VR/RTW Issues

Tuesday, November 4, 2008 | 0

By Allan Leno

<b>SJDB Voucher - FAQs</b>

<i>I have a claim with a date of injury 9/2/99 with a CT ending in 2005. Is he due VR/VRMA or a voucher?</i>
 
Assuming the applicant continued working at his U&C occupation until 2005, he would be due a voucher. This issue has already been litigated at least once - see <i>Eugen Cioban v. WCAB</i>. In this case, the WCAB determined that the applicant is entitled to the benefit in effect at the time the employee is unable to continue at his/her regular duties and that neither physicians nor a WCALJ has the right to second guess the employee’s ability to perform his or her usual and customary duties.
 
<i>This is my first claim with a voucher issue. EE is entitled to the voucher and Schools has sent me an invoice stating payment is due now (he is just starting school). Do I pay the school or await completion and proof of payment from EE? The school representative insists that other carriers always pay for training up front.</i>
 
Pursuant to AD Reg. § 10133.56(h), schools must be paid within 45 days of receipt of appropriate documentation. Appropriate documentation includes the school’s detailed invoice, a signed copy of the SJDB voucher, a copy of the applicant/student’s enrollment form, and a copy of school certification form. Payment is due in full within that 45 day time frame. If you are NOT going to make full payment, you must advise the school, in writing, regarding the problem(s) with their request for payment and identify what you need in order to make full payment. Keep in mind that both the statute and the regulations allow the applicant to pay the tuition and seek reimbursement OR to enroll in an approved program and have the school seek payment; the choice is up to the applicant, not the defendant.
 
<i>I would like to know if you have anything in your files that comes from Carrie Nevans, Andrea Hoch, the DWC, or the Audit Unit (or anyone else for that matter in authority) in 2004/2005 that talks about penalty assessment waivers when the forms had not yet been promulgated? I have two files so far, for 2005, for which they are dinging us for taking the 15% bump down on a RTW but no offer of regular work was done BECAUSE we didn’t have any forms until 1they were officially adopted 10/21/06.</i>
 
Sorry, I do not have any such documentation but – like you – I would certainly contest any penalty for failing to send a DWC AD 10003 prior to 10/21/06. The DWC Audit Unit has the ability to impose a penalty where the employer failed to use a form promulgated by the AD. In this case, however, the requisite form was not “promulgated” until 10/21/06 so employers had no form to use between 1/1/2005 and 10/21/06. It should therefore follow that the DWC Audit Unit lacks jurisdiction to impose a penalty that its own boss had yet to create.
 
I would also suggest that you have your attorney review Audiss v. City of Rohnert Park, SRO 137956 (4/2/07) where a Panel held that the fact the employee was actually working was sufficient evidence that employer had complied with the spirit of L.C. § 4658(d).
 
<i>Could you please clarify: Injury date: 2006, NO lost time and the employ is working usual and customary. Do we still need to send the SJDB letters? Do we still need to send the offer letter, since CE no lost time and are we entitled to the 15% decrease?</i>
 
Since the employee lost no time from work (and thus was not paid TD), you would have no requirement to send a Notice of Potential Rights (DWC AD 10133.52) although it would not hurt to do so since it is nothing more than an information notice. If you want to take the 15% decrease in PD, you must send the DWC AD 10003 Notice of Offer of Regular Work immediately. If you do not, you could be held liable for a 15% increase in PD. I would not rely on the Audiss v. City of Rohnert Park cited above as it is a WCAB Panel decision and your local WCALJ is not bound by the decision.
 
<i>I have a Work Comp claimant entitled to a voucher. She is attending a community college and sent a request for reimbursement for mileage, books, parking and registration while attending the college. The date of injury is 10/23/04. Is the claimant entitled to reimbursement for any of these expenses? It is my understanding that we would only issue a payment to the school up to the value of the voucher.</i>
 
Assuming that all the expenses she is claiming occurred after her date of injury, the applicant is entitled to reimbursement for school tuition, required fees (including registration), and required books and equipment. She is not entitled to reimbursement for mileage or parking as these are not included in the voucher (mileage is not included and parking is an optional fee).
 
<i>I have an employee that was laid off while treating and declared P&S with no work restrictions but with 7% permanent impairment. We cannot offer regular work as laid off, and in which case, the voucher would apply, correct?</i>
 
Since the injured worker was released to regular work, s/he would not be entitled to a voucher. L.C. § 4658.6 indicates that an employer can avoid liability for a voucher by offering medically appropriate modified or alternative work. It says nothing about failure to offer regular work. Also, the voucher is to assist those who need to learn skills for a new line of work. This worker can still perform the usual and customary occupation, just not for your employer. No voucher.
 
<i>We insure an employer who has less than 50 employees. However applicant argues that my Insured/Employer has more than 50 employees as "they" own other restaurants. We only insure one location and owner at our insured has admitted to having small investments in other restaurants but we do not insure any of them. He indicates that he is not a partner, just a small investor. Does the 15% PD increase apply?</i>
 
I assume this is an issue because the injured worker has not been offered work and wants the 15% "bump up" in weekly PDAs. Pursuant to AD Reg § 10002(a)(1), the number of employees for the purpose of determining the PD adjustment is determined by the number of persons employed at the time of the most recent policy inception or renewal. You can only consider the number of employees covered under your policy.
 
<i>And can you advise me on the following: 56 year old carpenter with right shoulder injury preclusions provided by the treating doctor Injured worker declined to attend the interactive meeting to see if modified work would be available He called in to Human Resources and stated he was not going to attend, he would retire and 'they would not have anything for me anyway'. I did write a letter stating: Your employer has been informed that you will have permanent restrictions and will not be able to return to your usual and customary occupation. Your employer advised you declined the interactive meeting that explores permanent, alternate or modified work; therefore, they are not able to address permanent, alternate or modified work. If you are interested in - please contact me at Is he still eligible for the VR voucher per the PD rating applicable? We say no, he is not eligible as he did not allow the employer to address weather or not they would or would not accommodate? A/A of course disagrees and states he is still entitled to the voucher and his not responding has nothing to do with it.</i>
 
Unfortunately the Labor Code and Regulations do not cover situations where the employee is less than cooperative as seems to be the case here. The solution is to offer the employee a modified or alternative job consistent with the work preclusions. It has to be a real job in case the employee shows up for work. If he does not – or fails to respond – you have no obligation to provide a voucher. If you do not make an offer via the DWC AD 10133.53, you will have an uphill fight at the RTW Unit. I have already seen a case where the employer had work but did not make the formal offer because the applicant resigned before the offer was made to return to school. The RTW Unit found the applicant entitled to a voucher because there was never a 10133.53 sent to the applicant. Seems like a lot of extra work when the applicant has already declared his intent but it appears to be the only sure way to defeat the demand for the voucher.
 
<i>When someone does return to work, regardless of returning temporary or full duty, after being off and is a part time employee, do we still need to send the Notice Regarding Return to Work and the Notice of Potential Right to Supplemental Job Displacement Benefit? We are sending these notices for all employees who are full time when they return to work. I was just wondering if a part time person would be eligible.</i>
 
It makes no difference whether the injured employee was working full time or part time at the time of injury. When TD stops, you must send the employee a Notice of Potential Rights (DWC AD 10133.52) within 10 days. If you have regular or modified/alternative work available, you must make the appropriate offer whether the employee was full or part time at the time of injury; you can, of course, offer comparable work to the employee (i.e., full time work to the employee who worked full time and part time work to the part time employee).
 
<i>SQME found no PD and no future medical. There was no loss time. SQME deemed Claimant P&S and released him to full time regular Work. Do we still need to send a work offer?<i>
 
The purpose of the Offer of Regular Work (DWC AD 10003) is to document the offer of work so you can take the 15% credit against weekly PD payments. If there is no offer, the employee is entitled to a 15% increase in weekly PDAs. Since the worker in your question has no PD, there is no point to the DWC AD 10003 – there is no PD to adjust – in either direction. It doesn’t hurt to send the document – but it doesn’t accomplish anything either.
 
<i>I hope you can help me with my question. If the injured worker is deemed QIW, is he still entitled to a SJDB voucher if he was fired from his job for due cause?</i>
 
There is nothing in the statute or regulations to cover situations where an employee is fired for cause. It makes sense that we would not want to reward aberrant behavior BUT the Labor Code only says the applicant gets a voucher if the employer fails to offer modified or alternative work when such work is needed. Your employer is not going to offer work in this situation so you have two choices: (1) provide the voucher, or (2) deny the voucher and litigate the issue. If you elect option 2, your attorney will need good documentation of the circumstances that resulted in the termination and witnesses to testify at the Board. If you do not have good evidence and witnesses, option 1 will be the cheaper and more efficient alternative.
 
<i>Thank you for the article on WorkCompcentral. You are stating that 10133.56(c) indicates "... 25 days from the issuance of a C&R or Award." The Regulation states Award and nothing about C&R. We know from case law that a C&R is not an Award of PD for apportionment purposes. Is there case law addressing this issue? I would assume the PD amount would have to be agreed to by the parties and listed in the C&R.</i>
 
For the purposes of voucher eligibility, you must treat a C&R the same as an award. There is, in fact, case law indicating that a C&R is not an award but it did not address voucher issues. We know we can settle a voucher exposure in a C&R and that wouldn’t make much sense if the employee wasn’t eligible for a voucher. Also, I doubt the Legislature would knowingly create a benefit for which more than 80% of injured workers are ineligible (about 85% of all indemnity cases are settled by C&R). Unless the voucher entitlement is settled in the C&R, injured workers who otherwise meet the requirements are entitled to a voucher.
 
<b>VR Issues</b>
 
<i>Could I have your opinions on vocational rehabilitation in this case? The applicant fell and hit her knees on 09/25/02. She never lost any time from work and no TD was ever paid. She never treated for the injury. She ultimately requested a QME and saw Dr. Chambliss who released her to her U&C in 2004. We spent a lot of time trying to settle her claim, and the case was ultimately set for adequacy by Judge Rogers. On Judge Rogers’ order, we went back to Dr. Chambliss who again found her P&S and released to U&C in 2006. She got an attorney and we agreed to an AME, Dr. Stone. She saw Dr. Stone in June 2008, and he gave her a work restriction, and on the subject of VR he indicated, "Regarding her bilateral knees, it would appear that Ms. Doe is not medically eligible for vocational rehabilitation based upon her stated job duties. Should this be at issue, I would request a job analysis be performed." She was a clerk and essentially had a sedentary job. Apparently the AA is now demanding VR services and retro VRMA. What would you recommend on this issue? No TD was ever paid, and Dr. Stone the AME found her not QIW based on her own stated job duties. There is no doctor out there indicating she is QIW.</i>
 
The AME has given you your only option - you need to have an agreed job analysis completed and submitted to Dr. Stone for review. Since this applicant continued working at her U&C, I have to wonder why a subsequent specific injury or CT claim wasn’t filed but it may be too late for that consideration. Since the parties agreed to an AME and the only injury at issue is the 2002 fall, you have no choice but to address the QIW issue with the AME even though QIW was not an issue previously.
 
<i>Regarding the "sunset clause" for pre-2004 dates of injury, what does it mean for someone who just started vocational rehabilitation? Will they have the chance to continue in a program and when must they be in a Plan to comply with the clause?</i>
 
In brief, a plan is enforceable after 1/1/2009 IF the parties agreed to go beyond the 1/1/09 sunset date (i.e., the defendant signed the RU-102 showing a plan end date after 1/1/09). If there is no such signed plan, the applicant’s prospective VR benefits and services will end effective 1/1/09 whether or not the employee has started a plan. As noted above, the Rehab Unit lacks jurisdiction to order benefits for a period where it no longer exists and when there is no statute supporting the benefit. Please note, however, that all issues regarding benefits accrued before 1/1/09 remain until resolved and they will be subject to litigation before the WCAB.
 
<i>I have a question regarding the "sunset" of the Rehab Unit by 1/09. What will happen to those cases where rehab is still an issue? What will happen to those cases if the Rehab Unit will no longer be around?</i>
 
As noted, unresolved issues QIW eligibility and entitlement to retro VRMA will be resolved at the WCAB after 1/1/2009. If there is an issue of entitlement up to 1/1/2009, that issue does not go away just because the calendar changes. The only thing that does go away is entitlement to benefits or services on or after 1/1/2009.
 
<b>Training</b>
 
IEA is presenting three-hour workshops on how return to work in the workers’ compensation systems interacts and conflicts with RTW requirements under FEHA/ADA. This program is system designed to benefit claims adjusters, legal professionals, and other interested parties as to the nature and extent of return to work obligations for injuries post 2004. The workshop will provide specific actions necessary at each step from prior to injury, to maximum medical improvement, to return to work. Participants will be able to understand the employer’s obligations for return to work and the voucher system under California Workers’ Compensation law changes; how to avoid the new $2500 L.C. Sect 5814.6 penalties related to SJDB and return-to-work notices; have a working knowledge of the interaction between California workers’ comp return to work and other disability regulations (ADA, FEHA, FMLA, etc.); and be familiar with how the doctor’s final report relates to potential ongoing care and return to work options. See WC269: RTW in Workers' Comp vs. RTW in FEHA/ADA - Problems & Solutions located at http://www.ieatraining.com/courses/course_detail.asp?QS=WC269 on the IEA web site. There is still time to register for programs in Sherman Oaks on 11/6/08, Sacramento on 11/13/08, and San Francisco on 11/14/08. Call IEA at (800) 655-4432 for more information.
 
Need training on SJDB voucher requirements and procedures, Return-to-Work process, or FEHA requirements for your staff? Contact us to discuss developing a custom program for your organization. Customized programs can also be arranged through IEA.
 
<b>EAMS Forms</b>
 
I have been asked by several subscribers if I would produce EAMS forms in a Word format with data fields and drop down menus. I have been advised forms produced in Word will not work will not work with EAMS -the forms cannot be read by the OCR scanner.
 
<b>Do You Have a Question?</b>
 
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.
 
Please note that we are not always able to answer your question by return e-mail. We are getting as many as a dozen e-mail questions per day so it has been necessary to establish a priority system for responding to questions. The first priority will be to those with whom we have a business relationship: we will respond as soon as possible (usually within one business day), regardless of the complexity of the question. The second priority level will be for questions that can be answered quickly from persons with whom we do not have a business relationship. The third priority level is for complex questions from persons with whom we do not have a business relationship. I would like to answer all your questions immediately but my first priority is and must always be to my customers.
 
<i>Allan Leno is principal of Leno Associates in Newbury Park, Calif. Past newsletters are available at  http://www.leno-assoc.com.</i>