SPJD, PD and RTW FAQs

I know that there are some ways that we can get reimbursements from the State to pay for special equipment we have to provide when we accommodate someone and return them to work.  Can help me in finding out how we go about applying for those reimbursements?  We have returned a lot of people back to work this past year and some with some major overhauls of work areas…it would be nice if we could recoup some of the cost of this.

You would use DWC AD 10005 to document the job modifications made and attach copies of the receipts for the expenditures.  The employer also has to complete and submit STD204 which the state requires before it will pay you.  The 10005 is available at the DWC web site and the STD204 at the CA State Treasurer's web site.   At the present time, the DWC insists that a copy of the P&S report detailing work restrictions must be attached to the DWC AD 10005 form.  Since claim administrators are prohibited from providing these medical reports to the insured employer, it would be necessary for the claim administrator to submit the DWC AD 10005 and STD204 on behalf of the employer.

Per LC 139.48, the reimbursement applies only for companies with 50 or fewer employees.  Most public agencies are not eligible for the reimbursement.

The injured employee chose to retire prior to the point he was determined to be P&S by his treating physician.  Our insured employer always has modified work and would have had appropriate work for this employee but for his decision to retire.  Is the employee due a voucher because he didn’t return to work?  Do we have to pay the 15% increase in PD because he isn’t returning to work?

Unfortunately, the statute and AD Regulations do not address this situation.  The safest option would be to develop a DWC AD 10133.53 Offer of Modified or Alternative Work for the position the employer has available.  Once the offer is sent to the employee, you can take the 15% PD reduction allowable under L.C. § 4658(d) and you would not owe the employee a voucher.

Many employers do not want to make such offers to employees who have terminated the employment relationship or they may be prohibited from doing so by union agreements or personnel rules.  Without an offer, the claims administrator cannot take the 15% PD credit.  I would argue that the employee is not due a voucher or the 15% PD increase because s/he has made a decision to leave the labor market.  

The employee was entitled to a 15% PD increase because the employer was unable to offer modified or alternative work.  We started to pay the increase but then reverted, without notice, to the statutory rate several weeks later.  When we issue a check for the missing amount, is it subject to penalty?

The 15% PD increase is still a disability payment and would therefore be subject to the same penalties applicable to permanent disability under L.C. §§ 4650 & 5814.  Arguably the applicant would be due a 10% self imposed penalty (SIP) on the entire amount of PD due for those payments paid without the 15% increase since each of those payments was made at an incorrect rate.

I have a claim that’s wishes to use his voucher for $10k. The rehab counselor has called and wants to know how to go about this as both of us have never dealt with this issue. I was wondering if you could tell me how this is to be paid out and or how this should be billed to us.

This is a very common question, perhaps because the statute and regulations fail to provide a clear guideline on how the process should work

1.You provide the applicant with a copy of the voucher (10133.57) within 25 days of case resolution at the WCAB.
2.The applicant provides a signed copy of the voucher to the counselor.
3.The counselor bills you for services up to $1000 (max allowed by law).
4.The applicant chooses an approved school to attend and completes the enrollment process.
5.The applicant provides the school with a signed copy of his/her voucher.
6.The school bills you for tuition and provides you with a copy of the signed voucher,
copy of the enrollment form, and proof that it is an approved facility.
7.  You pay the school for tuition and required books, fees, and equipment, not to exceed the remaining money left on the voucher (i.e., $10K - counselor fees).  You are required to pay for only those books, fees, and equipment specified in the school syllabus as being required for all students.

Please note that the counselor is not required to provide progress reports.  However, the services provided should be specified on the counselor’s invoice and a copy of the invoice should be served on the injured employee and his/her attorney (if represented).  

I have a few voucher cases where the carrier is refusing to pay tuition directly to the training facility: they are taking the position that the Labor Code only allows for reimbursement of tuition directly to the injured worker.  The examiners are demanding that the applicant pay the tuition and then s/he will be reimbursed by the carrier.  These injured workers do not have the funds to pay the tuition up front.  Does the Labor Code really allow for reimbursement of tuition to the worker only?

Both the Labor Code (4658.5(b)) and the AD Regulations (10133.56(h)) allow for direct payment of tuition to schools upon presentation of an invoice, signed copy of the voucher by the applicant, and proof of registration at an approved training facility.  I know there are some examiners out there who are refusing to do anything other than reimburse injured workers but their position is definitely not supported by the statute or regulations.  Applicant attorneys whose clients are the victims of this practice might want to use the following 5814.6 penalty regulation (effective 5/26/07) to discourage such behavior.  

10225.1(g)(7) $ 2,500 for each penalty award by the Workers’ Compensation Appeals Board for a violation of Labor Code section 5814 for an unreasonable delay or refusal to make payment to an injured worker as reimbursement for payment for services provided for a supplemental job displacement benefit voucher, or where the unreasonable delay or refusal to pay the training provider causes an interruption in the employee’s retraining.

Both represented and unrepresented injured workers can file a dispute resolution form (DWC AD 10133.55) with the Division of Workers Compensation.  The dispute will be resolved by Otis Byrd in Northern California and Sandy Cortes in Southern California.  The DWC AD 10133.55 form is available at the DWC web site located at:
http://www.dir.ca.gov/dwc/forms/DWC_AD10133.55_august2006.pdf.

I have a voucher related question, concerning apportionment between 3 different employers. This applicant is entitled to a voucher(based on his inability to do his job) Doctor apportions the pd between 3 employers 25% each. I can’t find anything anywhere on how we would deal with the voucher, would he be entitled to the overall amount for 15% impairment rating at $6000. Or is he entitled to a voucher based on each employers’ liability. Which would actually net him a larger voucher and I don’t think that was the legislative intent.

The applicant gets a voucher of $6000 provided by the employer/carrier managing the claim.  The employer/carrier managing the claim can seek contribution of $2000 each from the other 2 employer/carriers.

<i>I have a claim that has PD, via the P&S report just received.  We do not have mod/alt duty available, the claim was rated at 3%, or 9 weeks, and he has an atty.  I have several charts that reflect PD levels (in the lower PD levels) of the 15% that do NOT add up to 15%.  Example, PD of 2% of $1,380.00.  Reduction is 15% or $1,173.00, but the column for increase of the 15% is the same or $1,380.00. Same for 3% PD, reduction is fine but the increase is NOT 15%, it adds up to about less than 1%. This doesn't make sense to me.</i>

The 15% PD adjustment is applied to the weekly payments, not to the PD rate or to the total PD paid to the claimant.  The reason the amount doesn’t change on your chart for 2% is that the 15% increase would not apply until the 61st day of PDAs.  The 15% decrease in PD applies immediately when you send the DWC AD 10003 or DWC AD 10133.53 offer of work.  I suspect it would make more sense to just remember when the weekly adjustment is due rather than relying on the chart.

The applicant was RTW modified duty after receiving TTD and a Notice of Rights to the voucher was sent. The Applicant then became P&S in 2006, but continues to work the modified duty which will be permanent. I understand that the notice of perm/mod/alt work is supposed to issue within the 60 days of P&S status to take the discount if the employer can accommodate. Here, the Applicant is still working the perm/mod job but no offer was sent to the employee within 60 days of P&S determination. Does the employer have to pay the 15% increase to the applicant until they send the official offer of perm/mod even if it is the same job they are working now? Can they send offer now even though after the 60 days and pay the decrease of 15% now, and can they take credit retroactively? What do they do for the period after P&S, decrease or increase, if no mod/alt perm offer was made?

Since the employee has not been sent an offer of modified/alternative work (form DWC AD 10133.53), PD should be increased 15% from the 61st day from the P&S date and continuing until the employer makes the formal offer of modified work on form 10133.53.  The statute (§4658(d)) indicates that the offer must be made within 60 days of P&S so it is unclear at the present time if the employer can, in fact, correct its error.  At its February 2007 seminar, the DWC advised employers that the increase would be due from day 61 until the error is corrected so there is a basis for this action.  However, the WCAB may view the matter differently if the issue is ever litigated.

Allan Leno is a principal with Leno & Associates in Newbury Park, Calif. He can be reached at 818-370-8859 or by email at allanleno@leno-assoc.com