Voc Rehab - Return-to-Work Issues

Thursday, September 17, 2009 | 0

By Allan Leno

Question: A question regarding the return to work notices has come up. I recall during your recent training session on the Notice of Offer of Regular Work, you advised that the notice does not require the employee to respond for the administration of workers' comp permanent disability (PD) benefits. Please confirm this information is correct.

Answer: An employer satisfies its obligations vis-a-vis both the PD offset and the Supplemental Job Displacement Benefit (SJDB) voucher requirements by virtue of making a bona fide job offer of regular, modified, or alternative work. As noted in the training session, the offer must be made via a DWC AD 10118 (regular work) or DWC AD 10133.53 (modified or alternative work) for the offer to be considered valid pursuant to Department of Workers' Compensation (DWC) regulations. The employer may take the 15% PD credit and is not obligated to provide a voucher whether the employee accepts the offer, rejects the offer, or fails to respond to the offer.

Question: I have a question regarding a return-to-work issue. I have an employee who left her job voluntarily about 1½ years ago. I received the maximum medical improvement (MMI) report on 8/21/09. What is our obligation to send what letters and is the ex-employee entitled to a 15% increase.

Answer: The 15% PD offset in L.C. 4658(d) is tied to an offer of work made within 60 days of a permanent and stationary maximum medical improvement (P&S MMI) determination. Unfortunately, the statutory language does not mention any exceptions so the DWC has taken the position the insurer/employer must make a work offer in order to get a 15% PD credit and that failing to make an offer requires payment of a 15% weekly PD increase. Given the situation you describe, it would seem counterintuitive to make a job offer to a person who has been gone for 1.5 years but that is exactly what the statute appears to require. Since this employee apparently left the employer on good terms, your "best" option is to offer medically appropriate work. If the employer balks at this option, my choice would be to pay the applicant the statutory L.C. 4650 PD rate (i.e., the "regular" PD rate) on the theory that the employee took a voluntary action that removed the job offer decision from the employer's hands. The employee does, of course, have a right to dispute such a decision at the Board.

Please note that the preceding options are a policy decision for your employer so the options and decision should be discussed with management and your legal counsel because there are potential penalty implications.
 
Question: I need your expertise regarding qualification/eligibility for the SJDB Voucher when injured worker is an undocumented worker. Is a non US citizen eligible for the voucher?

Answer: An undocumented worker would be eligible for an SJDB voucher unless the employer can demonstrate that it would have medically appropriate work for the employee absent his/her undocumented status. To make such a demonstration, the DWC would expect the employer to make a conditional offer of employment; the condition would be that the employee must present documents showing a legal right to work in the U.S. period within the 30-day time frame allowed for a response to the work offer. Federal law prohibits an employer from knowingly offering work to an undocumented alien so the preceding strategy may, at first blush, seem inappropriate. However, keep in mind that this offer is conditional upon the employee presenting valid documents so the offer is, in fact, no different that an offer to a U.S. citizen because we all have to present proof of citizenship or legal status at the time of hire. Also, we must keep in mind that the DWC's expectation of a conditional job offer is reasonable - how else would the employer demonstrate that it actually has work available "but for the applicant's undocumented status?" If the DWC had no such requirement, employers could simply say they had work available in all cases (without proving it), even where they originally hired the applicant knowing full well that s/he was undocumented.

The bottom line — an otherwise eligible undocumented injured worker can get an SJDB voucher unless the employer makes a conditional work offer.

Question: I have an account in which all workers are strictly seasonal. There are several breaks through out the year and employees only work when the seasonal work is available. If the employer in this line of business is able to provide a mod or alt job within the injured worker's permanent restrictions, what does the employer need to do to make a valid offer? Again the job will not run full 12 months in the year.

Answer: AD Reg 10160(a)(1)(A) provides that an offer of modified or alternative work for comparable time periods lasting 12 months satisfies the employer's work offer requirements and relieves the employer of the obligation to provide an SJDB voucher. Thus, if the employee (pre-injury) worked for a total of five months spread over a 12-month period and the employer offers modified or alternative work lasting a total of five months spread over a 12-month period after the employee becomes P&S, the employer has met its obligations and has no liability for the SJDB voucher. Note that the 12-month period would not begin with the offer of work but would start when the employee actually starts work. The reason is that there is no proof the employer actually has the promised work until the employee starts working.

Question: We have folks who work during the fair. After the fair is over, their TD ends based on the Signature Fruit case. When temporary disability (TD) ends, we have to send either the Notice of Regular Work or Mod or Alternate work. However, in this case, we don't know if the injured worker will be able to go back to regular fair time work the following year since he/she is still treating and PD is unknown. What do we do?

Answer: Good question - and a tough one. Until you have final work restrictions, you cannot know whether you should be offering regular work or modified/alternative work. Also, without final work restrictions, you would have no idea what modifications are necessary (if any) or what available alternative jobs would be physically appropriate. Still, the statute says an offer is due within 30 days of the end of TD or you owe a voucher. [Note: PD is not at issue here because there can be no PD adjustment until the employee is P&S.]

The only suggestion I can make (and it certainly is not a perfect one) is to send a work offer indicating that it is the employer's intent to offer medically appropriate work when final work restrictions become available. When final work restrictions do become available, the employee's ability to work and possible accommodations will be assessed against available work and a final work offer will be made at that time if medically appropriate work is identified. As I said, not a perfect option but it does comply with the spirit of the law if not the letter of the law.

Question: This injured worker refused to continue his treatments and his attorney stated that the injured worker would not be eligible for the voucher benefits because of this. The case is still open and the injured worker has not been deemed P&S yet.

Answer: When an injured worker refuses to cooperate with a treatment plan and stops treatment, they are often released to full duty (which would mean no voucher) or the case simply falls into "limbo" as appears to be the situation here. There has been no determination of PD so there can be no determination of eligibility for a voucher or the amount of a voucher. The attorney is correct - unless the applicant returns to treatment or otherwise gets his medical situation resolved (perhaps through a panel qualified medical examiner, QME), he will not be eligible for a voucher.
 
Question: Here is a scenario — the injured worker retires in 2006 and later files a cumulative trauma (CT) claim in 2008 for hypertension after becoming aware of the condition. PD is paid; would the applicant be eligible for the 15% increase if no offer of modified work was sent?
 
Answer: I would argue that the employee's retirement was voluntarily since it precedes any finding of disability by a substantial period so the statutory PD rate should be paid. However, the Labor Code does not address situations such as this one so I would expect the DWC to find that a PD increase is due unless the employer makes a job offer. Assuming the employee retired in good standing, making a job offer is the "safe" course of action. If the employee fails to respond to the offer or responds by rejecting the offer due to his retirement, the employer can take the 15% PD credit. If the employee elects to un-retire, the employer has filled an open position and defers retirement costs until the employee again elects to retire.
 
Question: What is the reasonable commuting distance to work when offering modified duty work?
 
Answer: I have never found a statute or regulation that specifies what constitutes a "reasonable" commuting distance or time. Under the old VR scheme, a one-way commuting distance of 25 miles or one hour was generally considered reasonable. However, those numbers were not carved in stone and applicants and defendants often argued about the travel time with most disputes resolved in favor of the applicant if the modified job was in a different location than the pre-injury job. Defendants almost always won disputes where the modified job was in the same location as the pre-injury job (even if the employee moved between the date of injury and the modified job offer). The same should be true here — reasonable commuting distance should not be an issue if the modified job is in the same location as the pre-injury job. However, if the employer has moved its facility or is offering work at another facility, the employee may be able to reject the offer based on an "unreasonable" commute. We have no case law on this subject yet. I would make the offer and see what happens.
 
Question: Is there anything that would preclude me from paying an injured worker mileage to and from the school he selected if I tell him that this will be deducted from his voucher? Basically can this come back to haunt me?
 
Answer: Mileage is not one of the items that is identified as reimbursable under L. C. 4658.5 so the claims administrator is not required to pay for mileage but there is also no specific prohibition against such reimbursement. Could it come back to haunt you?  It is remotely possible. Since mileage is not "tuition or a required expense," the worker could later argue that it should not be charged against his voucher and the DWC Return-To-Work Unit might feel compelled to award the credit since mileage is not a covered expense. Still, I would consider this a very low-risk problem. If you want to cover yourself, ask the worker to sign a waiver or agreement indicating that he is requesting mileage reimbursement and he understands that the costs will be deducted from his voucher.
 
Question: I have a claim where the claimant was declared P&S by the treating physician with no lost time. She obtained an attorney and began receiving self-procured medical treatment and the new doctor placed her off work on TTD. We objected to the new treatment bills and denied TTD based on the fact that she had already been declared P&S. The sate Employment Development Department (EDD) began paying her benefits. I received the agreed medical evaluator (AME) report which states NO TTD but the claimant does have permanent impairment. Are we required to send out an SJDB Notice to the claimant if we - the carrier did not pay temporary total disability (TTD) but EDD did pay?
 
Answer: No. Since no TTD was paid, there is no "trigger" to initiate the requirement to send a Notice of Potential Rights (DWC AD 10133.52), although it wouldn't hurt to send one since the Notice does not obligate you to provide anything (it is simply an information notice). If the whole person impairment (WPI) is sufficient to require job modification and the employer has no appropriate work, the applicant would be entitled to a voucher even though there was no TD.
 
Question: When determining if the employer is subject to the 15% increase because they have 50 or more employees and are unable to accommodate modified or alternate work, is the employee count determined by the policy in effect at time of injury, the current policy, or the policy in effect when the injured worker was deemed MMI?
 
Answer: The number of employees is determined by AD Reg 10117(a):

    AD Reg. Sect 10117(a) This section shall apply to all injuries occurring on or after Jan. 1, 2005, and to the following employers:

1. Insured employers who employed 50 or more employees at the time of the most recent policy inception or renewal date for the insurance policy that was in effect at the time of the employee's injury;
2. Self-insured employers who employed 50 or more employees at the time of the most recent filing by the employer of the Self-Insurer's Annual Report that was in effect at the time of the employee's injury; and
3. Legally uninsured employers who employed 50 or more employees at the time of injury.