Worker Entitled to Voucher, Not VR Services

Saturday, June 2, 2007 | 0

By Allan Leno

There have been a number of questions about the status of training facilities and their certification if the Bureau for Private Post-Secondary Vocational Education (BPPVE) fails to obtain funding for the next fiscal year. At the present time, it does appear that BPPVE will cease to exist effective 7/1/07 and, at present, there are no known plans to transfer the Bureau's responsibilities and functions to another agency, although the Governor's office has indicated this will happen (but no plan or schedule has been published to date). Claims administrators are therefore wondering if they should be paying tuition bills after 7/1/07.

BPPVE has indicated that school certifications are valid through the end of 2007 and there has been some discussion about extending those certifications through mid 2008. Claims administrators should therefore pay appropriate tuition bills as they are currently doing through at least the end of the current year.

BPPVE has also indicated that schools are responsible for complying with the conditions of their certification. Failure to abide by those conditions will make the school subject to disciplinary action by the agency assuming BPPVE's functions.

I have a claimant with a 2003 injury with another carrier where VR was provided under the old rules. He has an injury in 2004 with us where he may be entitled to the voucher. Can he get both voc rehab and a voucher?

There are circumstances where an applicant could get both VR and a voucher. For example, the applicant could be eligible for VR on a 2003 injury and a voucher on a 2004 injury where the injuries were with different employers and each injury required a change in occupation. It can also happen where each injury, by itself, would require a change in occupation. This will not be a common occurrence but I have seen it happen.

Our school offers a computer to injured workers that do not have a computer at home but we have encountered some pretty aggressive insurance companies that want to know where in the regulation it states that we can offer a computer. We have always said that since it is distance education, and they do not have a computer, that they need one as a tool necessary to complete the course. Are we in the right here or have we misinterpreted the meaning of the regulation and if not can you tell me where I can quote?

L.C. Section 4658.5(b) provides that "The voucher may be used for payment of tuition, fees, books, and other expenses required by the school for retraining or skills enhancement." For a school offering distance (on line) learning, a computer is certainly a necessary tool for the student to enroll in and participate in the program. It is therefore appropriate for the school to provide a computer where the prospective student does not possess one.

I would add that the computer provided should be appropriate to the program and provided at a fair price. I have noticed a couple of training facilities providing computers for $1500-$2000 when a computer system at half that price would be perfectly adequate for the program the injured worker selected. A few programs, such as CAD drafting and voice activation, require high end computers but most programs will work quite well on computer systems in the $750-$1000 range available from reputable manufacturers such as Dell and HP.

Permanent work restrictions were issued and the employer agreed to take the worker back to modified work permanently, but cut the hours. The worker states he cannot support himself and family on those wages. Does the worker have to take the job or is he eligible for a voucher?

To meet the requirements for a modified or alternative job under L.C. Section4658.6, the job must pay the injured worker at least 85% of his pre-injury compensation (see also L.C. Section 4658.1(b)(c)) If the employer reduces wages or hours by more than 15%, the applicant will be eligible for a voucher.

The injured worker has a 2006 injury but there was no lost time. The claimant is now P&S and the report states the injured worker can return to her U&C occupation even though she does have PD and some work restrictions. However, the employer did not renew the employee's contract so there is no job for her to return to. I'm assuming I owe the SJDB voucher because the insured did not renew the contract?

There is no liability for a voucher because the applicant was released to her regular duties. You would, however, have to increase the applicant's weekly PD payments by 15% beginning on day 61 after P&S, assuming the employer has 50 or more employees.

We had a public safety officer who returned to work post wrist surgery in a light duty capacity. Upon his return, we sent him the Notice of Potential Rights and the Offer of Alt/Mod duty. He has now been released back to full duty. Do I now have to send him the offer of regular work?

If the employee has PD, you would want to send the Offer of Regular Work (10003) so you can reduce PD by 15%. The 10003 form is meaningless if there is no PD but it may be a good idea to send one anyway as injured workers sometimes choose to go to a Panel QME who does find PD.

An injured worker has a 2002 injury and a 2004 injury. She returns to work at her regular duties and continues in that capacity until 2006: an AME found she was "QIW". The AME apportioned 50% of the disability to the 2002 injury and 50% to the 2004 injury. We sent a VR Denial Notice for the 2002 injury since the employee worked for four years at her U&C job and an SJDB Notice for the 2004 injury. Would the worker be entitled to VR benefits/services if the AME determination was after the five year statute?

L. C. Section5410 is not the issue here. The applicant was never a QIW based on her 2002 injury. It was the 2004 injury that ultimately resulted in the need for a change in occupation (doctors should not be using the "QIW" language for 2004 injuries). This injured worker is entitled to a voucher, not VR services. Remember that we cannot look into the future to determine if someone will be a QIW. L.C. Section 4635(a) required us to look at the person the way they were on the date of injury, we did not look into the future to see how they might be affected by some future injury.

I was selected by the IW to be the Counselor for purposes of the voucher. Carrier and AA are fine with it, but I received a message from the carrier saying that they don't issue vouchers to the IW's, only to the Counselor, and they requested I provide them with my name, etc. (I don't know what they do when there isn't a Counselor involved.) Is there any problem with that? I've never run into this before.

AD Reg Section10133.56(c) requires the claims administrator to send the SJDB voucher to the injured employee, not to any other party. Failure to comply with this section could subject the carrier to a $2500 penalty under the new 5814.6 penalty regulations (see below). I have not heard of a carrier doing this but it is ill-advised. It should be noted that the applicant needs the voucher to register for a training program so it really is not appropriate to withhold the voucher from him/her. And, as you point out, what would happen if the applicant chose not to use a counselor?

The injured worker is eligible for $6000 in vouchers. He wants to undergo training in 2 schools and the cost is split as $1500 for one school and $4500 for the other. Can we split the vouchers between the 2 schools? The injured worker can use the voucher at as many schools as s/he wants as long as the total cost does not exceed the value of the voucher. The injured worker in your question can, in fact, use his voucher for these two schools since the total tuition cost does not exceed the $6000 value of the voucher.

Our school is receiving the following objection with some frequency: "... the claimant must decide to go to a Bricks & Mortar location..." Is there a possibility that this is stated in any regulation?

There is no such requirement in the statute or Regulations. The only requirement is that the training facility must be "state approved" (see L.C Section4658,5(a) and AD Reg. Section10133.56(g)). I am not aware of any prohibition against on line training. If the claims administrator will not provide payment for an approved training program, the injured worker should file a DWC AD Form 10133.55 Request for Dispute Resolution.

We are an employer who uses the position of a greeter to accommodate claimants with restrictions but it is also a needed position for the company Once a claimant is P&S and there are permanent work restrictions which impede them to return to their U&C we offer the position of the greeter paying at least 85% of their pre-injury wages. My question is: if an applicant is RTW in a modified position and we offer the greeter position before they are P&S can we legally reduce their pay rate during that time? Or do we have to wait until they are P&S? I was under the impression that we can reduce the pay rate of anyone working modified duties but had to pay them at least 85% of their pre-injury wages, am I correct?

If the applicant is paid less than their full pre-injury wage at this greeter position prior to P&S, you must do a wage loss calculation to correct for the reduced wage rate. After P&S, the job must meet the 85% requirement in L.C. Section 4658.6(b).

You may have addressed this in a prior Newsletter. I wanted to know if the employer can assert the 15% reduction in PD if the injured worker is declared P&S by an AME/QME retroactive 60 days, but the report is not received until after the 60th day. Can the employer argue that we have 60 days from receipt of the report finding P&S? I was unable to find case law on the point.

You can't find any case law on the subject because there isn't any. I have yet to see any cases go up on either the 15% PD adjustment or the voucher.

You cannot take the 15% credit retroactively because the statute requires an offer of work to be made BEFORE you can assert the credit. The Administrative Director has determined that an offer of work must be made via DWC forms AD-10003 (regular work) or AD-10133.53 (mod/alt work). This doesn't seem fair when it is the doctor who is responsible for the delay - but this is just a case where the law is the law.

My question is when an injured worker goes from TTD to TPD, do I send the Notice of Rights 10133.52 and the Mod/Alt Offer 10133.53?

The time frames to send the 10133.52 and 10133.53 are not triggered until TD ends entirely. TPD is still TD so you would not be required to send either form until TPD ends.

I am a Vocational Return To Work Counselor (VRTWC) who submitted an invoice for $1,000 on a $10,000 voucher for counseling services. I received a letter from the insurance carrier asking me to detail "what services" I had provided to the injured worker. They withheld payment for 90 days and while I was not averse to providing this information, I certainly would not want this to be the case every time. What reporting requirements do counselors have regarding vouchers?

There is no requirement for a counselor to submit reports to claims administrators on voucher cases. The counselor works for the injured worker in these cases; the claims administrator has no control over the services provided. I do believe that counselor invoices should be reasonably specific regarding the services provided and the injured employee should ALWAYS receive a copy of the invoice. Since payment is coming out of the applicant's voucher, s/he has a right to know what the got for their $400-$1000.

Proposed Voucher Changes

Assembly Bill 1636 by Tony Mendoza (D-Artesia) proposes to make vouchers available to eligible injured workers "74 days after termination of temporary disability payments." While making vouchers available sooner to injured workers whose employers are unable to offer them medically appropriate modified/alternative work is conceptually a good idea, this proposed modification will only cause more confusion unless the Legislature changes L.C. Section 4658.5 to begin the RTW/voucher process after P&S rather than the termination of TD payments. Assemblyman Mendoza and your local legislative representatives need to hear your problems with the administration of what should be a simple process. You can find contact information for your Legislator at http://www.assembly.ca.gov/defaulttext.asp.

Penalty Regulations

The DWC's 5814.6 penalty regulations have been registered with the Secretary of State and became effective May 26, 2007. These regulations provide for penalties up to $2500 for failure to comply with SJDB and VR requirements (among other things). You can review the new Regulation Section 10225-10225.2 language at the DWC web site: http://www.dir.ca.gov/dwc/DWCPropRegs/AdminPenalties_LC5814_6Regulations/LC5814_6Regulations.htm.

Training

I will be teaching IEA's CA-14 class in Woodland Hills and Oxnard for the Fall 2007 term beginning September 11, 2007. A substantial portion of class time will be spent on SJDB voucher, PD adjustment, and general return-to-work issues, as well as the traditional VR issues. Anyone interested in registering for IEA classes can obtain additional information at the IEA web site.

The National Association for ADA Coordinators (NAADAC) Fall 2007 conference is scheduled for Salt Lake City, Utah beginning October 22, 2007. Anyone interested in attending this conference should contact NAADAC at (800) 722-4232. Information regarding the conference will soon be available at NAADAC's web site at http://www.jan.wvu.edu/naadac/index.html.

Do You Have a Question?

Do you have a question about vocational rehabilitation, the SJDB voucher, or the impact of RTW issues on FEHA requirements for employers? Send us an e-mail at allanleno@leno-assoc.com. General questions will be addressed in our FAQs. If your question is not appropriate for our FAQ section, we will provide you with an opinion for your consideration. Parties submitting questions for the VR/RTW Newsletter FAQ section (or individual responses) are advised that the answers provided are the opinions of Leno & Associates and are not intended as legal advice.

Please note that we are not always able to answer your question by return e-mail. We are getting as many as a dozen e-mail questions per day so it has been necessary to establish a priority system for responding to questions. The first priority will be to those with whom we have a business relationship: we will respond as soon as possible (usually within one business day), regardless of the complexity of the question. The second priority level will be for questions from that can be answered quickly from persons with whom we do not have a business relationship. The third priority level is for complex questions from persons with whom we do not have a business relationship. I would like to answer all your questions immediately but my first priority is and must always be to my customers.

Issues for the past year of the VR/RTW Issues Newsletter are available on Leno's 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.