VR/RTW Issues

Saturday, December 30, 2006 | 0

By Allan Leno

Effective 10/21/06, insurers, third party administrators, and self insured/self administered employers must offer regular work via DWC AD Form 10003 Notice of Offer of Regular Work to injured employees who have been released to full duty before taking the 15% credit against the employee's Permanent Disability pursuant to L.C. section 4658(d)(3)(A). This requirement applies to all dates of injury on/after 1/1/2005 for employers with 50 or more employees; the form must be sent to all employees returning to regular duties where the employee has PD or is expected to have PD. The form is not required where the employee is released without PD: however, the employer may owe PD at the +15% rate if the employee later is determined to have PD via the panel QME process. The 'safe' policy decision would therefore be to send the 10003 form to ALL employees returning to regular duty (employers with 50 or more employees). The DWC AD Form 10003 can be at http://www.dir.ca.gov/dwc/FO RMS/DWCAD10003.pdf on the DWC Web site.

Please note that insurers, third party administrators, and self insured/self administered employers can take the 15% PD credit for employees who are released to modified/alternative work only where the employee has been sent the DWC AD Form 10133.53 Offer of Modified or Alternative Work. This requirement became effective 8/1/2005 for dates of injury on/after 1/1/2005 where the employer has 50 or more employees. The DWC AD Form 10003 can be on the DWC Web site at http://www.dir.ca.g ov/dwc/FORMS/DWC_AD10133_53_Form.pdf.

Effective 8/1/06, small employers (50 or fewer employees per L.C. section 139.48(e)(1)) can apply to the Return-to-Work Program for reimbursement of job modification costs up to $1250 for temporary job modifications and $2500 for permanent job modifications necessitated by the employee's work related disability. The injured employee's date of injury must be on/after 7/1/2004 and the request for reimbursement must be within 90 days of the expenditure(s) for job modification(s). The program is currently funded and the Administrative Director is accepting applications for reimbursement via DWC AD Form 10005 filed at 'A.D., '10005 Reimbursement Request,' Division of Workers' Compensation, P.O. Box 420603, S.F., CA 94102-3660.' Note that it is the employer that must request the reimbursement (not the insurer) and proof of expenditures must be attached to the WC AD Form 10005. The 10005 form is available on the DWC Web site at http://www.dir.c a.gov/dwc/FORMS/DWC_AD10005_August2006.pdf.

SJDB vouchers - More FAQs

More questions from those who have to implement the SJDB voucher statute and regulations:

The claimant has 4% PD (per rating of the P&S report - three is no Award yet) and was released to regular duty by her treating physician. However, the claimant decided on her own not to return to the employer. We sent the 10133.52 Notice of Potential Rights as required for someone who was paid TD. Do I now send a denial? Even though the treating doctor said the claimant was not a QIW, applicant is now demanding a voucher; do I owe one?

First, there is no requirement to send a denial letter. A DWC AD Form 10003 should be sent to document that regular work was available but there is no requirement for a denial notice and, in fact, no such letter exists in the regulations.

The applicant is NOT entitled to a voucher. Remember that a voucher is due when (1) the applicant has PD, and (2) the applicant needs modified or alternative work as a result of the disability, and (3) the employer cannot offer such work. Here, the applicant has PD (#1) but #2 and #3 do not apply so, no voucher. If applicant attorney does not agree with you determination, s/he can file a 10133.55 Request for Dispute Resolution with the Administrative Director.

L.C. section 4658.5(c) requires that the 10133.52 Notice of Potential Rights to be sent to the applicant via certified mail. What if the applicant's address is a P. O. Box? How do we satisfy the requirement?

Good question. The statute requires you to send the notice via certified mail but it does not require you to guarantee delivery. I would therefore go ahead and send the notice via certified mail, even though you know it will come back (but you will have proof that you sent it via certified mail). As a gesture of good faith, I would also send a copy to the applicant via regular mail. Hopefully the applicant is represented so the attorney will also be sent a copy of the notice.

If an eligible voucher recipient is collecting SSI benefits would they be entitled to the Voucher. Does it have any bearing after they settle their case?

Entitlement to the voucher has nothing to do with receipt of Social Security disability or retirement benefits. As noted above, a voucher is due when (1) the applicant has PD, and (2) the applicant needs modified or alternative work as a result of the disability, and (3) the employer cannot offer such work. If your applicant has PD and the doctor finds a need for job modification and the employer cannot or will not offer such work, the applicant is entitled to a voucher (provided that s/he does not settle his/her right to a voucher). Settlement of the voucher extinguishes the right to the benefit.

Do we have to send an Offer of Regular Work if an employee misses no time from work and has no PD but the doctor determines that the employee should be entitled to future medical?

No. The purpose of the 10003 is document the return to work offer for the purpose of taking the 15% credit against PD. If the applicant has no PD, there will be no credit taken and thus no need for the 10003. HOWEVER, if the applicant is later awarded PD via a panel QME or an AME, you may owe a 15% increase in weekly PD payments because the 10003 was not sent. The safe thing to do is send the 10003 for all cases where the applicant is released to regular work. This involves extra administrative work in many cases but will protect you for those cases where PD is awarded subsequent to a panel QME or an AME evaluation.

Can an employer with only part-time workers have eligibility for the RTW reimbursement under L.C. 139.48?

The employee has to be full time - at least 32 hours per week - per CCR 10004(c) ('Full-time employee' means an employee who, during the period of his or her employment within the year preceding the injury, worked an average of 32 or more hours per week.'). The Statute does not specify what 'full time' is but does indicate that the employer must have 50 of fewer full time employees on the applicant's date of injury. Since different employers have different definitions for 'full time' employment, DWC decided it was necessary (probably to insure equity and conformity) to specify the minimum number of hours to qualify as a full time employee.

Our training facility is having payment problems with insurance companies. They each seem to have their own set of rules when it comes to payment in regards to needing documentation as it relates to progress in the courses and/or completion in the courses. It's my understanding that payment in full is required upon enrollment.

Per AD Reg 10133.56(h), payment is due, 'within 45 calendar days from receipt of the completed voucher, receipts, and documentation.' Generally, you can assume your invoice was received 5 days after it was placed in the U.S. mail. The insurance company has a right to require that your invoice specify the type of course and cost and that a copy of a signed voucher is attached to demonstrate that the applicant has, in fact, registered for your program. To minimize problems, it would be a good idea to attach a copy of the applicant's registration document as well as the page(s) from your catalog providing details for the program for which the applicant has registered. Once your invoice has been presented, the insurer has 45 calendar days to pay you OR advise you in writing why it is not providing payment. Failure to do one or the other may subject the insurer to a $2500 5814.6 penalty once the regulation is approved (probably early in 2007).

You can speed up payment by providing as much information as possible with your invoice. Unfortunately there have already been numerous instances of suspected fraud so insurers are hesitant to make full payment without what the claims administrator considers adequate documentation. For example, I have seen schools and counselors submitting invoices with vouchers attached in situations where the insurer never issued a voucher. We are also seeing schools submit invoices for the full amount of the voucher for programs that seem tailored to use up all voucher funds rather than to provide training truly tailored to the needs of the worker. 'Full disclosure' up front can help allay fears of fraud.

I am not aware of anything in the statute or regulations that allow the insurer to monitor the applicant's progress in training or completion of a program; there is also no prohibition and the insurer is writing the checks. I suspect a school can enhance its credibility with the claims administrator by cooperating with requests for such documentation. Remember that claims administrators are being asked to write checks from $4000-$10,000 without knowing whether the money will be used for the intended purpose.

Is there a place to check to see if a school or training program is certified?

You can find out if a school is certified by visiting http://www.bppve.ca.gov. You can also get a list of schools by doing a search by program or by a geographical area.

Last month I attended a Seminar by the Department of Insurance, and they indicated that we are not required to send the SJDB Notice of Rights if the injured worker is on TD for 59 days or less, After 60 day or more of TD, we are required to send the notice within 10 days of termination of TD. I tried to look in the labor code, but I couldn't find anything to support what the instructor was saying.

Nor can I. The statute indicates the Notice of Potential Rights must be sent within 10 days of the termination of TD. I suspect the instructor was confusing the 4658(d) PD adjustment requirements with the 4658.5(c) requirement to send the notice of rights.

Does the employer need a doctor's clearance for the employee to return to work in an alternate work position? The injured has a hand injury and the employer has an alternate position as a van security guard. The position requires no usage of the hands.

There is no requirement in the statute or regulations requiring prior medical clearance of an offer of modified or alternative work. It is understood, of course, that any work offered must be within the applicant's work restrictions or the offer will not be considered valid. In this example, there should be no need to consult that physician prior to the offer. However, where there is some question about whether job duties will be appropriate, or where the applicant has complaints, I would immediately obtain a detailed job description or job analysis. Disputes over job duties for modified or alternative work are among the more common problems identified on DWC AD Form 10133.55s submitted to the AD for resolution.

Is an applicant entitled to reimbursement for mileage while attending a training program on an SJDB voucher?

The voucher does not cover mileage. The statute specifies tuition, fees, and books. It could be stretched to include required equipment - but not mileage.

One of my claimants registered for a class and purchased a Microsoft software program that was required for the class. However, he dropped out of the class before it even started. Am I required to reimburse him for the software program?

No. Because he dropped out of the class before it started, he would have no need for the software program so he would not be entitled to reimbursement. Per 4658.5(b), an applicant is only entitled to reimbursement for expenses related to enrollment at a certified program.

Next Month

Next month we will look at PD adjustment issues. Like the voucher, it appears that claims administrators are starting to encounter a variety of situations that do not fit neatly with the statute and regulations.

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. ----------------------------------------

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