Voc Rehab in California is Not Dead (for Public Employers)
Saturday, December 20, 2003 | 0
Reform bills that were signed into law in September and which go into effect in California on January 1st repeal vocational rehabilitation as an available benefit to injured workers. But does this mean the end of vocational rehabilitation as a part of workers' compensation in the state? While the September reform measures repealed the entire vocational rehabilitation system for private employers, public employers are still responsible for a vocational rehabilitation system to their injured employees.
Article 2.6 of Chapter 2 of Part 2 of Division 3 of the Labor Code - in other words all of the code sections dealing with the vocational rehabilitation benefit - in addition to Labor Code section 139.5, were repealed by Senate Bill 228. As a replacement a new Labor Code section 139.5 providing for a job displacement benefit voucher system was written into law.
But the duty of public employers to find new work for their injured workers remained untouched by the reform efforts of 2003, and since public employment in California is responsible for about two and a half million positions, or about one fifth of the working population in the state [FN 1], vocational rehabilitation remains a significant issue and cost driver for public agencies. And, since State Compensation Insurance Fund provides coverage for the vast majority of California public entities, the vocational rehabilitation burden falls disproportionately on SCIF.
Labor Code section 6200 states:
"Every public agency, its insurance carrier, and the State Department of Rehabilitation shall jointly formulate procedures for the selection and orderly referral of injured full-time public employees who may be benefited by rehabilitation services and retrained for other positions in public service. The State Department of Rehabilitation shall cooperate in both designing and monitoring results of rehabilitation programs for the disabled employees. The primary purpose of this division is to encourage public agencies to reemploy their injured employees in suitable and gainful employment."
Sections 6201 through 6208 provide the structure to accomplish the legislative goal. Let's review:
6201 requires notice to the injured worker who has been off work due to disability for 28 days or more of the availability of rehabilitation.
6202 mandates cooperation in the development of a plan.
6203 provides for a subsistence allowance if training away from home is necessary.
6204 mandates employee cooperation in participation in the plan.
6205 says it is not necessary for a plan to be approved by the State Department of Rehabilitation.
6206 provides a "reasonableness" standard to the amount of vocational rehabilitation services an injured public employee receives.
6207 essentially provides that a public employee's right to vocational rehabilitation is inalienable.
Finally, 6208 makes rehabilitation programs voluntary at the employer level.
Case law interpreting these sections require that a public employer provide the same kind of services and benefits that a private employer would be compelled to provide under the old statutory scheme (see SCIF v. WCAB (Slotten), 88 Cal.App.3d 43 (1979)), and also mandate that the injured worker be notified that participation in a vocational rehabilitation program may lower the overall permanent disability rating (Moyer v. WCAB, 10 Cal.3d 222 (1973).
The public case law on Division 4.7 is scant, but with the demise of private vocational rehabilitation and the fact that public employment is responsible for a large number of workers in the state, it is inevitable that this body of the law will receive increasing attention from lawyers, then public employers, and ultimately the legislature, in the coming years.
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FOOTNOTES
1. Bureau of Labor Statistics release of January 17, 2002
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