VRMA Due When Good Faith Question re QIW?

Sunday, December 22, 2002 | 0

The District Court of Appeal (2nd District) has agreed to review a Board decision to award retroactive VRMA in a situation where the employer had reason to believe the employee was not a QIW. The DCA may also address a "breach of notice requirement" where an employee is disabled for less than 90 days.

In Queen of Angels/Hollywood Presbyterian Hospital v. WCAB (2002) 4 WCAB Rptr. 10, 263, the employee was temporarily disabled for 48 days due to an industrial injury to his hands. He returned to work on January 23, 1992 at his usual and customary job but was later terminated for non-industrial reasons. The employee made a written demand for VR services on 2/20/92. On 5/13/92, the treating physician issued a P&S report indicating that vocational rehabilitation was "Not applicable as the patient may return to work." A Findings and Award issued on 7/29/97 establishing permanent disability at 38% based on the five year old P&S report. The Rehabilitation Unit issued a D&O on 4/7/98 finding the employee was QIW and entitled to retroactive VRMA from 1/23/92 and continuing. The D&O was appealed but the parties concurrently obtained a job analysis that was submitted to the treating physician for review; the physician found the employee in need of VR services. After multiple appeals, the Board found the employee entitled to VRMA from 1/23/92 and continuing, less credits for wages earned, benefits paid, and applicable periods of interruption.

The employer in this case believed the employee was not QIW based on the available medical evidence and assumed no notice was due since the employee was paid less than 90 days of TTD. This case demonstrates the importance of an aggressive response to a demand for VR services. Here, the employer should have sent the claimant a Denial Notice in response to his demand for VR services. The notice includes information about the employee￯﾿ﾢ￯ﾾﾀ￯ﾾﾙs options if he disagrees with the employer￯﾿ﾢ￯ﾾﾀ￯ﾾﾙs decision; if the employee failed to pursue the matter for five years, the employer has an argument that no retroactive benefits should be due because there was no prima facie evidence of need for VR services until 1999 and the employee failed to exercise his options as provided by statute and regulation. Absent such medical evidence, the Denial Notice would have placed the responsibility on the employee to demonstrate a need for services.

L.C. section 139.5(d)(2) provides that an employee is entitled to VRMA retroactively to the date of demand if s/he objects to the medical eligibility opinion of the treating physician and eventually prevails. We should have the 2nd DCA's decision in the next few months.

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