Case Law Update - RU-94 Offers

Sunday, January 19, 2003 | 0

The Court of Appeal (1st District) recently issued a "writ denied" decision that addressed the expected content of an RU-94 modified/alternative job offer. Writ denied decisions are not citable as authority in judicial proceedings but this case does put employers on notice that improperly documented modified/alternative job offers may not satisfy the employer's vocational rehabilitation liability.

In Jack-in-the-Box, et al v. WCAB (Morrison) (2003) A099458 (writ denied), the District Court of Appeal (DCA) determined that an offer of modified/alternative work lacking information regarding the duties to be performed, expected duration of the job, expected compensation, and location of the position did not meet the minimum requirements of L.C. section 4644(a)(5-6). The Rehabilitation Unit has always expected that the RU-94 offer should have a description of job duties attached (the RU-94 form specifies that a description of job duties should be attached); however, there are no guidelines or requirements specifying the degree of detail required so there is very little consistency from one RU-94 job offer to the next. In Morrison, the DCA suggests that the DWC should consider revising the RU-94 to insure injured workers receive sufficient information to make an informed choice.

In addition to the information on the RU-94, the 1st DCA apparently expects an adequate offer of modified or alternative work to include the following information:

Actual job title
Wages (hourly rate or weekly salary)
Work hours
Work location
Duration of the work (i.e., will last at least 12 months)
Description of activities performed
Physical requirements for work activities
The DCA also expects that the job offer will contain "￯﾿ﾢ￯ﾾﾀ￯ﾾﾦother information sufficient to show the offered work is a regular position in relation to the employer's on-going business objectives." In most cases, an adequate description of the expected job duties will meet this requirement.

Some in the industry have long argued that these items should be an integral part of the RU-94. Inclusion of these items would increase the time required to complete the RU-94 but the time invested would help reduce unnecessary disputes. We are faced with a minimalist DWC so some insurers, third party administrators, and employers have taken the initiative to develop form letters with the required information to send to the employee with the RU-94; the Morrison decision suggests that all carriers, TPA's, and employers would be wise to adopt this strategy.

The letter that accompanies the RU-94 might appear as follows:

John Smith
123 Elm Street
Center City, CA 91234

Employer: Light Speed Fast Feasts
Claim No: 123456789
Injury Date: 1/1/02

Dear Mr. Smith:

Your employer is offering you the position indicated on the attached DWC Form RU-94 and as described below. Please contact the company representative noted prior to the return to work date.

Type of Position: ___ Modified ___ Alternative
Job Title: Greeter/Cashier
Wage Rate: $8.50 per hour
Work Hours: 11:00 AM- 7:00 PM. Tuesday - Saturday
Work Location: Oak Street Restaurant, 456 Oak Street
Duration:* Expected minimum - 12 months

Job Duties (Essential Functions): Greet and welcome customers, assign to tables according to party size. Insure customers are provided with menus and "specials" list. Take telephone reservations. Process meal charges to include checking wait staff's addition on tickets, computation of sales tax, make change for cash transactions, and process credit card transactions. Prepare day's receipts for bank deposit.

Work Restrictions: Per Dr. Smart, employee is precluded from prolonged standing, walking or sitting, no lifting or carrying of objects in excess of 15 pounds, and no overhead work. The employee will be provided with a stool and may sit or stand as needed. There are no objects to be lifted or carried in excess of 5 pounds and no requirement for overhead work. If the employee's work restrictions should change, the employer will attempt to further modify the position to accommodate changes in work restrictions.

The employee is encouraged to contact the specified company representative to discuss the assigned job duties prior to the designated return to work date.

Sincerely,

Jean Jones
Claims Examiner

* The position can also be designated as "permanent" although many employers prefer not to use the term due to the implication of "guaranteed employment."

Please note that this sample letter contains the minimum information that should accompany the RU-94. Any additional information you can provide further reduces the risk of a Morrison result.

As noted above, Morrison is a writ denied decision and generally not citable in legal proceedings. However, it is worth remembering that writ denied cases favoring the defense have little standing but those favoring the injured employee are frequently applied, particularly at the Unit level. Carriers, TPA's, and employers would be well advised to review and revise their RU-94 procedures to meet the standard set by the 1st DCA.

Editor's note: Since the Morrison case is not citable authority, it is not 'published' in WCC case law - however a link to the news item and consequent actual opinion is available to subscribers here.

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



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