Voc Rehab Case Law Updates

Saturday, July 16, 2005 | 0

By Alan Leno

Is an employee entitled to VRMA (and at what rate) while an out-of-state plan proposal is being evaluated?

In SCIF v. WCAB (Nash) (2005) 70 CCC 266 (writ denied), the WCAB determined that the applicant was entitled to VRMA benefits at the TTD rate (based on the expected wage at the time of the decision) while the cost-effectiveness of the out of state plan was being evaluated. The Board required the defendant to develop a plan for Florida and for California to substantiate the cost comparison. This case is in marked contrast to Antonette Niedle v. WCAB (2000) 66 CCC 223 (DCA Published) where the District Court of Appeal found that the statute could impose different standards for in state vs. out-of-state VR cases. In Nash, it appears that the Board is imposing a higher standard for out-of-state cases compared to California cases (please note that Nash is a writ denied case and may not be cited as judicial authority).

Can an injured worker request and receive VR services more than five years after the date of injury where services have been in an "interrupted" status?

In Vernon Robertson v, WCAB & Zenith Insurance Co. (2005) 70 CCC 545 (writ denied), the applicant requested and received VR services which were subsequently placed in an interrupt status while the applicant had surgery. The Interrupt notice advised the applicant that services were interrupted, that he must contact the defendant when he was ready to proceed, and that the defendant would not initiate reinstatement of VR. The notice, as required by CCR 9813(a)(4), also advised the applicant that services must be requested within five years of his date of injury. The Board held that it did not retain jurisdiction where the applicant failed to request reinstatement within five years. Note that this case is a "writ denied" (and cannot be cited as judicial authority) and that it conflicts with Josephine Martinez v. WCAB (2000) 65 CCC 1253 (Reversed) which held that the defendant must file an RU-105 to terminate its liability.

Is a late RU-94 invalid where the employer timely offered and provided modified work?

In Terry D. Brown v. WCAB & Port of Oakland (2005) 70 CCC 624 (writ denied), the employer timely offered a modified position in a different location and the applicant worked at the position for two months prior to resigning for reasons unrelated to his industrial injury. The employer prepared and sent the RU-94 approximately one month after the employee's resignation, at which time the applicant attempted to accept the offer. The Rehab Unit and the WCAB subsequently found that the employer had satisfied its obligation by providing the modified work and the late preparation of the RU-94 did not result in an entitlement to additional benefits or services. The WCALJ determined that ordering VR services in this situation "...would be to elevate form over substance." [Note that Brown is a writ denied case and may not be cited as judicial authority]

Is an applicant entitled to VR benefits and services where he cannot return to modified work due to his undocumented alien status?

In Horacio D. Hermosillo v. WCAB & Cambridge Integrated Services (2005) 70 CCC 632 (writ denied), the WCAB applied the principles in Del Taco v. WCAB (2000) 65 CCC 342 to find that the defendant was not obligated to provide VR benefits and services where the applicant's bar to returning to work in a modified position was his undocumented status. The applicant was dismissed from his employment - subsequent to injury - for failure to have a valid Social Security number. [Please note that the Del Taco case is published and citable as judicial authority while the Hermosillo case is not]

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

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