Comments to DWC re SJDB Regulations

Sunday, April 10, 2005 | 0

The following are the comments and recommendations vocational expert Allan Leno submitted to the Division of Workers' Compensation regarding the proposed voucher regulations. While comments were due April 8, 2005, we have decided to publish Allan's observations here to share with the community:

RE: Proposed regulations, Article 7.5, Supplemental Job Displacement Benefit

Pursuant to the Division's March 21, 2005 announcement, I am submitting my comments and recommendations regarding the proposed regulations governing administration of the Supplemental Job Displacement Benefit.

Definition of modified work (10133.50(a)(7) : The DWC may believe it has no choice, but the 85% wage provision for modified work is not consistent with federal and state requirements; employers who reduce wages for modified jobs may find themselves in violation of state and federal statutes requiring equal pay for equal work. Modifying a job to accommodate a disability still results in the same product or service so there is no justification for reducing the injured employee's wages.

Definition of VRTWC (10133.50(a)(15) : This definition still does not allow for certification of new counselors. As existing counselors retire/leave the field, there is no mechanism to replace them. Keep in mind that vocational rehabilitation cases will soon disappear; where do replacement counselors obtain the experience needed to qualify as VRTWCs?

Settlement (10133.52) : The Notice of Potential Rights still advises the injured worker that s/he may settle the right to a voucher. The statute is silent on this issue; the DWC does not indicate where it believes it derives its authority to state that the benefit can be settled. Since L.C. section 4646 no longer exists, unrepresented injured workers can presumably settle their voucher; will WCALJs counsel unrepresented workers on the pros and cons of settling this benefit?

Delay Notices: The DWC still has not introduced any mechanism for required delays while the parties obtain necessary information (such as work restrictions). The DWC may believe it has no authority to create a Delay procedure but the authority issue didn't prevent creation of a Delay Notice for pre-2004 cases - there is nothing in L. C. section 4637 suggesting the parties can delay for 30 days while the availability of modified or alternative work is investigated or the claims administrator obtains work restrictions from a treating physician. If the RTW process is going to work, there has to be a modest delay mechanism. As with pre-2004 cases, allow the claims administrator 30 days to obtain essential information but require that the offer of employment and a return to work date must both occur within the 60 day time frame from the last payment of TTD.

L. C. section 5410: There is no indication in the notices or the regulations that the voucher is time limited in any way - the DWC has apparently decided that the voucher is a lifetime benefit. All other workers comp benefits are governed by 5410 but the voucher appears to have been exempted because 5410 was not modified to mention it by name. If the DWC has determined that it has the authority to decide injured workers should be advised they can settle the voucher, it must certainly have the authority to apply 5410 to the voucher or at least establish some reasonable time frame for use of the voucher from an F&A or C&R.

SJDB voucher (10133.57) : If the applicant drops out of school, it appears that s/he will receive any refund of tuition monies. If the employee discontinues schooling, any refund should revert to the claims administrator. Allowing refunds to go elsewhere invites abuse.

Notice of Mod/Alt Job Offer form (10133.53) : The notice still indicates that it must be filed with the AD - but there is no indication why (and exactly who will it go to anyway?). Unless the AD intends to gather information (and there has been no such indication), this requirement seems like an unnecessary burden on the claims administrator. There is no compelling reason to file the document with the AD unless there is a dispute.

Request for Dispute Resolution form (10133.55) : The notice still does not indicate that filing parties must attach supporting documentation (although section 10133.54(a)(3) does). Let's make the process clear for everyone, especially for injured workers who need to file the form but do not have access to section 10133.54.

Thank you for your consideration.

Allan Leno

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

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