Temporary Duty Assignments Should Never Last 12 Months

Saturday, May 5, 2007 | 0

SJDB-PD-RTW Frequently Asked Questions

An insurance company adjuster has advised our training facility that payments for Supplemental Job Displacement Benefit (SJDB) voucher training will be made according to a table they made up based on the "up to" language in Labor Code Section 4658.5. Their interpretation is they can pay amounts in between $4,000, $6,000 etc. based on their table They believe payments can be pro-rated based on the amount of actual disability. Is this correct?

Absolutely NOT!! The "up to" language in Section 4658.5 means nothing more than the $4,000, $6,000 amounts in the code are limits, just as $16,000 was a limit in vocational rehabilitation under Section 139.5.

Defendants are not required to exceed the limits but must pay tuition and related costs up to the maximum amount for the PD category. For a $4,000 voucher, the defendant MUST pay the full amount of a $3,995 tuition bill (assuming there was no VRTWC involved in the case) but would pay only $4,000 if the tuition bill totaled $4,995.

There is no provision in Section 4658.5 or in the AD Regulations (Sections 10133.50-10133.59) to "pro rate" tuition payments within a voucher category.

If an applicant's tuition payment is short-changed by this company's payment policy, the applicant should be encouraged to file a DWC Form AD-10133.55 Request for Dispute Resolution immediately with the administrative director in Oakland.

I work for a public agency. At a recent professional meeting for public sector claims administrators, we were discussing the DWC AD-10133.53 Modified/Alternative Offer form. People from other agencies said they were not sending this form to injured employees on temporary duty because they could not offer temporary work for 12 months. We never offer temporary duty for more than six months so it appears that we cannot use this form because it requires that the job last 12 months. Do you agree?

I agree that temporary duty assignments should never last 12 months and six months is a good time to make a decision regarding temporary vs. permanent modified/alternative work assignments. The problem you are describing, however, has to do with the requirements for use of this form and the statute itself.

Unfortunately, Sections 4658.5/4658.6 are poorly written.

Among other things, they require an offer of modified or alternative work to be made within 30 days of the termination of TD payments; the requirement should have been within 30 days of a P&S determination.

The DWC legal staff has determined that there is no choice but to require a 10133.53 to be sent to the employee within 30 days of the end of TD even if the employee is not yet P&S. If the defendant fails to send a 10133.53 for the temporary offer, they may lose the right to use the form later if the applicant needs permanent modified/alternative work and the employer is able to offer such work.

This requirement places employers, particularly those with unions or civil service personnel requirements, in a very difficult position.

It is also misleading to employees because some of the conditions on the 10133.53 absolutely do not apply prior to P&S (e.g., the 15% PD reduction, job must last for one year, job must pay 85% of pre-injury wage).

We have suggested to the DWC that a revised form should be available for pre-P&S situations but, to date, have had no response.

As an alternative, we have suggested that employers use the 10133.53 for these temporary jobs but very clearly indicate that the position is being offered on a temporary basis and the need for a permanent modified/alternative position will be evaluated once the employee becomes P&S. Even this may not meet the needs of some employers.

Those employers will have to make a policy decision about using -- or not using -- the 10133.53 and take their chances regarding later use of the 10133.53 after P&S vs. providing a voucher.

Problems regarding pre-P&S use of the 10133.53 should be directed to the administrative director since only the DWC can develop and implement regulations.

Recently a judge at the L.A. WCAB awarded an applicants' attorney a fee on the rehab voucher due the applicant. The applicant is due an $8,000 voucher based on his PD. The judge said the applicants' attorney could get a 15% "fee" on this? I can't find anything that says an applicants' attorney can get a "fee" on part of the voucher due to the applicant. What is your opinion on this?

There is no provision in the Labor Code or the DWC regulations for attorney fees on a voucher.

Labor Code Section 4658.5 specifies that payment can be made to a school, a QRR (up to 10% of the voucher) or to the applicant as reimbursement for tuition paid at an approved training facility.

No mention of an attorney or attorney fees. Attorneys have NEVER been able to get a percentage of anything except VRMA and the voucher is not a maintenance payment of any type.

The WCJ was wrong.

The only way an attorney can get a fee from the voucher is if the voucher is settled in a C&R -- and I think even that is questionable since it represents, in a way, transference of the (non-transferable) voucher which is prohibited by 4658.5(a).

The date of injury is March 9, 2004 and AME states the injured worker is able to return to work at his U&C. My adjuster forwarded notice of SJDB? I feel he should have issued a rehab denial? If work restrictions were assigned for this DOI -- would we still use an RU-94?

For a 2004 date of injury, the correct and required notice would be a Notice of Potential Rights (10133.52) which I suspect is what you mean by the "notice of SJDB." The Rehab Denial notice and the RU-94 are requirements for pre-2004 cases and cannot be used, under any circumstances, for a 2004 case. The adjuster was correct in this situation.

I have a woman who had an epileptic seizure at work. She did not injure herself -- went to the emergency room for the seizure -- not taken off work, was ready to come back to work immediately. However, apparently, there was discussion and an agreement between the employer, the employee, and her husband that it might be too dangerous for her to work there any more -- i.e., fast food restaurant -- hot oil, knives, etc. -- in case she had another fit and fell in the future. Is she entitled to the voucher -- 2007 date of injury? She has not worked since the January DOI although she does intend looking for another job.

There is no work injury so there can be no entitlement to an SJDB voucher. This woman's disability is not work related so she would not be entitled to ANY workers' comp benefits.

Remember the three conditions for SJDB eligibility:

(1) the employee must have PD

(2) there must be work restrictions necessitating modified or alternative work

(3) the employer cannot provide modified or alternative work. All there conditions must apply.

In your example, there is no PD (because there is no work injury) so there can be no eligibility for a voucher.

We have some questions regarding the (un)timely issuance of mod/alt work offers via the AD-10133.53:

-- Employee has been back to work for two years in a modified capacity and never had any period of temporary disability Indemnity payments but does have a permanent partial disability; does it make any sense to issue the DWC-AD 10133.53 now?

-- Employee had periods of temporary disability indemnity and has a permanent partial disability, but has been back to work in a mod/alt capacity for well over 60 days (sometimes 2 years). Since the DWC-AD 10133.53 wasn't issued in a timely matter, should it be issued now? The employer cannot benefit from a reduction in PD and isn't the employee still entitled to the voucher since the DWC-AD wasn't issued in a timely manner?

Remember the old rehab adage -- "If in doubt, send it out?"

Until we have more definition via case law (or additional regulations), this adage may serve us well vis-a-vis the voucher for the time being.

With respect to the first question, it certainly won't hurt anything to document the modified/alternative position despite the fact that the documentation is late.

As far as the applicant being entitled to a voucher, I expect the courts will find that an injured worker is entitled to a voucher when the offer is late but that issue has yet to be litigated Until it is, I think you send out the 10133.53 irrespective of its timeliness.

I think the message to the claims administrator has to be that the 10133.53 is owed -- period. You don't get out of the requirement by being late.

In the return-to-work regulations, I only see reference to the Notice of Offer of Regular Work Form DWC-AD 10003 and the Notice of Offer of Modified or Alternative Work Form DWC-AD 10133.53 under section 10002 -- Adjustment of Permanent Disability Payments. If the claims adjuster misses the 60 calendar day window from permanent and stationary status and therefore, their ability to qualify for a 15% reduction of permanent partial disability, is there any need to issue either of those forms when the employee returns to work? Are those forms only to document the timely offers and therefore, the 15% reduction?

As above, I think we need to send the forms out irrespective of the timeliness issue, although there would be an exception for the 10003 if all PD has been paid out by the time the timeliness error is discovered.

The courts may well find that the defendant cannot take the 15% credit if the time requirement (i.e., 60 days from P&S) is missed but the issue has yet to be litigated.

And there is an argument that the claims administrator should be able to take the credit once it corrects its error -- the purpose of the section is to encourage employers to retain injured employees.

If the employer has complied with the intent of the law, it should be able to claim the credit once the notice error is rectified. Until we have guidance in the form of case law, the message to claims administrators must be that the form is due -- period.

It should be noted that the claims administrator is obligated the 15% increase from the 61st day after P&S until the proper form is sent. Even if the WCAB eventually finds that the employer can take the 15% credit after an untimely 10003/10133.53, there is no doubt that the increase is due where the claims administrator has failed to send the 10003/10133.53 timely.

The employee with a 2006 DOI, has 0% PD but has not been able to return to work. Does she still get a voucher for $4,000?

If the employee has no PD, there can be no entitlement to a voucher. The three conditions for SJDB eligibility apply:

(1) the employee must have PD

(2) there must be work restrictions necessitating modified or alternative work

(3) the employer cannot provide modified or alternative work. All there conditions must apply.

In your example, there is no PD (there is no work injury) so there can be no eligibility for a voucher.

Penalty Regulations (still pending)

The DWC sent its proposed 5814.6 penalty regulations to the Office of Administrative Law (OAL) on March 15. If the regulations are approved by OAL, the regulations could become effective as early as June 1, 2007. These regulations provide for penalties for up to $2,500 for failure to comply with SJDB and VR requirements (among other things). You can review the proposed 5814.6 language at the DWC Web site:

http://www.dir.ca.gov/dwc/DWCPropRegs/AdminPenalties_LC5814_6Regulations/LC5814_6Regulations.htm.

Training

The National Association for ADA Coordinators (NAADAC) Fall 2007 conference is scheduled for Salt Lake City, Utah beginning Oct. 22. Anyone interested in attending this conference should contact NAADAC at (800) 722-4232. Information regarding the conference will soon be available at NAADAC's Web site at:

http://www.jan.wvu.edu/naadac/index.html

Questions?

Do you have a question about vocational rehabilitation, the SJDB voucher, or the impact of RTW issues on FEHA requirements for employers?

Send us an e-mail at:

allanleno@leno-assoc.com.

General questions will be addressed in our FAQs.

If your question is not appropriate for our FAQ section, we will provide you with an opinion for your consideration. Parties submitting questions for the VR/RTW Newsletter FAQ section (or individual responses) are advised that the answers provided are the opinions of Leno & Associates and are not intended as legal advice.

Please note that we are not always able to answer your question by return e-mail. We are getting as many as a dozen e-mail questions per day so it has been necessary to establish a priority system for responding to questions.

The first priority will be to those with whom we have a business relationship: we will respond as soon as possible (usually within one business day), regardless of the complexity of the question.

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The third priority level is for complex questions from persons with whom we do not have a business relationship.

I would like to answer all your questions immediately but my first priority is and must always be to my customers.

Issues for the past year of the VR/RTW Issues Newsletter are available on Leno's Web site. Visit http://www.leno-assoc.com to view previous issues or to learn more about services provided by Leno & Associates.

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