SJDB vouchers - More FAQs

Sunday, September 11, 2005 | 0

The SJDB voucher is a new benefit with only "bare bones" regulations and no case law to provide guidance. The following questions have been posed by claims and rehabilitation professionals. The answers provided are the opinion of the author and intended to promote discussion; they are not intended to provide legal advice.

by Alan Leno

The injured worker utilized the services of a counselor to assist him in the selection of a training program. The counselor has submitted her invoice for the full 10% of the voucher but the injured worker has not yet selected a training program. Am I obligated to pay the counselor's bill?

There is nothing in the statute or the new regulations that require the injured employee to select and enroll in a training program before the counselor's invoice can be paid. This seems counter-intuitive based on our experience with the rehabilitation benefit but we have to remember the voucher is not vocational rehabilitation. The injured worker "hires" the counselor to provide evaluation and advice. There is no rule or requirement obligating the injured worker to immediately enroll in the training facility recommended by the counselor. In fact, the injured worker does not have to enroll in the recommended facility at all; s/he could, in fact, enroll in a program the counselor recommends against! If the counselor has provided the vocational evaluation services requested by the injured employee, the counselor is entitled to payment irrespective of the subsequent actions (or inaction) by the injured employee.

Is the vocational counselor required to itemize his/her invoice to show the services provided to the injured employee?

There is no statutory or regulatory requirement for the vocational counselor to itemize his or her invoice. Claims professionals expect to see itemized invoices but they must remember that the invoice is not vocational rehabilitation and they have no control over the services provided other then the 10% cost limit imposed by L.C. section 3658.5(b). However, I do believe vocational counselors have a professional obligation to the injured worker to itemize their invoices and it is to their advantage to do so. The injured worker is the customer and has a right to know what services that portion of his/her voucher purchased. Itemized invoices should also serve to minimize subsequent complaints about the nature and extent of services provided.

Are there any guidelines on how the 10% allotted for counselor fees is to be spent?

Absolutely none. Most injured workers will get a $4000 or $6000 voucher so the amount available for counselor fees will be only $400 or $600: this amount is sufficient to cover the initial evaluation, very basic testing and limited vocational exploration. The pre-2004 fee schedule allows up to $3000 to cover the initial evaluation, testing, vocational exploration and plan development and we typically see $1000 to $2000 spent for this purpose. $400-$600 clearly is not sufficient to provide the same level of service. Claims professionals need to remember that it is the injured worker who has to be satisfied with the counseling services, not us.

Is the injured worker entitled to a $4000 voucher even though there is no PD rating?

Presumably this question addresses cases where there was lost time but the injured worker had 0% PD per the 2005 rating schedule.

This is an issue likely to be litigated at some point - my opinion is that the injured worker is NOT entitled to a voucher. This issue is not addressed directly in the statute so we must derive our answer from what the statute does say. L.C. section 4658.5(a) indicates that an injured worker with less than 15% PD would be eligible for a $4000 voucher if s/he needs accommodation and the employer cannot provide an appropriate accommodation. The key here is that the employee must have PD and 0% PD is not an award of PD - i.e., the injured worker does not get an award if his/her PD rates at 0%. Further, the Legislature created the voucher to assist injured workers who had reduced ability to compete in the labor market. Presumably, someone with 0% PD has not lost any of his/her ability to compete in the labor market - thus no voucher.

We do know, however, that some injured workers, under the new rating schedule, will have work restrictions but 0% PD. It will be up to the courts to decide if these individuals are entitled to a voucher based on their work restriction. [The courts will also determine if work restrictions create an FEHA liability for employers despite the absence of PD.]

An applicant is on and off TTD several times; when is the Notice of Potential Rights due?

This happens with some frequency when the employee returns to work (regular duty or light duty) but experiences flare-ups in his/her condition.

It is the DWC's position that the notice is due the first time TTD stops and that is consistent with the statute; L.C. section 4658.5(c) does not specify the reason that TTD stops - it just says the Notice is due within 10 days after TTD ends. It is also the DWC's position that the notice needs to be sent once only so you do not have send a notice each time TTD ends (unless you are trying to cure a timeliness problem and we aren't certain that a second timely notice supersedes a previous late notice).

The Notice of Potential Rights isn't the problem; the Offer of Modified or Alternative Work is. DWC expects that the offer will be sent within 30 days of the last payment of TTD but the employer isn't in a position to offer permanent modified or alternative work until the injured worker is P&S and final work restrictions are known. Unfortunately, the statute does not seem to provide us (or the DWC) with any latitude in this matter; it simply says the offer is due within 30 days of the last TTD payment. The only suggestion I can make is to send the Offer (AD Form 10133.53) and specify on the form that the light duty or temporary work is being offered on a temporary basis and a final offer will be made - if possible and appropriate - once the employee reaches P&S status and final work restrictions are known. There is no guarantee this option will stand up to judicial challenge but it would seem to be the only available option (anyone have other suggestions?).

Contributed by vocational rehabilitation expert Allan Leno, Leno & Associates, (818) 370-8859, allanleno@leno-assoc.com.

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