Supplemental Job Displacement Benefit Liability Issues

Sunday, September 12, 2004 | 0

An injured worker with a 2004 date of injury cannot return to his pre-injury employer because there is no medically appropriate work available that would accommodate work restrictions resulting from a surgical back. The case settles with a Compromise & Release agreement and he decides to use his SJDB voucher at Maude's International Truckers' School. While practicing with one of the school's trucks, he aggravates his back injury to the point where he cannot continue with the training program. The employee demands a new voucher for another training program or he will sue. Who, if anyone, has liability to replace his voucher?

You know that a scenario like this will happen. We thought we were finished with such issues with the demise of vocational rehabilitation but that is not necessarily the case; this is, after all, California where anyone can sue for anything at any time. And the voucher process is so unstructured it is inevitable that some injured workers will use their vouchers for physically inappropriate programs (as in our example above). Or some will enter programs for which they lack the requisite academic skills, etc., etc. When the inevitable happens, who will bear the responsibility?

With the advent of the voucher and L.C. sections 4658.5 & 4658.6, most assumed that there would be one voucher and the injured worker would bear the responsibility for his or her decisions. But we should not be so hasty in arriving at this conclusion. Under L.C. section 139.5, we know the insurer/employer could be required to provide a second plan where the injured worker was allowed to pursue a plan that the parties knew to be inappropriate (see Bussear v. WCAB (1986) 51 CCC 240 (DCA published)). But there is a difference between vocational rehabilitation and the SJDB voucher. In VR, the insurer bears a responsibility to insure that the injured worker pursues a physically appropriate VR plan (see L.C. section 4635(f)) but there is no such responsibility with the voucher. In fact, the insurer/employer has nothing to say about the employee's choice of training. L.C. section 4658.5 specifies only that the defendant pay training fees where the employee enrolled in an approved facility. It seems likely that a defendant who declined to pay tuition costs based on a belief that the employee's selected program was physically inappropriate may be subject to penalties. It thus seems unlikely that the insurer/employer would be held accountable for a failed training program.

But does that mean no one is at risk except the injured employee who makes a poor choice? Do schools, doctors or attorneys have any potential liability?

A school could have potential liability if it was aware of the employee's work restrictions and knowingly accepted the individual for a physically inappropriate program. In our example above, a QRR would not place an injured worker with a surgical back into a truck driving program - at least not without medical clearance. Where there are known hazards, a school should exercise equal caution. A prospective student with an SJDB voucher is known to have a work injury. There are, of course, Privacy Act and HIPAA limitations but a school can provide the prospective student with a copy of a (good!!) job description and a release form to be signed by the treating physician prior to enrollment. Failure to take reasonable steps to help ensure safe participation in a training program would leave the training facility at substantial risk.

What about physicians? We have all seen physicians release injured workers to programs that we knew to be inappropriate. It may have seemed "safe" enough to the physician under L.C. section 139.5; if it didn't work out, the employee could get a second plan. But there is no longer a VR "fallback." Injured workers who cannot continue in a program for physical reasons may look to their physicians (i.e., their malpractice insurers) for a solution. It would therefore behoove physicians to ask for a job description/analysis of the proposed occupation.

Applicant attorneys could also be at risk. Insurers are not going to recommend training programs or vocational counselors. Injured workers will therefore turn to their attorneys (or the attorney's paralegal) for advice on training programs and/or vocational counselors. The attorney may have a liability exposure similar to schools and doctors where their clients' re-training effort fails. Here, the argument would be that the attorney made a recommendation without having the requisite skill in assessing the client's abilities and training needs. An attorney would therefore be well advised to recommend a vocational assessment to their clients. Even here, care should be exercised. The attorney should consider providing each client with a list of three vocational counselors in his/her area and recommending they interview each before making a decision.

Vocational counselors could also be at risk if they (like doctors) acquiesce to a vocational goal they know to be inappropriate for any reason (physical, academic, labor market, etc.). Most injured workers need a vocational assessment before selecting a training program but it is more important than ever to exercise good professional judgment. When an injured worker insists on pursuing a program the counselor knows to be inappropriate, the applicant must be told "No" and the reasoning documented.

When it comes to liability for second vouchers, the defendant probably has the least exposure. This means that the remaining parties are at greater risk and must take steps to insure they provide appropriate counsel to the injured worker who chooses to pursue retraining under the Supplemental Job Displacement Benefit voucher.

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

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