Voucher Does Not Provide Funds for 'Tools of the Trade'

Saturday, September 8, 2007 | 2

By Allan Leno

The Bureau for Private Post-secondary Vocational Education ceased to exist as of midnight June 30, 2007. However, the statute (Labor Code Section 4658.5(a)) still requires schools to be certified by a state agency in order to be eligible for payment of tuition and fees via the supplemental job displacement benefits (SJDB) voucher.

The DWC suggested using the U.S. Department of Education Web site (http://www.ope.ed.gov/accreditation/Search.asp); schools accredited by DoE are accepted by the State of California as accredited here. The California Dept. of Rehabilitation uses http://etpl.edd.ca.gov/WiaEtplOcc.asp to find schools that are eligible to provide training under the EDD Work Force Investment Act. Since EDD is a State agency, approved schools for this program would qualify as "state approved" within the meaning of 4658.5.

SJDB-PD-RTW FAQs

Are we allowed to settle the SJDB voucher for cash? If we do not settle the voucher, what is the carrier's obligation? How long does the claimant have to request his/her voucher?

The voucher can be settled for cash pursuant to CCR Section 10133.52. All the parties need to do is initial the VR/SJDB line on page 3 of the C&R Agreement form and indicate the sum for which the voucher is being settled. If the voucher is not settled, form DWC 10133.57 must be sent to the applicant within 25 days of case resolution at the Board pursuant to CCR Section 10133.56(c). Claims administrators need to be aware that the applicant does not have to ask for the voucher -- the administrative director's regulations require that it must be sent automatically within 25 days of case resolution at the board. Failure to comply with this requirement can result in some substantial penalties per CCR Section 10225.

You have mentioned that there are three conditions for SJDB eligibility: (1) the employee must have permanent disability, and (2) there must be work restrictions necessitating modified or alternative work, and (3) the employer cannot provide modified or alternative work. Where can I find these three conditions?

The Legislature rarely makes it that simple; the conditions are not spelled out in the statute as directly as the "three conditions" might imply. Item no. 1 is derived from Labor Code Section 4658.5(a), which ties the value of a voucher to a permanent disability award. Since 0% permanent disability is not an award, the applicant must have at least 1% permanent disability to be eligible for a voucher. Thus "the employee must have permanent disability."

Regarding item no. 2, there is no statement in the statute indicating that an applicant must have a need for modified or alternative work. However, Labor Code Section 4658.6 tells us how an employer can avoid liability for a voucher -- provide modified or alternative work. And who needs modified or alternative work? Persons with permanent disability who cannot return to their regular duties.

Item no. 3 applies when the employer cannot or does not provide modified or alternative work to a person with permanent who is unable to return to regular duty.

A primary treating physician's report indicates permanent and stationary and no ratable disability; a Notice of Offer of Regular Work was not issued based on the current facts. The injured worker requests a panel qualified medical evaluation and six months later the QME finds ratable disability. Would this be a new trigger to send the DWC AD Form 10003? Would we owe the 15% increase or are we able to reduce by 15%?

You should send the 10003 Regular Work offer as soon as possible and can start taking the 15% reduction going forward. It is unclear if you can take the 15% reduction for any permanent disability owed prior to sending the 10003. The statute (4658(d)(3)(A)) says you can only take the reduction after an offer is made (and the offer is likely to be defined as the 10003). Until there is case law however, you can argue that an offer was in fact made (the applicant is working) and you had no knowledge of disability until the QME report. Absent case law, this is a policy decision. Discuss with your attorney and decide on your policy (all cases of this nature would have to be handled the same).

An applicant attending a training program is given a loaner computer during the training program. Are we responsible to purchase a computer to use after the program to continue practicing? Also, according to the school's director, the student may require 7-14 books at $250/ book. I am not sure why there is a range? Is the school required to give us additional information, or additional price breakdown for each supply?

No. You are only required to purchase (within the limits of the voucher) a computer if one is required for the training program and the applicant does not already own a computer adequate for the purpose. Unlike rehab plans, the voucher does not provide funds for "tools of the trade" that would only be required once the applicant obtained employment. You would be required to pay for any books required for the program (again, within the limits of the voucher).

There should not, however, be a "range" of books. Either the training program requires a book or it does not. You should ask the school to provide a class syllabus showing the tools and books required for the training program. Write the school a letter indicating you cannot approve payment for these items until you have evidence that these items are required for the program and for all students (not just those with a voucher!).

I have one claimant who filed one claim for several body parts, including hearing loss. He is permanent and stationary from hearing loss (with no ratable impairment) but is not permanent and stationary from the other body parts. Would I send him an offer of regular work now or wait till he's permanent and stationary from all his body parts? We are utilizing agreed medical evaluators so he should eventually by permanent and stationary from all his body parts.

The claimant is not permanent and stationary and due a DWC 10003 until he is permanent and stationary on all body parts. Labor Code Section 4658(d) indicates that the permanent disability adjustments are not due until the applicant is permanent and stationary so you cannot take a credit nor are you obligated for an increase until the applicant is permanent and stationary on all body parts.

We have a April 19, 2005, date of injury wherein we (working with the employer) are currently exploring modified /alternate work for the represented injured worker. We just got the work restrictions and the employer called a meeting with the employee to discuss. The employee picked up the work restrictions from the doctor and delivered it the same day to the employer but could not stay to discuss. There are rumors that he is working elsewhere at a pizza delivery place. If surveillance identified the injured working elsewhere, are there any repercussions? Could the carrier not offer the voucher if it was proven that he is working elsewhere?

In this situation, the "repercussions" relative to the voucher depend on whether your employer will be able to offer work within the employee's medical restrictions. If your employer offers a job within the work restrictions, no voucher. If your employer cannot offer modified/alternative work, the employee would be entitled to a voucher despite the pizza delivery job. I do not see where there could be any repercussions for the employee -- unless you are paying temporary total disability.

I have a claimant with a date of injury of July 12, 2005, which places the claim in the post 2004 date of injury time period or SJDB voucher realm. Claimant has been permanent and stationary with restrictions and the employer accepted claimant back under a permanent modified position. Claimant has accepted the position and is currently working for the employer. Claimant was sent the letter, which is an offer of Modified or Alternative Work (DWC-AD 10133.53). Once this letter is received back by us signed and dated by the claimant, what is the next step? For claims prior to 2005, the equivalent of this letter would be the RU-94. Eventually, the signed/dated RU-94 document would be F&S'd to the rehab unit with an RU-105 for formal closure of rehab. Do we do anything with the signed AD-10133.53 letter once it is received by me?

If I recall correctly, there was legislation in the works that would give the audit unit (Department of Industrial Relations) the right to assess penalties if either SJDB letters were sent late or not sent at all. Some of those fines were pretty steep. I don't recall receiving anything advising me that the proposed legislation was enacted or if still pending? Do you know where we're currently at on this? If enacted or when enacted, who would be the one auditing the files and assessing those fines/penalties for the State? Would it be the audit unit as well?

#1: There is no equivalent for the RU-105 within the SJDB voucher scheme. Once the claimant returns the 10133.53 to you (or in 30 days, whichever occurs first), send a copy of the 10133.53 to the Administrative Director in San Francisco (address is at the bottom of the form). That's it.

#2: The regulations (CCR Section 10225) were just approved and become effective May 26, 2007. The penalty is assessed by the Board (up to $2,500 per infraction) -- the money goes to the return to work fund (Labor Code Section 139.48) and not the claimant. The applicant or A/A would have to file for the penalty at the Board -- as far as I can tell, the Audit Unit will not be involved. While the DWC Audit Unit will not be involved in assessing the 5814.6 penalty, WCJs are required to report these penalties to the DWC Audit Unit and that process could lead to a targeted audit.

We have a crossing guard that was out on TTD about six months following rotator cuff repair surgery (2006 injury). Upon being released back to work, I provided him with both the Notice of Potential Rights and an offer of Regular Work (which he signed and returned to me). Well, evidently he wasn't released back to duty in time to claim one of the "full time" shifts for the new school year, and was therefore used only on an on-call substitute basis. He quit a few weeks later. In his resignation letter, he stated it wasn't worth getting up at 5:30 am for a three-hour minimum wage shift here and there. Now we want to take the 15% 4658(d) decrease from his PD award, but he is asserting that although he agreed to the offer of regular work, his department never REALLY offered him the regular work he was performing at the time of injury.

Since the applicant was not provided with work meeting the requirements in 4658(d)(3)(A), I believe you will owe him a 15% increase in his PD. The timing of his release was not your fault but the statute does not provide exceptions where the employer is in a situation such as yours. It simply says the employee gets +15% PD adjustment if the employer cannot provide work meeting specific conditions. In your case, the work he did get did not meet wage requirements so your offer was not a qualifying offer of modified work (see the 4658.1(a) definition of regular work).

We are a training facility and a number of our students use SJDB vouchers from the workers' comp system. We now have a number of carriers tell us that they require that the all documents come directly from the injured worker, not from the training facility. Is this a requirement in the law or regulations? What can we do?

AD Reg. Section 10133.56(h) says the claims administrator shall issue reimbursement payments to the employee OR direct payments to the VRTWC (counselor) or training provider within 45 days of receipt of the completed voucher, receipts, documentation. There is no basis for requiring that documents come only from the claimant because, in effect, they would be requiring the claimant to pay first and that would serve to limit the claimant in seeking his/her training. You cannot file a Request for Dispute Resolution (Form DWC 10133.55) but the injured worker who is being inconvenienced by this practice can. You can file a lien and a request for a 5814.6 penalty under the new regulation CCR Section 10225 (effective 5/26/07). The WCAB can impose penalties up to $2,500 for failure to comply with SJDB Regulations.

I have a 2004 date of injury case with a $6,000 voucher. The claimant has carpel tunnel and the employer cannot accommodate him. He is in a vocational school for typing and computer work which will make the carpel tunnel worse. The vocational school said they do not need the QME's approval as this is a 2004 date of injury. Is this true and do I just pay the school for his training?

It is very unfortunate but the fact is we have no control over the program chosen by the applicant, even when we know it is a bad choice and one that would not have been acceptable under VR. We also cannot force the injured worker or the school to seek medical approval of the program. Regrettably, you do have to pay the school.

I have a Claimant who lost NO time from work. We just received the final report from the panel QME indicating she has 2% permanent disability. We have not resolved the claim yet. Would she be entitled to the Notice of Potential Right to Supplemental Job Displacement Benefits letter now or wait until judge issues an award then issue the letter along with the voucher?

There is some debate on the issue but I believe the claimant is entitled to receive the 10133.52 Notice of Potential Rights letter. The employee would not be entitled to a voucher unless his/her disability precludes a return to work at his/her regular job. Since the claimant has returned to regular work, you would send the DWC 10003 Offer of Regular Work.

I have a claimant with a 2005 injury. She was permanent and stationary in November of 2005. There is a temporary overpayment until December (that is when the defendants started permanent disability advances). She received notice of job displacement benefits sometimes in February. Are there any penalties for the delay in sending out the notice of Job displacement benefits/voucher?

At present, the only specific penalty is the (up to) $2,500 penalty under Labor Code Section 5814.6 as provided in CCR Section 10225 which became effective May 26, 2007, (you can find the language for the new regulation at the DWC Web site -- http://www.dir.ca.gov/t8/10225.html). I am not aware of any specific audit penalties under CCR Section 10111 but I suspect the DWC Audit Unit will be looking for compliance with the SJDB requirements during its future audits. You should also be aware that workers' compensation judges are required to advise the DWC Audit Unit every time a 10225 5814.6 penalty is imposed.

Training

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

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

I am scheduled to teach the Insurance Educational Association's (IEA) CA-14 class in Oxnard for the fall 2007 term beginning Tuesday. A substantial portion of class time will be spent on SJDB voucher, permanent disability adjustment, and general return-to-work issues, as well as the traditional VR issues. Anyone interested in registering for this or any IEA class can obtain additional course and registration information at the IEA Web site (http://www.ieatraining.com).

IEA is presenting four return-to-work workshops during the fall 2007. These three-hour workshops cover the SJDB voucher, workers' compensation return-to-work requirements, FEHA return-to-work requirements, and the interactions and conflicts between these two statutory requirements along with the potential risks and costs for both insurers and employers.

The workshop will be presented in San Diego by Barbara Elliott and Judy Lemm on Oct. 25 and by Allan Leno in San Francisco on Sept. 27, Woodland Hills on Oct. 31, and Santa Ana on Dec. 7.IEA has arranged for three hours CEU credit for claims administrators, attorneys, and rehab/RTW specialists. For more information, go to the IEA Web site at:

http://www.ieatraining.com/options/workshops.asp and click on the link for the workshop in which you are interested.

Do You Have a Question?

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.

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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The views and opinions expressed by the author are not necessarily those of workcompcentral.com, its editors or management.