Voc Rehab and Return-to-Work Issues
Tuesday, May 5, 2009 | 0
By Allan Leno
PENALTY REGULATIONS
The Department of Workers' Compensation (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 Rights up to $500
Failure to send the 10133.52 by certified mail $100
Failure to send an accurate 10133.52 $100
Failure to provide or send timely the 10133.57 SJDB voucher up to $1,000
Failure to pay/object to SJDB voucher expenses w/in 45 days of invoice up to $1,000
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 as L.C. 5814.6 penalties.
A copy of the final audit regulations can be found at the following DWC web site: http://www.dir.ca.gov/DWC/DWCPropRegs/Audit_Regulations/Audit_regulations.htm.
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 3), 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 toward 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.
Supplemental Job Displacement Benefit Voucher - Frequently Asked Questions
Question: 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.
Question: If the injured worker is at minimum PD can you take the 15% credit once an offer has been made and pay below minimum?
Answer: 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.
Question: 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?
Answer: 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.
Question: Where can I get information on how a small employer can apply for reimbursement of job modifications costs?
Answer: 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, go to http://www.dir.ca.gov/dwc/ReturntoWorkReimbursementProgram/ReturnToWork.htm. 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.
Question: I am sending a $6,000 voucher to XYZ College. However, the certification from the BPPVE indicates "temporary approval to operate" The approval (number) 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?
Answer: 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 Assemblymember and Senator to demand immediate action to create BPPVE's replacement agency.
Vocational Rehabilitation Issues
Question: 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?
Answer: The EAMS version of the RU-105 has been taken off the DWC web site (you can check for yourself at (http://www.dir.ca.gov/dwc/forms.html) 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.
Question: 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??
Answer: 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.
Question: 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?
Answer: 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
Question: Is the diminished future earnings capacity (DFEC) factor in the 2005 PDRS rebuttable?
Answer: 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.
Question: Does a defendant owe the costs of an applicant's vocational expert testimony?
Answer: 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]
Training
WorkCompCentral.com is providing a training workshop on employer's FEHA (Fair Employment & Housing Act) obligations relating to return to work for injured and disabled employees. The one day workshop, scheduled for May 15, 2009, will also address return to work requirements under workers' compensation law and how the workers' comp requirements can create exposure and liability for employers. More information about this workshop is available at the workcompcentral web site: http://www.workcompschool.com/course_details.php?id.
Need training on SJDB voucher requirements and procedures, Return-to-Work process, or FEHA requirements for your staff? Contact us (http://www.leno-assoc.com) to discuss developing a custom program for your organization. Customized programs can also be arranged through IEA.
The National Association of ADA Coordinators' Fall 2009 national conference is scheduled to be held in San Diego beginning Oct. 19, 2009. The conference includes four ADA disciplines - accessibility, employment, higher education, transit - with participant interaction. This is the most up-to-date, comprehensive, and intensive ADA conference available. In addition, there will be workshops on the most requested topics by participants: Law Enforcement, which looks at federal, state and local ADA issues; Medical Issues including workers' compensation/ADA interfaces and working with persons with mental disabilities; and, Important Tips and Guidelines for ADA Coordinators by senior representatives from the EEOC, DOJ, and DOE, and ADA Coordinators who are or have been in the position for many years. The conference is approved for the following continuing education units: AIA/CES, CRC, CCM, and CDMS. In addition, NAADAC will offer special FEHA workshops covering employment and architectural/access issues on Friday Oct. 23, 2009
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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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