Voc Rehab and Return-to-Work Issues

Thursday, June 4, 2009 | 0

By Allan Leno


Supplemental Job Displacement Benefit Voucher - Frequently Asked Questions

Question: I recall that in your May newsletter, you made reference to the Supplemental Job Displacement Benefit (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 e-mailed 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 to which I might refer him?
 
Answer: 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 S 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.
 
Question: 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?
 
Answer: 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 U.S. 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 U.S." makes the offer dependent upon legal documentation which is the requirement for job applicants generally.
 
Question: 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?
 
Answer: 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 at http://www.dir.ca.gov/dwc/forms.html. 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.
 
Question: Our company paid the applicant 104 weeks of TD and then started advancing PD. However, applicant's attorney sent a letter in November 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?
 
Answer: Pursuant to L.C. S 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. S 4650 rate until the employee becomes P&S.
 
Question: 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?
 
Answer: 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.
 
Question: 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?
 
Answer: 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.
 
Question: 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?
 
Answer: 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.
 
Question: 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.
 
Question: 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% = $5,520 - 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%) .
 
Answer: 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
 
Question: 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-day leave policy ...so no job was offered to her. So.... Question - do we have a voc rehab issue anymore?
 
Answer: 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 S 5410. Her attorney might argue that L.C. S 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.


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Allan Leno is a vocational rehabilitation specialist in Newbury Park, Calif. He may be reached at allanleno@leno-assoc.com. This column was reprinted from Leno's newsletter with permission.
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