Voc-Rehab, Return-to-Work Issues

Tuesday, April 8, 2008 | 0

By Allan Leno

State Sen. Gilbert Cedillo, D-Los Angeles, has introduced SB 1189 which is intended to allow claims administrators to provide the Supplemental Job Displacement Benefits (SJDB) voucher to eligible injured workers within 74 days of the permanent and stationary date when employers are unable to offer medically appropriate modified or alternative work.

Currently, the SJDB voucher is not available to these injured workers until their case is resolved at the Workers' Compensation Appeals Board, an event that may not happen for years after their permanent and stationary date.  The voucher is a useless benefit for most eligible injured workers because they cannot afford to wait a year or two or three to get the training they need and start putting their lives back together.

The language in SB 1189 is presently identical to the language in AB 1636 which was opposed by employers and insurers and vetoed by Gov. Arnold Schwarzenegger. Both bills based the value of the voucher on a "reasonable estimate" of that injured worker’s level of permanent disability. Employers, insurers and the governor believe that requirement places too great a burden on the claims administrator because it could result in an overpayment of the voucher which the claims administrator might well be unable to recoup when the case settles.
 
It clearly makes no sense to delay an injured worker’s efforts to re-enter the labor market but it is equally inappropriate to require a claims administrator to pay out excess funds they cannot recover. I hope I am not the only one who sees the obvious solution. The median PD rating is now less than 15%, which means that the majority of vouchers have a $4,000 value.

If the injured worker is otherwise eligible for a voucher (i.e., needs a change of occupation and there is no modified/alternative work available), why not require the claims administrator to issue at least a $4,000 voucher? You know you won’t be getting any money back on the minimum value voucher.  Higher value vouchers could be required where there is compelling evidence for the higher value (If the defense medical rates 20% and the treating physician rates 30%, what are the chances permanent disability will be less than 15%?). A $4,000 voucher lets the injured worker get started with his/her re-training. If PD ends up at 15% or higher, the claims administrator can always issue a revised voucher showing the final value (or a value less what has already been paid out). 
 
Some may argue that it is unfair to make the injured worker wait for a full-value voucher.  The problem with that argument is that they are already waiting – and then getting that $6,000, $8,000, or $10,000 voucher when it no longer has any functional value.  And the majority of vouchers are for $4,000 anyway. I would also be willing to bet that most training facilities would be quite willing to work with such a scheme because more workers would be likely to pursue a training option that is available shortly after P&S.  This doesn’t have to be rocket science; let’s hope our elected officials can do the right thing for a change.
 
Changes to SJDB Notices

The DWC model notices (see VR Issues below) suggest that claims administrators cannot use their letterhead with the SJDB Notice of Rights (10133.52) nor with the SJDB Voucher itself (10133.57) because these are regulations and cannot be changed.  The DWC model notices are just that – models – and I do not see any reason why a claims administrator should not be able to place these documents on their letterhead as long as they make no changes to the content of the regulation.  With respect to the 10133.57 voucher, not using letterhead is an especially BAD idea because we know there are a small number of unscrupulous schools and counselors completing and submitting forms they got off the internet – how is a claims administrator to know at a glance whether they issued the voucher or it is one of these bogus vouchers? 
 
I will provide subscribers with 10133.52 and 10133.57 forms that are consistent with the DWC manual and you can decide which version you wish to use.  In the interim, I will attempt to determine if the DWC Audit Unit intends to penalize claims administrators who place the documents on their letterhead.  It escapes me why we should even have to ask this question.
 
SJDB Voucher – FAQs

If there is a silent request for rehab on the application, does that mean it is a request for a supplemental job displacement voucher?  And does a voucher automatically have to be sent?  Or should there be another request for the voucher?

I’m not sure what a “silent” request for rehab is but any request for rehab on a 2004 or later case has no meaning.  The employee would potentially be eligible for a voucher and the SJDB voucher would not be due until the case is resolved at the Board - checking the Rehab box on the Application therefore has no effect.  Unless settled in a C&R, the voucher must be sent automatically to eligible injured workers within 25 days of case resolution at the Board pursuant to CCR Sect. 10133.56(c).
 
If an employee is terminated after their industrial injury for cause (unknown) do we not owe the SJDB or the increase if he/she is not able to return to her usual job?

The statutes do not address issues such as these so it is essentially a policy issue.  Some carriers have adopted a policy that there will be no voucher and PD will be paid at the standard 4650 rate.  Al I can suggest is that your company set its own policy and mandate that is followed in all cases where there is a termination for cause or a voluntary termination before P&S.

I would be worried about an "unknown" termination for cause.  If the termination isn't clean (i.e., readily understandable as in termination for acts or threats of violence, drug use, etc.), I would err on the side of caution and provide the voucher and 15% increase (my opinion – not a policy recommendation).
 
Would an FAA certified flight school be considered "state certified" under 4658.5?  They were under 10126(k) for VR but there is no mention of FAA certification under 4658.5 or 10133.56.  Since federal law generally supersedes state law (unless state law provides greater benefit), would an FAA certification be acceptable under the theory that the state would have no choice but to accept the federal certification?

Sandra Cortes at DWC pointed out that there actually is an answer to this question in the regulations:  “An FAA certified school is a certified California State school.  You are correct that there is no mention in LC 4658.5 and AR 10133.56.  You’ll find it in AR 10133.58(b) (3).”

NOTE:  You can find out if a flight school is FAA certified by going to the following FAA web page: http://av-info.faa.gov/PilotSchool.asp.
 
The injured worker is a PhD who is eligible for an $8,000 voucher.  She intends to become a self-employed consultant and wants to use the voucher to pay for three professional seminars, air travel, lodging, meals, car rental, parking, etc.  Can the voucher be used for seminars?  Can we support a self-employment plan?

A voucher can be used for seminars IF the seminars meet the requirements.  This means they must be state certified (i.e., by California or another state’s equivalent to BPPVE).  Many professional seminars are certified by a professional association but not by the state vocational certification agency so arguably the voucher should not be used for such a program  You and/or the employee might want to pose this question to the DWC by filing a DWC AD 10133.55 Request for Dispute Resolution.
 
The voucher probably cannot be used to pay for or reimburse airline tickets, meals, lodging, car rental, etc.  The statute specifies that the voucher can only be used for tuition and required books and fees.  These expenses are “required” because the programs are out of state but I am not convinced this allows them to slip in under the “required fees” catchall in the statute.  The applicant can. Of course, file a 10133.55 and pose the question to the DWC.
 
Finally, we need to stop thinking about “rehab plans” for 2004 cases.  Here, you know what the injured worker’s ultimate goal is but the programs she wishes to attend would fall under “skill enhancement” and would therefore be potential covered by the voucher (but for the problems noted above).  How she ultimately puts the information obtained to use is not our concern.
 
On the DWC AD 10003 Notice of Offer what would be the DATE OF OFFER and DATE JOB STARTS?

The Date of Offer is the date you are sending the form to the injured employee.  The Date Job Starts would be the date the employee actually returned to work.  It is quite common to send a DWC AD 10003 form to an injured employee who has been back to work for some time (some lost no time from work).  Since we cannot send the 10003 until the employee is P&S, there is no way to chance this set of circumstances.  Keep in mind that the Date of Offer is the date you use to begin reducing PD advances by 15% so the date has to be the date you are sending the form  The Date Job Starts has to be consistent with the employee’s experience or the form will be confusing to him/her.   If the employee lost no time, it may be most appropriate to put “continuing” on the Date Job Starts line.
 
I have a claim where as when the injured worker attempted to use his voucher at a school you assisted me and the school was not located on the BPPVE list of schools. We sent a denial out 11/6/07 as they never got this corrected.  The school is now contacting me and they are now on the list and want to be paid. The school already provided services while they were not approved.  Have you had any situations like this come up and what would you recommend?

You probably owe the tuition payment because the "voluntary agreement form" the school signed indicates that it is retroactive to July 1, 2007 (go tohttp://www.bppve.ca.gov/forms_pubs/voluntary_agreement.pdf).
 
The injured worker is released to return to work with restrictions: the restrictions are within his regular job description.  Do you make an offer of regular work or an offer of modified work and why?

You would send the Offer of Regular Work (DWC AD 10003).  The requirement to use the DWC AD 10133.53 Offer of Modified or Alternative Work occurs only where there is a medical need to modify the injured worker’s usual position or to reassign him/her to another position. You are not going to modify a job that doesn’t need to be modified so – use the DWC AD 10003.
 
And finally, I posed the following question to Sandra Cortes at the DWC RTW Unit because this question has been asked in many forms via this Newsletter: Have you had any voucher disputes yet where the applicant had 0% PD but the doctor imposed work restrictions that would prevent a RTW at U&C?  This isn't uncommon for chemical sensitivity cases.  At 0% PD, the applicant presumably wouldn't be eligible for a voucher but equity should dictate that the person gets one.  If you have had such a case, what was the outcome?

Sandra Cortes answer:  I haven’t had one myself yet.  But I note that a strict reading of the statute would not allow a voucher on a “O” PD case.  I hear you though.  But perhaps case law might resolve the equity issue.

VR Issues

The Division of Workers’ Compensation recently revised some sections of AD Reg 9813 to make some necessary changes to certain VR notices.  Changes in § 9813(a) impact NOPE-Delay notices and the Denial notice.  Section 9813(c) includes a change to the pre-1994 Intent to Withhold notice. Section 9813(d) includes changes to the 90 Day notice and the Intent to Withhold Notice for cases with dates of injury on/after 1/1/1994.  The most common change among these notices is removal of any reference to use of the now defunct DWC Form RU-101 Case Initiation Document.  While use of most of these forms is now rare, please note that failure to use the correct version of any of these notices after December 11, 2007 could result in exposure for payment of benefits at the TTD rate outside the VR cap and/or entitlement to additional services.  You can find and download these revised rules at the DWC web site: http://www.dir.ca.gov/dwc/DWCPropRegs/BenefitNoticeRegulations/BenefitNotice_regulations.htm .
 
Note that these changes become effective on April 9, 2008.

Allan Leno is a principal with Leno & Associates in Newbury Park, Calif. He can be reached at 818-370-8859 or by email at allanleno@leno-assoc.com