SJDB Vouchers FAQs Update

Saturday, April 22, 2006 | 0

By Alan Leno

What obligation does an employer have to provide modified or alternative work for seasonal employees? Are they entitled to a voucher if the return to work date falls during the off-season? This is a common question from insurers who write farms, orchards, ski resorts, etc.

If the injured worker was employed on a seasonal basis, an offer of modified or alternative work will meet the requirements of L C. Section 4658.5/4658.6 if the start date is either (1) the first available work date during the current season that falls within 60 days of the last payment of TTD or (2) the first date of the following season if the injured worker cannot be returned to work during the current season. So what are the practical implications of these requirements?

If TTD ends with 75 days remaining in the current season, the offer of modified or alternative work must include a return to work date in the current season. In this example, the employee must have a return to work date that would include at least the last 15 days of the season. Since employment must last at least one year, that employee would have to be brought back during the following season in the modified or alternative job.

If TTD ends after the current season has concluded, the employer's offer of modified or alternative work must bring the employee back on the first day of the following season. If you are responsible for arranging the return to work with the employer, it must be made very clear to the employer (and communicated to the employee as well) that the return to work for the modified/alternative job begins on the first day of the season and the employee must be paid from the first day of the season. If these requirements are not met, the employee will be entitled to a voucher - even if the employee ends up working for the employer.

The provisions for seasonal workers are covered in CCR Section 10133.60(a)(1)(A).

Does employment for a seasonal worker have to last for 12 months or does it just have to last for a "comparable" year? This issue was left unresolved for cases with dates of injury prior to 1/1/2004.

CCR Section 10133.60(a)(1)(A) indicates that the offer of modified or alternative work must be "...on a similar seasonal basis to the employee's previous employment." The obligation is therefore to return the employee to their previous situation but in a capacity that accommodates their limitations. If the employee previously worked six months "on" and then was "off" for six months, the employer is obligated to bring them back in the modified/alternative capacity on the same basis. The season could be as little as two months (e.g., Holiday employees in November-December). Whatever the employment basis, the injured employee has to return on the same schedule s/he would have worked absent the injury.

Are there penalties for not meeting SJDB voucher requirements? When did they become effective? There were (are) penalties under CCR Section 10111/10111.1 for failing to meet VR requirements but very little has been published regarding penalties for the voucher process.

A $2500 penalty has been proposed under L.C. Section 5814 for failing to meet the requirements of L.C. Section 4658.5/4658.6 but this penalty, if adopted, would be assessed by the WCAB and presumably would be paid to the applicant if the WCJ agrees that the insurer/employer failed to meet its SJDB notice and voucher obligations. However, little has been said to date about DWC penalties for non-compliance with statutory/regulatory requirements.

Never fear. As this is written, the DWC is in the process of promulgating regulations for insurer/employer failure to send timely Notice of Rights, timely and/or accurate SJDB voucher forms, make timely payment/reimbursement for school tuition/expenses, filing of forms with the DWC, etc. We should expect that the maximum penalty for non-compliance with voucher requirements to be commensurate with the maximum penalties for failure to send timely VR notices - $500. Considering that a Notice of Rights is due on every case with one day or more of TTD paid, the failure to send timely Notice of Rights letters could be considerably more expensive than a corresponding oversight with a Notice of Potential Eligibility under the VR system. Do you have your SJDB process in place and functioning?

The DWC has yet to begin the public review and adoption process for these penalties so it is unlikely they will be in place before late this year. However, thee penalties could actually apply as of August 1, 2005 since the SJDB notice and voucher requirements were effective as of that date.

On the bottom of the new DWC AD 10133.53 form (Offer of Modified or Alternative work), it indicates that a copy of the form is to be sent to the DWC. Is this really necessary? What does the DWC plan to do with them?

We can't tell you what the DWC plans to do with this form but it is a requirement to submit copies of the form to the DWC within 30 days "...of acceptance of rejection." Given the language on the form, we should expect the DWC to impose a penalty for failure to comply with the requirement. Claims administrators should therefore have a process in place that insures compliance. We would recommend that forms should be forwarded to DWC with a "Proof of Service" to insure you have the means to verify when the documents were sent. Transmission of these documents can be "batched" as long as each claim file contains a copy of the transmission document.

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

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