Voc Rehab FAQs

Tuesday, August 5, 2008 | 0

By Allan Leno

DWC Administrative Director Carrie Nevans responded to one of the items in our June newsletter:
 
"Dear Allen – I’ve got a comment I wanted to pass on to you, but first I wanted to complement you on the excellent newsletter you produce. I always read it and find it very informative and good at addressing the stickiest VR and voucher issues.
 
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.
 Employment Opportunities
 
The following information was provided by Lily Lao at Vertek:
 
I just received an interesting email from an organization in Yuma, AZ that was just selected by the US Veteran's Administration to provide vocational rehabilitation services to veterans and active military members nationwide. In reviewing the email I received (below), I thought it might be a source business you might want to investigate.
 
I spoke with Tom Kiley (who circulated the message below) and am certain his search for vocational rehabilitation professionals is real and certain.
 
If you are interested in investigating this opportunity, contact Tom Kiley at his address below. Tom's email to me follows:

My company, Heritage of America, LLC (HOA) has been awarded a large contract to provide Vocational Rehabilitation and Employment (VR&E) services to veterans for the Department of Veterans Affairs.
We are looking for Masters Degree or higher counselors who have the CRC designation and are licensed in their state of residence. If you meet these qualifications and would be interested in providing VR&E services under subcontract to HOA, please send me, at your earliest convenience, an email expressing your interest and attach a copy of your resume. If a FAX is more convenient for you, please feel free to use that method.

Very Respectfully,
Tom Kiley, MS, CRC
Vice President and CFO
Heritage of America, LLC
PO Box 5945
Yuma, AZ 85366-5945
928-782-1140 (fax)
tom@heritageofamerica.com

Training
 
The National Association of ADA Coordinators will hold its Fall 2008 national conference in Las Vegas, Nevada beginning October 27, 2008. Program information is now available at the NAADAC web site ( http://www.jan.wvu.edu/NAADAC/).
 
Visit the IEA web site ( http://www.ieatraining.com/) for information on Return-to-Work programs in your area. IEA offers both semester courses and half day workshops to assist claims specialists, return-to-work specialists, rehab nurses, and brokers in learning how to address and manage RTW issues.
 
Need training on SJDB voucher requirements and procedures, Return-to-Work process, or FEHA requirements for your staff? Contact us to discuss developing a custom program for your organization. Customized programs can also be arranged through IEA.
 
Notices and Forms
 
Anyone wishing to purchase a set of the SJDB notices and forms to comply with the SJDB regulations that became effective on August 1, 2005 can do so for $100. Leno & Associates will provide you with a set of forms and notices including 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) in Word template format that claims administrator can “cut and paste” onto their letterhead [Note: Several of the SJDB forms and notices are available at the DWC web site in PDF format.]. The set now includes the recently approved “Offer of Regular Work” (DWC AD 10003) and the Request for Reimbursement (DWC AD 10005 plus the STD 204 form required for payments by the state). Letters are also available to address situations where the applicant has voluntarily terminated his/her employment or where employment was terminated “for cause.” [Note: These letters should be discussed with your corporate counsel prior to general use.] If interested, please send an e-mail with your request and fax number (for invoicing) to allanleno@leno-assoc.com .

Entities who have purchased the set of notices will automatically receive revisions and required updates of these forms and notices at no additional cost.
 
Do You Have a Question?
 
Do you have a question about vocational rehabilitation, the SJDB voucher, or the impact of RTW issues on FEHA requirements for employers? Send us an e-mail at allanleno@leno-assoc.com . General questions will be addressed in our FAQs. If your question is not appropriate for our FAQ section, we will provide you with an opinion for your consideration. Parties submitting questions for the VR/RTW Newsletter FAQ section (or individual responses) are advised that the answers provided are the opinions of Leno & Associates and are not intended as legal advice.
 
Please note that we are not always able to answer your question by return e-mail. We are getting as many as a dozen e-mail questions per day so it has been necessary to establish a priority system for responding to questions. The first priority will be to those with whom we have a business relationship: we will respond as soon as possible (usually within one business day), regardless of the complexity of the question. The second priority level will be for questions that can be answered quickly from persons with whom we do not have a business relationship. The third priority level is for complex questions from persons with whom we do not have a business relationship. I would like to answer all your questions immediately but my first priority is and must always be to my customers.
 
<i>Allan Leno is principal of Leno & Associates in Newbury Park, Calif. His firm's monthly newsletter was reprinted here with his permission.</i>