work restrictions limited/standing no more than 5 hours. Employer accommodates him/her by providing a 5 hour working schedule, total of hours worked 25 a week, and losing 15 hours of work per week from the regular schedule. Who is responsible to pay him/her for loss of wages after P&S - the employer or WC insurance carrier... please advise?

    If the worker is P&S, they are not due wage loss. The job doesn't meet the requirements to avoid rehab (pre-2004) or the voucher (2004 or later) but no wage loss is due. There is a case law on the subject - see McGrath v. Solar Turbines Int'l. (1981) 9 CWCR 142 (WCAB Panel) . If it is a pre-2004 case, the employee would be entitled to VR services UNLESS s/he chose to accept the position under L.C. 4644(a)(7).

    Training The National Association of ADA Coordinators will hold its Fall 2008 national conference in Las Vegas, Nevada beginning October 27, 2008. Watch for program information at the NAADAC web site (CLICK HERE).

    Allan Leno
    e-mail: allanleno@leno-assoc.com

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    Monthly Articles on Vocational Rehabilitation
    by
    Alan Leno

    May 2008

    SJDB Voucher - FAQs

    • Some people in our company believe that Job Function Analyses and ADA Accommodation Meetings should be paid for out of vocational rehabilitation reserves and others feel that they should be classified as an expense since they are related to Employment functions.

    A job analysis can be paid out of VR reserves for a pre-2004 case or it can be paid out of medical for any date of injury. The JA is being used to make a medical determination regarding an injured workers eligibility (i.e., need) for the VR benefit (pre-2004) or the voucher (2004 or later). ADA (and FEHA) Interactive Process and Reasonable Accommodation meetings are the employer's responsibility and should not be paid out of workers' comp funds in any category. If the employer is self insured and asking their TPA to make the payment, the amount can be assigned to medical or any expense category that goes back to the employer.

    • I have a voucher related question, concerning apportionment between 3 different employers. This applicant is entitled to a voucher (based on his inability to do his job) Doctor apportions the PD between 3 employers 25% each. I can't find anything anywhere on how we would deal with the voucher, would he be entitled to the overall amount for 15% impairment rating at $6000. Or is he entitled to a voucher based on each employer's liability. Which would actually net him a larger voucher and I don't think that was the legislative intent.

    Unless the employee changed jobs after each injury AND he needed job modification after each injury, he would be entitled to just one voucher. This is no different than the pre-2004 situation where there are multiple injuries but the applicant continues working at the U&C job until the last injury. All three injuries contributed to the need for Rehab (thus the apportionment) but it was the last injury that "pushed the applicant over the edge" and resulted in the need for VR services. The same would be true with the voucher.

    Note that it is possible for an applicant to be entitled to multiple vouchers but not where s/he continued at his/her U&C until the last injury.

    VR Issues

    There have been a lot of questions about what happens to the VR benefit on 1/1/09. Does it really just "disappear" as a result of the sunset clause in L.C. 139.5? What happens to plans in progress on 1/1/2009? What happens to pending disputes? Where do the parties go to resolve disputes since the Rehab Unit will no longer exist? Does the WCAB have jurisdiction where there is no statute? The DWC has taken the position that it has no jurisdiction over VR matters effective 1/1/2009 and that is the sum total of the information it has made available. Beyond that, all we have are opinions; the following are mine:

    • Any plan (RU-102) that begins in 2008 and is scheduled to finish in 2009 should be allowed to go to completion.

    A rehab plan is an agreement among the parties so it is highly probable that the courts would find that the "contract" is enforceable, meaning that the defendant and the applicant must abide by the terms of the agreement. We should also keep in mind that L.C. 3202 still exists so it is likely that the courts would ultimately find in favor of the applicant on this one. This is also a fight not worth fighting - there won't be that many cases in plan on 1/1/09 and all plans will end before mid-2009. If a plan is unilaterally terminated by the defendant on 1/1/2009 and the defendant loses the appeal (a year or two later), it is possible that the courts would agree that VRMA is due during the dispute. Which means the defendant pays for the balance of the plan plus a chunk of retro VRMA. My recommendation is to allow those last few plans to run their course and be done with it.

    • When a plan ends in 2009, do we still have to file an RU-105 with the Rehab Unit?

    As of 1/1/2009, there is no Rehab Unit and no RU forms. Keep in mind however, that the RU-105 is a notice to the applicant, not a request for the Unit to take action. I would therefore send the applicant a completed RU-105, send a copy to his/her attorney if there is one, and keep a file copy. Although there will be no Unit, the applicant should still be told the plan is over, the applicant has a right to an accounting of funds spent, and applicant's attorney will still be entitled to his/her fee. Again, this is a short term problem since plans will be done by mid-year.

    • What if the applicant wants to interrupt services, either in 2009 or even in late 2008?

    Just say no. I most certainly would not agree to an interruption in 2009. The Legislature made it pretty clear that VR was over at the end of this year; the applicant either completes his/her plan or they are out of luck. This is not an issue the applicant can take to the Rehab Unit because there won't be a Rehab Unit. The Board, if it even agrees to hear the dispute, isn't likely to be sympathetic because everyone has known that the benefit ends 1/1/2009.

    As 2008 draws to a close, I would be less and less inclined to agree to an interruption and I most certainly would not agree to an interruption that goes beyond 12/31/08. If you agree to an interruption that goes into 2009, you may very well be stuck with your agreement. If you won't agree to the interruption, all the applicant can do is file an RU-103 - but to what purpose? The Rehab Unit cannot order an interruption that goes beyond 12/31/08 - it has no jurisdiction beyond that date. And what good is an interruption that ends 12/31/08? If someone asks for reinstatement on 12/31/08, say "No" and pay them one day of VRMA.

    • If someone interrupts a plan in 2008 and requests reinstatement in 2009, do they get to come back and complete the plan?

    Only if you agreed to an interruption that goes into 2009. I would suggest that you begin adding the following language (or some variation thereof) to your Interrupt notices:

    Pursuant to L.C. 139,5(l), the vocational rehabilitation benefit will end effective 1/1/2009. If you do not request reinstatement of your vocational rehabilitation plan prior to that date, you will lose all rights to this benefit.

    • Will L.C. 5405.5 apply to those cases where the applicant has never used his/her VR benefit?

    L.C. 5405.5 no longer exists in the Labor Code but that is a good question. If someone suffered a spinal cord or serious burn injury in 2003 and isn't ready to start VR until 2009, shouldn't they have a chance at the benefit? 5405.5 existed when they were injured, why should they be short-changed now, especially considering that their injuries were more severe than the workers who were able to utilize their VR during the 2004-2008 period? The answer is - it's the law. The Legislature repealed 5405.5 and it set a sunset date for the VR benefit. Unless the courts find the exclusion of injured workers previously protected by 5405.5 unconstitutional, those persons have the same imperative to get into a plan now as every other eligible injured worker.

    • What about settlements? Can an injured worker settle his/her VR benefit after 1/1/2009?

    Any defendant who agrees to an RU-122 after 1/1/2009 is a probable candidate for the Darwin Awards. Seriously, why would a defendant have any interest in settling VR after 1/1/2009? Even if you could find a reason, how would you do it? The RU-122 no longer exists effective 1/1/2009 and there will be no Rehab Unit to approve the document. The settlement language will still be on page 3 of the C&R document but the WCJ will have no authority to approve a settlement of a benefit that doesn't exist.

    Settlements will become less and less attractive to defendants as 2008 progresses. There are 30 weeks left in 2008 which equates to $7380 in VRMA. Maximum settlement value for manner insurers is now about $7500; by 10/1/08, it will have dropped to about $3000. I know applicant attorneys will argue that their client can still spend the full $16,000. That is true IF they get into rehab NOW and IF they work very hard with the QRR to get into a plan immediately and IF they work hard to complete the plan timely. If someone wants to get into and complete a plan that badly, give it to them. It would be nice to see Rehab end its days with a few successful plans.

    • What about pending disputes - especially retro VRMA disputes? Do they end on 1/1/2009?

    That is wishful thinking. Any dispute pending on 12/31/08 will carry over into 2009 because the obligation (if the applicant prevails) was incurred prior to 1/1/2009. If the dispute hasn't been addressed by the Rehab Unit by 12/31/08, then it will go straight to the WCAB. This includes retro VRMA disputes as well as any disputes over the details of or administration of a VR plan. The dispute resolution process could be pretty messy during the first half of 2009 since the Board believes it has no jurisdiction over VR matters. It would therefore be advisable for defendants to resolve VR issues before 1/1/2009 unless you are quite certain benefits and/or services are not owed to the injured worker.

    • If a VR issue first surfaces in 2009, where do we go for resolution of the dispute? Do we file an RU-103?

    There will be no Rehab Unit so there will be no way to file an RU-103. The dispute will have to be filed at the Board so you should talk to your attorney about the proper method to get a VR issue heard at the Board . Keep in mind that it may take a District Court of Appeal or Supreme Court decision to convince the DWC that it does, in fact, have jurisdiction on VR liabilities incurred before 1/1/2009.

    Some of the RU Consultants will be going over to the new RTW Unit by the end of this year. It is possible that the Administrative Director can assign responsibility for the initial hearing of a pre-2009 dispute to the RTW Unit. If that should happen, the DWC would specify the procedure for submitting disputes to the RTW Unit and the procedure for appealing RTW Unit determinations.

    • Will liability for retro VRMA on disputed liability cases accrue beyond 1/1/2009?

    It shouldn't. The statute containing authority for VRMA payments is L.C. 139.5 so presumably the WCAB will lack jurisdiction to order VRMA payments of any kind on or after 1/1/2009.

    • Will Rehab case law disappear on 1/1/2009? The Le Boeuf case was about rehab so doesn't the Le Boeuf argument for 100% PD go away if there is no more rehab?

    The Le Boeuf case was actually about PD and the admissibility of VR reports and events as evidence. Applicant attorneys will continue to use the Le Boeufcase and VR experts as an argument for a 100% PD finding. It is fairly common for cases to go to trial on the 100% issue where the applicant has never been involved in the VR process and where there has never been a Determination of non-feasibility by the Rehab Unit. I do not expect WCJs to stop hearing VR expert witness testimony as soon as we get into 2009.

    VR cases will continue to apply to pre-2004 cases but very few, if any, cases apply to dates of injury on/after 1/1/2004. For example, the Thomas v. Sports Chalet case is irrelevant for a 2004 injury because there is no VR benefit and the applicant cannot be entitled to a voucher where there is no finding of PD or an agreement that PD exists due to industrial causation. Similarly, there should be no need for Rodgers waivers since the defendant has no control over when, where, or how the applicant uses his/her voucher.

    But strange things have been known to happen in workers' comp so, stay tuned.....

    Allan Leno
    e-mail: allanleno@leno-assoc.com

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    Allan Leno
    e-mail: allanleno@leno-assoc.com

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    Monthly Articles on Vocational Rehabilitation
    by
    Alan Leno

    June 2008

    SJDB Voucher - FAQs

    • I have an injured worker who has been off work on TTD. The QME report came in yesterday. It gave him zero whole person impairment & need for future medical care. And prophylactic work restriction of no heavy lifting (35 pounds) above shoulder level. Employer says he can't come back and they can't accommodate due to the 35 lb lifting restriction. Is he entitled to a voucher? I would think so, but at what amount?

    It does seem logical that an injured worker in this situation should get a voucher - but they would not. L.C. 4658.5 ties the voucher - and its value - to an award of Permanent Disability (PD). In the example above, the applicant gets no PD - it's one of the oddities of the 2005 PDRS which we hope the DWC will soon remedy. For the time being, however, an injured worker with 0% PD gets no voucher.

    • If an injured worker is losing time from work and then returns to full duty and I send the offer of full duty at that time, would I be able to retroactively take a 15% reduction on the PD rate back to the date the original offer of full duty was sent out, or, am I only able to take the credit on the date the offer of full duty is sent at post MMI?

    The 15% "bump down" adjustment cannot be deducted retroactively in this example. This is the language from L.C 4658(d)(3)(A) and AD Reg 10002(b)(2):

    4658(d)(3)(A) If, within 60 days of a disability becoming permanent and stationary, an employer offers the injured employee regular work, modified work, or alternative work, in the form and manner prescribed by the administrative director, for a period of at least 12 months, and regardless of whether the injured employee accepts or rejects the offer, each disability payment remaining to be paid to the injured employee from the date the offer was made shall be paid in accordance with paragraph (1) and decreased by 15 percent.

    10002(b)(2) If an employer serves the employee with a notice of offer of regular work, modified work or alternative work for a period of at least 12 months, and in accordance with the requirements set forth in paragraphs (3) and (4), each payment of permanent partial disability remaining to be paid from the date the offer was served on the employee shall be paid in accordance with Labor Code section 4658(d)(1) and decreased by 15 percent, regardless of whether the employee accepts or rejects the offer.

    Any PD paid prior to the P&S date is not subject to the PD adjustment. That may not seem fair where the employer has complied with Legislative intent but - the law is the law.

    • Have you said ANYWHERE that the voucher also SUNSETS? One adjuster I work with insisted you said the voucher sunsets too. I told them: "I have read this again carefully and do not see anywhere any discussion about the voucher terminating. The voucher does not terminate, and it does not have an expiration date. It can be good for 50 years!"

    I have never said that the voucher sunsets - because it does not. There is no sunset language in the statute - L.C. 4658.5/4658.6 will continue in effect until such time as the Legislature chooses to modify or eliminate the benefit. Similarly, under the current statute and regulations, an injured worker who is provided a voucher has their lifetime to use the benefit. There is some discussion at the DWC about placing some time limits on using the voucher but there are no limits at present. It is my personal opinion that it will take a change to L.C. 5410 to impose a time limit on use of the voucher, something only the Legislature can do.

    • I have an injured worker with a 4/05/07 date of injury whose primary doctor indicated that he was permanent and stationary for the injury with no residual deficits and no disability. He was discharged from further care on regular duty work status with no limitations and no need for further medical follow-up. He was directed to pursue the State Panel QME if he disputed the primary doctor's findings. He did so and attended the SPQME. The Panel doctor found aggregate 30% whole body impairment and apportioned 20% to the work injury and 80% to pre-existing. My questions to you are regarding SJDB. TD stopped in 10/07. He did not return to work as his non-PTP determined he had work restrictions and he qualified for Long Term Disability. We did not send him a DWC-10003. Is he entitled to a voucher now that he was found to have permanent disability and he did not return to work? Is he entitled to an increase in PD now? If so, starting when?

    You question doesn't indicate whether the State Panel QME found the applicant able to return to work at regular duty - or not. If he could return to regular duty, there would be no voucher but the employee would be entitled to a 15% PD "bump up" adjustment beginning with any PD payments due more than 60 days after P&S.

    If the employee was precluded from returning to regular duties, he would be entitled to a voucher as well as the PD adjustment because no DWC form was sent. Since only 20% of his total PD was due to industrial causation, he should get a $4000 voucher based on 6% PD (i.e., 20% of 30%=6%). The fact that he did not return to work based on the opinion and advice by a non workers' comp doctor doesn't help you because he was never offered a job.

    • IW has PD by the AME but is released to return to regular work both by the treating physician and the AME. The employer is not offering her a job. No TTD was paid on this claim. Is she entitled to a voucher? The LC allows a voucher when the ER does not offer a job within 30 days from the last payment of TD provided there is PD. In this case there is PD but no TTD was paid so the circumstances in 4658.5 and 6 do not apply. Right?

    The lack of TD applies to an obligation to send a Notice of Potential Rights but does not, by itself, eliminate any exposure for a voucher. I would argue that this employee is not entitled to a voucher because she was released to regular duty. L.C. 4658.6 says an employer can avoid liability for a voucher where the employee is offered modified or alternative work pursuant to the provisions of that section. This employee did not need modified or alternative work so why would the employer offer such work? 4658.6 says nothing about a failure to offer regular work so - no voucher. The employee would be entitled to a PD adjustment if more than 60 days of PD was due.

    • We are a training facility and thus cannot file a dispute with the DWC. If there is a problem with a voucher and we suggest that a student file a dispute when the insurance carrier is not following regulations. Naturally the next question is "What happens after I file dispute?" Since we have never filed one ourselves we are not sure what comes next. I was hoping you would be able to give us some insight.

    If your student is having a problem getting his/her voucher or having legitimate tuition and fees paid for the voucher, the student does have to be the one to file for dispute resolution. S/he can do this by completing a DWC AD 10133.55 Request for Dispute Resolution Before the Administrative Director form and attaching a position statement describing the nature of the problem. The student should also attach copies of any documents that would serve to support his/her position (e.g., a copy of the C&R showing that the voucher was not settled, a copy of the medical report showing a need for a change in occupation, copies of your requests for payment, etc.). The 10133.55 and all attachments should be mailed to the DWC at the address that is on the form with a copy to the insurance company. The insurance company has 30 days to file its response. In about 60 days from the original 10133.55, the DWC's RTW Unit should issue a Determination. If either party disagrees with the Determination, it can be appealed to the WCAB within 20 days (plus 5 for mailing).

    If there is no response from the DWC's RTW Unit within 60 days, the original request is deemed to be denied and should be immediately appealed if the student wishes to pursue the matter further. By the way, if the student isn't sure how to proceed with the dispute resolution process, s/he can always consult with the Information & Assistance Office at the local Board.

    • I received a message from a claimant whom I sent a voucher few months ago. He requested I send a new voucher - he is claiming that he has misplaced the old one. Is it okay for me to send him another one? I am not inclined to trust this applicant based on past problems - I am afraid he will try to use both vouchers.

    Send him another voucher and label it as a "replacement." It doesn't matter if he tries to use both - you are going to stop paying when the maximum value of one voucher has been paid. The problem is that people will lose vouchers so we cannot refuse to provide replacement documents any more than we can refuse to provide a replacement check when the applicant claims the original was lost or never received. We cannot place a "stop payment" on a lost voucher but we can certainly insure our file is well documented that the claimant said he lost the original and only the "replacement" voucher should be honored.

    • What is your opinion about serving the AD with the offer of regular work. There is nothing indicating that we would need to send the regular work offer to the AD. However, we want to ask your opinion.

    There is no current requirement to serve copies of the 10003 on the Administrative Director. I have heard that they want you to serve copies but there is no statutory or regulatory authority to require such service at the present time. I do expect the DWC will revise AD Regs 10001-10005 in the near future to require service of the 10003 form.

    VR Issues

    • I have a claim which originally we denied due to being filed post termination. After our DQME examined the applicant, it became an accepted CT injury where we had a majority of the exposure. Our DQME's report of 01/02/03 states that the Dr. would need to review a formal job analysis before commenting on QIW status of the worker. There was no follow-up in providing the Dr. with this job analysis, and a NOPE letter was never sent out. The AQME, in a report of 10/15/04 stated that while the applicant was laid off from his job on 11/99 he was not QIW and could return to his U&C duties. The AA did not make a demand for VR until now, and is requesting retro VR back to the date of our DQME report of 01/02/03. The TD rate at the time was $129.92. My question would be, how much are on the hook for and if you have any recommendations to minimize exposure?

    At minimum, you are most likely on the hook for retro VRMA from 1/2/03 to 10/15/04. The problem is that the applicant was entitled to a NOPE-Delay notice at minimum and, since it was never sent, you are in a breach situation until the error is corrected. You MIGHT be able to convince the RU Consultant that your liability should end when the applicant's own QME released him to regular duty. However, it is just as likely the RU Consultant could find that you have liability from 1/2/03 to date since no notice letters of any kind were sent out (I gather there also was no Denial sent in response to the AQME report of 10/15/04). In addition, a QIW question was established when your DQME asked for a job analysis and that was never done so that would also argue for your minimum exposure to be from 1/2/03 to 10/15/04.

    VR Case Law

    • Consider this situation: The employee has an injury in April 2003 and is off work for 3-4 weeks before being released to full duty. The employee returns to full duty and works at his/her regular job until early 2005 at which time there is a second injury (or a CT injury). The treating doctor says the employee is a QIW and needs rehab. Applicant's attorney makes a demand for rehab services which the defendant denies, arguing that the employee is entitled to a voucher. Applicant's attorney files an RU-103 and the Unit Consultant (quite creatively!) assumes jurisdiction and orders VR benefits and services based on a theory that the 2003 injury contributed to a need for a change in occupation - thus a need for rehab. Is the applicant entitled to rehab? Or to a voucher with the 2005 defendant having a right to seek contribution for the cost of the voucher?

    There is finally a case that has applied a little common sense to this issue. There should never have been an issue. We find - and have always found - a worker QIW based on what happened up to the date of injury, not on injuries that happen subsequently. We even had a case that provided some guidance on the issue - Jacobson v. WCAB (1986) 51 CCC 300 (DCA Not Published). This case found...'where medical evidence established that applicant's 1977 and 1982 industrial injuries contributed to his need for vocational rehabilitation, he was entitled to vocational rehabilitation at the expense of the latter employer regardless that the primary cause of the disability was the 1977 injury.' So why would we now think that a 2003 injury created an entitlement to VR benefits and services where the employee worked at the U&C position until the 2005 injury? The answer, of course, is that the VR benefit is worth something and the voucher is not. True enough - but that isn't the issue and never should have been.

    In Eugen Cioban v. WCAB & County of Orange (Civ. No. B201686) 73 CCC *** (writ denied), the Board found the applicant was NOT entitled to VR benefits and services where he had injuries in 2000 and 2004 but the 2000 injury did not prevent a return to work at his usual and customary occupation. Specifically the Board noted in part:

    "(2) there was no medical evidence linking the need for VR to the 3/16/2000 injury, and, even if such medical evidence existed, it was not dispositive because applicant returned to his usual and customary job duties with the employer after 3/16/2000 injury and continued until 2/26/2004 injury ......." "(3) VRMA for 2/26/2004 injury was not available because VR statute had been repealed for injuries after 1/1/2004....."

    The benefit available is determined by the date of injury causing the need for a change in occupation. That is the way it was before 1/1/2004; there is no reason why it should be any different now.

    Allan Leno
    e-mail: allanleno@leno-assoc.com

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    Monthly Articles on Vocational Rehabilitation
    by
    Alan Leno

    July 2008

    SJDB Voucher - FAQs

    NOTE: The BPPVE Voluntary Agreement list is no longer valid for determining the current accreditation of vocational schools. See the first question under "VR Issues" below for more information.

    /////////////////////////////////////////

    DWC Administrative Director Carrie Nevans responded to one of the items in our June newsletter:

    I just wanted to comment on your statement regarding this issue:

    I have an injured worker who has been off work on TTD. The QME report came in yesterday. It gave him zero whole person impairment & need for future medical care. And prophylactic work restriction of no heavy lifting (35 pounds) above shoulder level. Employer says he can't come back and they can't accommodate due to the 35 lb lifting restriction. Is he entitled to a voucher? I would think so, but at what amount?

    It does seem logical that an injured worker in this situation should get a voucher - but they would not. L.C. 4658.5 ties the voucher - and its value - to an award of Permanent Disability (PD). In the example above, the applicant gets no PD - it's one of the oddities of the 2005 PDRS which we hope the DWC will soon remedy. For the time being, however, an injured worker with 0% PD gets no voucher.

    It is DWC's position that this discrepancy can only be remedied by the Legislature. Labor Code section 4660 requires the AMA Guides to be used to determine the physical impairment, which is then converted to a PD rating. If there is a zero whole person impairment per the AMA Guides, there is no way to convert that to a positive number for a PD rating. The statute requires a PD rating in order to receive a voucher. This situation can only be remedied by legislation - DWC has no regulatory authority to order a voucher when there is zero PD. It's not an oddity of the 2005 PD schedule that can be remedied. Zero whole person impairment means zero PD.

    Carrie Nevans
    Administrative Director
    DWC

    AD Nevans' comment is very much appreciated - as is the compliment. It is encouraging to know that those who are charged with enforcing workers' comp benefits are interested in, and aware of, the day to day problems faced by those who must implement benefits and services.

    ///////////////////////////////////////

    • I received an MMI report indicating EE has 11% WPI, can return to regular duty, but the doctor on the PR-4 does a functional capacity assessment and indicates some restrictions: limited lift/carry no more than 30 lbs, frequently lift/carry no more than 20 lbs, occasionally lift/carry 20 lbs, stand/walk less than 4 hrs per 8 hr day, sit less than 8 hrs per 8 hr day and push/pull no more than 30-40 lbs. The employer has more than 50 employees. I have not yet contacted the employer because I want to clarify the 15% decrease. Basically, I can send the offer of regular work and decrease the PD by 15% correct? EE is not entitled to a voucher because he was released to full duty, but what has confused me is the doctor's permanent work restrictions, so would the offer of regular work be applicable? If I call ER asking if they can provide the permanent work restrictions and they say no, would EE be entitled to the 15% increase?

    Your assumptions are correct. The work restrictions are not an issue as long as they do not conflict with the duties the employee must perform. The physician released this employee to regular duty so you would send him/her a DWC AD 10003 and you would start taking the 15% decrease in the PDAs as soon as the offer is sent. If the employer does not take the employee back, you would owe the employee a 15% increase in PDAs starting the 61st day after P&S. In your example, the work restrictions are a sort of "red herring" because the doctor released the employee to regular duties.

    • If the client (the claims administrator) sends the voucher, does the applicant have to pay for the cost of the school up front and seek reimbursement, or should the client send the cost of the tuition upon receipt of a call or documentation from the school of the cost of the tuition?

    This continues to be a common question and a sore point with schools. The statute and regulations allow for an applicant to be reimbursed for the cost of tuition and fees at an approved school BUT AD Reg 10133.56(h) also provides that the school can also bill the claims administrator directly and the invoice must be paid within 45 days:

    (h) The claims administrator shall issue the reimbursement payments to the employee or direct payments to the VRTWC and the training providers within 45 calendar days from receipt of the completed voucher, receipts and documentation To be paid directly, the school must provide the claims administrator with its invoice, a copy of the voucher issued by the claims administrator that has been signed by the injured employee, proof that the employee has registered for a course(s) at the school, and evidence that the school is appropriately "approved" (see the first question under "VR Issues" below). Failure to pay the school within 45 days when appropriate documentation has been submitted could result in possible DWC audit penalties.

    • I have a claim with numerous defendants. Applicant's attorney has elected against us. This is a denied claim. There is a CT claim to include hearing loss and orthopedic injury. He is P&S on the hearing, but not on the ortho. Should I send the offer of mod duty letter?

    Are all aspects of the claim denied? If so, you probably don't owe anything until you accept liability or it is determined by the Board. Even if it was accepted, the applicant most likely could not RTW until the orthopedic injury resolves (I would assume TD continues until P&S on the ortho). Therefore, you could not send a 10133.53 or 10003 because the applicant isn't P&S and the 30 day/60 day clock PDA "bump up/down" clock wouldn't be ticking because the applicant would still be receiving TD payments. The only reason to send the 10133.53 is if you have medically appropriate light/temp duty to offer on an accepted claim.

    • I have an employer willing to take back an employee to temporary modified work. At date of injury, employee worked 8 to 5pm. Now the position offered for temporary mod duty is the grave yard shift 12 to 8 am. We have a bit of a debate going on whether employee is required to accept a RTW with a dramatic change in shift, however within the mod restrictions.

    The employer can offer whatever work it has that is medically appropriate - as long as the offer is not punitive. If this is the only medically appropriate work available, the offer is appropriate. If the employer had other work it could have offered but chose the graveyard shift position, the offer would likely be deemed punitive which could create some serious problems for the employer outside the workers' compensation arena. Generally speaking, an employer has the latitude to assign employees to different shifts to meet legitimate business needs. However, the employee would have the right to dispute the offer by filing a DWC AD 10133.55 with the DWC's RTW Unit. I'm not sure what the RTW Unit could do since the statute and regulations talk about the number of hours worked and work location but make no mention of the work shift to which an employee is assigned.

    • I have a voucher related question, concerning apportionment between 3 different employers. This applicant is entitled to a voucher (based on his inability to do his job). The treating doctor apportions the PD between 3 employers with at lest 25% to each. I can't find anything anywhere on how we would deal with the voucher; would he be entitled to the overall amount for 15% impairment rating at $6000? Or is he entitled to a voucher based on each employers' liability, which would actually net him a larger voucher and I don't think that was the legislative intent?

    This is an apportionment/reimbursement issue that is no different than what we faced with the VR benefit. The applicant was able to continue working at his/her regular duties until the third injury which was the proximate cause of a need for a change in occupation. The applicant is entitled to a $6000 voucher based on his 15% PD. The claims administrator for the third employer provides the voucher and then seeks reimbursement from each of the previous employers (assuming the employee uses the voucher) based on their proportion of the overall disability.

    VR Issues

    • I am a QRR and have a VR case (pre-2003) for which I have proposed a training plan that involves two schools. One of the schools was previously BPPVE approved but it failed to sign and return the Voluntary Agreement letter so that its accreditation could be extended. When the school contacted BPPVE recently to determine if it could still sign the agreement, it was advised by BPPVE that the Voluntary Agreement list is not valid after 7/1/2008. Since the Legislature has failed to designate a replacement (and provide the funding) for BPPVE, there is no longer a designated state agency to approve vocational schools. Since this particular school is the only one teaching the program the injured worker needs, what do I do?

    This is indeed a problem for VR plans as well as the voucher. Both require that only "state approved" training facilities be used. That responsibility fell primarily to BPPVE although a few training facilities were approved by other state agencies. When the Legislature allowed the statutory authority for BPPVE to lapse effective 7/1/07, its leaders indicated a replacement would be in place no later than 7/1/08 - thus the Voluntary Extension list. The U.S. Department of Education Office of Post Secondary Education (USDPSE) agreed to try to approve as many schools as possible and many - but not all - of the more commonly used schools can be found on the Department's web site ( http://www.ope.ed.gov/accreditation/InstList.asp). A search for approval should begin at this web site until such time as a replacement agency and procedure is in place (don't hold your breath - the Legislature isn't going to address this issue until it passes a budget and we know where that stands). Note that you may need to make several attempts to find the school. My search produced nothing when I entered the full name of one large vocational school but the school's information came up immediately when I entered only the first three letters of the school name.

    If you cannot find the school's name on the list, I would suggest telling the school that they need to provide you with evidence of current accreditation. That can come from the USDPSE or ANY California state agency. Also, many non-profit schools do not need a specific approval as they have a "memorandum of understanding" with the USDPSE; they should be able to produce a copy of the memorandum. If all else fails and there isn't another approved facility available, the parties do have the option of filing a DWC AD 10133.55 Request for Dispute Resolution to seek assistance from the DWC RTW Unit.

    Our thanks to Otis Byrd who provided most of the information above. Otis is contacting the USDPSE to explain our current predicament and to ask if there is anything the Department can do to facilitate approvals. If he is able to obtain information that will assist the parties in determining school approvals, we will pass it on to subscribers immediately.

    • I have a rehab question for you. If an applicant attorney does not petition for the rehab attorney fees before 1/1/09 will they still be entitled to these monies? If not, would they be payable to the injured worker or can claims administer keep these monies?

    The obligation for the VR attorney fees was incurred before 1/1/09 so the fees will still be due the attorney once s/he petitions for the fees and submits an approved petition. We should also note that the Petition is approved by the Board so the approval is not affected by the demise of the VR benefit and the Rehab Unit.

    If the attorney never petitions for his/her fees, the money would eventually have to be paid to the applicant.

    • I have an injured employee who deferred VR services from 2005 until recently. While he was on TTD he went to school and received his Paralegal certificate. He is working full time at the pre-injury employer at this time. He is requesting that we pay him for his schooling retroactively. What is your opinion about owing retro VR benefits to an employee who never requested VR services until after he completed his training and returned to the employer?

    If the employer properly offered him a modified or alternative job, documented via an RU-94 or an RU-102, he would not be entitled to reimbursement for schooling (an exception might be if the schooling was required for the position to which he returned at the employer). If the claimant was otherwise entitled to full VR services because he did not return to work for the pre-injury employer, he would be entitled to reimbursement for any training he took after his date of injury. The training would have to meet the requirements for a training plan (BPPVE approved school, physically appropriate, etc.).

    A Reminder:

    The state mileage reimbursement rate was increased to 58.5 cents per mile effective 1/1/2008. This rate change affects the mileage you pay those injured workers who are involved in rehabilitation services. Even though you will now reimburse mileage at the higher rate, the total amount of money you pay for mileage in a vocational rehabilitation plan may not change unless there are uncommitted funds remaining within the $16,000 cap. For example, if the rehab plan provides for $500 to be paid in mileage, you will now disburse funds at the 58.5 cents per mile but you will still disburse a totals of $500 only for a plan that costs $16,000. However, if total plan costs came to $14,000, you would have to increase the total mileage paid to approximately $605.

    Allan Leno
    e-mail: allanleno@leno-assoc.com

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    Monthly Articles on Vocational Rehabilitation
    by
    Alan Leno

    August 2008

    SJDB Voucher - FAQs

    • I have a quick question for you - is job placement an allowed activity under the voucher? I see that the voucher can be used for "tuition, fees, books and other expenses required by the school for retraining or skill enhancement", but can it also be applied to placement activities?

    In a word, "No." As you note, the statute specifies that the voucher can be used for "tuition, fees, books, and other expenses required for skills enhancement" but nowhere in the statute or regulations is there any mention of job placement. It is an unfortunate oversight because job placement assistance is the one return-to-work element that would be of the greatest value to most injured workers. However, the statute is pretty specific about what voucher monies can be used for so there really isn't latitude for using the voucher for job placement only. Vocational schools can include placement assistance as a service but injured workers who already possess skills but just need some assistance in developing a resume, finding job leads, and preparing for the interview process are out of luck.

    • I have an injured worker with a 2007 date of injury....Now P&S and able to RTW at Full Duty. Projected 8% PD. However, the employer does not have work for the employee, due to slow down in business and employee has been off work for over one year. Can I make an Offer of Regular Work to the employee? Can we take a 15 % reduction in PD, or increase 15 % ? I don't see how he is eligible for Voucher.

    You cannot make an Offer of Regular Work to the employee unless there is an actual job for the injured worker to return to. Since there is no job for the person to return to, you must increase weekly PD payments by 15% beginning on day 61 after the worker is determined to be P&S. L.C. 4658(d)(2) is quite clear in requiring the employer to offer work or pay the 15% PD increase. Sending a DWC AD 10003 is really meaningless unless the employee can accept the offer and return to work.

    Because he was released to full duty, the injured worker is not eligible for a voucher.

    • I have received the AME report which states Claimant has 7% permanent disability and is able to go back to regular duties WITHOUT WORK RESTRICTIONS or MODIFICATIONS . However, the Claimant has been laid off - would he be entitled to the voucher?

    As in the question above, the employee is not entitled to an SJDB voucher if s/he is released to regular duty, even if there is no job to return to. The employee is entitled to a weekly 15% PD increase beginning on Day 61 after P&S.

    • If the employer fails to make the job offer within 60 days after the injured worker's condition becomes P&S, is the employer then precluded from asserting the 15% reduction in the P.D. rate or can the employer still begin to pay at the 15% reduced P.D. rate from the date of the letter?

    This is one of those questions that will have to be clarified by the courts. I would argue that the Legislature intended to "reward" those employers who retained their injured employees and those employers should be able to take the 15% PD credit when they make the job offer, even if it is after 60 days. Of course, the employer would have to pay the 15% increase from day 61 until the offer is made. I would expect an applicant's attorney to take the position that the 15% increase is due from day 61 until the PD is paid out or the case is settled via C&R. Your employer should consult with an attorney, make a policy decision, and handle the issue consistently until there is either case law or further regulation to clarify the matter.

    • I've got a situation where the offer of work was made within 60 days and for 5 weeks before the letter was sent the injured worker was paid P.D. at the rate of $187.85. As of the date of the letter, the P.D. rate was reduced by 15% to $159.67. At the full rate the total P.D. before the 15% reduction would have been $24,608.35 (30% P.D. at $187.85 x 131 weeks). How much do you calculate should be the total P.D. dollars paid to the injured worker in this case? Would it be (5 weeks x $187.85) + 126 weeks x $159.67)?

    When an offer of regular, modified, or alternative work is made within 60 days of P&S, the employer owes PDAs at the statutory L. C. 4650 rate from the P&S date to the date the offer is made via DWC AD 10003 or DWC AD 10133.53. From the date of the offer is made, the employer can assert the 15% PD credit. In your example, it was appropriate to pay the regular PD rate of $187.85 for 5 weeks and then pay the reduced rate of $159.67 per week for the remaining weeks remaining on the PD award.

    • We just found out that some of the forms/notices were revised as of 8/22/08 & some now do not have a "proof of service" attached to them (Example: Notice of Offer of Regular Work 10133.53). Do we now have to use these new forms?

    The forms you are referencing are the new EAMS (Electronic Adjudication Management System) forms for the DWC's new optical character recognition system. The DWC would like all parties to start using the new forms but there is no requirement to do so until there are regulations in place that require use of the forms. DWC estimates that the new regulations could become effective as early as mid-October. You can continue to use the old forms until that time. However, your company should be preparing its forms and processes for the OCR or electronic forms because they will be required at some point in the relatively near future.

    • I have a scenario that I'm not sure how to handle.... I have a claim where the Employee was offered, and accepted, a permanent/modified position back in March. We reduced the PD by 15% (and actually finished paying that out a few weeks ago in its entirety). We have not yet formally settled her claim, however. I just got a call from the employer indicating that they may not, in fact, be able to meet the commitment to 12 months of the perm/mod position and may have to let the Employee go earlier than that. I know that this would entitle her to the voucher, but since the PD was previously paid out in its entirety, we don't have to send a supplemental PD payment increasing it by 15%, do we?

    Pursuant to L.C. 4658(d)(3)(B), you would owe the 15% increase on any PD remaining to be paid after the employee is laid off. You do not have to go back and modify payments already made. However, if the employee is due additional PD at the time of stipulation or award, she would be entitled to the 15% increase on the additional PD amount. As you noted, the employee is now entitled to a voucher as well.

    • We have an admitted injury. Applicant has PD and is unable to return to prior job, not only because a position is not available, but even if it was, the employer can not legally take him back as it has been established the Applicant is undocumented. Would he be entitled to the SJDB?

    Since the employer would not have work available even if the employee had the appropriate legal documents, I believe you owe the voucher. If the employer had a position available, then you could take the position that the voucher is not due. However, it appears the DWC would expect you to make the offer using the DWC AD 10133.53 Offer of Modified or Alternative Work form (you would indicate on the form that the offer is contingent on the employee providing evidence of a legal right to work within 30 days of the offer).

    • I have been helping some attorneys as they are trying to get the vouchers for their clients, but the carriers do not respond to the request, can they file a DOR and if yes, under what regulation or ruling? Can you please give me that information to pass on.

    Pursuant to AD Reg 10133.56(c), an SJDB voucher must be sent to an eligible injured worker within 25 days of a C&R or Award by the WCAB. Assuming the right to the voucher was not settled in a C&R, the employee does not have to ask for the voucher; it must be sent automatically. If the injured employee is entitled to a voucher and it is not sent timely, the employee or his/her attorney should file a DWC AD 10133.55 Request for Dispute Resolution Before the Administrative Director with the DWC. The address where the form should be filed is on the form. The employee or the attorney should attach a position statement indicating that s/he is entitled to the voucher; a copy of the medical report indicating a need for modified or alternative work and a copy of the C&R, Stip, or Award should also be attached. The DWC will make a decision based on the record. A DOR would not be required unless a party is appealing the DWC determination to the WCAB.

    Please Note: If you are submitting a DWC AD 10005 Request for Reimbursement and STD 204 form for your insured employer or advising your insured employer on submission of a Request, please note that the address for submitting these documents is:

    Office of the Administrative Director
    PO Box 420603
    San Francisco, CA 94142

    AD Reg 10004 advises you to submit these documents to an address on a particular page at the DWC web site; the address is not listed on the site.

    VR Issues

    • After 1/1/09 if we have an applicant of with a 2003 date of injury who has become QIW and entitled to Voc Rehab, who do we file the RU-103 with? However, we know that the Unit is no longer in existence, and Section 139.5 (l) repeals section 139.5 but it is NOT retroactive, consequently issues relating to retro VR supposedly would still be the subject of an RU-103 (if a Unit existed). Also, if the case is settled after 1/1/09, the applicant would normally have one year from the date of settlement to request VR. How do we obtain those benefits if there is no Unit? The former Presiding Judge of the LA WCAB told me that he was hoping that the consultant at the LA Rehab Unit would be allowed to stay to handle these issues. Do you know of any regs or rumors to this effect?

    After 1/1/09, all VR disputes will have to go directly to the WCAB so the applicant's attorney will have to file the appropriate documents with the local Board. There will be no more RU-103 (the statutory authority for the RU forms disappears along with the authority for the Unit) so applicant attorneys will have to file the same documents for VR issues as they would for the case in chief - an Application for Adjudication of Claim and a Declaration of Readiness (DOR) to get the issue before a WCJ. The WCJ's "hope" that Mr. Kirkeby could stay on to handle VR issues is misplaced unless the Administrative Director can find some means to designate the RTW Unit to attempt an administrative resolution of disputes prior to having those disputes filed at the Board.

    Only VR issues pending prior to 1/1/09 will have standing before the Board - there is no entitlement to VR benefits or services after 1/1/09. Note that L.C. 5405.5 was repealed effective 1/1/04 so there is no entitlement to VR benefits and services for one year after settlement for those QIW injured workers who never used their VR entitlement. There are no prospective benefits or services available to injured workers after 1/1/09 unless the claims administrator agrees to provide such benefits and services. The Rehab Unit cannot issue a Determination ordering a claims administrator to provide benefits or services on or after 1/1/09. Only retro VRMA issues will remain in play after 1/1/09. If an eligible injured worker wants to use their prospective right to VR benefits and services, they must do so in 2008 or, as the saying goes, "forever hold their peace."

    Allan Leno
    e-mail: allanleno@leno-assoc.com

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    Monthly Articles on Vocational Rehabilitation
    by
    Alan Leno

    October 2008

    It is my understanding that the Rehabilitation Unit will not schedule any formal conferences after November 20, 2008 al though it will continue to make decisions "on the record" as appropriate until the end of the year. Defendants should file position statements on all RU-103 cases to insure the Unit has input on both sides of the issues.

    SJDB Voucher - FAQs

    • I have a claim with a date of injury 9/2/99 with a CT ending in 2005. Is he due VR/VRMA or a voucher?

    Assuming the applicant continued working at his U&C occupation until 2005, he would be due a voucher. This issue has already been litigated at least once - see Eugen Cioban v. WCAB. In this case, the WCAB determined that the applicant is entitled to the benefit in effect at the time the employee is unable to continue at his/her regular duties and that neither physicians nor a WCALJ has the right to second guess the employee's ability to perform his or her usual and customary duties.

    • This is my first claim with a voucher issue. EE is entitled to the voucher and ****** Schools has sent me an invoice stating payment is due now (he is just starting school). Do I pay the school or await completion and proof of payment from EE? The school representative insists that other carriers always pay for training up front.

    Pursuant to AD Reg. 10133.56(h), schools must be paid within 45 days of receipt of appropriate documentation. Appropriate documentation includes the school's detailed invoice, a signed copy of the SJDB voucher, a copy of the applicant/student's enrollment form, and a copy of school certification form. Payment is due in full within that 45 day time frame. If you are NOT going to make full payment, you must advise the school, in writing, regarding the problem(s) with their request for payment and identify what you need in order to make full payment. Keep in mind that both the statute and the regulations allow the applicant to pay the tuition and seek reimbursement OR to enroll in an approved program and have the school seek payment; the choice is up to the applicant, not the defendant.

    • I would like to know if you have anything in your files that comes from Carrie Nevans, Andrea Hoch, the DWC, or the Audit Unit (or anyone else for that matter in authority) in 2004/2005 that talks about penalty assessment waivers when the forms had not yet been promulgated? I have two files so far, for 2005, for which they are dinging us for taking the 15% bump down on a RTW but no offer of regular work was done BECAUSE we didn't have any forms until 1they were officially adopted 10/21/06.

    Sorry, I do not have any such documentation but - like you - I would certainly contest any penalty for failing to send a DWC AD 10003 prior to 10/21/06. The DWC Audit Unit has the ability to impose a penalty where the employer failed to use a form promulgated by the AD. In this case, however, the requisite form was not "promulgated" until 10/21/06 so employers had no form to use between 1/1/2005 and 10/21/06. It should therefore follow that the DWC Audit Unit lacks jurisdiction to impose a penalty that its own boss had yet to create.

    I would also suggest that you have your attorney review Audiss v. City of Rohnert Park, SRO 137956 (4/2/07) where a Panel held that the fact the employee was actually working was sufficient evidence that employer had complied with the spirit of L.C. 4658(d).

    • Could you please clarify: Injury date: 2006, NO lost time and the employ is working usual and customary. Do we still need to send the SJDB letters? Do we still need to send the offer letter, since CE no lost time and are we entitled to the 15% decrease?

    Since the employee lost no time from work (and thus was not paid TD), you would have no requirement to send a Notice of Potential Rights (DWC AD 10133.52) although it would not hurt to do so since it is nothing more than an information notice. If you want to take the 15% decrease in PD, you must send the DWC AD 10003 Notice of Offer of Regular Work immediately. If you do not, you could be held liable for a 15% increase in PD. I would not rely on the Audiss v. City of Rohnert Park cited above as it is a WCAB Panel decision and your local WCALJ is not bound by the decision.

    • I have a Work Comp claimant entitled to a voucher. She is attending a community college and sent a request for reimbursement for mileage, books, parking and registration while attending the college. The date of injury is 10/23/04. Is the claimant entitled to reimbursement for any of these expenses? It is my understanding that we would only issue a payment to the school up to the value of the voucher.

    Assuming that all the expenses she is claiming occurred after her date of injury, the applicant is entitled to reimbursement for school tuition, required fees (including registration), and required books and equipment. She is not entitled to reimbursement for mileage or parking as these are not included in the voucher (mileage is not included and parking is an optional fee).

    • I have an employee that was laid off while treating and declared P&S with no work restrictions but with 7% permanent impairment. We cannot offer regular work as laid off, and in which case, the voucher would apply, correct?

    Since the injured worker was released to regular work, s/he would not be entitled to a voucher. L.C. 4658.6 indicates that an employer can avoid liability for a voucher by offering medically appropriate modified or alternative work. It says nothing about failure to offer regular work. Also, the voucher is to assist those who need to learn skills for a new line of work. This worker can still perform the usual and customary occupation, just not for your employer. No voucher.

    • We insure an employer who has less than 50 employees. However Applicant argues that my Insured/Employer has more than 50 employees as "they" own other restaurants. We only insure one location and Owner at our Insured has admitted to having small investments in other restaurants but we do not insure any of them. He indicates that he is not a partner, just a small investor. Does the 15% PD increase apply?

    I assume this is an issue because the injured worker has not been offered work and wants the 15% "bump up" in weekly PDAs. Pursuant to AD Reg 10002(a)(1), the number of employees for the purpose of determining the PD adjustment is determined by the number of persons employed at the time of the most recent policy inception or renewal. You can only consider the number of employees covered under your policy.

    • And can you advise me on the following: 56 year old carpenter with right shoulder injury -- preclusions provided by the treating doctor Injured worker declined to attend the interactive meeting to see if modified work would be available He called in to Human Resources and stated he was not going to attend, he would retire and 'they would not have anything for me anyway'. I did write a letter stating: Your employer has been informed that you will have permanent restrictions and will not be able to return to your usual and customary occupation. Your employer advised you declined the interactive meeting that explores permanent, alternate or modified work; therefore, they are not able to address permanent, alternate or modified work. If you are interested in ----- please contact me at ---- Is he still eligible for the VR voucher per the PD rating applicable? We say no, he is not eligible as he did not allow the employer to address weather or not they would or would not accommodate? A/A of course disagrees and states he is still entitled to the voucher and his not responding has nothing to do with it.

    Unfortunately the Labor Code and Regulations do not cover situations where the employee is less than cooperative as seems to be the case here. The solution is to offer the employee a modified or alternative job consistent with the work preclusions. It has to be a real job in case the employee shows up for work. If he does not - or fails to respond - you have no obligation to provide a voucher. If you do not make an offer via the DWC AD 10133.53, you will have an uphill fight at the RTW Unit. I have already seen a case where the employer had work but did not make the formal offer because the applicant resigned before the offer was made to return to school. The RTW Unit found the applicant entitled to a voucher because there was never a 10133.53 sent to the applicant. Seems like a lot of extra work when the applicant has already declared his intent but it appears to be the only sure way to defeat the demand for the voucher.

    • When someone does return to work, regardless of returning temporary or full duty, after being off and is a part time employee, do we still need to send the Notice Regarding Return to Work and the Notice of Potential Right to Supplemental Job Displacement Benefit? We are sending these notices for all employees who are full time when they return to work. I was just wondering if a part time person would be eligible.

    It makes no difference whether the injured employee was working full time or part time at the time of injury. When TD stops, you must send the employee a Notice of Potential Rights (DWC AD 10133.52) within 10 days. If you have regular or modified/alternative work available, you must make the appropriate offer whether the employee was full or part time at the time of injury; you can, of course, offer comparable work to the employee (i.e., full time work to the employee who worked full time and part time work to the part time employee).

    • SQME found no PD and no future medical. There was no loss time. SQME deemed Claimant P&S and released him to full time regular Work. Do we still need to send a work offer?

    The purpose of the Offer of Regular Work (DWC AD 10003) is to document the offer of work so you can take the 15% credit against weekly PD payments. If there is no offer, the employee is entitled to a 15% increase in weekly PDAs. Since the worker in your question has no PD, there is no point to the DWC AD 10003 - there is no PD to adjust - in either direction. It doesn't hurt to send the document - but it doesn't accomplish anything either.

    • I hope you can help me with my question. If the injured worker is deemed QIW, is he still entitled to a SJDB voucher if he was fired from his job for due cause?

    There is nothing in the statute or regulations to cover situations where an employee is fired for cause. It makes sense that we would not want to reward aberrant behavior BUT the Labor Code only says the applicant gets a voucher if the employer fails to offer modified or alternative work when such work is needed. Your employer is not going to offer work in this situation so you have two choices: (1) provide the voucher, or (2) deny the voucher and litigate the issue. If you elect option #2, your attorney will need good documentation of the circumstances that resulted in the termination and witnesses to testify at the Board. If you do not have good evidence and witnesses, option #1 will be the cheaper and more efficient alternative.

    • You are stating that 10133.56(c) indicates "... 25 days from the issuance of a C&R or Award." The Regulation states Award and nothing about C&R. We know from case law that a C&R is not an Award of PD for apportionment purposes. Is there case law addressing this issue? I would assume the PD amount would have to be agreed to by the parties and listed in the C&R.

    For the purposes of voucher eligibility, you must treat a C&R the same as an award. There is, in fact, case law indicating that a C&R is not an award but it did not address voucher issues. We know we can settle a voucher exposure in a C&R and that wouldn't make much sense if the employee wasn't eligible for a voucher. Also, I doubt the Legislature would knowingly create a benefit for which more than 80% of injured workers are ineligible (about 85% of all indemnity cases are settled by C&R). Unless the voucher entitlement is settled in the C&R, injured workers who otherwise meet the requirements are entitled to a voucher. VR Issues

    • Could I have your opinions on vocational rehabilitation in this case? The applicant fell and hit her knees on 09/25/02. She never lost any time from work and no TD was ever paid. She never treated for the injury. She ultimately requested a QME and saw Dr. Chambliss who released her to her U&C in 2004. We spent a lot of time trying to settle her claim, and the case was ultimately set for adequacy by Judge Rogers. On Judge Rogers' order, we went back to Dr. Chambliss who again found her P&S and released to U&C in 2006. She got an attorney and we agreed to an AME, Dr. Stone. She saw Dr. Stone in June 2008, and he gave her a work restriction, and on the subject of VR he indicated, "Regarding her bilateral knees, it would appear that Ms. Doe is not medically eligible for vocational rehabilitation based upon her stated job duties. Should this be at issue, I would request a job analysis be performed." She was a clerk and essentially had a sedentary job. Apparently the AA is now demanding VR services and retro VRMA. What would you recommend on this issue? No TD was ever paid, and Dr. Stone the AME found her not QIW based on her own stated job duties. There is no doctor out there indicating she is QIW.

    The AME has given you your only option - you need to have an agreed job analysis completed and submitted to Dr. Stone for review. Since this applicant continued working at her U&C, I have to wonder why a subsequent specific injury or CT claim wasn't filed but it may be too late for that consideration. Since the parties agreed to an AME and the only injury at issue is the 2002 fall, you have no choice but to address the QIW issue with the AME even though QIW was not an issue previously.

    • Regarding the "sunset clause" for pre-2004 dates of injury, what does it mean for someone who just started vocational rehabilitation? Will they have the chance to continue in a program and when must they be in a Plan to comply with the clause?

    See the DWC Newsline above. In brief, a plan is enforceable after 1/1/2009 IF the parties agreed to go beyond the 1/1/09 sunset date (i.e., the defendant signed the RU-102 showing a plan end date after 1/1/09). If there is no such signed plan, the applicant's prospective VR benefits and services will end effective 1/1/09 whether or not the employee has started a plan. As noted above, the Rehab Unit lacks jurisdiction to order benefits for a period where it no longer exists and when there is no statute supporting the benefit. Please note, however, that all issues regarding benefits accrued before 1/1/09 remain until resolved and they will be subject to litigation before the WCAB.

    • I have a question regarding the "sunset" of the Rehab Unit by 1/09. What will happen to those cases where rehab is still an issue? What will happen to those cases if the Rehab Unit will no longer be around?

    As noted, unresolved issues QIW eligibility and entitlement to retro VRMA will be resolved at the WCAB after 1/1/2009. If there is an issue of entitlement up to 1/1/2009, that issue does not go away just because the calendar changes. The only thing that does go away is entitlement to benefits or services on or after 1/1/2009.

    Allan Leno
    e-mail: allanleno@leno-assoc.com

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    Monthly Articles on Vocational Rehabilitation
    by
    Alan Leno

    January 2009

    SJDB Voucher - FAQs

    • If the claimant has not returned to work for employer at 30 days, and the claims administrator is sending the notice for the voucher, and there is a dispute between 12% PD and 35% PD, how much do they put down on the voucher for eligible amount?

    Remember that a voucher is not due until there is a resolution of the case at the WCAB (see AD Reg 10133.56(c)). If the case is resolved with an F&A, the WCJ will determine the level of PD. If there is a Stipulation with award, the parties agree on the amount of PD which is approved by the WCJ. In both cases, you will have a PD level to determine the value of a voucher.

    Problems with the value of a voucher can arise when the parties resolve the case with a C&R agreement but fail to agree on (a) the amount of PD, or (b) the value of the voucher. If the parties fail to do (a) or (b) in the C&R, they may have to return to the Board for a determination of the value of the voucher if they cannot agree among themselves. Note that the DWC's Return to Work Unit cannot resolve this problem since only the Board has the jurisdiction to determine PD.

    • I have a question for the 15% increase/decrease, if a report is received and it states the injured worker was permanent and stationary three months before the evaluation does the 60 days start as of the P&S date or the date the report is received?

    L.C. 4658(d) indicates that the time frame for the 15% PD increase or decrease runs from the P&S date, not the date of knowledge. You would therefore owe a 15% increase in PD from day 61 after the P&S date until you actually made the work offer via a DWC AD 10133.53 or DWC AD 10118. You cannot take the 15% PD credit until you actually make the offer. It seems unfair that you should have to suffer for the physician's failure to issue a timely report but remember that the WCAB historically has been unwilling to make the injured worker suffer the consequences for the failure of others to meet their statutory/regulatory requirements.

    • We have a 2006 injury where the injured worker was declared P&S in Aug 2008, with permanent work restrictions. The store offered an alternate job to the EE in Sept 2008, and we took the 15% reduction on the outstanding PD payments (the PTP gave him 3% PD). The EE objected to his level of PD and requested a panel QME evaluation. We have just recently received the panel's report, which rates at approx 8% PD, with additional work restrictions. Fortunately the EE can remain in the alternate position he has been working in since Sept.

    Our question is, do we need to send out another 10133.53 Offer notice to the EE in order to deduct 15% from the additional PD payments? Since he continues to be accommodated in the same position, we don't see a need to send the form again, but we're not sure if we're entitled to the reduction without again showing that we're provided appropriate alternate work.

    You would not need to send another DWC AD 10133.53 due to the change in PD alone. In fact, there would be no need to send a new 10133.53 UNLESS the change in work restrictions affected the employee's job duties. If the new work restrictions changed the accommodations required so the employee could continue to perform the job, you would have to revise and re-send the 10133.53. However, if the employee could continue performing the modified job in the same manner despite the increased work restrictions, then the original 10133.53 is still valid and there would be no need to re-send it.

    • The old VR "process" provides a 30-day window for employers to explore the availability of modified/alternate position on a permanent basis. Does the same apply for 2005 onwards? I have a situation with one of my accounts who would like to have a definitive answer on this. What I had done was draft a letter stating that we are exploring modified/alternate position, stated that she will be notified after 30 days regarding availability, but would want to make certain that this is what I'm supposed to be doing.

    By statute (4658.5(c)) you have 30 days to explore availability of mod/alt work to avoid liability for a voucher but you have 60 days (4658(d)) to explore the availability of regular/mod/alt work to take the 15% PD credit. The 30 day requirement to avoid liability for an SJDB voucher applies for dates of injury 1/1/2004 forwards but the requirement for regular work regular work began 1/1/2005.

    • I have an Applicant who has retired. It is unclear whether he just retired from our Employer (due to his injury) or has completely retired from the workforce. The Applicant's condition is now MMI. What notice letters am I obligated to send?

    You need to send him a Notice of Potential Rights (10133.52). You will also owe him a voucher and a 15% bump up in weekly PD UNLESS he is offered a job (see 4658(d)(2)). It doesn't matter whether he takes it or not - but there does have to be an offer.

    • If an employee with a 2007 DOI is released to her U &C by her doctors, and we send the "Notice of Offer of Regular Work" (DWC AD 10118) within 60 days of P &S status, is the employer off the hook for the Voucher as well as the 15 % bump in future PD, if she does not actually go back to work?

    The employer is "off the hook" for the 15% PD increase as soon as the employee is offered regular, modified, or alternative work. In fact, the employer can take a 15% credit against the weekly PD benefit as soon as the offer is made (see L.C. 4658(d)(3)(A)).

    If the employee is released to regular duties (or full duty, usual & customary occupation, etc.), he or she is not entitled to a voucher. L.C. 4658.6 indicates that an employer can avoid liability for a voucher by offering modified or alternative work. We do not offer modified or alternative work to a person who is released to regular duties so a worker who is released to regular duties is not entitled to a voucher.

    • In review of 10133.56(h) it indicates the claims administrator shall issue the reimbursement payments to the employee or direct payments to the VRTWC and the training providers w/I 45 days...... Does this mean that if I receive a direct billing from the school I would need to allow same or can I force the claimant to make the initial payment and then reimburse him? What would his recourse be if I forced his hand in this manner?

    You cannot force the employee to pay the tuition first and then provide him or her with reimbursement. The Regulation you sited allows for payment to either the school or the employee; it is really the employee's choice to make. As long as the school sends you (1) an invoice, (2) a copy of the voucher signed by the employee, (3) proof of enrollment by the employee, and (4) proof of accreditation of the school by an appropriate agency, you must pay the school within 45 days or advise the school in writing why you cannot pay their invoice.

    • If applicant is terminated, then there will be no return to work offer. Client is stating that increase in PD benefits would not commence until the 60 days has lapsed to make the offer. Does that sound right to you? I would assume if we know that there will be no return to work offer that the 15% increase would occur from the start.

    When you know that the applicant will not be offered regular, modified, or alternative work, it would seem to make sense that the 15% PD increase would apply immediately. However, L.C. 4658(d)(2) indicates that the increase is due 60 days after P&S if no job offer has been made so the PD increase, in fact, does not start until the 61st day after P&S. It is one of those quirks in the law - doesn't necessarily make sense, it's just the law.

    • Is it your belief that an employer can offer TWA for less wages than was paid for regular U&C. For example, if a hospital worker was earning $25.00 per hour doing some type of nursing, but medically restricted from that job for awhile, can the employer offer tasks on a part-time, on-call basis that pays only $10.00 per hour. We would pick up wage-loss of course.

    Whatever work the employer offers must meet State and federal wage guidelines and requirements. Most importantly, the employer should be offering "equal pay for equal work." Within that framework, the employer can pay whatever the usual wage is for the work assigned under a transitional work assignment (or temporary light duty). If the work is such that there is no wage assigned, the employer can pay what it believes the work to be worth. In workers' compensation, of course, we have to perform a wage loss calculation prior to P&S and pay the applicant the difference. So, the short answer for the claims administrator is "Yes," the employer can pay a lesser wage and you pay the wage loss - whatever it is. But the employer should be cautioned that it must meet the state/federal wage requirements and they should check with their own sources to insure they are in compliance.

    • I handle the claims for the County, including the Sheriff's Work Alternate Program (SWAP) under their umbrella. I have a claimant that was injured in SWAP and required surgery. He has a full time regular job outside of his SWAP participation. He has now been released to return to work regular duty. Here is my concern, we would like to send the offer of regular work in the event the claimant has PD so we can take the 15% reduction, but we technically cannot offer a job that is not there. His assignment has ended with SWAP, but he continues to work his full time regular job. What are your recommendations?

    The statute does not address situations such as this (not even close!) so all I can do is give you an opinion. Since SWAP is an alternative to jail, you could not, under any circumstances, offer the person a "job" - only a judge can do that and only then if the person has violated the law. The person is entitled to medical treatment (as prisoners have always been under WC) but not to a "job" unless they are still in the program. I think your only option is to pay him the LC 4650 PD rate (i.e., the usual rate). No deduction because you can't offer a job but no increase because he didn't really have a "job" before the injury.

    Keep in mind this is my opinion - it would be a good idea to get a legal opinion.

    • I need clarification on issue of Mod/Alt Available issue regarding 15% decrease. I have an Injured worker that was permanent and stationary as of 11/18/2008. However, we did not receive the report until 1/13/2009. If our Insured is able to provide Alt/mod duty work, will we be able to apply the 15% decrease for PD?

    You can apply the 15% decrease as soon as you (the employer) make a job offer. You cannot apply the 15 % decrease to an earlier date because the doctor was slow in getting you the report. The statute (4658(d)(3)(A)) specifically indicates that the decrease can be taken from the date of the offer after P&S; there is no mention of date of knowledge.

    • The employer hires some of its workers out of the union hall. What is the employer's commitment to this employee since he is a union worker and worked less than 1 day for them? Do they have to provide 12 months of appropriate work (since the employee will be restricted from certain jobs within the union), or just the one day as was their commitment at time of hire?

    A literal reading of the statutes (both 4658.6 and 4658(d)(3)(a)) would seem to require the employer to provide work that lasts one year. Under AD Reg 10133.60(a)(1)(A), you could argue "comparable work" but there would have to be a cumulative total of one years work - which might take the rest of the applicant's life (I doubt that the DWC or the WCAB would accept one day of work and 364 days of no work as "comparable"). I think this is one of those situations where the employer is stuck with the voucher and the +15% PD adjustment.

    VR Issues

    The Los Angeles Board held a hearing on January 30, 2009 to address the hundreds of VR appeals that have been filed since January 1, 2009. At last count, the number of appeals had exceeded 1000 and, since each appeal was requesting an expedited hearing, the Board was facing a scheduling nightmare.

    To address this problem, Presiding Judge Jorja Frank scheduled the hearing to discuss consolidation of the cases with the intent of resolving basic issues, such as the jurisdiction of the Board on VR issues post 1/1/2009. Judge Mark Kahn explained the concept of consolidation to those present and argued that consolidation was the only practical means at hand to move the glut of cases through the system without causing the system to "crash." He noted that the large numbers of appeals had, in fact, caused EAMS to have a sort of "nervous breakdown."

    Judge Kahn therefore asked applicants' and defense attorneys to each select a limited number of cases to be included in the consolidation. These cases would then become the vehicle to go forward and resolve the following issues (as framed by Judge Kahn and PJ Frank):

    1. "Was the right to vocational rehabilitation extinguished by the sunset date in L.C. 139.5 where the right to the benefit was established for cases with a DOI before 1/1/2004?"

    2. "Since the Rehabilitation Unit no longer exists, is jurisdiction on VR issues rightfully before the WCAB?"

    The WCAB would hear arguments and then issue a Decision which could (most likely would) be appealed. The hope in moving forward with consolidation is that the parties can quickly get these cases to the WCAB for an "en banc" decision. It is quite possible that these cases would go to the California Supreme Court. In either event, the WCAB - and the parties - would have the guidance needed to move forward and resolve the remaining cases. It is noted that the WCAB as a whole might join in this consolidation effort as there may already be 10,000 (or more) cases in the system state wide with more being filed daily.

    The thousands of cases currently pending essentially break into two categories:

    1. Does the Board have continuing jurisdiction to address retro VRMA issues - that is, those cases where the obligation to pay the applicant VRMA benefits was incurred prior to 1/1/2009?

    2. Does the Board have jurisdiction to award prospective benefits and services for persons who had a DOI prior to 1/1/2004 and were determined eligible for the benefit prior to 1/1/2009? This category would include persons who previously interrupted their VR services and those who previously would have been eligible under L.C. 5405.5.

    • Okay, VR is gone. Or is it??? I have several questions for you. No one seems to know the answers. Maybe you do or can suggest something that makes sense....

    1. What do you suggest about filing RU-105's for completed VR Plans? Should we go ahead and file closures and if yes, send them where? To the Rehab Unit? To the Retraining and RTW Unit? To the WCAB?

    2. I sent out NOPE Reminder letters to employees that still had VR open because their statutes had not yet tolled. If they didn't respond to the NOPE Reminder, I was going to send the RU-105 indicating they failed to respond to the NOPE Reminder or should we send a NOPE Denial stating that they failed to respond in a timely manner and the statute tolled?

    3. I have a couple of files where the employee or their attorney indicated that they wanted VR but when the AVE went to meet with the employee, the employee did not want to participate. Do we then send NOPE Denials to them indicated that they failed to participate in a timely manner and the statute tolled?

    Good question (see above). I think the prospective benefit is gone but we will most likely be dealing with lingering pre 2009 issues for 2-3 years. As for your questions:

    1. I would recommend that you go ahead and file RU-105s as those last few plans close. Certainly the injured employee should be sent their copy because they retain their rights to be notified regarding the claims administrators actions that impact their case. I would also send the DWC the proper EAMS submissions. It is my understanding that the forms will be entered into the system even though nothing will happen (there is no more Rehab Unit). I have heard from some that the forms are being returned to them. I do not know the reason(s0 for returned forms but I would rather have them reject the form than be in a position to defend why I didn't send one.

    2. It seems to me you could send either. You can file the RU-105 for failing to respond in 90 days or a Denial as you indicated. In either event, the employee has been advised regarding the end of their VR benefit. Technically the RU-105 would be correct but the Denial actual provides the employee with better information. If you want to exercise an excess of caution - do both.

    3. You can actually send a straight Denial notice since the employee has already been sent a NOPE - and I would absolutely send a Denial. Since the VR benefit has now ended (prospectively at least) you do not want to risk extending your liability by sending an Interrupt notice which - it could be argued - misleads the employee into believing they still have a future right to the benefit.

    • There is apparently a rumor floating around that pre 2004 cases would be eligible for a voucher in lieu of regular VR. From what I have read on your past newsletters - this does not appear to be the case, but figured I'd double check it with you.

    Definitely not true. The Legislature would have to enact legislation and the Governor would have to sign the bill for the voucher to become available to those with pre-2004 injuries. Neither has happened. Persons with pre 2004 injuries are NOT eligible for a voucher.

    Allan Leno
    e-mail: allanleno@leno-assoc.com

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    Monthly Articles on Vocational Rehabilitation
    by
    Alan Leno

    February 2009

    SJDB Voucher - FAQs

    • The California Legislature's continuing failure to create a replacement agency for the Bureau for Private Post-secondary Vocational Education (BPPVE) presents schools, claim administrators, and (most significantly) injured workers with an on-going problem regarding use of SJDB vouchers. Since most schools had only the BPPVE certification, claims administrators are now in a situation where they cannot pay school tuition without risking liability for a second voucher, a fact that RTW Manager Otis Byrd confirmed for us at the DWC Annual Conference in Los Angeles on February 26, 2009. Mr. Byrd indicated that he has been attempting to get the U.S. Dept. of Education to streamline its certification process for schools but so far has not had much success. Since it is very unlikely the Legislature will create a replacement agency for BPPVE before 1/1/2010, the only option for vocational schools is to obtain certification or approval from other agencies that meet the requirements of L.C. 4658.5.

    L.C. 4658.5 requires that training facilities must be certified by a "California agency," a regional certifying agency (such as WASC), or the FAA. Many vocational schools are now calling claims administrators demanding payment for tuition, books, fees, and equipment, indicating that they are approved by BPPVE because they signed the 'voluntary extension agreement." Unfortunately that voluntary agreement expired 7/1/08 (see the BPPVE home page at http://www.bppve.ca.gov/) so those certifications are NOT valid and claims administrators should not pay tuition invoices for schools that do not have some other acceptable form of certification. By statute a school can be certified by "any" California agency as well as the US Dept. of Education and any one of the 19 regional certifying agencies that are listed on the US DOE site. To obtain tuition payment, schools certified by one of these other agencies should provide a copy of the certification document or a copy of the "memorandum of understanding" issued by the certifying organization.

    For schools that have had only the BPPVE certification, Mr. Byrd agreed that they should immediately seek certification or a memorandum of understanding from a California agency or from one of the 19 regional certifying agencies. Since the certification or memorandum can be from ANY California state agency, school s should contact state departments that are involved in activities related to programs taught by the school. For example, a school providing training for dental assistants might contact the Dept. of Consumer Affairs Committee on Dental Auxiliaries. Or you might contact the Department of Rehabilitation to determine if DR might provide a "memorandum of understanding" allowing use of the program for Dept. of Rehab clients. Schools should also contact their professional association to seek assistance in finding certification through some means other than the defunct BPPVE.

    I asked Mr. Byrd what would happen if a school (through the injured worker) managed to get the issue of bill payment through to the RTW Unit via the 10133.55 dispute resolution process. Mr. Byrd responded that the RTW Unit has no choice but to follow the law. If a training facility has ONLY BPPVE certification, the RTW Unit would not be able to order payment of the school's invoice. Schools that wish to provide services to injured workers have no choice but to take the initiative and obtain certification from some other acceptable source. The alternative is to wait until the Legislature acts and creates the replacement agency for BPPVE within the Dept. of Consumer Affairs. As noted, the replacement agency is unlikely to be in place before 1/1/2010 - at the earliest.

    VR Issues

    The Los Angeles Board will hold a second hearing on March 27, 2009 to address the issue of consolidating more than 1000 VR appeals that have been filed since January 1, 2009. The cases being appealed generally fall into two categories: (1) cases with allegations of retro VRMA due based on unresolved QIW disputes and/or VR benefits and services demanded but not provided prior to 1/1/09, or (2) initial requests for VR services or requests for reinstatement of VR services on or after 1/1/09.

    Some cases bridge both categories where the QIW issue has yet to be resolved and the applicant is demanding a VR plan. The WCAB is attempting to identify an efficient means to determine if it has jurisdiction on either or both categories. Judge Mark Kahn has proposed to consolidate all these cases and select some representative cases to "fast track" to the WCAB for (hopefully) "en banc" decisions that would provide guidance to all Boards on how to address these issues on individual cases. Considering the number of cases and the distance between the applicants' and defense positions, it seems likely that a few of these cases will go to the California Supreme Court which means final resolutions are likely to be two or more years away. Stay tuned.

    Case Law

    • Who should make a return to work decision, a physician or a vocational expert? Should an injured worker's diminished earnings capacity (DEC) be determined exclusively through the 2005 PD Rating Schedule (PDRS) or are there circumstances where it is appropriate to determine the DEC factor outside the 2005 PDRS?

    The WCAB has attempted to answer these critical questions via "en banc" decisions in Olgivie v. City and County of San Francisco and Almaraz/Guzman v. SCIF/Keenan. En banc decisions by the WCAB are important because such decisions govern local WCJ decisions on cases with similar circumstances - unless the decision is appealed. Olgivie has been appealed and it is expected that Almaraz/Guzman will be appealed eventually. Almaraz/Guzman was remanded to the local WCJ for further action consistent with the Board's findings; these cases cannot be appealed until the WCJ has complied and issued a final Order.

    In its en banc decisions, the Board was attempting to resolve disputes regarding DEC that are becoming increasingly common. Applicant attorneys have been using vocational experts to determine the type of work that an injured worker might be able to perform post injury and then to calculate a lost earnings factor based on a demonstrated loss of earnings calculated over the injured employee's remaining work life. If the loss factor was greater than the DEC factor in the PDRS, the attorney would then argue that the factor was inadequate by proof as presented by the applicant's vocational expert. Defendants argued that the PDRS DEC factor was adequate and included in the 2005 PDRS pursuant to legislative direction and the applicant's compensation should be determined solely by the 2005 PDRS.

    Briefly, Olgivie/Almaraz/Guzman determined that (a) a physician could determine return to work capacity and there was no requirement to use a vocational expert for that purpose, and (2) the Labor Code did allow for a substitution of the PDRS DEC factor with a calculated factor where the calculated factor was significantly higher than the relevant DEC factor included in the 2005 PDRS. Almaraz/Guzman discussed general criteria for calculating a DEC factor and remanded these two cases to the local WCAB for further action.

    The WCJs in these cases will have to determine if the calculated DEC factors are consistent with the Board's instructions and whether the calculated results are significantly different than the DEC factors in the Ratings Schedule. If the calculated factor is significantly different that the DEC in the 2005 PDRS, then the calculated factor can be used in place of the PDRS number. As noted above, it is likely these cases will also be appealed eventually and the issue will most likely end up at the California Supreme Court - eventually.

    If these cases stand, we might expect several significant changes in the litigation of DEC disputes. First, lengthy and very expensive VR expert reports should virtually disappear. If a physician's opinion on the appropriate type of work for an injured worker is sufficient by itself, there would be no need for dueling vocational experts to interview the applicant and develop 50 page reports on the most appropriate occupations for the employee considering his/her work restrictions. That is "good news" for defendants since these reports often cost $4000-$5000 each. However, as in many situations, there is also a "bad news" element.

    The Almaraz/Guzman decision suggests that the diminished earnings calculation is relatively straightforward and seems to assume that it can be done by claims administrators and attorneys. The reality is that most claims administrators and attorneys lack sufficient labor market knowledge to do the calculations and few have the time. It thus is quite possible we will see a new 'cottage industry" among vocational specialists to run calculations on DEC for both the applicants and defense much as we now see with PD and Medicare set aside calculations.

    These DEC calculations will be considerably less expensive than the full blown vocational expert reports mentioned above (that's the good news) BUT they will be far more commonly done. Applicant attorneys will have a calculation done whenever there is an expectation of a significant earnings reduction and defendants will get their own calculations done to insure the applicant's calculation isn't overstated. If these decisions stand, defendants can expect to see a significant increase in costs.

    Finally, we will have doctors making return to work decisions which means more work for the doctors (and expense for claims administrators). We may see a greater demand for job analyses from physicians and reports that often do not make a lot of sense. The WCAB got this part of it dead wrong - doctors do NOT have the necessary expertise to make re-employability determinations. I am reasonably certain they do not take employment classes in medical school and I do not know any who have written a rehab plan or who have designed or implemented a job modification.

    It is the physician's expertise and responsibility to provide work restrictions; it is the vocational specialist who has the expertise (at least some do) to take the work restrictions and assess return to work options. We can only hope the District Courts of Appeal and/or the Supreme Court will recognize that the WCAB assigned a responsibility to physicians for which they are ill equipped.

    As noted, this dispute is likely to go on for some time but, in the end, we should have (for better or worse) some clear guidance on the diminished earnings capacity issue.

    Allan Leno
    e-mail: allanleno@leno-assoc.com

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    Monthly Articles on Vocational Rehabilitation
    by
    Alan Leno

    March 2009

    PENALTY REGULATIONS

    The DWC has submitted revised penalty regulations to the Office of Administrative Law (OAL) for review and approval; final approval is expected by early April. These regulations impose significant administrative penalties for failure to provide specified notices or failure to comply with procedural requirements for the Supplemental Job Displacement Benefit (SJDB voucher) process.

    Failure to provide or send timely the 10133.52 Notice of Potential Right up to $500
    Failure to send the 10133.52 timely $100
    Failure to send an accurate 10133.52 $100
    Failure to provide or send timely the 10133.57 SJDB voucher up to $1000
    Failure to pay/object voucher expenses w/in 45 days of invoice up to $1000

    Insurers and claims administrators should note that these SJDB penalties will be part of "Par" audits meaning that non-compliance with SJDB requirements will be reviewed in the initial audit and non-compliance with SJDB requirements could lead to more extensive - and more expensive - DWC audits. Substantial non-compliance could place claims administrators at risk for a LC 129.5(e) "business practice" penalty as well.

    If your claims operation needs training and/or administrative support in identifying SJDB and RTW liabilities and in complying with statutory and regulatory requirements, you should contact Debbie Freeman in Northern California and Allan Leno in Southern California.

    SJDB Voucher - FAQs

    • We offered the employee a permanent modified job based on her work restrictions. However, the job was not within 85% of her prior wages. She declined the offer and now wants a voucher. What do you think? Does the same law apply to voucher as it did when voc rehab was around? Do we owe +15 ppd? We offered her a job!

    You owe the applicant a voucher. L.C. 4658.6 sets out the criteria that enable the employer to avoid liability for a voucher. One of the criteria is that the job pays the applicant at least 85% of his/her pre-injury wage. The employee is not obligated to accept an offer that pays less than 85%.

    You also owe the 15% PD increase because the definitions of "modified" and "alternative" work include a requirement that these jobs pay at least 85% of the pre-injury wage (see L.C. 4658.1).

    • Do we have to file and serve DWC-AD 10133.53 to the AD each time EE is released to return to work modified?

    Here is an example: EE is TTD from 01/01/09 to 01/30/09 - released to modified duty on 01/30/09 (light duty/transitional work). A Notice of Potential Rights is sent within 10 days of TTD ends and AD 10133.53 within 30 days then cc: AD within 30 days of the offer. EE is TTD again from 02/05/09 to 02/28/09- released to mod on 03/01/09. Do we need to repeat sending the Notice of Potential Rights within 10 days of TTD ends and AD 10133.53 within 30 days of the offer? Are we required to file and serve these documents via EAMS each time EE is released to modified duty to the AD or not?

    You need to send the Notice of Potential Rights (DWC AD 10133.52) to the applicant only once and there is no requirement to file the document with the AD via EAMS. In fact, there is no EAMS version of the 10133.52.

    The DWC AD 10133.53 Notice of Offer of Modified or Alternative Work (EAMS version) must be filed with the AD within 30 days of the offer (or when the applicant replies, whichever occurs first). Assuming the applicant returns to the same modified or alternative job, there would be no need to complete and file a second form; the job is unchanged so a second form would not be providing any new information to the AD. However, if the job assignment is further modified to accommodate new work restrictions, then you would need to complete, file and serve a new DWC AD 10133.53. The process and rational are essentially the same as for the old RU-94 - you need to send a new form only if the job changes. Note however that your one year time frame has been extended by 23 days (the length of time for the second period of TTD).

    • Where an employee voluntarily quits is the adjuster still required to send the perm. mod/alt. work offer to get the 15%? Also, I do not think they are entitled to the voucher since they quit, but just want to make sure.

    If you want to take the 15% PD credit (and insure that you avoid the 15% PD increase) allowed by L.C. 45658(d)(3)(A), you will need to send the employee an offer of regular, modified, or alternative work. This Labor Code section says the employer gets the 15% PD credit when an offer of work is made; it does not - unfortunately - include any exceptions. There is no case law on this subject yet so it is possible that the courts will make a common sense decision at some future point to at least preclude a PD increase where an employee quits and takes the RTW option out of the employer's hands. Until then, the only safe way to take your 15% credit is to make an offer and let the former employee either reject the offer or fail to respond.

    The same concept applies to the SJDB voucher; make the offer. If the employee rejects the offer or fails to respond, the employer has no obligation to provide a voucher. If no offer is made, L.C. 4658.5 arguably requires the employer to provide a voucher simply because no offer was made.

    • What is an employer's obligation to answer the question of whether or not they are able to accommodate permanent restrictions for an injured worker who has already retired, prior to her MMI date? We have a case where we only recently received (from an AME) the permanent restrictions. Normally, we would ask the employer to advise on their ability to accommodate, but now that this employee has taken herself out of the labor market, how do we handle the 15% add or subtract issue for PD?

    This is a variation of the preceding question. Here, the employee has taken the return to work option out of the employer's hands by electing to retire. However, L.C. 45658(d)(3)(A) requires that a job offer must be made in order to take the 15% PD credit. And, once again, the employer is arguably required to increase weekly PDAs by 15% if no offer is made. Keep in mind that there is no "proof" that the employer actually could take the employee back unless an offer is made.

    • One of our examiners is getting differing opinions. She has a claim in which the injured employee was P&S on 1/26/09, no PD was paid. On 3/9, she received a report indicating PD on 1/26/09. She wants to send out the RTW offer and deduct the 15% from PD dating back to 1/26/09. To me the Labor Code clearly indicates 15% PD must be deducted on remaining PD payments from the date we actually make the offer on 3/9. The 15% deduction can be taken on all PD paid after 3/9.

    The 15% credit can be taken against PD payments due after the work offer is made; PD payments for the period 1/26/09 to 3/9/09 were due before the work offer was made so would be due at the usual L.C. 4650 rate (the period falls within 60 days of the P&S determination). Your conclusion is the correct one.

    NOTE: There have been a couple of cases (most recently in Ornelez v Albertsons) holding that the work offer is not exclusively determinative of the date the credit can be asserted when the employer has already allowed the employee to return to work. The WCJs in these cases made common sense decisions BUT these cases are lower level and not citable as judicial authority. In my opinion, claims administrators would be best served by observing the plain language of L.C. 4658(d0(2) and 4658(d)(3)(A) and taking the 15% PD credit only after there has been an actual offer of work. Taking PD credits before offers of work via forms DWC AD 10133.53 and DWC AD 10118 could result in the imposition of DWC penalties.

    • I specialize in Dragon voice recognition. We are certified by Nuance as a VAR in this type of software. Would this certification be approved by Claims Administrators for training and provide voucher payment on. Would you know of a Claims Administrator that may confirm if this is a considered Certification.

    Nuance (the distributor for Dragon Dictate) is not a recognized certifying agency pursuant to L.C. 4658.5 so you would not be an "accredited school or training facility." A claims administrator would not be able to pay your invoice unless you obtained approval from a "California state agency" or the U.S. Dept. of Education. Note that the approval or certification can be by any California state agency so you do not have to wait for the Legislature to create a replacement for BPPVE. You can approach other agencies that might have need of your training program (e.g., the Dept. of Rehab) to see if they would be willing to list your program as one of their approved training facilities.

    • I have an employer who wants to offer an injured worker a lower position making less money than she is now working a temporary modified duty job. My question is - if the salary of the position being offered is less then 85% of the amount she is making now, does the injured worker have to accept it? And if not, will she be entitled to a voucher?

    Since this is a temporary modified job, you cannot use the 85% requirement. Prior to P&S, you MUST do a wage loss calculation on any wages paid when the employee returns to work and pay him/her whatever the calculation requires. The 85% requirement applies only to permanent modified or alternative jobs offered after P&S.

    Assuming the job is physically appropriate, the applicant must either accept the temporary job or forego his/her TTD (again, modified by the wage loss calculation).

    The SJDB voucher would not be at issue until the applicant is P&S. After P&S, the applicant would not be entitled to a voucher if the employer makes a timely offer of modified or alternative work pursuant to L.C. 4658.6.

    VR Issues

    The Los Angeles Board held a second hearing on March 27, 2009 to address the issue of consolidating more than 1000 VR appeals that have been filed since January 1, 2009. The cases being appealed generally fall into two categories: (1) cases with allegations of retro VRMA due based on unresolved QIW disputes and/or VR benefits and services demanded but not provided prior to 1/1/09, or (2) initial requests for VR services or requests for reinstatement of VR services on or after 1/1/09.

    Some cases bridge both categories where the QIW issue has yet to be resolved and the applicant is demanding a VR plan. Judge Mark Kahn indicated he will be issuing a Stay order within the next few days to forestall further action on cases falling into these two categories.

    A third meeting has been scheduled for May 29, 2009 to frame stipulations and issues for the consolidation and to select cases the cases to try for the VR issues selected. At that point, Judge Kahn indicated he would present a panel of three judges for consideration by the parties; applicant's and defense counsel will each get to eliminate one judge. The remaining judge will be responsible for trying the cases selected for the consolidation.

    Judge Kahn advised the attendees that his decision to proceed with the consolidation would not preclude other judges within the WCAB from proceeding to trial on the very issues that are the subject of the consolidation. It is also entirely possible that a party will appeal his Stay or the Order of consolidation.

    He also advised that the consolidation was not intended to include cases where there had been final determinations by the Rehabilitation Unit or the WCAB (i.e., cases where there had been a Determination by the Unit or an Order by a WCJ that had not been appealed). Cases to be included in the consolidation were those where the defendant had declined to provide benefits or services based on an argument that the Board lacked jurisdiction to order such benefits or services.

    Judge Kahn reiterated his previous opinion that cases litigated under the consolidation order would almost certainly be appealed to the California Supreme Court. An appeal to the Supreme Court does not assure a decision by the Court but it does suggest that the VR issue is not going to go away any time soon.

    • We have an employee who worked at a different location and was considered a QIW for the position she held at the facility. She is now working at our facility in a job that is much lighter. Evidently, the applicant is not a Qualified Injured Worker for this job. Does that mean that he permanent work restrictions that were given while working at the old job no longer applies?

    Permanent work restrictions remain regardless of the job to which the applicant is assigned. These work restrictions are determined by the treating physician (or AME if there is one) and can only be changed by that physician.

    The applicant is determined QIW (or not) based on his/her work restrictions and the duties s/he was performing at the time of injury. Assigning the worker to a lighter job is the preferred way of addressing QIW liability but such an assignment does mean the person is no longer a QIW. What it does mean is that the employer has satisfied its liability vis--vis the QIW determination and it does not have to provide full VR benefits or services (pre 2009 anyway). Of course, that liability was satisfied only if the employer properly documented the modified or alternative job via a DWC form RU-94 (a DWC AD 10133.53 for post 1/1/04 injuries).

    • I am wondering if you have any suggestions for obtaining payment from a carrier for authorized and agreed upon QRR services. The carrier has been dragging its feet in paying my bill. The claims administrator gives me lip service about paying it, but three months later so money. As there is no Rehab. Unit with which to take this matter, I am thinking about small claims court or maybe the WCAB.

    Since this is a workers' compensation matter, small claims court would be unlikely to accept jurisdiction. You can file a lien with the WCAB. A WCJ should order payment without hesitation since the claims administrator did not object to your invoice within 60 days as required by AD Reg. 10132(j). Failure to pay or object to VR invoices timely may subject the carrier to penalties under L.C. 129 and 129.5 as well as AD Reg 10111.1(a)(11) .

    • I have a question on this old case. The claimant was made QIW by QME - NOPE issued on 12/16/2008, She originally indicated no -on reply card as employer told her they would accommodate. Later when Employer informed her she had no job- she sent another reply card saying she wants VR.- received 02/20/09. What do you think of her VR status? She has an argument that she was QIW prior to 12/31/08 but wasn't told by her ER till 2009 that there was no job, then she immediately requested VR. Should I refer her to a counselor? Or is she just out of luck? Would there be any chance to do an RU122? - although she is unrepresented.

    You owe the applicant retro VRMA at the TD rate from 12/16/08 through 12/31/08 because the employer was not able to offer her modified or alternative work. She would not be entitled to VR services because L.C. 139.5 was repealed effective 1/1/09. This is the kind of case though that will be included - and decided - in the VR consolidation effort currently underway at the Board (see above).

    An RU-122 would be useless since 91) it is no longer a valid form, and (2) the claimant is not represented.

    Case Law

    The WCAB's "en banc" decisions in Ogilvie v. City and County of San Francisco and Almaraz/Guzman v. SCIF/Keenan have all been appealed to District Courts of Appeal. Generally, the principles in cases that are appealed are held in abeyance until the case(s) is ultimately decided. I am informed that this is not the case with WCAB en banc decisions; the findings in these cases will be binding on all Boards unless they are overturned by a District Court of Appeal or, more likely with these cases, the California supreme Court. Under these circumstances, we can expect to see substantial activity at local Boards on the subject of diminished earnings capacity during the coming months.

    Allan Leno
    e-mail: allanleno@leno-assoc.com

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    Monthly Articles on Vocational Rehabilitation
    by
    Alan Leno

    April 2009

    PENALTY REGULATIONS

    The DWC has obtained final approval for its revised audit penalty regulations by the Office of Administrative Law (OAL); the new Regulations become effective May 20, 2009.

    These regulations impose significant administrative penalties for failure to provide specified notices or failure to comply with procedural requirements for the Supplemental Job Displacement Benefit (SJDB voucher) process. The SJDB penalties are:

    Failure to provide or send timely the 10133.52 Notice of Potential Right up to $500
    Failure to send the 10133.52 timely $100
    Failure to send an accurate 10133.52 $100
    Failure to provide or send timely the 10133.57 SJDB voucher up to $1000
    Failure to pay/object voucher expenses w/in 45 days of invoice up to $1000

    Insurers and claims administrators should note that these SJDB penalties will be part of "Par" audits meaning that non-compliance with SJDB requirements will be reviewed in the initial audit and non-compliance with SJDB requirements could lead to more extensive - and more expensive - DWC audits. Substantial non-compliance could place claims administrators at risk for a L.C. 129.5(e) "business practice" penalty as well L.C. 5814.6 penalties.

    A copy of the final audit regulations can be found by clicking here.

    SJDB Legislative Action

    The Senate Labor and Industrial Relations Committee, by a 4-2 vote, has approved a bill that would modify the rarely used supplemental job displacement benefit. The committee approved Senate Bill 3 (SB #), authored by Sen. Gil Cedillo, D-Los Angeles, which would allow eligible injured workers to obtain the SJDB voucher once the injury has become permanent and stationary.

    Under the current statute, an eligible injured worker must wait until a final disability rating determination has been made by the WCAB. The bill would also eliminate the voucher's current payment structure, replacing the tiered structure with a voucher worth $6,000 for all injuries after Jan. 1, 2010. The bill would also allow up to $1,000 towards the cost of a computer. SB 3 still requires approval by the full Senate, the Assembly, and the governor before its provisions can be implemented.

    SJDB Voucher - FAQs

    • I received a report from an AME who states Claimant has ZERO WHOLE PERSON IMPAIRMENT. However under "restrictions" he imposes work restrictions. Would the applicant be entitled to a voucher if the insured cannot accommodate the restrictions?

    By statute, an applicant is only entitled to a voucher if s/he has permanent disability. 0% PD is not an award so you would not owe a voucher even though there are work restrictions that appear to require job modification or reassignment. This situation is one of the unfortunate consequences of the AMA Guides and the 2005 PDRS - one we hope the DWC will soon rectify.

    • If the injured worker is at minimum PD can you take the 15% credit once an offer has been made and pay below minimum?

    Yes. You can pay below the minimum just as you can pay above the maximum. The PD adjustments in L.C. 4658(d) are an adjustment to the legal rate so you allowed to pay whatever rate results from the appropriate calculation. This means you can end up pay 15% above the maximum rate - or 15% below the minimum rate. The concept here is no different that the PD Supplement under the old VR benefit. You may recall that we sometimes paid a weekly PD Supplement rate that was much higher than the legal maximum rate for PD.

    • I have a question...If the injured worker resigns voluntarily or retires, are we still responsible to send the offer of regular work? Would the 15% increase apply if we didn't send this notice?

    This may not make much sense but..... When an employee voluntarily retires prior to P&S, the employer must still make an offer of employment to get the 15% PD credit. Failing to send an offer may require a 15% increase in weekly PD payments. This admittedly flies in the face of common sense; why should an employer be obligated to increase weekly PDAs for an employee who took him or herself out of the labor market via a voluntary retirement?

    The problem - as is often the case - is in the "plain language" of the statute. L.C. 4658(d)(2) says that the 15% PD increase is due if no offer is made within 60 days. L.C. 4658(d)(3)(A) provides that the employer can take the 15% PD credit immediately after the applicant becomes P&S and an offer is made.

    The operative factor for the PD increase or decrease is the offer of work. In a way it does make some sense: how can an employer show that it would have had work available but for the employee's retirement? The answer, is to make an offer.

    If the employee declines the offer or fails to respond, the employer still gets to take the 15% PD credit immediately upon making the offer.

    If the employee decides s/he would like to "un-retire," a job has to be available. Whether you agree with this logic or not, the only sure way to support a 15% PD reduction and avoid the 15% increase is to - make an offer.

    • Where can I get information on how a small employer can apply for reimbursement of job modifications costs?

    Until recently, information on how to take advantage of this benefit has been hard to come by. A few weeks ago, the DWC made information available regarding the L.C. 139.48 reimbursement program available through its web site.

    For information about the program, .

    Keep in mind that the claims administrator will have to assist with any reimbursement request because a copy of the medical report justifying the need for job modification or reassignment must be attached to the reimbursement request. The employer does not have access to the medical reports, just the work restrictions.

    • I am sending a $6k voucher to XYZ College. However, the certification from the BPPVE indicates "temporary approval to operate" The approval######/ Effective Date: 4/6/07 Expiration Date: 3/31/08. Am I obligated to send them the $6k now without a current certification?--Shall I ask for a current certification?

    This question continues to come up because the Legislature has failed to act and create the successor agency to the BPPVE (Bureau for Private Post-secondary Vocational Education). Many schools continue to operate under the illusion that they are covered by the "voluntary extension" of their BPPVE certificate; that is no longer true.

    As indicated on the BPPVE web site ( http://www.bppve.ca.gov/), the legislation creating the voluntary agreement become inoperative effective 7-1-08. Thus the list itself is without value as an "approval" of a particular school or its programs.

    To meet the requirements of L.C. 4658.5, a school would have to be approved by (a) another California state agency (any state agency) or have a "memorandum of Understanding from a California state agency, (2) the U.S. Dept. of Education, (3) one of the 19 Regional approving agencies recognized by the U.S. Dept. of Education, or (4) the FAA. If a training facility does not have one of these four approvals or certification, it is not an "approved" training facility within the meaning of L.C. 4658.5 and should not be paid.

    If a school with only BPPVE "approval" is paid, the applicant might well be entitled to a second voucher if s/he took the issue to the DWC under the DWC AD 10133.55 dispute resolution process.

    Clearly this is a problem for injured workers as well as for the schools involved. Persons and organizations impacted by the demise of BPPVE should contact their State Assemblyperson and Senator to demand immediate action to create BPPVE's replacement agency.

    VR Issues

    • I have a question for you.....our client wants us to file a RU 105 on their behalf. Since there is no longer a rehab unit, can a RU 105 be filed and if so, how? Lastly, would a RU-105 be beneficial or viewed as a mere formality?

    The EAMS version of the RU-105 has been taken off the DWC web site so filing an RU-105 with the DWC will most likely result in the document and attachments being returned to you. I would, however, complete an RU-105 and send it to the applicant, especially if you are documenting the conclusion of a Rehab plan.

    Remember that the RU-105 was actually a notice to the injured worker to advise that the defendant considered its liability for the VR benefit to be completed. When defendants filed the RU-105 with the unit, it was providing the filing as information and not asking the Unit to take an action.

    • I just received a demand for voc rehab on a 2003 injury claim. The applicant is QIW on the AME, which was done in 2008, and because she was TD more than 365 days, VR notices were sent to her and her attorney in the past, however they never responded. She never started VR and interrupted, does he have any legal authority to request this benefit now that the VR statute has expired??

    Absent a decision by the WCAB to the contrary, you would NOT owe VR benefits or services after 1/1/09. L.C. 139.5(l) states that the VR benefit is repealed effective 1/1/09 so there is no more benefit effective that date, no Rehab Unit, and no jurisdiction by the WCAB to order prospective VR benefits and services. In my view, the WCAB will retain jurisdiction to order retroactive benefits incurred prior to 1/1/09, but that does not seem to be an issue here.

    • If we accommodate employees who have restrictions related to a work incurred injuries don't we have to accommodate employees with non-industrial related health issues as well, if we can?

    This isn't an SJDB question but it certainly is relevant, especially for employers. In workers' compensation, we only worry about trying to accommodate persons with industrially=related disabilities. However, an employer has the obligation to try to accommodate all employees with disabilities, regardless of the origin of the disability.

    Case Law

    • Is the diminished future earnings capacity (DFEC) factor in the 2005 PDRS rebuttable?

    The WCAB's "en banc" decisions on the DFEC arguments in Ogilvie v. City and County of San Francisco and Almaraz/Guzman v. SCIF/Keenan are now in a legal "never-never" land. The WCAB en banc has, on its own motion, agreed to reconsider its previous decisions in these cases. However, the WCAB did not issue a "stay" on these cases while it conducts its review so, presumably, its findings remain in effect. Stay tuned.

    • Does a defendant owe the costs of an applicant's vocational expert testimony?

    The Workers' Compensation Appeals Board has continued to reaffirm its prior holdings regarding the reimbursement of vocational rehabilitation experts' costs in 2009, with two panel decisions in the case of Costa v. Hardy Diagnostic et al. in recent months. In a January decision overturning a trial judge's ruling, and a March decision denying defendant's petition for reconsideration, the Workers' Compensation Appeals Board (WCAB) commissioners have reinforced their prior holding in Costa II. In that en banc decision, the commissioners decided that vocational rehabilitation counselors who provide expert testimony on behalf of a party's effort to rebut the 2005 permanent disability rating schedule (PDRS) are entitled to reimbursement if their costs were "reasonable and necessary at the time they were incurred," regardless of whether the party that hired the expert prevails. [workcompcentral, 4/27/09]

    Allan Leno
    e-mail: allanleno@leno-assoc.com

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    Monthly Articles on Vocational Rehabilitation
    by
    Alan Leno

    May 2009

    SJDB Voucher - FAQs

    • I recall that in your May newsletter, you made reference to the SJDB Voucher saying that it must be issued to the employee earlier than it was previously. I worked with an IW for part of her Voucher monies, and then she went away. She wants to return for more services, which I will gladly provide. However, she just emailed me saying that her Attorney told her she can't use the Voucher until her case is settled. Can you please confirm for me that this is incorrect and site a source that I might refer him to?

    A defendant can provide the SJDB voucher prior to a C&R or F&A but is not required to do so; pursuant to ADReg 10133.56(c), the voucher is due within 25 days of case resolution at the WCAB. There was a bill in the Legislature (SB3 - see above) that would have made the voucher available within 60 days of P&S but it did not pass this session so the requirement remains for the voucher to be provided after the case settles or there is a finding by the WCJ.

    • My training in 2006 reflected that injured workers who are undocumented are not entitled to an SJDB voucher but I cannot find code to support at present. Can you provide the Labor Code or Regulation citation?

    An undocumented worker would be entitled to a SJDB voucher UNLESS the employer can demonstrate it has modified or alternative work available. The employer essentially has to send a DWC AD 10133.53 Offer of Modified or Alternative Work form indicating a specific job is available upon presentation of proof of legal ability to work in the US.

    This is essentially the same requirement the Rehab Unit had for RU-94 modified/alternative work offers for undocumented workers under the old VR system. The employer has to show that an actual job would be available but for the worker's undocumented status. An employer obviously cannot make an offer to a worker it knows or suspects is undocumented. The condition "upon presentation of proof of legal ability to work in the US" makes the offer dependant upon legal documentation which is the requirement for job applicants generally.

    • I have an employee who has been released to full duty, discharged no PD no Future medical and he has been laid off. We can't send the return to regular work notices as he will not be returning, what if any notice should we send?

    No notice is due and the employee is not entitled to a voucher. The only forms due an injured worker regarding the voucher are the DWC AD 10133.52 and the EAMS forms (available from the WorkInjury.com home page, left margin or top blue menu).

    I know it seems like something is missing (especially if you dealt with the old VR benefit) but there is simply no form for your situation.

    If you paid the employee TD, you would owe the 10133.52 Notice of Potential Rights - but that is it. You are not offering a job so you would not send the 10133.53 Mod/Alt offer or the DWC AD 10118 Regular Work offer. Because the employee was released to full duty AND there is no PD, the employee does not get a voucher. It seems lie there should be a form similar to the old VR Denial form - but there is not.

    Please note that the employer must still send the same notices/letters it send to all other employees in a similar situation. That is a personnel issue - not workers' comp.

    • Our company paid the applicant 104 weeks of TD and then started advancing PD. However, applicant's attorney sent a letter in Nov. 2008 telling us to stop PDA's as applicant applied for unemployment benefits. So the issue now is, if PD is not resumed, we would be liable for the 15% increase as the employer employs more than 50 employees. I don't know if we could ask the attorney to agree to waive the 15% PD increase if he wants us to continue withholding PDA's?

    Pursuant to L.C. 4658(d)(2), the 15% PD increase does not become an issue until the employee is P&S. In your example, you stopped paying TD because you reached the 104 week limit so I would assume the employee is still TTD - just not eligible for TD benefits. Since the employee is not P&S, the 60 day clock to offer modified or alternative work has not started. If you were going to pay PD advances, you would pay them at the L.C. 4650 rate until the employee becomes P&S.

    • When our employees go back to modified work after being TTD, the restrictions often continually change every time they return to the doctor. So we may send an offer of mod work for a restriction of 25 pounds and then two weeks later, they are restricted from lifting 15 pounds. Do we continually send a new offer with each changing restriction?

    There no longer is a requirement to send a formal job offer via the 10133.53 for temporary modified work. You (or the employer) should send a simple letter indicating that the employee has been offered temporary modified work and noting the restrictions. This means you would have to send a revised letter noting any changes IF the new work restrictions impact the job duties (save the original electronic document and just plug in the new numbers).

    Once the applicant is P&S, the doctor should not be regularly changing the work restrictions - otherwise the employee is not yet P&S. It does happen occasionally that the treating doctor revises work restrictions. IF the revised work restrictions impact the job, then it would be necessary to send a revised work offer.

    If changing work restrictions is a recurring problem with a particular physician or a particular case, you may want to consider getting a job analysis to get a final determination from the physician. The physician should also be made aware that these recurring changes in work restrictions could jeopardize the employee's job.

    • I have a situation were I sent out the Notice of Regular Work as the treating physician had indicated the IW was MMI and could return to her regular duties. I received a call from the IW stating that her position had changed and she was no longer a Press Tech and was now in Customer Service.

    Her rate of pay has remained the same and per the Employer they changed her position for two reasons: 1) They are cutting back due to the economy; 2) They felt that the customer service position would be less physical for the IW.

    The IW has never been on TD. The treating physician has had her full duties for several months.

    My question is - Is the Notice of Offer of Regular Work Valid? Do I need to send the Notice of Modified or Alternative Work? Then what would happen since I took the 15% decrease based on the fact that the treating physician said she could return to regular work, but I was not aware that her job position had changed? The IW asked me if she could just change the job position on the paperwork that I sent her and I was wondering if that would be ok?

    The fact that the injured worker (IW) has changed positions does not automatically require a new form when the employee was previously released to full duty, as is the case here. It appears that the new job duties are less arduous than those of the position to which the physician released her so what you describe is nothing more than a personnel action by the employer that should have no impact on the workers comp case. The employee continues to work so it is appropriate for you to continue taking the 15% PD credit if benefits are still being paid. If PDAs ended before the job change, you would not give back the credit, no matter what happened.

    If you want to be certain your bases are covered, you can get a job description of the Customer Service position and ask the treating physician if the applicant is still released to the full duties of this position. If the answer is "Yes," you need do nothing unless you are still paying PDAs. If PDAs are being, you can send a new DWC AD 10118, although I do not think it is necessary. If, for some unknown reason, the treating physician restricts the applicant from one or more duties in the Customer Service position, you would have to send a DWC AD 10133.53 Modified Work offer or the applicant would be entitled to a voucher.

    • Our applicant is precluded from returning to his regular duties but the employer has an open position for a "Distributor Operator" that it would be willing to offer the employee. However, this is a union shop and the position of Distributor Operator is one of the positions that appear to require the employee to bid for the job, and it does not appear the employer is in a position to directly offer the job until the bid is accepted. Could you please clarify if insurer can send an offer on a job that requires a bid to yet be accepted?

    You can send the DWC AD 10133.53 Offer of Modified or Alternative Work to the employee but it MUST indicate that the offer is contingent upon his bid for the job being accepted. If the employee's bid is NOT accepted, he will be entitled to a SJDB voucher as well as the 15% PD increase beginning the 61st day after P&S (assuming the employer does not have any other qualifying work it can offer). Please note that this 10133.53 Offer is not considered valid until the employee's bid is accepted.

    • What happens if the employee does not bid for the job?

    You could take the position that a failure to bid for a job for which the employee is qualified and union rules would allow such a bid is akin to a failure to respond to the offer. Be aware, however, that this kind of situation is not addressed in the statute or the regulations so such a position is subject to litigation and possible reversal at the Board.

    • I have a claim where the 15% increase would apply - she was declared permanent & stationary on 2/2/09. I recently received the P&S report and it has been determined by the employer that they cannot accommodate PERMANENT MOD DUTY - I have to commence permanent disability advances from the last day I paid TTD which in the case would be 10/1/08.

    Would the increase in permanent disability apply from P&S date 2/2/09 or from the last date we last paid TTD 10/1/08. Or on the total permanent disability regardless of P&S or last day we paid TTD? Total permanent disability is 8 % = $5520 - as you can see the permanent disability is almost ALL due so I need to know if it's on the entire permanent disability (8%) .

    The +15% is due on all PD that would have been due starting the 61st day after P&S. So you pay the PD due before P&S and the first 60 days after P&S at the regular PD rate and then everything else is due at the +15% rate..

    VR Issues

    • I have an interesting question on a very complex claim in our office right now. The DOI: 6-1-02 and the employee was P&S on 4/19/2005. We had an accommodation meeting on 8/12/05 and we were able to accommodate the employee. She accepted the job and an RU94 was signed and we sent the RU 105 to the Rehab Unit. The employee continued to work... until she had surgery on 3/31/2006 and then basically never came back to work again......

    The case litigates and finally, on 10/2008, the employee is P&S'd (again) by an AME this time... However, at this point, the employee has been terminated from Nordstrom based on our 365 leave policy ...so no job was offered to her.... So.... Question - do we have a voc rehab issue anymore?

    The VR issue was resolved via the RU-94 and the RU-105 to which the employee did not object. She is barred from reopening the issue by LC 5410. Her attorney might argue that L.C. 5405.5 applies but keep in mind that 5405.5 was repealed effective 2004 so any argument that services were due based on the second surgery should fail. It appears from your question that the applicant was TTD until 10/08 so the only VRMA that could be at issue is from 10/08 through 12/31/08. And that is a long shot for applicant's attorney.

    Case Law

    The WCAB has now ceased accepting amicus briefs and responses for the DFEC arguments in Ogilvie v. City and County of San Francisco and Almaraz/Guzman v. SCIF/Keenan. The Board will now review those arguments and its previous en banc findings in these cases and issues a finding, presumably within the next few weeks. Applicants' Bar hopes that the Board will stand firm on its previous decisions.

    Defendants want the Board to (ideally) disallow its previous decisions and find that the DFEC modifier issue is controlled and determined by the 2005 PDRS. At the very least, the WCAB must change its finding that the applicant's post injury earnings is the three year period following injury.

    Since many applicants have little or no earnings during that period, the WCAB's formula in Ogilvie would result in a deviation from the 2005 PDRS in almost every case. In addition, there are some indications that the deviation is greater for small PD ratings than it is for high ratings, a result that defies all logic. To paraphrase the old Irish curse, we do live in interesting times.

    Stay tuned.

    Allan Leno
    e-mail: allanleno@leno-assoc.com

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