VR for Pre 2004 Cases (Or We Didn't Get Names...)

Saturday, January 3, 2004 | 0

VR for Pre 2004 Cases
(Or, we didn't get names but the rumor is false...)

Defense attorneys, at their recent conference in Monterey, were advised by a Legislative staff member that the Legislature "intended" to end VR services for all pre-2004 cases effective 12/31/03 unless the QIW employee had already commenced VR services. Since that was the Legislature's "intent," this staffer advised attorneys present that employers/insurers did not have to provide VR benefits or services to injured workers who became QIW or who elected to start their VR services after 1/1/04. This staffer is either (a) dead wrong or (b) badly misquoted because he failed to make his point clearly (I have had calls from several defense attorneys who related the identical story).

You may recall that Senator Calderon last year advised that the AB 749 settlement provisions of L.C. section 4646 applied to all cases, regardless of the date of injury, because (according to the good Senator) the Legislature "intended" for the settlement provision to apply to all cases.

Senator Calderon was wrong because AB 749 did not contain an "urgency clause." Without such a clause, legislation is prospective unless specifically stated otherwise.

If we had any doubts, the Board clarified the issue for us in Clarence A. Pebworth v. Allan Hancock College (2003) 68 CCC 1168 (en banc), holding that the AB 749 provisions of AB 749 applied only to dates of injury on or after 1/1/2003.

Similarly, the provisions of AB 227/SB 228 repealing vocational rehabilitation apply only to dates of injury on or after 1/1/2004. It doesn't matter what the Legislature "intended" to do; the fact remains that the statutes did not contain urgency clauses and they do not specifically require VR to end for pre-2004.

The DWC and the Board can only enforce these statutes as written so eligibility for VR benefits and services will continue to be governed by date of injury.

Does this mean VR services cannot be taken away from QIW injured workers with pre-2004 dates of injury? We'll address this in the next article rotation in this space.

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

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