Supplemental Job Displacement Benefit Voucher - FAQs

Wednesday, September 2, 2009 | 0

By Allan Leno


Question: I have a claim with a date of injury 9/2/99 with a cumulative injury ending in 2005.  Is he due VR/VRMA or a voucher?

Answer:  Assuming the employee continued working his regular duties after the September 1999 injury up to the date of the cumulative injury (CT) claim, he would be due a voucher. If the applicant was assigned modified or alternative duties not formalized in an RU-94 and he worked at those duties up to the date of the CT injury, it would theoretically be possible for him to be eligible for both VR and a voucher – except that eligibility for VR is now a moot point.  The only vocational rehabilitation (VR) benefit that could possibly be at issue at this point is retro vocational rehabilitation maintenance allowance (VRMA) and, since the applicant was working for the employer, it is unlikely there would be any VRMA due.

Question: We have an unusual situation: the applicant is a firefighter who sustained an accepted industrial injury on 6/3/08.  He was seen by an agreed medical evaluator (AME) on 4/14/09, we received the report on 5/27/09.  The report gives a 35% whole person impairment (WPI) without reference to whether or not he could do his job, did not give any work restrictions, and the employee remains at full duty.  We requested a supplemental report to clarify his ability to perform essential functions and if there were any work restrictions. We received the supplemental report on 7/8/09; it gives prophylactic preclusion from undue emotional stress.  Do we still have time to give the offer of regular work?  If not, do we owe the 15% increase?
 
Answer: The 60-day time frame provided in L.C. 4658(d) begins on the date of the permanent and stationary (P&S) report indicating there is ratable disability (note that there is a recent WCAB case indicating the clock starts ticking on your date of knowledge (see Ornelaz v. Albertsons below).  The due date for the Notice of Regular Work would be June 12, 2009, based on a strict interpretation of L.C. 4658(d)(2) or July 30, 2009, if you choose to use the findings in the Ornelaz case.  If you had not sent the notice by June 12, 2009 (or July 30, 2009), you would owe the 15% increase beginning June 13, 2009 (or July 31, 2009).  If your notice is after those dates, it is unclear if you can switch from the +15% adjustment to the -15% credit.  Since it was legislative intent to encourage employers to retain their disabled employees, I believe you should be able to take the credit as soon as you send the Notice of Regular Work.  However, the statute does not address the situation so take the PD credit after a late Notice of Offer of Regular Work is a calculated risk.

(The Ornelaz case is a Workers' Compensation Appeals Board (WCAB) panel decision and therefore has limited value.  The logic seems sound so you may be able to make your payment decisions, BUT I would  recommend you discuss the case with your attorney first.)  

Question: I have a general question regarding whether an injured worker would be entitled to a voucher at time of settlement.  We have a psych claim where the employee was P&S and the mod/alt offer question was posed to the employer.  It is my understanding that when the employer met with the employee regarding the offer of an alternate modified work he declined all offers and terminated his employment with the employer.  My question is will he be entitled to a voucher?

Answer: The issue here is whether the employee was ever sent a Notice of Offer of Modified or Alternative Work (DWC AD 10133.53).  The DWC expects to see some evidence that there was actual, medically appropriate work available for the employee.  If there is no 10133.53, the Division of Workers' Compensation (DWC) is likely to find the applicant entitled to a voucher (I have, in fact, seen that outcome on case very much like this one).  The DWC assumes the employer did not have any appropriate work so the applicant’s rejection of “all work” is meaningless (at least to the DWC).  If, on the other hand, the employer sent an offer of modified work via the 10133.53 and the applicant rejected it or failed to respond, the employer has – by statute – met its obligations. 

In the situation above, it appears that a 10133.53 was never sent because the applicant rejected “all offers” during the interactive process meeting with the employer.  Unless you are willing to make case law, I believe the DWC will find that you owe a voucher.

Question: If the employer has fewer than 50 employees, are we still able to take the 15% decrease if a modified/alt/regular job has been offered to the employee?

Answer: The PD adjustment provisions of L.C. 4658(d) do not apply to employers with fewer than 50 employees.   Those employers are eligible instead for reimbursement for the costs of job accommodation under the provisions of L.C. 139.48.

Question: This is a 2007 date of injury where the employee was seen by an AME on 5/15/2009. He was initially a full-time employee who was terminated by the employer on 2/27/2009. He was hired back as a contract worker.  In the AME report, work restrictions were provided to the employee. If the employer is able to accommodate those restrictions, can I take the 15% deduction in PD even though he is no longer employed as a regular employee but is working as a contract worker? My feeling is that I can’t take the deduction since the employee is no longer a regular employee as of the date of the AME report. Is my assessment correct?

Answer: Your assessment is correct.  The 15% PD adjustment applies to employees; the statute makes no mention of contractors. 

Question: Applicant was declared permanent & stationary with 0% permanent disability (PD) in May of 2008. No offer of return to mod/alt/regular work was made since there was no permanent disability. Applicant retained an attorney, parties went to agreed medical evaluator (AME) whom found 13% PD and P&S'd on 6/4/09.  Now that there is PD, I am arguing that I can take a 15% reduction if I send an offer of regular work within 60 day's of 6/4/09.  My defense attorney is arguing that my offer of regular work should have been on the initial P&S report from PTP in May of 2008. Which doesn’t make much sense since there was no PD.  Would I be entitled to 15% reduction based on AME P&S'd date?  What if AME P&S'd back to May 2008 but report/exam was not completed until 2009, would we have blown our 60 days?  

Answer: You are correct.  The purpose of the Notice of Offer of Regular Work (DWC AD 10118) is to substantiate an offer of work so the employer can take the 15% PD credit for its compliance with L.C. 4658(d)(3)(A).  If there is no PD, the form is meaningless (although there is no harm in sending one and it would have made the argument in this case moot).  If you had sent the form in May 2008, you would have taken 15% of 0% PD – which is meaningless.  The PD adjustment only becomes an issue when there is PD – which you didn’t know about until 6/4/09.