Bring Back Voc Rehab

Saturday, April 7, 2007 | 0

By Allan Leno

Q: Prison inmates frequently work for the California Department of Corrections (CDC). Inmates receive neither TD nor PD while in prison, but receive minimum TD and PD rates after their release from prison. An inmate is injured on Jan. 3, 2005. The injury is accepted. The inmate is released from prison and is receiving minimum TTD rates. The doctor now opines the applicant is P&S (MMI), and further opines the PD restrictions preclude applicant from returning to a job similar to the job the applicant had as a prison inmate. Do Labor Code Sections 4658.5 and 4658 apply to (former) inmate claims? Can CDC [legally] make an offer of regular or modified work to an ex-prisoner to come back to prison to work as an inmate? Assuming CDC can not legally make an offer of reg/mod work, is CDC excused form the provisions of 4658.5 and 4658?

A: As far as I know, Labor Code Sections 4658.5/4658.6 do apply to inmates. Prison inmates were eligible for VR services, if injured while incarcerated, and I am not aware of any exemptions for inmates. I think it is a safe bet that you cannot offer a job the former inmate a job that would require him to return to prison as an inmate.

Only the courts can assign someone to a penal institution so I do not see how the offer could be valid CDC can argue that it has a modified or alternative position available so the applicant/inmate is not eligible but I expect the courts will find that the release of the inmate is a goods thing and eligibility for an SJDB voucher is simply an unexpected cost.

This situation is not similar to a voluntary termination or a termination for cause where we can argue that the applicant is ineligible for a voucher due to his/her own actions (i.e., the decision to quit a job or to violate company policies).

I think this is just one of those "unintended consequences" and the CDC will have to provide vouchers to eligible inmates who have been released from custody.

Q: I just came out of a meeting with personnel from our local school district on a case of an injured worker (bus driver) who has been on light duty work for 90 days, under their RTW program. All parties, including the injured worker, agree that she should not return to bus driving and have encouraged her to apply for other positions currently open within the school district. The injured worker identified a clerk/typist opening in HR which she wants and while we are requesting clarification on her work restrictions, all medical reports indicate that she meets the physical demands of the work. The question is: Is she entitled to preferential hiring under the RTW guidelines as outlined by DIR? Is there anything in the guidelines that addresses this issue?

A: Work comp law does not address the issue of preferential hiring -- but FEHA does. If the employee is (a) qualified for the job, (b) the job is physically appropriate, (c) the job is equal to or lower than the job she had as a bus driver, and (d) there are no union collective bargaining agreement (CBA) prohibitions to prevent her from taking the job, the school district must offer her the job without competition under the provisions of the FEHA.

Failure to offer the job under workers' compensation results only in a requirement to offer VR services (pre-2004 injuries) or an SJDB voucher for injuries on/after Jan. 1, 2004. Under the FEHA however, the applicant could be entitled to back pay, reinstatement, front pay, unlimited punitive damages, and payment of legal fees.

Q: I read your posting on WorkCompCentral with the title "BPPVE Vouchers Set to Sunset." The third comment in there discussed employers that employ fewer than 50 employees and not owing the 15% increase "OR be entitled to take the 15% decrease." Unless there has been an amendment I missed, if you look closely at LC4658, the paragraph in (3) (A) discusses the 15% decrease but does NOT indicate any limitation of application of this section regarding size of employer. The other sections (2) no offer of reg/mod/alt = +15% and (3) (B) reg/mod/alt work terminates before PD does both clearly state "this paragraph shall not apply to an employer that employs fewer than 50 employees." Therefore, any employer, and especially an employer with fewer than 50 employees, is entitled to take the 15% decrease.

A: The ability of small employers (fewer than 50 employees) to take the 15% reduction in PD is the subject of much debate.

Many defense attorneys have taken the position outlined above, namely that small employers can take the 15% PD reduction when modified/alternative work is offered but are not subject to the 15% increase when no modified or alternative work is offered Workers' Compensation PJ responded to the same item indicating his conviction that small employers are not subject to the increase or the decrease.

Clearly this is an issue that begs for resolution at the board. Until then, all insurers/employers can do is obtain a legal opinion from a trusted source and then make a policy decision on how they wish to manage the issue until such time as there is definitive guidance from the courts.

My interpretation of Labor Code Section 4658(d) is the same as the reader above, namely that the language appears to say that small employers get the benefit when modified/alternative work is offered (a 15% reduction in PD) but do not suffer the penalty (an increase of 15% in PD) when they cannot offer modified/alternative work.

But I am not an attorney and such an interpretation makes no sense. Why should small employers get the 15% benefit but not be subject to the 15% penalty?

Especially when only small employers can be reimbursed for the costs of job modification under Labor Code Section 139.48? Since attorneys and WCJs cannot agree on this issue, claims administrators need to establish a good faith policy and apply that policy in all cases until there is case law on the subject.

Q: I have an applicant with a 2003 date of injury and a 2005 injury to the same body part. The applicant was released to full duty and returned to work at his U&C job after the 2003 injury and worked at that U&C job until the 2005 injury. The AME finds the applicant a "QIW" and apportions 30% of the disability to the 2003 injury. Applicant's attorney is demanding vocational rehabilitation based on the 2003 injury. Is the applicant entitled to vocational rehabilitation? Or an SJDB voucher?

A: This has become a common dispute in recent months. The SJDB voucher (unfortunately) is not a benefit of significant value to most injured workers eligible for it so their attorneys are seeking vocational rehabilitation whenever a portion of the disability originated before 1/1/2004. I know applicant's bar will disagree but there is no support in the statues or in logic for such a position.

A determination of QIW eligibility under Labor Code Section 4635(a) has always depended on the circumstances at the date of injury. In making the determination, we have always been required to consider (a) the effects of the industrial injury, (b) the effects of any prior injury(ies), and the effects of any non-industrial conditions existing on the date of injury. We never considered the effects of any subsequent injuries or medical conditions unless they were a direct result of the industrial injury (e.g., the result of a surgical procedure, side effects of medication, accident en route to a medical appointment, etc.).

A second injury is not the result of a prior injury it is an independent event unless the applicant was a QIW from the first injury and the carrier/employer failed to provide appropriate VR services. In the situation above, the applicant was released to full duty so there is no liability for the carrier vis-vis the VR benefit. The proximate cause for a need to change occupations is the 2005 injury the benefit due the applicant is a voucher.

It is enlightening to look at all the WC provisions available to the applicant for the 2005 injury. TD and PD benefits are based on the 2005 injury, not the 2003 injury. Medical control will fall under 2005 requirements, not the 2003 requirements the applicant cannot assume medical control after 30 days as s/he could under the 2003 rules. PD will be determined under the 2005 PDRS, not the schedule in effect in 2003. To allow an applicant to "cherry pick" benefits would upend the entire workers' comp system. In the example above, the applicant would select the 2005 TD rate, take medical control and have his PD rated -- for both injuries -- under the 2003 rules, and, of course, take the VR benefit rather than the SJDB voucher.

If your case ends up at the Unit, keep in mind that the Unit Consultant has jurisdiction over the 2003 injury only. S/he therefore can make a determination based on the evidence relating to the 2003 injury which, in this example was that the applicant was released and returned to regular duty after the 2003 injury. The ONLY way the applicant can be eligible for VR services is if the AME finds that the applicant was QIW in 2003 and should not have retuned to full duty.

Q: Are undocumented injured workers entitled to a rehab voucher?

A: That depends. Is the employer able to offer appropriate modified or alternative work but for the employee's undocumented status? If yes, the applicant would not be entitled to a voucher. Ideally, you would send the applicant the DWC Form 10133.53 Offer of Modified or Alternative Work form with a cover letter indicating that the job will be available for the 30 day period subject to the applicant producing proof of a legal right to work in the U.S. I know some employers do not want to send anything to an injured worker who is known to be undocumented. I expect the requirements will eventually be resolved by the courts.

If your employer never offers modified or alternative work, you had better provide the voucher. The only defense the employer has for not providing a voucher is evidence that it would have offered modified/alternative work but for the employee's undocumented status. If no work is available, this would not be a good faith defense.

Q: I have an injured worker who was hurt while working for one of my fairs. She was a full time state employee. She was released to return to work, but took a job at DGS instead. She then was off work from her current job do to the need for surgery on my claim. She just returned to full duty with no restrictions at DGS. I am paying PD to her. No indication of PD from her doctor. So, what form if any, am I required to send since she isn't working for my fair?

Oh, please. Bring back voc rehab.

A: Never thought I would live to see the day when a claims person would want rehab to come back!

I would treat this as a voluntary termination. The applicant was released to full duty so you would send the DWC Form 10003 Offer of Regular Duty if she was returning to the pre-injury agency. You could still send the 10003 if she left in good standing and you want to take the 15% PD credit. However, I suspect the original agency would rather not since she is no longer an employee. Since you probably will not send the 10003, you will need to forego the 15% credit.

Q: 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? And are carriers subjected to penalties if they delay payment on the counseling portion of the voucher?

A: Claims administrators are entitled to receive your invoice and a signed (by the injured worker) copy of the SJDB voucher (schools should add a copy of the registration document signed by the applicant and a school administrator). It is appropriate to include some degree of detail on the invoice for the services provided (e.g., evaluation, testing, vocational exploration, etc.) it looks rather odd for a $400 invoice and a $1,000 invoice to indicate only "counseling services" as the billing item.

However, the billing detail is not really for the claims administrator it really is for the VRTWC and the injured worker. An injured worker has a right to know what s/he paid for in counseling services and the billing detail might prove useful to the VRTWC in a later dispute before the DWC.

The claims administrator CANNOT demand progress reports from the VRTWC unless they are willing to pay for the reports outside the voucher. Claims administrators are no longer responsible for following the injured worker's progress through the training process.

Voucher payments are due within 45 days of receipt of the VRTWC or training facility invoice pursuant to CCR Section 10133.56(h). If the claims administrator disputes the billing, s/he should pay the agreed amount and advise the VRTWC or school in writing within 45 days regarding the reason(s) for non-payment. Failure to pay timely may be subject to 5814.6 penalties (see below).

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.

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