SB 899 - Vocational Rehabilitation & Return to Work, 1

Sunday, April 25, 2004 | 0

SB 899, signed by Governor Schwarzenegger this month, makes substantial changes that will take many months, perhaps years, for the workers' compensation industry to understand and assimilate. The provisions impacting vocational rehabilitation and return-to-work were relatively minor compared to those effecting physician selection, medical treatment, and PD rating. However, like those other issues, some of the VR and RTW changes have been misinterpreted and misunderstood. For example, there have been rumors that "VR is back" and the "voucher is gone." Neither is true. SB 899 primarily provided clarification on VR and RTW issues, although it may also have provided some cost-saving opportunities for employers and insurers who understand the RTW provisions, as well as the RTW professionals who are prepared to assist them.

The following are the significant VR provisions of SB 899:

Vocational Rehabilitation: When the Legislature repealed the VR benefit via AB 227, many believed that vocational rehabilitation had disappeared for all injured workers, regardless of date of injury. The reasoning went that neither the benefit nor the Rehabilitation Unit could exist without the statute that created them. To insure clarity and continuity, the Legislature repealed the "voucher" language in L.C. section 139.5 created by AB 227 and replaced it with the "old" 139.5 language. This does not mean "VR is back" but, instead, reinstatement of the old 139.5 language allows the industry to "run out" VR benefits and services for QIW injured employees whose date of injury occurred prior to 1/1/2004. Reinstatement of the VR benefit is distinctly limited: note that paragraph (k) of 139.5 specifies the section applies only to pre-2004 injuries and paragraph (l) states that L.C. section 139.5 will remain in effect until 1/1/2009, absent intervening action by the Legislature.

NOTE: The Legislature did not reinstate L.C. sections 4635 - 4646. Although these sections will not appear in the Labor Code, the industry should proceed as if these sections were present. Clearly, the Legislature intended that the VR benefit should be available for eligible injured workers with a pre-2004 DOI; the absence of sections 4635-4646 will not support denials of benefits, services or processes dependent on these sections.

Supplemental Job displacement benefit (voucher): Some people have apparently assumed that the SJDB "voucher" is gone because the legislature repealed the AB 227 voucher language it had placed in L.C. section 139.5. In fact, the voucher still exists because identical language for the voucher exists in L.C. section 4658.5 and that language was not repealed by the Legislature. It is therefore essential for employers and carriers to continue providing the notices required by section 4658.5 and for these entities to promptly evaluate and offer medically appropriate work within the 30 day time frame specified by the statute to injured employees who have PD. If the employer cannot offer medically appropriate work, the employee will be entitled to a voucher with a value between $4,000 and $10,000 depending on that employee's level of permanent disability, as determined at the time of a settlement or award. The DWC is expected to issue regulations by the end of the current year that will specify notice formats and procedures.

The next article will look at the substantial RTW issues addressed by SB 899.

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

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