Voc-Rehab/Return-to-Work Issues

Tuesday, February 9, 2010 | 0

By Allan Leno

<b>Reminders</b>

Assembly Bill 48, which created the Bureau of Private Postsecondary Education (BPPE) under the aegis of the Dept. of Consumer Affairs, was signed into law by Gov. Schwarzenegger and became effective 1/1/2010. BPPE replaces the old Bureau for Private Postsecondary Vocational Education (BPPVE) which went out of existence effective 7/1/07.  BPPE has a web site, http://www.bppe.ca.gov, but information is very limited at the present time.  The new Bureau intends to have a list of approved institutions up on the web site by July 1, 2010. Until then, interested parties (eligible injured workers, schools, and voucher payors) will have to utilize an interim procedure to determine whether a training facility is “approved” and eligible for SJDB payments. 

BPPE has issued a policy indicating that vocational training schools that were approved by BPPVE as of 6/30/2007 now have their approval extended for a period of three years from the end date of the approval in effect on June 30, 2007.  That seems overly complicated so let’s use an example to demonstrate BPPE’s policy:

ABC Voc Programs Institute has a BPPVE approval certificate indicating that its programs are approved through 9/1/07.  The program is therefore approved under BPPE’s policy until 9/1/2010 (3 years from 9/1/2007).

XYZ Training Institute has a BPPVE certificate showing approval through 12/1/09.  Under the BPPE policy, its approval is extended to 12/1/12 (three years from 12/1/09).

Schools must therefore provide payors with a copy of their BPPVE certificate showing an approval end date (that date usually appears in the lower left corner of the certificate).  Some schools have provided copies of the BPPVE “voluntary agreement” list showing that they signed the agreement as proof they are now approved under the BPPE policy.  A school’s inclusion on this list shows only that they are approved through 6/30/2010.  The voluntary agreement list is no longer available on the BPPVE or BPPE sites (which are now identical) so payors should inspect any list provided as “proof” carefully.  Questions about the school certification process can be e-mailed to BPPE at bppve@dca.ca.gov.

BPPE has also posted a copy of its new emergency regulations on its website pursuant to the following notification from the Bureau:

The proposed emergency regulations were approved by the Office of Administrative Law (OAL) on Monday, February 1, 2010.  The final language will be posted on the website this afternoon.  In addition to the official final language that was approved by the OAL there is an unofficial copy.  Both are located under the "legislation" tab.  The unofficial copy is the language without the underlines and strikeouts.  Also available on the website under the new "applications" tab are five of the eleven applications.  The remainder of the applications will be posted as soon as possible. 

Claims administrators should bookmark the BPPE website for future reference as it will have the information necessary to determine whether schools are approved within the next few months.

<b>SJDB Voucher – FAQs</b>

<i>I was just wondering is there a time limit during which one must request a voucher?  It is more than five years from the date of injury but less than one year from the F&A?  Applicants counsel was betting on a 100% but it came in at a lower figure and now he has requested a voucher.  The SJDB voucher was offered many years ago and applicant’s attorney did not respond until now.</i>

There is no time limit on the use of the SJDB voucher.  Legislation has been introduced in the past couple of years to limit use of the voucher to 5 years from the date of injury (consistent with the usual provisions of LC 5410) but the bills have never been passed.  The applicant in your case is thus still entitled to use his/her voucher.  If the applicant no longer has a copy of the document, your client would be required to send he applicant a new copy. 

The terms under which the claims administrators’ obligations end are contained in AD Reg. 10133.60.  You will notice that there is no reference to the statute of limitations.

<i>My employer offered an alternate job to an employee based on his permanent work restrictions.  The job was not within 85% of the prior salary.  Does the employer still get to reduce the PD by 15%?  I read 4658(d)(2) and it is silent on that.  I also reviewed Form DWC-AD 10133.53 and it appears to only entitle the claimant to a SJDB voucher if the job is not within 85% of the prior salary.  What is your take?</i>

There are definitions for modified and alternative work in L.C. § 4658.1 which falls after L.C. §4658(d) which might be taken to mean that the 85% requirement does not apply to the 15% PD credit or increase.  HOWEVER, some attorneys have pointed out that 4658.1 is in the same section (4658) as 4658(d) AND 4658.1 notes that the definitions apply to “this article” which contains both 4658(d) and 4658.1.  Therefore, an offer of work must pay the employee at least 85% of his/her pre-injury wage.  If the offer does not, the claims administrator must increase the applicant’s weekly PD by 15% even where an offer of work has been made and accepted. 

<i>I have a seasonal employee who was paid T.D. He is now released to return to work with no restrictions. The seasonal work crew was laid off while he was on T.D. so therefore, we do not have any available work at this time.  I have attached the “Notice Regarding Return to Work” for our seasonal employee. My question is, would box 4 be the correct language to use or do we need to specifically state the lay off in his department. We do not have work available but it is not because of any restrictions. We do realize that the former employee will be entitled to 15% increase in PD if he is entitled when he is P & S’d and a voucher. </i>

There are a couple of issues here.  First, this employee is not entitled to a voucher since he was released to his regular duties without restrictions.  L.C. § 4658.6 and AD Reg 10133.60 specify that an employer avoids liability for an SJDB voucher by providing modified or alternative work; this employee does not need modified or alternative work so the voucher is not at issue (consult with your attorney on this issue – DWC does not necessarily agree with this interpretation of the statute and regulation).  Secondly, you are correct that the employee would be entitled to a 15% increase in weekly PDAs for any PD benefits paid after the 60th from the P&S determination.  Finally, I think it is an excellent idea to provide the employee with notice regarding the reason why work is not available but there is no specific requirement for such a notice. 

<i>I have a couple of voucher questions that you have probably already answered in one of your newsletters, but here goes.   An employee is deemed MMI, there is 0% PD, the employee goes back to Full Duty with no restrictions, and the NoPR was sent because TTD was paid.  When the case settles either by F&A or Stips, it is determined that there is PD of 1% or more.  Question:  Are we required to issue a voucher because we did not send the employee the Notice of Offer of Regular Work? </i>

The DWC seems to think a voucher would be due but I would argue that NO voucher is due because of the language in L.C. § 4658.6(a)(b) and AD Reg §10133.60 that says the employer avoids liability for a voucher by providing modified or alternative work.  We do NOT provide modified or alternative work to people released to full duty - and never have.

Same scenario as above (An employee is deemed MMI, there is 0% PD, the employee goes back to Full Duty with no restrictions, and the NoPR was sent because TTD was paid. ), however the employee then goes to a SPQME who determines that there is PD of 1% or more.  Should we send a Notice of Offer of Regular Work at that time because there is now PD, so that when the case settles, the Notice of Offer would have been sent and we wouldn't owe a voucher?  Will we owe a voucher if we don't send the Notice of Offer?

A Notice of Offer of Regular Work should be sent so you can take the 15% PD credit - that is why it was created.  I believe you should NOT owe a voucher for the same reason as above. 

A NoPR was issued, however, when the employee was deemed MMI, they retired, resigned, or were terminated for cause.  Are we still required to send the Notice of Offer of Regular Work, even though they are no longer employees?  Would we be required to provide a voucher if we don't sent the Notice of Offer of Regular Work?

I would recommend you send the offer to insure you are not at risk for a voucher.  If the person is released to full duty, you should not be at risk (as above) but sending an Offer insures you won't be.  Remember that making the offer satisfies any liability - it doesn't matter whether the employee accepts or not.  Also, keep in mind that the DWC (or a WCJ) has no way to determine whether work would have been available unless an offer is made.  The RTW Consultant or WCJ is not going to take the employers word that work would have been available “but for the employee’s retirement/resignation.”  If it was a termination for cause, the employer has to have solid documentation regarding the reason for the termination.  If the documentation is poor, be prepared to provide the voucher and the 15% PD increase (if applicable).

An employee never loses time so TTD is never paid, there is 0% PD when employee is deemed MMI.  At the time of settlement, it is then determined that there is 1% or more PD.   No NoPR was ever issued because no TTD was paid and no Notice of Offer of Regular Work was issued because there was 0%PD.  Now what???  Do we have to issue a voucher and an NOPR?

The Notice of Potential Rights is not due because no TD was paid.  The Offer of Regular Work would be irrelevant at settlement because you will simply pay out the PD in a lump sum.  The voucher should not be due for the same reason as above.

<i>If we have information that employer cannot accommodate the employee’s need for permanent modified or alternative work, should we increase weekly PD payments by 15% before the 60 days from P&S?</i>

No - you don't increase PD by 15% until the 61st day after P&S, even when you know the employer doesn't have regular/modified/alternative work available.  The statute (L.C. Sect. 4658(d)(2)) allows the 60 days, presumably on the theory that circumstances could change during that period (e.g., another worker quits thus opening up a slot for the injured worker).  Or perhaps the employer needs time to mull over the important information you provided regarding the possible increase in claim costs if modified or alternative work is not available.  In any event, the 15% PD increase does not begin until Day 61 after P&S.

An injured worker is P&S and we submitted a request to the employer regarding the availability of modified or alternative work; we have had no response from employer within 60 days.  Is this employee entitled to a 15% increase or do we just not take our 15% savings?

The employee is entitled to a 15% increase in weekly PD benefits beginning on the 61st day after P&S.  The employer’s failure to respond to your request is the same as a failure by a claims administrator to inquire regarding the availability of such work.  Except in this case it is the employer’s fault.  The employee cannot be penalized for the employer’s failure to respond – the 15% increase must be paid.

In cases where the employee either self terminated or was terminated for cause, we have been sending job offers, when appropriate, to show what would have been available but for the employee's self termination or termination for cause.    I have heard from one attorney that the WCJ will accept the offer if he/she deems it to be "in good faith".   Another attorney opined that if the EE self terminated or was terminated for cause, then the "employer" is no longer the "employer" and has no obligation.   Do you have any further information regarding job offers made solely to document for the record that the employer cannot offer a job only because the employee was terminated for cause or self terminated?   Do we start taking the 15% reduction in PD payments once an offer of this kind is sent?

As previously noted, I recommend that employers send job offers in cases where the employee retired or resigned but would otherwise be eligible for re-hire.  In such cases, I believe an employer must be able to show that work was available and the only way to do that within our system is to send the work offer via the DWC AD 10133.53 or DWC AD 10118. 

A termination for cause is another matter.  Assuming the termination was valid, no employer can or should offer a job to an employee who was terminated “for cause.”  In such cases, the employer needs to have good documentation regarding the “termination for cause” so the claims administrator can present a defense that an offer was inappropriate; offering a job to a person terminated for cause negates the basis for the termination, rewards aberrant behavior, and destroys employee morale.  Case law may eventually determine how we address such situations but, until then, I cannot think of a valid reason for offering a job to an employee terminated “for cause.”

<i>I have a claim where the injured worker was deemed P&S by an AME and the preclusions were such that the employer was not able to accommodate.  TTD benefits ended and PDA's began as of that date.  The claim resolved via a Stipulated Award for 14%.  After the Award, the Voucher letter was sent to the injured worker.  Subsequent to settlement, the injured worker changed treating physicians.  She saw the new physician who provides the employee with a full duty release to return to work with no restrictions.  The employer had no choice but to allow the employee to return to work.  My question - is this employee still entitled to the voucher now that she has returned to regular duty?  What are our legal obligations at this point?</i> 

Entitlement to a voucher is based on an award of PD at the Board and a concurrent determination that the employee has work restrictions that the employer cannot accommodate.  Since the case resolved via a Stip and you are still within 5 years of the date of injury, you should be able to petition to reopen the case and try to convince the WCJ that the award should be changed based on the revised work restrictions.  You should also be able to document the employers work offer via a DWC AD 10118 Notice of Offer of Regular Work and use that as the basis to withdraw the voucher.  As noted above, L.C. § 4658.6 and AD Reg 10133.60 specify that an employer avoids liability for an SJDB voucher by providing modified or alternative work.  This employee has now been released to regular work and the employer has offered her regular work so she should no longer be entitled to the voucher.

<i>Allan Leno is owner of Leno & Associates, a vocational rehabilitation consulting firm in Newbury Park, Calif. This column was reprinted with his permission from his firm's newsletter.</i>