Voc Rehab and Return-to-Work Issues
Tuesday, October 6, 2009 | 0
By Allan Leno
Case Law
The WCAB finally issued its long-awaited en banc decisions in Ogilvie v. City and County of San Francisco and Almaraz/Guzman v. SCIF/Keenan. These decisions have been dubbed Ogilvie II and Almaraz/Guzman II by observers to distinguish them from the board’s prior en banc decisions on these same cases. You can find analyses of both cases by leading defense attorneys at web sites such as WorkCompCentral (http://www.workcompcentral.com) and the California Workers Compensation Institute (http://www.cwci.org); several major defense firms have also posted their analyses of these cases. Both Ogilvie and Almaraz/Guzman will be appealed to their respective District Courts of Appeal and, eventually, to the California Supreme Court.
In many respects, the WCAB confirmed its prior decisions in both cases but it did do some significant “fine tuning” of the prior decisions, particularly in Almaraz/Guzman. The board determined that the rating schedule is rebuttable restricted the means by which it could be rebutted and places the responsibility for rebutting the scheduled rating squarely on the party objecting to the rating. The decision indicates that the physician determines the extent of disability using the AMA Guides and that expert opinions of vocational and Functional Capacity Evaluation (FCE) evaluators are not be necessary. Generally, the Almaraz/Guzman decision sounds favorable for defendants until it is considered together with Ogilvie.
In Ogilvie, the board made few substantive changes from its prior decision. The parties must use the RAND methodology and formula which means that the formula from the original decision still applies. The problem is that the RAND researchers did not fully understand the impact of the terminology they used and the board compounded the problem by failing to consider the impact of events following injury. The board confirmed that the calculation should consider earnings for the three years pre- and post-injury. Earnings for the three-year period pre-injury should be for a “similarly situated” worker meaning that we may not use actual wages but wages for the average worker in the industry in question in the worker’s geographic area.
The real problem is the post-injury earnings which are often zero or are very low because the employee was Temporary Totally Disabled (TTD) for a significant portion of the three-year period (TD payments cannot be included in the calculation). Thus we would often have to enter $0.00 for the post-injury earnings capacity, giving the worker a 100% earnings loss. This results in a calculated Diminished Future Earnings Capacity (DFEC) modifier that can go as high as 6 compared to the 1.1 to 1.4 range in Table A from the 2005 permanent disability rating schedule (PDRS). Thus we have modest WPIs doubling, tripling, or worse compared to the 10% to 40% increases contemplated by the Table A.
The board does leave some room for contemplation of earnings capacity rather than actual earnings for the post-injury period although when and how substitution is appropriate is vague. Taken as a whole, the board’s decision suggests that calculating and applying the DFEC modifier is not a simple calculation that can be done by any claims administrator or attorney. The involvement of vocational experts seems a certainty for the foreseeable future.
The real issue in the Ogilvie formula is earnings capacity after injury. It seems pretty clear that the Legislature had earnings capacity in mind and the RAND research discusses earnings capacity. Unfortunately, the RAND researchers apparently did not understand that an injured worker is usually not going to be in a position to earn wages until s/he is permanent and stationary/maximum medical improvement (P&S/MMI). Thus the three-year, post-injury period should not begin until the employee is P&S – at the very least. We cannot count TTD as earnings and the worker cannot earn wages and receive TTD.
Beyond that simple fact is terminology itself. We use a DFEC value from Table A or calculate a DFEC value for the modifier. It is a Diminished Future Earnings Capacity modifier NOT a Diminished Future Earnings modifier. A simple example might best serve to clarify the board’s perceptual error:
John Doe was earning $20 an hour as a warehouseman when he injured his back. He had a lumbar laminectomy and was TD for 2 years following injury. At P&S, he was able to secure a position in inventory control earning $15/hour.
What is John Doe’s post-injury earnings capacity? If we use the Ogilvie Court’s logic, his earnings capacity would be $31,200 for the three year period following injury. Will he stop earning $15/hour at the end of the third year? Of course not – he will continue to make $15/hour and perhaps more. His post-injury earnings capacity for a three year period should be $93,600. If we assume John Doe has a 10% whole person impairment (WPI), the DFEC modifier using just one year of earnings ($31,200) is 2.36 (well outside the Table A value) and the PD adjusts to 24%. If we use three years of earnings capacity ($93,600), the DFEC modifier is 1.45 and the PD adjusts to 15%. A significant difference.
Both the Ogilvie formula and Table A have significant problems. The formula frequently produces values outside the values in Table A. In our example above, we have a relatively modest wage loss but still calculate a value that falls outside the highest value in the table. This happens with alarming frequency and suggests to me that the formula MUST use a three-year value for earnings capacity, not actual earnings, and that Table A needs revision because the modifier values are too low to reflect real world situations. It would appear that we need both the courts and the Department of Workers' Compensation or Legislature to act quickly and logically to prevent large numbers of DFEC cases from inundating the WCAB. With these options, we should be prepared for a lot of work.
The Second District Court of Appeal (DCA) has confirmed a WCAB Decision in Beverly Hilton v. WCAB (Boganim) finding that an applicant is not entitled to vocational rehabilitation (VR) benefits unless a final order by either the Rehabilitation Unit or Workers' Compensation Appeals Board (WCAB) was in place prior to Jan. 1, 2009. If the issues were pending before the board as of 1/1/09, the DCA confirmed that the WCAB lacks jurisdiction to order payment of VR benefits. The DCA decision is consistent with the prior WCAB en banc decision in Weiner v. Ralphs Co., 74 CCC 736. This issue will ultimately be resolved by the California Supreme Court.
The following is provided courtesy of WorkCompCentral from its Aug. 27 report:
An employer is not liable for vocational rehabilitation benefits because the injured worker never received a final award before the repeal of Labor Code section 139.5, an appellate court concluded in a published opinion that defense attorneys anticipated.
The 2nd District Court of Appeal issued a published opinion in Beverly Hilton v. WCAB (Boganim) on Wednesday, giving defense attorneys another authority to cite from in cases involving the repeal of the state's vocational rehabilitation statute.
The court held that applicant Samson Boganim was not entitled to vocational rehabilitation benefits, because he never received a final judgment certifying his right to vocational rehabilitation before the repeal of the statute on Jan. 1, 2009. In essence, the appellate court found that by appealing a WCAB decision, the employer essentially delayed a 2008 findings award by appealing it until 2009.
"Awards are only final when the entire process, including appellate review, is concluded," Justice Richard Mosk explained in the opinion. "In the instant case, hotel timely filed this petition for review, which was pending at the time of the effective date of the repeal of section 139.5. Only in those cases in which the decision was final before the repeal would the parties be able to enforce or terminate the award. Because this matter has been subject to review by this court after Jan. 1, 2009, former section 139.5, can no longer can be applied or enforced in this case."
Boganim first received a determination from the Rehabilitation Unit in July 2006, which had determined that he was entitled to vocational rehabilitation benefits. In January 2008, a workers' compensation judge issued a findings and award that Boganim was entitled to retroactive vocational rehabilitation maintenance allowance dating back to 1998 at the temporary disability rate. The Workers' Compensation Appeals Board (WCAB) affirmed the judge's findings and award in October 2008. The employer filed an appeal in late November 2008, and the case went before the appellate court in 2009.
Mosk added that the fact that the employer might have intentionally appealed the case into 2009 did not affect the court's ruling, and noted that Boganim could have tried to expedite the proceedings. He also pointed out that there was no evidence that the hotel intentionally delayed the proceedings into 2009, with the intent of taking advantage of the statute's repeal.
The court was not persuaded by the argument that a "saving clause" in Labor Code 5502(b) preserved Boganim's rights, and determined that the Legislature did not preserve or save vocational rehabilitation rights past Jan. 1, 2009. Lastly, the court addressed applicants' "ghost statutes" argument, by explaining that repealed vocational rehabilitation statutes did not apply to the case.
Attorneys on both sides of the bar said they weren't surprised by the content of the decision.
Houman Hamidzadeh, the attorney who represented Beverly Hilton in the dispute, said the finding that there was no final award was "pretty elementary," because of prior case law in Kleeman v. WCAB and Rio Linda School District v. WCAB.
"The reliance on Kleeman and Rio Linda really was reliance upon Supreme Court decisions that were set forth in those decisions for that proposition, that with the repeal of a statute during the pendency of a claim, any rights arising out of that statute are extinguished," he said.
William Herreras, an applicants' attorney on the California Applicant Attorneys Association's amicus committee, said he was not surprised by the decision's reliance upon prior case law in Kleeman and Rio Linda School District.
"These retroactive provisions of the law come back to bite us consistently, in Kleeman, Green, and all those cases where there is no final judgment" he said. "If there's no final judgment, and the statute is repealed, then the general rule is that you lose while the case is pending on appeal."
The exception to that general rule is when the Legislature clarifies that cases pending on appeal are protected from the repeal of a statute, Herreras said. However, the Legislature rarely does that, he noted.
Herreras disagreed with the appellate court's determination that Labor Code 5502(b) did not act as a savings clause to protect cases pending on appeal. He noted that CAAA's amicus committee unsuccessfully argued that the statute did act as a savings clause in Weiner v. Ralph's Co., which addressed the same Labor Code 139.5 issues in a similar fashion.
Hamidzadeh noted that the speed of the appeal was unusually quick.
"By that speed that this case proceeded forward, and by the oral arguments and the decision coming out this quickly; I think that this was a decision that the panel had their mind made up on quite some time ago," he said.
Hamidzadeh said that the appellate court's quick adjudication of the case may have indirectly pressured the WCAB to issue a decision in Weiner v. Ralphs Grocery Co. In support of his point, Hamidzadeh cited the timing of Beverly Hilton's appeal in late 2008, the small window of time for both attorneys in the case to respond, and the court's request for the WCAB to file an answer all while the WCAB was mulling its impending decision in Weiner.
Michael Sullivan, the employer's attorney in the Weiner case, said that while he originally believed that the applicant's attorney would appeal the WCAB's decision in Weiner, the Beverly Hilton decision would render such an appeal "frivolous." He pointed out that the 2nd District Court of Appeal's decision is very similar to his briefs in the Weiner case, and the jurisdictional portion of the WCAB's decision in Weiner.
Eugenia Der, deputy counsel for Los Angeles County and author of the county's amicus brief, said the case was very similar to Weiner.
"I know that the applicant tried to make a distinction between the fact that in Weiner, the original findings and award from the board did not issue until after 1/1/09," she said. "In Boganim, it issued in 2008. They were trying to make a distinction between that. From our point of view, it never made a difference."
Der disagreed with the appellate court's approach to ghost statutes, but only on the grounds that she does not believe that law supports the concept of ghost statutes, whatsoever. In contrast, the court's opinion states that ghost statutes, as referred to in the WCAB decision Godinez v. Buffets, have no application to Boganim's claim.
Hamidzadeh anticipates the applicants' attorney will file a petition for review of the appellate court's decision, and added that the issue is significant enough to go before the state Supreme Court.
Herreras said that he hopes attorneys in both the Beverly Hilton and Weiner cases appeal. He pointed out that if the applicant appeals the WCAB's ruling in Weiner, there is always the possibility that a different division in the 2nd District Court of Appeal could arrive at a different conclusion than the one in the Beverly Hilton opinion.
Bernard Baltaxe, an applicants' attorney who argued on behalf of CAAA's amicus brief at oral arguments, said, "I thought that the arguments that I made were principally beamed that the sunset really came too late for the defendant. I knew that was a little bit outside of the box, although I absolutely still adhere to that. But I'm not too surprised that the Court of Appeal said that until all appeal rights are exhausted, it's not a final order."
Baltaxe said he did present a public policy argument to the court that its ruling could encourage parties to intentionally appeal future cases, for the sole purpose of taking advantage of a soon-to-be-repealed statute. In other words, the ruling could encourage manipulation of the appellate process, he said.
However, the court did not address the public policy aspect of his argument, and simply stated that there was no evidence that the employer intentionally appealed to delay final adjudication of Boganim's case. Baltaxe noted that he never alleged the Beverly Hilton appealed for that purpose, and clarified that his argument focused on public policy implications the decision would have on future parties.
By John P. Kamin, Legal Editor
johnkamin@workcompcentral.com
Is there a SOL (statute of limitations) on the Injured Worker (IW) requesting a voucher? Assuming notices were properly sent, and the IW did not respond. All issues resolved and file closed. Can the IW come back for a voucher?
At the present time, there is no statute of limitations on use of the SJDB voucher – it is essentially a lifetime benefit. There has been talk in the Legislature to limit use of the benefit to five years a bill to that effect has yet to make it out of committee.
Please keep in mind that the SJDB voucher must be sent to the eligible applicant within 25 days of case resolution at the board per AD Reg. 10133.56(c); the employee does not have to request a voucher.
I was directed to this state Employment Development Department site ( http://etpl.edd.ca.gov/wiaetplind.htm). If a training facility is listed on this "Eligible Training Provider List," would that school be an approved provider for voucher purposes?
The statute creating the voucher (L. C. 4658.5) specifies that a training facility must be approved by a “California agency” in order to be considered approved for purposes of the voucher. Since the Employment Development Department (EDD) is a California agency, any schools it approves would also be considered “approved” for use by an injured worker with a voucher.
Training facilities should take note here. If you are an “approved training provider” by the Workforce investment Act. (WIA), you should be sending evidence of that approval along with your invoice. Expecting the claims administrator to research your eligibility is likely to result in delayed payment.
I have a case involving a cashier who suffered a wrist injury as a cashier. She was placed on modified duty for a period of time but not on TTD. She continued working until declared P&S by her primary treating physician (PTP). Her attorney is asking for a 15% increase since a return to regular work offer was never made in writing on the appropriate form (DWC AD 10118). Does his argument prevail? Is it the intent of the DWC to increase PD to those who retain their same position with the employer?
In Tsuchiya v County of LA Sheriff’s Department (a WCAB panel decision), the board found that no formal offer of regular work is required if the claimant did not lose time from work and continued working regular duties. Unlike a prior decision in Audiss, the board further found that the employer was not due a PD credit simply because the employee continued working at his regular duties. In essence, the board decided that, without lost time, there is no offer of work at issue. This case is somewhat different than your situation, because the applicant in Tsuchiya continued at regular duties. However, you should be able to argue that the difference is inconsequential since there was never an issue of the applicant coming “back” to work.
Note that this is a WCAB panel decision which means that it has limited value as case precedent. Subsequent cases at the board could reach differing conclusions so, “when in doubt about the DWC AD 10118, send it out.”
We face a situation regarding return to work on an employee who retired. She is now permanent and stationary with work restrictions. Do we have to offer modified work to get the 15% PD reduction since she voluntarily removed herself from that job. What about our requirements under Americans with Disabilities Act/Fair Employment and Housing Act (ADA/FEHA)? Do we need to have an interactive meeting to discuss return to work since she has a disability defined under ADA/FEHA? Please let me know what our requirements are under ADA/FEHA or direct me to a resource who can answer my question.
The statute and AD Regulations appear to require an actual job offer in order to take the 15% PD reduction. The problem for you is that you have no way to prove that the applicant retired because she wanted to retire versus she believed she had no other return-to-work options because of her injury. If you are not going to offer her a job, I would recommend that you pay her the 4650 PD rate due.
Your ADA/FEHA liability for the interactive process depends, once again, on the reason the employee retired. If you have evidence that she retired because she wanted to retire, you do not need to initiate an Interactive process. However, if she retired because she believed she had no other options, you would want to initiate the interactive process to determine (a) if she wants to come back to work, and (b) if there is a position available within her work restrictions and for which she is qualified. The safe course, in my view, is to offer the interactive process. If she fails to respond or if she responds by saying, “I’m retired, leave me alone,” you would be in a very strong position vis-à-vis any potential ADA/FEHA liability.
The return to work program at my employer does not pay the claimant full wages, so I pick up wage loss. Is the wage loss covered only up to the 104 weeks of TTD for the 4/19/2004 – 12/31/2007 dates of loss?
Wage loss is a form of temporary disability – temporary partial disability or TPD to be precise – so the rules that apply to payment of TTD would also apply to TPD payments.
The injured worker has two jobs with a school district; Cafeteria worker for three hours paid by the district and After School Care Provider, paid by grant money. Right shoulder injury took place while working the After School position. This position also provides a higher salary then the cafeteria job. Because of the work restrictions, the school cannot provide permanent modified work in the cafeteria job. The work restrictions don’t preclude the injured worker from the After School Care position, so I will be sending an Offer of Regular Work. Is the injured worker entitled to the 15% increase since permanent modified work cannot be provided in the cafeteria position? Would she be entitled to the SJDB voucher?
Even though the funds for paying the employee for the after school position come from grant money, I would assume that the school district administers those funds which would make the worker the district’s employee for BOTH positions. Since the district cannot offer work meeting the 85% requirement of L.C. 4658.1(b)(c), the employee would be entitled to a 15% increase in weekly PD payments and to a voucher.
My client hires a class of employees known as “Extra Help,” which are like temporary employees. They are hired to fill a temporary need. If the employee is deemed MMI with permanent restrictions, is the employer obligated to hold an Accommodation Meeting and would the Extra Help employee be due a voucher and a 15% increase if the employee could not guarantee a year of employment?
Temporary employees such as these are typically dealt with in the same manner as seasonal employees pursuant to AD Reg 10133.60(a)(1)(A):
(A) If the claims administrator offers modified or alternative work to the employee for 12 months of seasonal work, the offer shall meet the following requirements:
- the employee was hired on a seasonal basis prior to injury; and
- the offer of modified or alternative work is on a similar seasonal basis to the employee's previous employment;
As for an interactive process meeting per FEHA, the employer would be required to have the meeting if the employee had any reasonable expectation of working during the subsequent season. For both the WC and FEHA considerations, the employment would be for the "season" only there is no requirement for the employer to offer full-time work and no voucher is due if the employer can accommodate the employee for the subsequent season.
Legislation
AB 48, which would create the replacement agency for the Bureau for Private Post-secondary Vocational Education (BPPVE), was passed by the Legislature and sent to the governor for signature (we hope) on Sept. 28, 2009. The governor has 30 days to sign or reject the bill. The governor needs to sign this bill to alleviate vocational school certification problems that have plagued the SJDB voucher process since July 1, 2008.
Employment Opportunity
The University of New Hampshire (UNH) is in search of an ADA Compliance Officer. In an effort to locate the most qualified person for this vacancy, we ask your assistance in publicizing the position. The ADA Compliance Officer falls under the supervision of the Director of Affirmative Action and Equity, who reports to the Provost and Vice President and, indirectly, to the University President. The search is now underway and will continue until it is filled. If you or any of your colleagues are interested in the position, please follow the directions provided in How to Apply in the advertisement below. UNH is an Equal Opportunity/Affirmative Action Employer.
ADA COMPLIANCE OFFICER
The successful candidate will be a strong, proactive and results-oriented leader who is visible and credible with faculty, staff, students and the community, and is able to set Disability Compliance direction and priorities for the Affirmative Action and Equity Office. The candidate oversees the University’s compliance with the ADA, Section 504 of the Rehabilitation Act of 1973, guidelines and regulations issued by the EEOC and OCR, and pertinent local, state, and federal legislation as they affect UNH employees and all participants (including students) in University programs, services and activities. The candidate will have experience with conducting investigations. Minimum qualifications: Bachelor’s degree and four years of related work experience, preferably within a college or university at a professional/administrative level. Knowledge of and experience with the ADA, FMLA, Workers’ Compensation, and The Rehabilitation Act Sections 502, 503, and 508 in addition to 504 are required. Additional desirable qualifications: Master’s degree. Knowledge of AA/EEO organizations. Strong communication skills. Mediation skills. Experience in large organizations. Supervisory experience. How to Apply: A full position announcement and instructions on how to submit an application can be found online at https ://jobs.usnh.edu. Cover letter, resume and three references may be electronically attached with application. Computer access/assistance is available at the Human Resources Office, 2 Leavitt Lane, Durham, NH 03824 or call 603-862-0501 (TTY users 603-862-3227). UNH is an AA/EEO Employer. UNH is committed to excellence through the diversity of its faculty and staff and encourages women and minorities to apply.
Affirmative Action and Equity
University of New Hampshire
105 Main St., Thompson Hall 305
Durham, NH 03820
Email inquiries to: pat.starratt@unh.edu
Ph: 603-862-2930 v/tty
Fax: 603-862-2936
Training
The National Association of ADA Coordinators' Fall 2009 national conference will be held in San Diego beginning Oct. 19, 2009. The conference includes four ADA disciplines– accessibility, employment, higher education, transit – with participant interaction. This is the most up-to-date, comprehensive, and intensive ADA conference available. In addition, there will be workshops on the most requested topics by participants: Law Enforcement, which looks at federal, state and local ADA issues; Medical Issues including workers' compensation/ADA interfaces and working with persons with mental disabilities; and, Important Tips and Guidelines for ADA Coordinators by senior representatives from the EEOC, DOJ, and DOE, and ADA Coordinators who are or have been in the position for many years. The conference is approved for the following continuing education units: AIA/CES, CRC, CCM, and CDMS.
In addition to its ADA program, NAADAC will offer a special FEHA workshop covering employment issues on Friday Oct. 23, 2009. The employment workshop presents the technical FEHA requirements for California employers and explores conflicts with other California statutes, especially workers compensation, reviews the steps in the interactive process and the methods for conducting a reasonable accommodation assessment, and suggests methods for documenting the process to minimize litigation exposure. The presenters will also provide participants with a resource list to assist employers with Return to Work assessments. Please note that the registration deadline is Oct. 9, 2009.
For more information about the NAADAC ADA and FEHA workshops, visit the NAADAC website at http://www.jan.wvu.edu/naadac.
Need training on SJDB voucher requirements and procedures, Return-to-Work process, DFEC computations and documentation, or FEHA requirements for your staff? Contact us to discuss developing a custom program for your organization. Customized programs can also be arranged through IEA.
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.
Please note that we are not always able to answer your question by return e-mail. We are getting as many as a dozen e-mail questions per day so it has been necessary to establish a priority system for responding to questions. The first priority will be to those with whom we have a business relationship: we will respond as soon as possible (usually within one business day), regardless of the complexity of the question. The second priority level will be for questions that can be answered quickly from persons with whom we do not have a business relationship. The third priority level is for complex questions from persons with whom we do not have a business relationship. I would like to answer all your questions immediately, but my first priority is and must always be to my customers.
Web Site Updated
The Leno & Associates web site (http://www.leno-assoc.com) was recently updated to include new elements that we hope our customers and readers will find useful. Two new features include a Frequently Asked Questions (FAQ) page organized by subject matter and a page containing charts and forms frequently requested by readers. We have also updated the Resources and Referral Form pages. Referrals are always greatly appreciated; we do ask that you use the new format rather than old forms which may not include all the necessary information.
Past Newsletters
Issues for the past year of the VR/RTW Issues Newsletter are available on our 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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Allan Leno is a vocational rehabilitation specialist in Newbury Park, Calif. He may be reached at allanleno@leno-assoc.com. This column was reprinted from Leno's newsletter http://www.leno-assoc.com with permission.
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