Proposed Regs for VR Settlement

Sunday, July 21, 2002 | 0

The proposed regulation for settlement of prospective rehabilitation rights has garnered all the attention but the DWC has actually proposed modifications to several of the regulations governing vocational rehabilitation. The proposals cover several subject areas and can be viewed on line at: http://www.dir.ca.gov/dwc/DWCWCABForum/2.asp?ForumID=2.

The seven proposed regulatory changes for vocational rehabilitation are:

1. CCR 10122(o) - Definitions Extenuating Circumstances: It would appear this addition is in response to the 9/11/01 tragedy and would apply to natural disasters as well, such as the earthquakes in San Francisco (1989) and Los Angeles (1994).

2. CCR 10122.1 Weekends: This addition recognizes the general business practice of moving a deadline falling on a weekend or holiday to the next business day. A VR notice letter that falls due on a Saturday will therefore be timely if mailed on the following Monday (Tuesday if Monday is a State Holiday).

3. CCR 10127.3 Qualified Rehabilitation Representative: This section specifies that rehabilitation services must be provided by a QRR as defined in L.C. 4635(b) (it would not applies to RU-94 services since the RU-94 is not considered rehabilitation) and that the referral must occur within 10 days of agreement on the QRR. It further specifies that the QRR must be provided with copies of ALL medical and VR reports. CWCI has recommended changing the language to relevant medical reports. QRR's need copies of the initial evaluation reports (these often contain useful histories) and P&S medical reports for each physician but they rarely need status reports unless the claimant is TTD while involved in rehabilitation (in that case, the status report would be ?relevant?).

4. CCR 10131(d)(e)(f) Termination of Vocational Rehabilitation Services: Section 10131 has several subsections added to (presumably) comply with case law and statutory changes. Sub paragraph (d) allows for termination of the employer?s liability for VR where it learns about an employee?s undocumented status after there has been an RU-94 offer. Case law such as the Del Taco decision required only that the employer learn about the employee?s undocumented status after the date of injury. Sub paragraph (e) allows for termination of liability where the employer offers comparable work (e.g., six months ?on? and six months off) to a seasonal employee, consistent with the findings in the Henry and Allen cases. Sub paragraph (f) allows for termination of liability where the parties have agreed to settle VR liability (applies to dates of injury on/after 1/1/03 only).

5. CCR 10131.2 Settlement of Prospective Vocational Rehabilitation: This section purports to implement the new VR settlement provisions of L.C. 4646 but in fact lacks both guidance and protection for the injured employee, the employer, and insurers. If this regulation is implemented as proposed, it is likely to increase litigation and drive up costs for insurers and employers.

6. CCR 10133 - Forms, Form Filing Instructions & Notices: This regulation has been modified to include all RU Forms including the new (proposed) RU-122 for settlement of vocational rehabilitation. Minor changes have been made to other forms to insure consistency.

7. CCR 10133.2 Pamphlets (a) Help in Returning to Work 94: The pamphlet has been re-written to make it consistent with statutory and regulatory changes. Unfortunately, the language in several spots is poorly constructed and promotes confusion rather than clarity.

The public comment period for these proposed regulations ended on July 5, 2002. If the DWC makes substantive changes to these regulations as a result of public comments, it is required to allow an additional period for public comment on the revised proposals. The expectation is that the DWC will implement these regulations without changes.

Contributed by Allan Leno, Leno & Associates, (818) 370-8859 allanleno@leno-assoc.com.