SJDB Vouchers - FAQs

Saturday, July 30, 2005 | 0

By Alan Leno

The supplemental job displacement benefit (SJDB) voucher regulations become effective on Monday, August 1, 2005. All Notices and Forms required by these regulations must be used for cases with dates of injury on/after 1/1/2004 as the precipitating events occur on or after 8/1/05. The following is a list of common questions and answers regarding the impending SJDB system.

SJDB vouchers - FAQs

The voucher is an entirely new benefit based on a statute that provides meager guidance for its implementation and the new regulations (effective 8/1/05) provide guidance for only the simplest cases. With so little formal guidance, it seems appropriate to have a section to promote discussion of significant issues and questions regarding this new benefit.* The following questions were submitted by readers of my newsletter.

Is an applicant's attorney entitled to a fee from the SJDB voucher? This question comes from a claims professional who was told by an applicant's attorney that he was entitled to a 10% fee from the voucher and he expected that amount to be withheld.

The Labor Code (section 4658.5) specifies that the voucher may be used to pay for "tuition, fees, books, and other expenses required by the school for retraining or skill enhancement." It also specifies that up to 10% of the voucher may be used for vocational or return to work counseling. Nowhere is there a provision for payment of attorney fees from voucher funds. The voucher contains no maintenance element (i.e., no VRMA) and the voucher is not rehabilitation per se so defendants are not bound to withhold 10% for attorney fees based on a Rocha argument. While anything is possible, it is hard to imagine how the Board could interpret section 4658.5 to justify withholding a fee from the voucher for applicant attorneys. The only way an attorney can obtain a fee would be if the voucher is settled as part of a Compromise and Release agreement.

The injured worker is a QIW from a 2003 injury and it appears that he will need job accommodation as a result of an injury in 2004 (injuries are to different parts of the body). Would he be entitled to both VR services for the 2003 injury and a voucher for the 2004 injury? Or does one take precedence over the other? This question comes from an examiner who will soon have to address this issue.

It would be possible for an injured worker to be entitled to both benefits. If the VR issue has not been addressed for the 2003 injury (i.e., there was no RU-94, RU-102, or other resolution of the QIW issue via an RU-105, RU-107a or RU-122), the applicant would remain eligible for VR if he is a QIW. For 2004 injuries, L. C. section 4658.5 makes no reference to other forms of return to work assistance (like VR); eligibility for the voucher is based on just three factors. These are (1) the existence of PD, (2) the need for job accommodation, and (3) the timely availability of modified or alternative work as specified in L.C. section 4658.6. If the injured employee's 2004 injury results in PD and a need for job accommodation and the employer cannot provide such accommodation, the employee will be entitled to a voucher - in addition to VR benefits and services for the 2003 injury.

Who will determine if a training program is medically appropriate for an injured worker (2004 injury)? Schools want injured workers to have medical clearance before beginning a program but a claims administrator has advised me that the carrier has no responsibility for review of a job description once the voucher is issued - so payment for review of a JA should come out of the voucher. So who pays for the review? A vocational counselor submitted this question and the one that follows.

A voucher is due the injured worker within 25 days after a C&R, F&A, or Stipulation with Award so the claims administrator is correct - the carrier has no obligation to pay for a review of a job description. However, there are ways to address the problem for the majority of cases. The vocational counselor should have a copy of the P&S report so s/he can compare a job description/analysis to the applicant's work restrictions. If there isn't a counselor on the case, the school can ask the applicant to provide a copy of the report so the comparison can be made (It would be advisable for the school to have an experienced comparison conduct that evaluation). If the applicant declines to provide the report, the school has the choice of asking the applicant sign a waiver or declining to admit the applicant. These are not perfect choices and they do not address situations where the job duties and work restrictions are so close that you need a medical opinion. It may be possible for schools to assess a fee to cover the medical review of a job description but there are serious issues to address before doing so: Must the fee be assessed for all prospective students or can it be limited only to those who are known to have a disability? Does the statute allow such a fee (is it sufficiently training related?)? Obviously this is an issue that schools should discuss with their attorney and CAPPS might want to obtain an opinion from the folks at DWC.

Who is liable if the applicant is injured during the training program? Does a release form protect the counselor or school from liability?

Schools that accept vouchers know that the bearer has a disability, which is the reason for asking these applicants to get a representative job description reviewed by their treating physician. The liability for schools following this practice is probably about the same as it would be for a non - voucher student so they can look to their experience with their non- workers compensation population. Schools and counselors need to discuss the value of liability release waivers with an attorney but, even if the attorney tells you that the release does provide protection, I would recommend carrying adequate insurance. Without the safeguards VR provided, students injured during training may seek compensation from any available source. Keep in mind that this is a new area for everyone and we can only guess at the consequences.

Is an injured employee entitled to a voucher if s/he voluntarily terminates the employment relationship prior to a determination of eligibility? This question comes from a Return to Work Coordinator.

This question is interesting because it requires an attempt to divine Legislative intent, always a risky undertaking. Let's assume the employee has been working part time and therefore has been receiving TD on a wage loss basis. Prior to P&S (the last payment of TD), the employ resigns for personal reasons. The treating physician indicates that the employee has permanent disability and would need job accommodation to continue working. The employer has previously indicated that it would provide job modification or reassignment once permanent work restrictions were known. Is the employee entitled to a voucher?

I would conclude that the employee is not entitled to a voucher for two reasons. First, the employee's decision to terminate the employment relationship also terminates the employer's ability to offer modified or alternative work pursuant to L.C. section 4658.6. The ability to avoid the cost of the voucher is supposed to be the incentive for employers to make modified and alternative work available to injured employees. Second, the employee is only supposed to be entitled to a voucher if the employer is unable (or unwilling) to offer such work. If the employee was allowed to quit and thus become eligible for a voucher, it would provide an incentive to get the voucher (plus a 15% increase in weekly TTD payments). It seems unlikely that the Legislature intended for either of these things to be true.

Where in the Labor Code or Regulations does it say that the claims administrator must send a denial notice to advise an injured employee that s/he is not entitled to an SJDB voucher? This question has been raised by several claims administrators.

The recently posted draft regulations for L.C. section 5814.6 indicate that the DWC may levy a penalty of up to $2500 where the claims administrator fails to deny responsibility for an SJDB voucher. There is no such requirement in the Labor Code or the existing Regulations, including the voucher Regulations that become effective 8/1/05. It seems probable that the DWC will have to create a requirement for a Denial Notice before it can create a regulation to assess a penalty for failure to send such a notice.

* The opinions expressed here are solely those of the author and are intended to promote discussion and do not constitute legal advice.

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

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