Martinez May Justify VR Beyond 5 Years Post DOI

Saturday, August 3, 2002 | 0

We know that failure to send required forms or notices can be costly; it seems especially so when a missed mandatory form or notice results in a requirement to provide VR services after the 5-year statute. We know of at least one recent case where an applicant's attorney successfully used Martinez v. Hughes (11/15/02), 65 CCC 1293, to justify services more than five years from the date of injury.

In Martinez, the employee was determined QIW on 1/13/98 for injuries incurred on 5/11/94 and 7/22/94. The employee requested services on 6/4/98 but deferred until 1/19/99. At her 1/19/99 meeting with the QRR, the employee requested that the meeting be re-scheduled for 10/1/99 to accommodate her personal needs; the QRR confirmed the new meeting date in writing. When the employee met with the QRR as scheduled, she demanded payment of VR benefits: the employer refused even though the claimant was never sent an Interrupt Notice after the 1/19/99 meeting nor was an RU-105 filed with the Unit.

The Rehabilitation Unit issued a Determination favorable to the employee but it was overturned on appeal. The employer appealed the WCJ's Decision to the Board and then to the District Court of Appeal (2nd District). The DCA reversed the WCJ's Order, finding that the employer had failed to provide proper notice (the Interrupt Notice) and to file a request for closure (RU-105) with the Rehab Unit. The interesting aspect of this decision is that the DCA placed the greatest wait on the defense failure to file the RU-105 (despite the fact that the RU-105 doesn't provide for a closure request of this nature). The 2nd DCA believes that defendants can file for termination for "failing to complete a rehab plan.-In their view, "unreasonably not pursuing a VR plan is part of unreasonably failing to complete a plan."

This decision, and applicant attorneys' recent use of it, puts defendants on notice that affirmative steps must be taken to conclude liability in cases where there are extended periods of deferral or interruption. At minimum, the employee should be sent a DENIAL notice if s/he fails to return at the end of an agreed deferral/interruption. Insurers/employers may also want to consider filing an RU-105 as suggested by the DCA. The judges are wrong in their interpretation regarding proper use of the RU-105; however, Martinez is a published - and citable - case, so it may be financially advantageous to be expedient rather than right.

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