Leno Answers Your Voc Rehab Questions

Saturday, July 14, 2007 | 0

By Allan Leno

BPPVE

The Bureau for Private Post-secondary Vocational Education ceased to exist as of midnight June 30. There are two bills pending in the Legislature to address the transition to a new agency (AB 1525) and the creation of a new agency to succeed BPPVE (SB 823). You can register to track these bills by going to http://www.leginfo.ca.gov/bilinfo.html. These bills are still in committee and it is unclear if they will be enacted prior to the end of the current session.

As noted in previous newsletters, the uncertainty regarding the approval status for schools presents problems for eligible injured workers, claims administrators, and legitimate schools. Schools approved by BPPVE are approved through the end of the year but claims administrators and representatives of injured workers should bring problem situations to the attention of the DWC via the DWC 10133.55 dispute resolution process.

SJDB-PD-RTW FAQs

We have a client who does not want the carrier to provide a voucher since the injured was terminated for drugs last year. Had he not been terminated for cause, the employer would have provided a modified or alternate position. Due to the employee's negligence of using on the job, they feel it's wrong to provide the voucher.

Termination for cause is a common problem/question. Unfortunately, the statute (4658.5) does not provide any clear guidance. "Common sense" would suggest that we do not want to reward injured workers who engage in obvious illegal behavior. But, since there is no clear guidance in the statute or regulations, insures/employers need to make a policy decision regarding how they will respond in this situation. I would agree that the injured worker in this example should not be provided a voucher. But, in making its policy decision, the employer must be aware that the WCAB may reach a different conclusion if or when a case is presented for resolution before the board.

Is a claimant entitled to reimbursement for mileage while attending a training program under the SJDB voucher process?

Labor Code Section 4658.5 provides for payment of school tuition and "related" fees required by the school. There is no indication in this language that would support payment of mileage to/from the school.

An injured worker attended and completed a training program at XYZ training facility. There is still money left on the voucher and the employee now wants to go back to the school to take an advanced course. Is the claims administrator required to issue a new voucher or can the school submit a second invoice based on the original voucher?

The claims administrator can issue a modified SJDB voucher is s/he chooses but I see no requirement to do so. The employee is entitled to use his/her entire entitlement and can continue to enroll in training programs up to the limit for his/her voucher. The school can submit a second invoice for training up to the limit of the voucher and the claims administrator would be required to pay the invoice (assuming the school program is still approved) up to that limit.

As an example, let us assume the employee has an $8000 voucher and enrolled in and completed a $5000 training program. The employee chooses to enroll in a subsequent (approved) $4000 training program. The claims administrator would be required to pay for $3000 in tuition for the second program; the remaining $1000 would be the employee's responsibility because the claims administrator is not required to exceed the $8000 face value of the original voucher.

The employee enrolls in a training program but never starts (or never completes) the course. Who gets the tuition refund?

Logic would dictate that the refund should go back to the payer. Unfortunately, the DWC regulations are silent on the refund issue, indicating only that the school is required to issue a pro rata refund based on attendance. I would suggest advising the training facility that any refunds are to be returned to the claims administrator but there is little the claims administrator can do to enforce its requirement other than filing a DWC 10133.55 Request for dispute Resolution with the DWC.

Is an undocumented injured worker entitled to an SJDB voucher? What if the employer would be able to provide mod/alt work "but for" the worker's undocumented status?

There is no case law on this subject vis-a-vis the SJDB voucher but we might expect the courts to find as they did for the rehabilitation benefit in the Del Taco case.

In Del Taco, an undocumented injured worker was found ineligible for VR benefits and services where the employer was able to provide modified or alternative work. By extension, the injured worker would be entitled to VR benefits if the employer was not able to make such work available. The decision to provide a voucher -- or not -- is a policy matter at this point in time.

I would apply the Del Taco reasoning, assuming the employer can demonstrate the availability of modified/alternative work, but keep a close eye on case law. While it would seem reasonable for the board to follow the logic in Del Taco with respect to the voucher, keep in mind that this is a different benefit and the board has been known to surprise us.

Would an injury incurred during training under the voucher benefit be compensable, like it was under VR?

Good question. I would argue that such an injury would not be compensable because the defendant has no control over the choice of program, choice of school, location of the school, etc. But I cannot say I have great confidence in the argument because the rationale for an injury during rehab being compensable was that the applicant would not have been in rehab but for the original injury. That argument also applies to a voucher program. The defendant's lack of control over training circumstances and the fact that the case in chief has been resolved might change might change the equation when a case is eventually argued at the board -- but I wouldn't bet on the outcome.

I thought one of your newsletters covered this but, if an employee resigns, before we have a P&S report with permanent work restrictions, is the employer obligated to increase the PD by the 15% since they can't offer a modified job since the employee resigned?

The statute (4658(d)) and the Regs (10133.56/57) do not address this situation and we have no case law to provide guidance.

Applicant attorneys, of course, would argue that you owe both the 15% increase as well as the voucher.

As an employer/insurer, I would argue that the applicant has voluntarily resigned and is not entitled to either a PD increase or a voucher. Eventually the courts will decide this issue but I would not be inclined to provide these "rewards" where the employee has made a voluntary decision that takes the incentives out of the employer's hands. Ultimately though this is a policy decision you must make -- all I can do is give you my opinion -- and it may only be worth what you paid for it.

If an injured worker has been declared P&S with no work restrictions for the work comp injury, but has restrictions for a non-industrial condition, does the claims examiner send an offer of modified/alternative work or can the employer disregard the non-industrial work restrictions for the purposes of the RTW offer? It doesn't make sense to send an offer of regular work when there are restrictions, but it also doesn't make sense that the employer loses the 15% reduction if they cannot accommodate non-industrial work restrictions.

The employer should have no obligation to offer modified/alternative work with respect to its workers compensation requirements BUT it does have an obligation to engage in an "interactive process" with the employee and to conduct a reasonable accommodation assessment under the Fair Employment and Housing Act (FEHA).

This is one of the situations that simply make no sense under the new workers comp requirements. Technically, you would be required to send the applicant a DWC Form 10003 Offer of Regular Work so you could take the 15% PD credit. That offer will not make much sense to the employee who is precluded from returning to his/her usual duties by the non-industrial condition and that confusion might well lead to an FEHA complaint. Your employer needs to consult a labor attorney regarding its FEHA exposure; the 15% PD adjustment is pocket change compared to the potential FEHA costs.

A question (or two) does come to mind here. I would assume the non-industrial condition existed prior to injury. Did the industrial injury exacerbate the condition to the point where it now prevents the employee from performing his/her regular duties? If so, the situation is much more complicated and the employer may need to offer modified/alternative work under its workers' compensation obligation.

If I accept work from my employer that pays less than 85%, does that disqualify me from receiving a voucher?

Probably not -- but the answer isn't clear in the Labor Code so we won't know for sure until there is at least one case argued before the WCAB. Assuming you have Permanent Disability and you cannot perform your regular duties, your employer escapes its liability to provide a voucher only if it meets the requirements of Labor Code Section 4658.6(b)(1-4). Since 4658.6(b)(3) requires wages at 85% or better of pre-injury wages, your employer arguably would still owe you a voucher (4658.6 does not contain language equivalent to 4644(a)(7) allowing an employee to accept an offer that does not meet the usual modified/alternative work requirements). BUT 4658.5(a) says a voucher is only owed if the employee does not return to work within 60 days of the last payment of TD. Absent case law of a DWC determination, I would not expect the employer to voluntarily provide a voucher.

Training

I am scheduled to teach IEA's CA-14 class in Woodland Hills and Oxnard for the fall 2007 term beginning Sept. 11. A substantial portion of class time will be spent on SJDB voucher, PD adjustment, and general return-to-work issues, as well as the traditional VR issues. Anyone interested in registering for IEA classes can obtain additional information at the IEA Web site.

IEA is presenting four Return to Work workshops during the fall 2007. These three hour workshops cover the SJDB voucher, workers' compensation return to work requirements, FEHA return-to-work requirements, and the interactions and conflicts between these two statutory requirements along with the potential risks and costs for both insurers and employers. The workshop will be presented in San Diego by Barbara Elliott and Judy Lemm on 10/25/07 and by Allan Leno in San Francisco on 9/27/07, Woodland Hills on 10/31/07, and Santa Ana on 12/7/07. IEA has arranged for 3 hours CEU credit for claims administrators, attorneys, and rehab/RTW specialists. For more information, go to the IEA Web site at http://www.ieatraining.com/options/workshops.asp and click on the link for the workshop in which you are interested.

The National Association for ADA Coordinators (NAADAC) Fall 2007 conference is scheduled for Salt Lake City, Utah, beginning Oct. 22, 2007. Anyone interested in attending this conference should contact NAADAC at 800-722-4232. Information regarding the conference will soon be available at NAADAC's Web site at http://www.jan.wvu.edu/naadac/index.html.

Do You Have a Question?

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.

Issues for the past year of the VR/RTW Issues Newsletter are available on Leno's Web site. Visit http://www.leno-assoc.com to view previous issues or to learn more about services provided by Leno & Associates.

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The views and opinions expressed by the author are not necessarily those of workcompcentral.com, its editors or management.