What Does Repeal of Voc Rehab Mean to Physicians?

Sunday, February 1, 2004 | 0

Now that Voc Rehab has been "repealed" what are the practical effects for the Primary Treating Physician?

This question was recently posed in the WorkCompCentral Forums, and there seems to be debate as to just how much the workers compensation physician is required to comment on relative to return to work. Some have opined that a medical discussion consistent with the prior requirement of Qualified Injured Worker status is now unnecessary, while others are concerned that failure to do so may result in unintended consequences for both the employer and the injured worker.

The following dialogue has been edited for brevity and clarity:

Q: In the past, we have determined that the patient is "unable to return to pre-injury usual and customary occupation and is therefore Medically Eligible for Vocational Rehabilitation". The new rules provide no guidelines for reporting language for the PTP to use to be certain that their intent is understood.

For example, a patient may be unable to return to usual and customary job, but (A) employer may have other work he can do or (B) employer may have no work the patient can do. So, do physicians still outline work restrictions, or the Disability Guidelines?

A1: It seems that you are asking several question here.

First, obviously there is no need for a physician to opine as to whether or not an injured worker can return to the U&C. The physician simply needs to describe the disability. The level of disability will determine whether the IW is entitled to a voucher per the new Labor Code section 139.5. According to the new regulations, workers injured before 1/1/04 are out of luck so any discussion as to QIW status or availability for modified/alternative work is simply academic.

Next, the rules concerning descriptions of PD (either by work restrictions, objective factors, etc.) have not yet changed. So the physician still needs to be concerned with Reg 9785 reporting duties. There has not yet been any adoption of Disability Guidelines - you may be thinking of the ACOEM Treatment guidelines. PD is still in legislative debate.

A2: I disagree that the treating physician need not comment on return to work issues for injuries that fall under the repeal of voc rehab.

At the least, there is still an entitlement to vouchers that hinges on whether the employee can return to his/her usual job or be permanently accommodated.

While a description of the permanent disability factors is sometimes clear enough to make a decision on return to work, sometimes it is not. For example, equating a term like "no heavy lifting" to a job is difficult. The disability is too vague. Similarly, terms like "prolonged" or "repetitive" are also not clear enough.

In short, the terms used for PD rating are not always useful for decisions regarding return to work. Permanent accommodation requires specificity, which is often discussed by the physician in the "return to work" portion of a report.

I will also add that quite often, the primary treating physician's report is used for other disability determinations, namely accommodation under FEHA and also PERS industrial retirements.

A3: I think that this is a great debate here because it shows how little thought was really put behind the repeal of voc rehab and institution of the voucher system.

Black letter reading of 139.5 provides a very simple concept: employee doesn't RTW within 60 days post TTD and some PD mandates a voucher, the value of which is dependent on the level of PD.

Now, relative to RTW comments, in the work comp setting for post 1/1/04 VR entitlement, I maintain that a discussion by the physician is moot - there is no VR, no QIW, etc., therefore relative to work comp and VR, such a discussion is irrelevant. However, you do make a very important observation, one that has not passed up the injured worker's bar: the demise of VR means that there are other entitlements that may substitute, for which civil remedies may lie, ergo ADA, FMLA, FEHA, PERS, etc.

So, while I disagree with your disagreement, I nevertheless agree with you that physician comments on RTW ability is still an important part of the medical opinion.

A4: I agree that specifically commenting on ability to return to work is no longer required. What is required is specific information about limitations for an employer to determine if they are able to offer alternative or modified work.

It is yet to be determined if there will be a requirement for an employee to make a good faith effort to return to work. Since we will not be preparing joint Job Analysis any longer the question becomes whether the employer is willing and able to accommodate any limitations.

I think the new 139.5 is poorly drafted but as it currently reads we are not concerned with whether the employee is able to return to work, simply whether he does or not. If not then we are concerned with whether the employer is willing to offer alt/mod work. It appears to be a very mechanical analysis.

A5: We need to get one thing clear about pre-2004 injuries - if the employee is a QIW, s/he continues to have a right to VR benefits/services regardless of the date services commence!.

AB 227/SB 228 became effective and did not eliminate the right to services for pre-2004 injuries. It doesn't matter what the Legislature intended to do - see Pebworth. I have discussed this with the folks at DWC and they intend to order services for QIWs who request services after 1/1/04 and VRMA will be ordered at the 4642 rate for employers/carriers who fail to comply.

The QIW determination is irrelevant for injuries o/a 1/1/04 but doctors do need to provide work restrictions so insurers/employers can identify and offer medically appropriate work. Job Descriptions/Job Analysis will still be needed because (1) Injured Workers did not lose their due process right to disagree with the validity of the offer, (2) doctors will need specific information about job duties, especially where there are disputes, and (3) where job duties vs. work restrictions are unclear, thinking employers will want to protect themselves by obtaining medical clearance.

We also need to remember that the RTW process is now governed by L.C. 4658.6 (the old 4644(a)(5/6)). The position offered has to be medically appropriate, the employee must be provided a start date within 60 days of the cessation of TTD, and the position must last one year. While we need to forget about the QIW determination process for 2004 injuries, the RU-94 process will remain relatively intact with one major difference - it now applies to every IW who has PD or about 400,000 employees per year rather than the 45,000 annually who were QIW.

Isn't change wonderful?

Many thanks to those how contributed their knowledge and expertise to the WorkCompCentral Professional Forum in this debate.

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