Getting an Opinion

Friday, June 5, 2015 | 0

The $120 million “Return to Work” fund (to compensate workers whose permanent disability payments were disproportionately low in relation to their wage losses) was enacted in 2012 but not designed and instituted by the California Division of Workers' Compensation until 2015.

Questions have swirled around how the fund would be designed, administered, and funded.

Among those was the question about whether $120 million would be put in the fund for 2013, another $120 million for 2014, and $120 million for 2015.

The DWC does not interpret the statute that way. Many applicant attorneys disagree.

This may be a moot argument given how the $120 million fund is designed. Workers must present evidence of receipt of a voucher (technically known as a job displacement voucher). The voucher itself is worth $6,000 and the DWC has designed the $120 million fund to pay $5,000 to workers who present the SJDB voucher in a timely fashion with their application to the fund.

But there are obstacles. Many workers, particularly pro pers, will not be aware of the entitlement to the $120 million fund money.

And in my experience many workers who may be eligible for SJDB vouchers don’t follow up to actually receive the voucher.

And time limits for applying may ensnare some workers.

Also, the DWC rules don’t allow a paper application. Non-computer savvy workers may have trouble navigating the DWC website to apply. Attorneys will not be compensated for helping with this project, a project that may occur in many instances after the comp case has settled.

The other option for workers who can’t or won’t apply via computer is to go to a Workers' Compensation Appeals Board office. I may be wrong, but am not convinced that this will be a path taken by many folks.

So at the end of the day I will not be surprised if the $120 million fund is underutilized in any particular year.

But back to the question of how to interpret the requirement to fund the program.

I’ve attached a pdf of that opinion dated May 15, 2015, prepared by Amy E. Schweitzer, Deputy Legislative Counsel.

Schweitzer writes that “…it is our opinion that the Director of Industrial Relations is required to annually derive $120 million from non-General Funds of the Workers’ Compensation Administration Revolving Fund for purposes of the return-to-work program. It is further our opinion that a court is likely to uphold the department’s construction of section 139.48, which requires that the funds derived for the return-to-work program in any particular year and that are not necessary to fund the program for that year or the previous years be credited toward the subsequent year’s surcharge on the employers.”

This could be tested in court, but the Legislative Counsel sides with the DWC that $120 million need not be aggregated from year to year.

I suspect that this was not the intention of some of the proponents of the $120 million fund, but three years later this is where things sit.

Here is the Legislative Counsel Bureau opinion.

Julius Young is an applicants' attorney for the Boxer & Gerson law firm in Oakland. This column was reprinted with his permission from his Workers' Comp Zone blog.