Supplemental Job Displacement Benefit Voucher - FAQs

Saturday, February 7, 2009 | 0

By Allan Leno

 
Question:  If the claimant has not returned to work for employer at 30 days, and the claims administrator is ending 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?
 
Answer:   Remember that a voucher is not due until there is a resolution of the case at the WCAB (see AD Reg  0133.56(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 DWCs Return to Work Unit cannot resolve this problem since only the board has the jurisdiction to determine PD.
 

Question: 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?

Answer:  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 physicians 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.

 
Q:  We have a 2006 injury where the injured worker was declared P&S in August 2008, with permanent work restrictions. The store offered an alternate job to the EE in September 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 panels report, which rates at approximately 8% PD, with additional work restrictions. Fortunately, the EE can remain in the alternate position he has been working in since September.

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 were not sure if were entitled to the reduction without again showing that were provided appropriate alternate work.

A:  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 employees 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.

 
Q: 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 onward? 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.

A:  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.

 
Q:  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 work force. The applicant's condition is now MMI. What notice letters am I obligated to send?

A:  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.

 
Q:  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?

A:  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.


Q: In review, 10133.56(h) indicates the claims administrator shall issue the reimbursement payments to the employee or direct payments to the VRTWC and the training providers within 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?

A. 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 employees 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.


Q:  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.
 
A:  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, its just the law.
 
 
Q.  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 a while, 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.
 
A.  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.
 
 
Q.  I handle the claims for the county, including the Sheriffs Work Alternate Program (SWAP) under their umbrella. I have a claimant who 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?
 
A.  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.
 

Q:  I need clarification on issue of Mod/Alt Available issue regarding 15% decrease. I have an injured worker who 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?
 
A: 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.


 
Q:  The employer hires some of its workers out of the union hall. What is the employers 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:  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.
 
  
                                                             Vocational Rehabilitation Issues
 
The Los Angeles Board held a hearing on Jan. 30, 2009, to address the hundreds of VR appeals that have been filed since Jan. 1, 2009. At last count, the number of appeals had exceeded 1,000 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.

 
Question:  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?
 
Answer:  Good questions. 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 reasons 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.
 
 
Q:  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 in your past newsletters, this does not appear to be the case, but figured I'd double check it with you.
 
A:  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 is a vocational rehabilitation specialist in Newbury Park, Calif. This column was reprinted from Leno's newsletter with permission.


The views and opinions expressed by the author are not necessarily those of WorkCompCentral.com, its editors or management.