SJDB vouchers - More FAQ

Saturday, January 29, 2005 | 0

The Supplemental Job Displacement Benefit voucher continues to be a source of frustration to those charged with its administration:

1. When an applicant is sent an Offer of Modified or alternative Work or a Voucher, should a Request for Dispute Resolution Form RU-103a be included?

I suspect the Rehabilitation Unit would tell you that the form should be included and it certainly sounds like a reasonable assumption based on our past experience. However, there are a couple of problems with use of the RU-103a. First, the Rehabilitation Unit does not exist for cases with a date of injury on/after 1/1/2004 so it has no jurisdiction to address voucher disputes until or unless the Administrative Director delegates that responsibility to unit Consultants. Second (and this follows from the first point), it would misleading to lead an applicant to believe that he or she could seek assistance from the Unit on voucher disputes. Submitting an RU-103a to the Unit for a 2004/2005 case will result, at best, in a referral to their attorney or an I&A Officer. It would seem more appropriate to include a cover letter with instructions for the applicant to contact their attorney if they have one or to contact an I&A Officer (and provide the phone number) if they disagree with the job offer or the voucher. If you do choose to include a copy of the RU-103a, it would still be advisable to use a cover letter advising contact with their attorney or the local I&A Officer.

2. Can I use the proposed "RU-94a" form to document an offer of modified or alternative work to an injured worker pursuant to L.C. section 4658.6?

It may seem odd to recommend use of this form, in light of the previous answer, but I do think this is a good one to use because it so clearly meets the intended purpose. A completed RU-94a* provides all the information necessary for properly documenting the job offer. It does not serve to mislead the injured as in the previous question (note modifications to the advisory language at the bottom of page one). The proposed form is also easily recognizable for its intended purpose and, for that reason, is likely to encourage compliance with the intent of L.C. section 4658.6. The parties are free to utilize other formats, including job analyses, but considering all the changes in the system, it may best serve all concerned to stick with a reasonably familiar process.

* Note that the proposed document is not actually designated as an RU-94a - this is just a convenient shorthand that is easily recognizable as a modification of the RU-94. Also, please note modifications at the bottom of page 1.

3. The injured worker is eligible for an $8,000 voucher and is attending a $5500 training program. Is the carrier's liability for the voucher concluded when he completes the program?

There is nothing in L.C. section 4658.5 that substantiates ending the carrier's liability when an injured worker completes a particular training program. The statute specifies the value of the voucher, how it can be spent, and how much can be committed for the services of a vocational specialist. The carrier's liability ends when the voucher is exhausted or at five years from the date of injury (we assume, at least, that 5410 applies). If the worker in this example wishes to attend a second training program, he can do so as long as tuition does not exceed the $2500 remaining in the voucher and the reimbursement request is made within 5 years from the date of injury.

4. The injured worker has registered for a training program that clearly exceeds her work restrictions. What obligation does the carrier have to reject the request for tuition reimbursement?

The answer, unfortunately, is that the carrier has no right to refuse to pay tuition for the program as long as it meets the requirements of L.C. section 4658.5. Unlike L.C. section 4635, there is no requirement in 4658.5 for the carrier to reasonably assure that the proposed occupation is physically appropriate for the injured worker. The statute specifies only the value of the voucher, where it may be used (approved facilities), and the employer/carrier's obligation to pay or reimburse tuition and related costs. A carrier that refused to pay tuition for an approved facility would arguably face significant penalties in spite of legitimate concerns for the injured worker's welfare.

5. Does a training facility have any obligation to determine whether a particular training program is physically appropriate for an injured worker?

Schools that accept a voucher would (or certainly should) know that the person presenting the voucher has a workers' comp injury and has some physical limitations. It would be a good idea for schools to develop a representative job analysis for each of their programs* and have it reviewed by the injured worker's physician whenever there is a question regarding the individual's ability to perform a particular occupation. These job analyses should be completed by a professional who is skilled in performing job analyses and who is not a member of the school's staff. Injured workers receive one, and only one, voucher so schools that do not take reasonable steps to assess students' safety in the training program and subsequent jobs may have significant liability. Keep in mind that schools have historically had a significant degree of "protection" because programs were assessed by counselors prior to enrollment and counselors would obtain medical clearance wherever there was a question about the worker's ability to perform the occupation.

* The job analysis should be performed for the occupation rather than the training program.

6. Is it necessary to wait until the injured worker is P&S to send a Notice of Potential Rights and the SJDB voucher? If we know the injured employee will have significant PD and the employer cannot provide modified/alternative work, can we make the voucher available before TTD ends?

Technically, the Notice of Potential Rights cannot be sent before TTD ends - the statute specifies that the notice is due within 10 days of the end of TTD and the injured worker becomes eligible for the voucher within 60 days of the end of TTD if the employer cannot provide modified or alternative work. However, getting an injured worker started with his/her training before TTD ends is an excellent idea so the parties should not be deterred by a "minor" technical obstacle. It probably is not a good idea to unilaterally send a voucher in this situation - but the parties can always agree that the applicant can use his/her voucher before TTD ends. The employer/insurer should advise the applicant that the employer cannot provide modified or alternative work* and ask the employee to sign a request/Reply form for his/her voucher. The request form must include a statement that the employee understands that this is the only voucher s/he will receive and that any necessary adjustments to the value of the voucher will be made at the time of settlement. If the injured worker is represented, this all would, of course, be accomplished via the applicant's attorney.

But what about the Notice of Potential Rights? The Notice should be sent along with the request form noted above (the applicant should be advised regarding his/her rights before being asked to sign anything). However, you might want to send another Notice of Potential Rights within 10 days of the end of TTD to meet the letter of the law. You can note that this is just a formality since the parties have already agreed to use of the voucher.

* The employer should be aware that making this decision before P&S could result in significant FEHA exposure. An early decision would only be appropriate where the employer goes out of business during the TTD period, has a significant reduction in force and the employee would have lost his/her job based on seniority, or the employee's likely work restrictions are known and the employer has conducted an appropriate evaluation of possible options.

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

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