Re-re-released SBJD Vouchers, and RTW Regs

Sunday, March 27, 2005 | 0

The Division of Workers Compensation recently re-re-released its proposed regulations for the Supplemental Job Displacement Benefit (voucher) for a 15 day public comment period. Copies of the proposed regulations and forms are available at the DWC web site ( http://www.dir.ca.gov/dwc/DWCPropRegs/SupplementalJobDisplacementBenefitRegs.htm ). The deadline for comments on the proposed regulations is April 8, 2005. Your comments and recommendations should be sent to:

Destie Overpeck
Department of Industrial Relations
Division of Workers' Compensation
Post Office Box 420603
San Francisco, CA 94142

You can also e-mail your comments and recommendations to dwcrules@hq.dir.ca.gov.

This most recent version of the proposed regulations still has some problems (in my opinion). These include:

Definition of modified work (10133.50(a)(7) : The DWC may have no choice, but the 85% wage provision for modified work is not consistent with federal and state requirements; employers who reduce wages for modified jobs may find themselves in trouble with other government agencies.

Definition of VRTWC (10133.50(a)(15) : This definition still does not allow for certification of new counselors. As existing counselors retire/leave the field, there is no mechanism to replace them. Perhaps DWC believes this will not be a problem since all vouchers will be settled anyway.

Settlement (10133.52) : The Notice of Potential Rights still advises the injured worker that s/he may settle the right to a voucher. The statute is silent on this issue; the DWC does not indicate where it believes it derives its authority to state that the benefit can be settled.

Delay Notices: the DWC still has not introduced any mechanism for required delays while the parties obtain necessary information (like work restrictions). The DWC may believe it has no authority to create a Delay procedure but the authority issue hasn't stopped them from indicating that the voucher can be settled. And it didn't hinder them in creating a Delay Notice for pre-2004 cases  there is nothing in L. C. section 4637 that suggests the parties can delay for 30 days while the availability of mod/alt work is investigated. If the RTW process is going to work, there has to be a modest delay mechanism.

L. C. section 5410: There is no indication in the notices of the regs that the voucher is time limited in any way  the DWC has apparently decided that the voucher is a lifetime benefit. Note that the 5410 language was removed from section 10133.60. All other workers comp benefits are governed by 5410 but the voucher seems to be exempt because 5410 was not modified to mention it by name. This flight of logic provides substantial incentive for defendants to settle the voucher to insure they don't have claim files open for decades.

Requirement to issue the SJDB voucher (10133.56) : It appears that many of the problems with the previous wording have been resolved.

SJDB voucher (10133.57) : If the applicant drops out of school, it appears that s/he will receive any refund of tuition monies. That is inappropriate (my opinion) but this provision probably makes life simpler for claims administrators.

Notice of Mod/Alt Job Offer form (10133.53) : The notice still indicates that it must be filed with the AD  but there is no indication why (and exactly who will it go to anyway?). Unless the AD intends to gather information (and there has been no such indication), this requirement seems like an unnecessary burden on the claims administrator. There is no compelling reason to file the document with the AD unless there is a dispute.

Request for Dispute Resolution form (10133.55) : The notice still does not indicate that filing parties must attach supporting documentation (although section 10133.54(a)(3) does). Let's make the process clear for everyone, including injured workers who might want to file the form and do not have access to section 10133.54.

It is likely that this will be the last chance to comment on the proposed voucher regulations. If you believe they still need more work and can be further improved, send your comments as indicated above no later than April 8, 2005.

Return to Work Regulations

The DWC is also drafting regulations for the RTW procedures and reimbursements for smaller employers pursuant to L.C. section 139.48. A copy of the draft regulations can be downloaded here in Word format. Please note that these are draft regulations and are not being released for an official public comment period. The draft RTW offer/acceptance/rejection form can be downloaded here in Word format. The draft RTW expense reimbursement form can be downloaded here in Word format.

I noted only two obvious problems after a quick review of the draft regulations:

Section 10001(a)(2) defines "Modified Work" in part as a position that pays at least 85% of the pre-injury wages. This provision appears to be contrary to other state and federal statutes that would require equal pay for a modified position. The DWC may have no option on this matter due to the definition in 4658.1(b) that defines modified work, in part, as a job that pays at least 85% of pre-injury wages. The dispute may have to be resolved via litigation.

Section 10002(e) specifies that a commuted settlement must be increased by 15%, pursuant to L.C. section 4658, where an employer failed to offer regular, modified, or alternative employment to an injured employee with residual disability. The proposed regulations are silent on the issue of reductions in the PD settlement where the employer offered regular, modified, or alternative work.

The other "obvious" problem, of course, is the lack of funds to reimburse employers with fewer than 50 employees for the cost of job modifications. Funds to reimburse employers come from the "business practices" penalty (maximum penalty = $400,000) but I am not aware of any assessments of this penalty since this provision became effective on 1/1/2004.

If you have any comments regarding these draft regulations, they should be sent to the Administrative Director at the DWC address indicated above. Please note that these draft regs are not yet available at the DWC web site.

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

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