Voc Rehab/Return to Work Issues

Wednesday, May 7, 2008 | 0

By Allan Leno

In last month's column, I noted that a revised DWC regulation (9810(c)) would require that Supplemental Job Displacement Benefits Notice of Potential Rights (10133.52) and the voucher (10133.57) must be sent to the eligible applicant on plain paper and not on the insurer/employer letterhead.

This is a particularly BAD idea with respect to the voucher because there are a few schools and counselors taking advantage of the fact that this form is readily available on the internet. Claims administrators are therefore receiving completed documents, attached to invoices, where it is not readily apparent that the voucher was actually issued by the insurer or employer. I do not understand why the DWC believes placement of AD Reg Sections 10133.52 or 10133.57 on the claims administrator’s letterhead is or should be proscribed by statute or regulation, especially when such placement is done WITHOUT CHANGE to the regulation. I posed this question to a senior official in the DWC Audit Unit and asked if they would impose an administrative penalty on those claims administrators who used their letterhead but made absolutely no changes to the language in 10133.52 and 10133.57. The response was:
 
<i>Mandatory forms are just that, mandatory, and are not subject to any modification. They are to be issued in compliance with the regulations 8CCR §10133.52 & 10133.57. Reference is also made to the acknowledgment of these forms as being prescribed in regulation under 8CCR § 9810(c).</i>

Regrettably, this is bureaucratese for the DWC’s intent to enforce AD Reg 9810(c) literally – if you use your letterhead and get caught, you will be penalized. Apparently enforcement of the regulation is more important than an information notice (10133.52) having the appearance of junk mail and a benefit document (10133.57) having an increased exposure for fraud. If you think, as I do, that the DWC should re-visit this issue, send a letter to the AD at:
 
                    Administrative Director
                    Division of Workers’ Compensation
                    1515 Clay Street, 17th Floor
                    Oakland, CA 94612-1402
 
Or, send her an e-mail at dwc@dir.ca.gov.
 
<b>SJDB Voucher – FAQs</b>

A number of people have noticed that the “voluntary agreement list” – the list of schools whose approval has been extended – no longer seems to be available at the Bureau for Private Postsecondary and Vocational Education web site. The list is still there – it just has been moved. You can now find the list at http://www.bppve.ca.gov/forms_pubs/voluntaryagreelist.pdf. At the BPPVE web site home page, click on the “schools” tab and then on the “List of schools eligible for the voluntary agreement.” If you don’t want to go through this process every time you need to look up a school, you can save a copy of the list to your desktop (note that you will need a copy of the Adobe Acrobat Reader to open the list).

We have had a number of questions about workers eligible for vouchers taking them to the Department of Rehabilitation to see if they can obtain assistance there. A former DOR counselor (and former insurance company VR Coordinator) offered the following:
 
<i>I thought I'd share with you that anyone with a VR voucher can use it as a "comparable benefit" to get services from Dept of Rehabilitation (DOR). When the changes were made to dissolve the comp VR service and replace it with vouchers, DOR issued a new code for this class of referrals in anticipation of more clients. I used it in that manner for a few individuals who came to DOR when I worked there as counselor. I used the P&S report as the medical documentation to qualify a person who has work limitations and can't return to U & C. I used the voucher funds towards a VR plan and provided supplemental services and expenses beyond the voucher to all required standards of a training plan. The training facility verified the use of the voucher to the insurance carrier and billed DOR for the difference.  It's important to note that DOR does not provide funds for an individual to support him/herself during the VR plan but all required plan expenses are met by DOR with use of the voucher.   If you feel this is appropriate to share with your readers, please feel free to do so. All potential clients should get this information during the DOR orientation.

DOR may not be the best solution for all injured workers with vouchers but it probably should be their first stop.

<i>Do the new regulations regarding the offer or regular work apply to an MO claim? Based upon the new regulations you will need to send out this form to offer regular work to the injured worker. This is in the system under SB899 Notice of offer of regular work. Subdivision (c) provides that the employer shall use Form DWC-AD 10133.53 (Section 10133.53) to offer modified or alternative work, or Form DWC-AD 10003 (Section 10003) to offer regular work. This subdivision also provides that the claims administrator may serve the offer of work on behalf of the employer.</i>

Medical Only (MO) claims have no lost time and no PD so the individual continues in his or her “usual and customary” job. Sending a mod/alt job offer form 10133.53 would therefore be inappropriate. Sending an Offer of Regular Work form 10003 would be unnecessary because the person has no PD and the 15% PD adjustment from LC § 4658(d) does not apply. So, for MO claims, you do not need to worry about sending forms 10003 or 10133.53 EXCEPT….
 
In rare cases, the applicant with an MO claim does end up with some PD and/or needs modified or alternative work. These cases should be converted to indemnity claims but, even if they are not, the applicant should be sent the form appropriate to his or her circumstances. The better way to remember when one of these forms is do is determine whether the person has PD and/or needs a job modification or transfer. If yes, a 10003 or 10133.53 is due. If no, you don’t need to worry about the form unless/until s/he has PD and/or needs a job change.
 
<i>I have a claimant who was released to return to work modified duties – I completed the job description of the transitional work and DWC AD 10133.53 offer of temporary modified/transitional work and in the process of sending to the Claimant for his signature when I discovered Claimant has been released to return to work FULL DUTIES/DISCHARGED , laid off from work and obtained an attorney to represent him all in that order. Do I still send him the DWC-AD10133.53 and job description for his review and signature - or would that be a moot issue now?</i>

The 10133.53 and the job description of the transitional work would no longer be appropriate since he was released to return to his regular duties. If he hadn't been laid off, you would have sent him the 10003 Offer of Regular Work instead. Since he was laid off, there isn't anything more you can do.
 
<i>If an injured worker retires prior to the WC case settling would they still be eligible to obtain the training benefit to obtain training or skill enhancement?</i>

It depends. If he retired because he was ready to retire, he probably is not entitled to a voucher. As an employer, I would not give a voucher to someone who chose retirement rather than coming back to work, assuming appropriate work was available. On the other hand, if he retired because there were no return to work options for him, he arguably would be entitled to a voucher.

<i>Do the regular duty (10003) and Mod/alt offer (10133.53) notices have to be submitted in Spanish?</i>

The 10133.53 and 10003 ARE available in Spanish. See the DWC forms page at http://www.dir.ca.gov/dwc/forms.html. So, the short answer is, “Yes.”

<i>The last I heard, there is no "statute of limitations" for an injured worker eligible to utilize the SJDB….. has that changed? If not, then the injured worker is entitled to the SJDB voucher until he/she dies correct?</i>

Correct. An SJDB voucher is good until the worker dies or the money runs out, whichever occurs first. There are no statutory time limitations on its use.

<i>An adjuster just came to me to ask if we would owe an additional 15% on a previously denied case that went to an AME not too long ago, and the AME declared the injured worker P&S as of Oct 2006. The adjuster only received the AME report today--I told the adjuster it doesn't matter if we only received it today. We would still owe the additional 15% because the labor code "doesn't really care" about date of knowledge, but rather if and when a 10133.53 or 10003 was sent within 60 days of P&S. So I told her to pay IW the additional 15%. She came away thinking that wasn't reasonable but I told her bottom line is we owe the additional 15% because we didn't send an offer letter timely. Was I being unreasonable and too "by the book"?</i>

One of the problems with a case denied AOE/COE (if you lose) is that everything that would have come due during the denial period instantly becomes due when you lose. That includes offers of modified or alternative work. In your example, the adjustor would owe the 15% PD increase beginning with any payments due after the 61st day from the date the applicant was P&S by the AME report (assuming a DOI on/after 1/1/2005). It doesn’t matter when you got the report. Steer your adjustor to L.C. § 4658(d)(2) which measures the adjustment date from P&S, not receipt of the medical report.
 
Thought you would want to see what DWC put together – look at page 103 – it says that the Offer of mod mod/alt work needs to be sent within 30 days of the termination of TTD “AND/OR” within 60 days of the employee becoming P&S with PPD!! They are really confusing everyone!!! What do you think? If the new manual says “and/or” then I think we can wait 60 days until the employee is P&S!

There are two different criteria: 30 days from last TD payment to send an Offer of Mod/Alt Work (10133.53) to avoid liability for the voucher under LC Sections 4658.5/4658.6 BUT 60 days from P&S to obtain the 15% PD reduction available under LC Section 4658(d)(3)(A). If you miss the 30 day window under 4658.5/4658.6, there is still a good reason to try and get the 10133.53 out within 60 days so you can take your 15% PD credit under 4658(d)(3)(A).
 
<b>VR Issues</b>

<i>If an injured worker is P&S by the PTP with permanent work restrictions limited/standing no more than 5 hours. Employer accommodates him/her by providing a 5 hour working schedule, total of hours worked 25 a week, and losing 15 hours of work per week from the regular schedule. Who is responsible to pay him/her for loss of wages after P&S - the employer or WC insurance carrier… please advise?</i>

If the worker is P&S, they are not due wage loss. The job doesn't meet the requirements to avoid rehab (pre-2004) or the voucher (2004 or later) but no wage loss is due. There is a case law on the subject - see McGrath v. Solar Turbines Int'l. (1981) 9 CWCR 142 (WCAB Panel) . If it is a pre-2004 case, the employee would be entitled to VR services UNLESS s/he chose to accept the position under Labor Code Section 4644(a)(7).

<i>Allan Leno is principal of Leno & Associates. His periodic columns on vocational rehabilitation and return-to-work issues can be found at http://www.leno-assoc.com
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