VR Case Law Update

Saturday, September 25, 2004 | 0

L.C. section 139.5 doesn't apply to injuries after 12/31/03 - but there are still plenty of cases left in the courts with issues to be resolved.

Is a modified job offer valid if made via letter rather than a DWC Form RU-94?

There are previous cases indicating that an RU-94 may not be critical in some circumstances, such as when an employee has already stated an intent to reject the job offer (see Kimberly Allen v. WCAB (1998) 63 CCC 1270 (Writ denied)) or where the employee is undocumented (see Del Taco v. WCAB (Gutierrez) (2000)79 Cal App 4th 1437, 65 CCC 342 (DCA Published)).

In American Home Assurance/AIG v. WCAB(Pacey)(2004) 69 CCC 378 (writ denied), the defendant sent the applicant a letter indicating that modified work was available but did not send an RU-94. The Board determined that the applicant could not be deemed to have rejected an offer that was not properly made. Although the vocational rehabilitation benefit is winding down, it is still important for defendants to comply with statutory and regulatory requirements if we hope to properly close the VR liability.

Is a defendant required to provide notice of potential rights to VR benefits and services (i.e., the 90 day notice) where the applicant is not temporarily disabled for 90 days?

In Jim Shepherd v. WCAB (2004) 69 CCC 290 (writ denied), the applicant alleged he was entitled to VRMA benefits at the TTD rate because the defendant had failed to provide him with a mandatory notice after an AME determined that he was "...possibly disabled for three months." The Rehab Unit and an arbitrator found the applicant not QIW but entitled to VRMA at the TTD rate from 9/3/93 through 8/26/02. Defendant appealed, arguing that the applicant was not paid 90 days of TTD nor did any physician ever find him to be a QIW. The WCAB agreed, noting that the AME only estimated the duration of temporary disability three years after the fact and also finding that applicant was not a QIW.

An employer/insurer certainly should not take liberties with notice requirements but there are minimum requirements to start the notice obligation, including payment of 90 days of TTD and/or specific medical information that the applicant is (or is likely to be) a QIW.

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

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