By Allan Leno
The Bureau for Private Post-secondary Vocational Education (BPPVE) ceased to exist as of midnight June 30, 2007; you may have noticed that the school certification portion of BPPVE's web site is no longer available. This leaves students, schools, and payers in a quandary -- how do we administer supplemental job displacement benefits (SJDB) vouchers without an approving agency? Labor Code Section 4658 and AD Regulation Section 10133.56 require that all training programs must be state certified -- but we no longer have an agency charged with that responsibility. The legislature passed a bill (AB 2810) that would have extended the life of BPPVE for one year but it was vetoed by the governor.
The legislature did pass a bill (AB 1525), signed by the governor, that would preserve disputes pending before BPPVE as of 6/30/07; these disputes are to be resolved by BPPVE's successor agency. It is, at this time, unclear how much meaning this has to parties with pending disputes since neither the legislature nor the governor has moved to designate or create a successor agency.
There are two other bills related to vocational schools and the SJDB voucher that are currently pending at the legislature. SB 823 creates a means to extend the functions of BPPVE. Since the governor has already vetoed a similar bill, it seems unlikely SB 823 will survive the current legislative session. AB 1636 seeks to provide the SJDB voucher within 74 days after termination of TD where the employer has declined to offer modified or alternative work pursuant to LC Section 4658.6. The value for the voucher would be based on a "reasonable" estimate of PD pursuant to LC Section 4650. This bill is generally opposed by employers and insurers and it is expected that the governor will veto the measure if passed by the legislature.
You can register to track these bills by going to http://www.leginfo.ca.gov/bilinfo.html
The Division of Workers' Compensation (DWC) has released an alternative means to determine if a school is "certified" within the meaning of L.C. Section 4658.5 via the following press release:
Division of Workers' Compensation advises injured workers and claims administrators to use U.S. Department of Education Web site to access accredited school information
The DWC regulations for SJDB require that private schools used by injured workers for retraining meet certain requirements through accreditation. Because the Bureau of Private Postsecondary and Vocational Education, which was part of the California Department of Consumer Affairs and regulated degree-granting and vocational schools, was abolished effective July 1, 2007, individuals are no longer able to determine if the school meets the BPPVE's standards.
However, the SJDB regulations provided two other avenues for finding accredited schools: through the Regional Associations of Schools and Colleges authorized by the United States Department of Education or through the Federal Aviation Administration (FAA). The U.S. Department of Education's Web site provides access to a master list of accredited colleges, universities and career and trade schools. The database lists approximately 6,900 postsecondary educational institutions and programs, each of which is accredited by an accrediting agency or state approval agency recognized by the U.S. Secretary of Education as a "reliable authority as to the quality of postsecondary education."
The U.S. Department of Education Web site is at http://www.ope.ed.gov/accreditation/ and the FAA's site is at http://www.faa.gov/
Any training outside of California must still be approved by an agency in that state that is similar to the BPPVE. The BPPVE has also posted information on the sunset of its program on its Web site at http://www.bppve.ca.gov/sunset_updates.htm
Our legislators may not be aware of the problems created for both injured workers and claims administrators by their failure to insure continuity from the demise of BPPVE to designation of a successor agency. If you want to let them know what you think of this "oversight," you can locate your Assembly/Senate representative at http://www.leginfo.ca.gov/yourleg.html
. Send them a letter or e-mail to let them know how difficult it is to help injured workers get back to work when the legislature fails to provide essential tools -- such as certification of vocational training programs.
Can a rehab claim on a DOI post 01/01/04 be resolved by an RU-122?
Absolutely not! Labor Code Section 139.5 was repealed for all dates of injury on/after 1/1/2004. Since 139.5 contains the authority for existence of the Rehab Unit, the Unit has no jurisdiction for a date of injury on/after 1/1/2004 which also means that all RU forms lack validity for dates of injury on/after 1/1/2004. If you use an RU-122 to "resolve" SJDB voucher liability, you have done nothing more than provided the injured worker with a gift. The only way to resolve SJDB voucher liability is to (a) provide the voucher to the applicant OR (b) settle the voucher via a compromise and release agreement. To settle the voucher, both parties must initial the last item on the list on page 3 of the standard settlement document.
Does the mere fact that the parties have entered into a C&R mean that the applicant is not entitled to the voucher? It is my understanding that there has to be ratable PD and no offer of mod work and the applicant is entitled. However, parties are taking the position that there has to be an AWARD of PD and since a C&R is not an award, it automatically precludes the applicant from voucher entitlement. It seems to me that since it is an "option" on the C&R form, that the applicant can choose to still C&R the case (especially if the parties include a stipulation in the addendum as to the level of PD as most are on admitted injuries), not sign off on that "option" and then pursue a voucher. Which is correct?
It is my opinion that an injured worker who chooses to C&R his/her case is entitled to a voucher if they (1) have ratable PD, (2) need modified or alternative work, (3) are not offered modified or alternative work by their pre-injury employer, and (4) do not settle their right to a voucher in the C&R. It makes little sense to offer settlement of the voucher as an option on the C&R form if there is no entitlement to the benefit. And injured workers who meet the first three conditions are just as much in need of the benefit as injured workers whose cases are resolved by F&A. Unfortunately, the wording of Labor Code Section 4658.5(a) is unclear and does seem to equate the value of a voucher to an award. Most carriers/employers are providing the voucher to injured workers who C&R their cases without giving up the right to a voucher but some have taken the position that settlement of the case in chief via a C&R precludes any right to a voucher. The only way to resolve this issue is for a case to go to the Board; I am not aware of any such cases pending at this time.
Are there any statistics as to the percentage of applicants using the voucher system as opposed to those who participated in VR? It would seem to me that without the counselor guiding the applicant through, many applicants would be less than motivated to research what to do with a coupon. Am I wrong?
There are no statistics at present on the usage rate for the SJDB voucher. The anecdotal information I have is that the usage rate is about 10% of those eligible. There is no requirement for insurers/employers to report the number of vouchers issued or the usage rate to the DWC so we will never get information similar to the qualified injured worker vs. number of plan cases we once received from the Division. We will have some information from the Workers' Compensation Insurance Rating Bureau (WCIRB) regarding the amount of money actually paid out for vouchers but it will be of very limited value for several reasons. First, WCIRB data will tell us how much money the industry paid out for vouchers but not how many vouchers were issued or used. Second, many carriers and third-party administrators are not sending out vouchers at case resolution as required by CCR Section 10133.56(c) (the voucher must be issued by the claims administrator within 25 days of case resolution at the WCAB). Any data issued by the WCIRB is therefore likely to be understated. Third, the WCIRB has no way to determine the number of vouchers resolved in C&R agreements. We therefore have no way to determine how many injured workers were eligible for a voucher.
What if the employer at this time can't offer the employee the modified job on a permanent basis? Right now the employee is doing the modified job, but because of other issues, they can't offer the job on a permanent basis, what does the employer have to lose, they understand the employee may become eligible for the SJDB benefit, is there anything else? They will do their ADA/FEHA meeting at the appropriate time but I am on my 30th day and they can't give me an answer.
The employee in this situation would definitely be eligible for the SJDB voucher, assuming s/he needs a permanent job modification or alternative work assignment. As you indicate, the employer would have to go through the interactive process/reasonable accommodation assessment to determine -- and document - whether or not it can offer a permanent mod/alt assignment. The employer does need to be aware that the FEHA interactive process requirement does not have a specific 30-day limitation as we have in offering mod/alt work under workers' compensation. The Dept. of Fair Housing & Employment (DFEH) expects employers to continue their search for appropriate work for a "reasonable" period of time. "Reasonable" isn't defined but DFEH generally expects an employer to continue the process for an injured worker as long as they would for any other employee under any other circumstance.
A pre 2005 injury. Applicant declared QIW after she accepted a severance package. Is defendant released from liability from providing additional VR services and benefits?
QIW only applies if the injury is pre-2004. If it is pre-2004, the employee would be entitled to VR unless the employer is willing to offer mod/alt work (not likely after providing a severance package). If the employer will not offer mod/alt, the worker gets rehab. A severance package is not usually a "termination for cause" so the employer has a very weak argument for avoiding VR liability.
If this is a 2004 case, the same is probably true for the SJDB voucher. A severance package is usually not offered where there is a termination for cause and the employee is not terminating the employment relationship voluntarily. The employer is therefore likely to be eligible for a voucher.
If I accept work from my employer that pays less than 85%, does that disqualify me from receiving a voucher?
Probably not - but the answer isn't clear in the Labor Code so we won't know for sure until there is at least one case argued before the WCAB. Assuming you have Permanent Disability and you cannot perform your regular duties, your employer escapes its liability to provide a voucher only if it meets the requirements of Labor Code Section 4658.6(b)(1-4). Since 4658.6(b)(3) requires wages at 85% or better of pre-injury wages, your employer arguably would still owe you a voucher. BUT 4658.5(a) says a voucher is only owed if the employee does not return to work within 60 days of the last payment of TD. I know this seems as clear as mud - that's why we need a case at the Board to provide some clarification.
I have an IW who quit with our ER and had SX putting him on TD, and RTW with another ER. The IW is now RTW full duty with PD. How do I handle the Voucher and RTW offer to take the 15% credit.
If the injured worker was released to full duty, I would argue that s/he is not entitled to a voucher. The purpose of the voucher is to assist injured workers who are displaced from the occupations due to their industrial injury. This person was released to full duty and has proved his/her ability to compete for similar work by finding another job. The individual also voluntarily terminated the employment relationship; by doing so, I would argue that the employee acted to end the employer's options in terms of offering re-employment.
The 15% PD credit is another matter. Labor Code Section 4658(d) indicates the employer can take a credit where it offers re-employment within 60 days of P&S. Here the employee has quit so it isn't reasonable to expect the employer to offer the employee his/her job back. But, because the employer isn't offering a job, it probably cannot take the 15% credit against PD. My suggestion would be for the employer to pay PD at the regular 4650 rate.
I had an interesting experience in court with a judge who insisted that an employer's failure to attempt to modify and go through ADA interactive procedures may be a FEHA violation but was outside of his jurisdiction for Labor Code Section 132A. I think he is wrong, wrong, wrong! A Labor Code Section 132A action is found if the employer makes no effort to return applicant to work with either to another available job or to make job modifications. In other words, failure to do the FEHA routine is a violation of Labor Code Section 132A, as well. Do you know of any specific cases addressing this?
I am not an attorney -- but I am inclined to agree that an employer's failure to engage in the interactive process would be a Labor Code Section 132A violation, especially if it could be shown that the employer takes employees back when they return from non-industrial medical leaves. WCJs cannot find violations of FEHA but they certainly can determine violations of 132A. There actually is a case on point. In City of Moorpark v. Superior Court of Ventura County (Dillon)
, (1998) 63 CCC 944, the California Supreme Court found that FEHA was an additional remedy to workers compensation (i.e., workers comp was not an "exclusive remedy" where employment discrimination based on disability existed). The Court said, in essence, that the injured employee can pursue an FEHA complaint even where the Board has found a 132A violation.
VR Case Law
Can an employer/insurer take credit for overpayment of VR benefits against workers compensation medical benefits?
In Edna Williams v. WCAB, Tam Thi Vo, D.C., Vo Chiropractic, Mid Century Insurance/Farmers Insurance Exchange
, administered by Cambridge Integrated Services, Inc. Civ. No. H030837 6th App. Dist., the applicant was overpaid $96,000 in VRMA/VRTD benefits. The WCAB determined that the defendant was entitled to credit against other workers compensation benefits - except for medical benefits. This case confirms that the courts will support defendants' rights to recover overpayments but they will not act to limit the employees' access to medical care.
I am scheduled to teach IEA's CA-14 class in Woodland Hills and Oxnard for the Fall 2007 term beginning Sept. 11, 2007. A substantial portion of class time will be spent on SJDB voucher, PD adjustment, and general return-to-work issues, as well as the traditional VR issues. Anyone interested in registering for IEA classes can obtain additional course and registration information at the IEA Web site (http://www.ieatraining.com <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 10/25/07 and by Allan Leno in San Francisco on 9/27/07, Woodland Hills on 10/31/07, and Santa Ana on 12/7/07. 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.
The National Association for ADA Coordinators (NAADAC) Fall 2007 conference is scheduled for Salt Lake City, Utah beginning October 22, 2007. Anyone interested in attending this conference should contact NAADAC at (800) 722-4232. Information regarding the conference will soon be available at NAADAC's Web site at http://www.jan.wvu.edu/naadac/index.htm.
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 firstname.lastname@example.org
. 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.
The views and opinions expressed by the author are not necessarily those of workcompcentral.com, its editors or management.