The Supplemental Job Displacement Benefit Process - 2

Sunday, June 6, 2004 | 0

In the first part of this article by vocational rehabilitation expert Alan Leno, he explored "Obstacles in the Process" of the new vocational voucher system. Now, in this article, he discusses the process itself.

The Process

Before an employer/insurer can set up its voucher process, it must first make some decisions about how it will handle the notice (i.e., Notice of Rights) issue. When making this choice, it may help to remember that the Notice of Rights is really a Notice of (Potential) Rights; the notice advises the injured employee that s/he is entitled to a voucher IF (1) there is permanent disability, AND (2) the employer is unable to offer medically appropriate work. Since the voucher does not become available until there is an award (or C&R), it is unlikely the voucher will be considered as attractive a benefit as vocational rehabilitation has been for pre-2004 cases. Since this Notice must be sent via certified mail, the advantages of broad distribution (e.g., the notice is sent soon after creation of an indemnity file) must be weighed against the administrative workload incurred by send notices to injured workers who aren't entitled to them (i.e., those who zero PD).

Once the notice decision has been made, the voucher process would look something like this:

STEP 1: Although job descriptions/analyses are not required for a QIW determination, it is still necessary to determine a need for modified or alternative work. Claim administrators should therefore obtain a job description or analysis on all cases where the employee's ability to return to regular duty is in doubt and submit the document to the treating physician for review and comment.

There is no requirement to obtain agreement on a counselor to obtain a job description/analysis. However, using a knowledgeable vocational specialist to complete the document and providing the employee an opportunity to comment on the description of duties can save time and money in the long run. Employers and insurers may want to consider structured agreements with vocational counselors of proven ability to complete their JD/JA assignments on a volume basis. The same counselor to assist with the return to work process for those employees who require job modification or reassignment.

STEP 2: At the termination of TD (which, hopefully, coincides with P&S), determine the existence or probability of PD and send the applicant a Notice of Rights, within 10 days of the termination of TD, unless it has previously been sent (see above).

STEP 3: Contact the employer to confirm either (a) the employee's return to work, or (b) the availability of medically appropriate work. If the employee has returned to work, a congratulatory letter documenting that the employer has made work available and the employee has returned to work would be a good idea. If work is available but the employee has not yet returned, see Step 4. If no work is available, the employee should be sent a letter indicating that the employer does not have medically appropriate work available and s/he will be receiving a voucher within 30 days of settlement or a WCAB award (if no work is available, go to Step 8).

STEP 4: If work is available, obtain a list of duties from the employer and confirm that the duties are within the employee's work restrictions as provided by the treating physician. Note that it may be necessary to send the list of duties or a job description to the physician if it is unclear that the duties are within work restrictions (a structured agreement with a competent RTW counselor could be helpful in completing this task timely).

STEP 5: Compile the appropriate paperwork and send the offer to the employee within 30 days of the end of TD. The offer would include the required form (it appears the DWC will develop a "DWC Form RU-94a"), a list of the job duties (or job description), and a cover letter providing additional details including wages, hours, and a start date (which must be within 60 days of termination of TD).

STEP 6: Confirm that the employee has accepted the offer and returned to work, rejected the offer, or failed to respond. Note that no action is required to close" the case, but the documentation must be retained in the event of a subsequent dispute regarding the offer.

STEP 7: If the employee does return to work at the position offered, it would be a good idea to follow up with the employer to confirm the employee is continuing in the modified position and the work restrictions continue to be observed. Note that failed return to work efforts may result in increased PD per L.C. section 4658(d)(2) and entitlement to a voucher (see below).

STEP 8*: If medically appropriate work is unavailable, the employee will be entitled to a voucher, probably within 30 days of the C&R, F&A, or Stipulation. The voucher will advise the employee of its value (between $4,000 and $10,000 based on the level of PD). It will also contain directions for use and instructions for obtaining reimbursement for educational expenses. Once the voucher has been sent to the eligible employee, the employer/insurer need take no further action until the employee chooses to use the voucher (see Step 9).

* The DWC proposes to make the voucher available to the eligible injured employee within 30 days of the start of PD payments based on the employer/insurer's estimate of permanent disability (see proposed section 10133.55(b)). This is consistent with the goal of returning an injured worker to productive employment as soon as possible and could also be beneficial to employers (more on this subject next month). However, it is not clear if the AD has statutory authority to require provision of the voucher prior to an award. There is an additional problem with this section as written. An employer who provides a temporary light duty assignment cannot make an offer of permanent modified/alternative work to an injured employee until permanent work restrictions are available; section 10133.55, as written, would require the employer/insurer to send the employee a voucher in these cases. This is inequitable for an employer who is clearly trying to comply with the spirit of the law and does not seem consistent with legislative intent.

[Note: Injured workers may seek advice from claims administrators on the selection of QRRs and/or training facilities. Providing this information could create a potential exposure for a second voucher so these individuals should be referred to their legal counsel, the DWC web site, professional organizations such as CARRP or OBRA, or career counseling services available through some community colleges and adult education facilities.]

STEP 9: Injured workers who use their voucher at public institutions (such as Community Colleges) will likely seek reimbursement for registration costs and books and training materials. Most are likely to take their vouchers to private vocational schools that will submit their invoices directly to the employer/insurer based on the worker's enrollment. Vocational counselors selected by an injured worker will also submit their invoices directly to the employer insurer. Injured workers attending vocational schools may submit requests for reimbursement for the cost of books and training materials not included in the school's tuition.

STEP 10: To avoid problems, the employer/insurer should process payment requests as soon as possible. The claims examiner will need to verify that the school possesses the appropriate approval, vocational counselors have an agreement with the injured worker, and the books/materials for which the employee is seeking reimbursement are in fact required by the training program.

STEP 11: The employer/insurer's liability ends once the maximum value for the voucher has been reached. There currently is no requirement to advise the injured worker that the funds have been exhausted but it may ultimately cause less work to send the employee a brief letter and a copy of the pay screen at the point of final payment.

The most difficult part of this process occurs at the beginning when the claims examiner must insure that the Notice of Rights and any offer of medically appropriate work is sent timely. Overall, the process is simpler than the vocational rehabilitation process but the time frames are more stringent and there are potentially four or five times as many injured workers due timely notices. To make matters worse, the DWC hasn't issued its regulations governing this process so employers/insurers face the prospect of implementing a process now that may not meet DWC requirements a few months from now. However, a failure to implement a comprehensive to address this liability is certain to incur future liability so employers/insurers should implement the most efficient process possible within their own systems and plan on fine-tuning that process once DWC regulations become available.

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

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