Voc Rehab Post Reform - A Clarification on Entitlement
Sunday, February 1, 2004 | 0
There still seems to be a fair amount of confusion regarding entitlement to VR benefits and services for injured workers with a pre-2004 date of injury who are not ready (or determined eligible) for services before 1/1/2004. A few defense attorneys have advised RU Consultants they will appeal any D&Os ordering services for these injured workers. As noted last month, this all stems from a legislative staffer who advised that the Legislature "intended" to end VR for all injured workers, regardless of date of injury, effective 1/1/2004.
As we pointed out, the Legislature did not specifically eliminate VR for workers with pre-2004 DOIs so the DWC will continue to consider QIW workers eligible for VR benefits and services regardless of the QIW determination date or the date they elect to initiate services, as long as the injury occurred before 1/1/2004 and the request is made consistent with the requirements of L.C. 5410 and 5405.5. Defendants who fail to timely provide benefits and services will subject to increased VR costs per L.C. 4642(a) and penalties per L.C. 5814, not to mention DWC penalties per CCR 10111.1.
For those who remain unconvinced, consider a couple of anomalies that would be created if pre-2004 QIW workers could not commence VR services after 1/1/2004. These individuals would also not be entitled to the supplemental job displacement benefit (voucher) because the statue (L.C. 4658.5) specifically states that this benefit is available only to those with a DOI on or after 1/1/2004. Employers for these injured workers would have little incentive to provide modified or alternative work since there is no cost (i.e., VR services or a voucher) for failing to provide such work.
In other words, we could have two injured employees with identical circumstances except that one was determined QIW and started services before 1/1/2004 and therefore received a $16,000 VR program and the second, who was not determined QIW until after 1/1/2004, gets absolutely nothing - no mod/alt job offer and no VR services.
Historically, the courts have disallowed such disparate treatment.
Eligibility for VR benefits or the supplemental job displacement benefit is determined by date of injury. The chart below may help clarify eligibility criteria:
| Issue | Pre-2003 DOI | 2003 DOI | DOI 2004 or Later |
| Statutory/regulatory authority | L.C. 139.5 L.C. 4635-4647 CCR 10122 -10133.4 | L.C. 139.5 L.C. 4635-4647 CCR 10122 -10133.4 | New L.C. 139.5 or L.C. 4658.5 L.C. 4658.6 |
| Medical eligibility (QIW) determination required? | Yes | Required for VR services Not required for settlement of VR benefit | No |
| VR services required? | Yes | Yes | No |
| Supplemental Job Placement Benefit (voucher) available? | No | No | Yes |
| Notice required | Yes Notice of potential eligibility (NOPE) or NOPE-Denial | Yes Notice of potential eligibility (NOPE) or NOPE-Denial | Yes Notice of rights & Notice of availability of medically appropriate work |
| Time frame for notices | NOPE, NOPE- Delay, or Denial due within 10 days of medical knowledge RU-94 & NOPE due within 30 days of NOPE-Delay | NOPE, NOPE-Delay, or Denial due within 10 days of medical knowledge RU-94 & NOPE due within 30 days of NOPE-Delay | Notice of Rights due within 10 days from last TTD payment Employer RTW offer due within 30 days from last TTD payment |
| Issue | Pre-2003 DOI | 2003 DOI | DOI 2004 or Later |
| Settlement of benefit/services allowed? | Retro VRMAOnly | Yes | Unknown(not specifically allowed or prohibited) |
| Maximum benefit amount | $16,000 for VR services | $16,000 for VR services $10,000 for settlement | Amount based on permanent disability rating: <15% - $4000 15-25% - $6000 26-49% - $8000 50-99% - $10000 |
| VRMA rates* *Delay rate = TTD rate | Max = $246/wk Optional PD Supplement Min = same as TTD | Max = $246/wk Optional PD Supplement Min = same as TTD | None - employee must use PD benefits (or other funds) for self-support during training program |
| Time to initiate services | 5 years from DOI (L.C. 5410) OR 1 year from last finding of disability (L.C. 5405.5) | 5 years from DOI (L.C. 5410) OR 1 year from last finding of disability (L.C. 5405.5) | 5 years from DOI (L.C. 5410) |
| Limits on benefits/services | 52 weeks of VRMA 18 months to complete a VR plan | 52 weeks of VRMA 18 months to complete a VR plan | No time limits ER liability ends with end of program or when funds exhausted |
| Jurisdiction for disputes | Rehabilitation Unit | Rehabilitation Unit | WCAB |
Contributed by vocational rehabilitation expert Allan Leno, Leno & Associates, (818) 370-8859, allanleno@leno-assoc.com.
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