VR Sunset Issues and Case Law

Is Rehab really over?  The fight is far from over but defendants now have a published case (Beverly Hilton v. WCAB (Boganim)) supporting their position that the VR benefit extinguished all rights to VR benefits and services effective with the 1/1/09 repeal of L.C. § 139.5.  The WCAB recently denied a petition for reconsideration of its en banc decision in Weiner v. Ralphs Company, further strengthening defendants’ position. 

In Beverly Hilton v. WCAB (Boganim), the Second District Court of Appeal held:

    Awards are only final when the entire process, including appellate review, is concluded.  In the instant case, Hotel timely filed this petition for review, which was pending at the time of the effective date of the repeal of section 139.5.  Only in those cases in which the decision was final before the repeal would the parties be able to enforce or terminate the award.  (See § 5803.)  Because this matter has been subject to review by this court after January 1, 2009, former section 139.5 can no longer can be applied or enforced in this case.

The 2^nd DCA (which includes LA County) certified this case for publication, providing strong support for the WCAB’s denial of the petition for reconsideration in  Weiner v. Ralphs Company.  The DCA opinion is binding only on WCJs in the Second District but the WCAB opinion is binding on ALL WCJs statewide unless or until it is overturned on appeal.  It is expected that one or both cases will be appealed to the California Supreme Court with Boganim having the inside track because a District Court of Appeal has already issued a decision (the next step for Weiner would be an appeal to the District Court of Appeal but it is possible the applicant may consider an appeal pointless because this case is also in the 2^nd DCA).  If the Supreme Court does accept the Boganim and/or Weiner, a decision would most likely be due around mid-2010.

What do these decisions mean for defendants and applicants?  Pending appeal, a defendant does not owe an applicant future VR services and benefits or retro VRMA unless there is a Final Order providing benefits to the applicant.  A “Final Order’ would be a Rehab Unit Determination or WCAB Finding that was not appealed prior to 1/1/09.  A defendant would be required to comply with any RU Determination or WCAB Finding that was not appealed.  The Rehab Unit did not order services beyond 1/1/09 so the remaining issues are essentially limited to retro VRMA disputes prior to the repeal of L. C. §139.5. 

We have a few cases where we appealed RU Determinations ordering retroactive VRMA for one reason or another.   The cases never got to the Board for whatever reason, no DOR was filed so no action by the Board.   Do I misunderstand Weiner or are these matters put to rest unless there is actually an outstanding Order, F&A or other legal order for benefits issued and pending?   I was under the impression that anything on appeal is essentially dead in the water unless one or the other party got the matter in front of the WCAB prior to 12/31/08.   What are your thoughts?

The Decision in Weiner v. Ralphs – if it stands – essentially means that ANY case still pending a determination by the Board (or the Rehab Unit for that matter) is dead in the water effective 1/1/09.  In Weiner, the Board decided that it lacked jurisdiction on any case where there had not been a final Determination by the Rehab Unit (i.e., a Determination that had not been appealed) or a final Order by the Board (i.e., an Order that had not been appealed to the District Courts of Appeal or higher) by 1/1/09.  If you appealed a Rehab Unit D&O and the Board had not acted by 1/1/09, the issue is now dead UNLESS the Weiner decision is overturned by the DCA or California Supreme Court.

Please note that the Weiner decision has been appealed to the DCA and it seems likely that the case will eventually go to the Supreme Court.  It is therefore very unlikely we will have a final answer on retro VR issues until some time in 2010. 

I just received a demand for voc rehab on a 2003 injury claim. The applicant is QIW on the AME, which was done in 2008, and because she was TD more than 365 days, VR notices were sent to her and her attorney in the past, however they never responded. She never started VR and interrupted, does he have any legal authority to request this benefit now that the VR statute has expired??

Absent a decision by the WCAB to the contrary, you would NOT owe VR benefits or services after 1/1/09.  L.C. § 139.5(l) states that the VR benefit is repealed effective 1/1/09 so there is no more benefit effective that date, no Rehab Unit, and no jurisdiction by the WCAB to order prospective VR benefits and services.  In my view, the WCAB will retain jurisdiction to order retroactive benefits incurred prior to 1/1/09, but that does not seem to be an issue here.

SJDB Potential Eligibility and Notices

You have mentioned that there are 3 conditions for SJDB eligibility: (1) the employee must have PD, and (2) there must be work restrictions necessitating modified or alternative work, and (3) the employer cannot provide modified or alternative work.  Where can I find these three conditions?

The Legislature rarely makes it that simple; the conditions are not spelled out in the statute as directly as the “3 conditions” might imply.  Item #1 is derived from L.C. § 4658.5(a) which ties the value of a voucher to a PD award.  Since 0% PD is not an award, the applicant must have at least 1% PD to be eligible for a voucher.  Thus “the employee must have PD.”

Regarding item #2, there is no statement in the statute indicating that an applicant must have a need for modified or alternative work.  However, L.C. § 4658.6 tells us how an employer can avoid liability for a voucher – provide modified or alternative work.  And who needs modified or alternative work?  Persons with PD who cannot return to their regular duties.  We do not provide modified or alternative work to persons released to full duty so they do not get a voucher.

Item #3 applies when the employer cannot or does not provide modified or alternative work to a person with PD who is unable to return to regular duty.  L.C. § 4658.6 specifies that the employer does not owe a voucher if it offers modified or alternative work.  Note that there is no mention regarding offers of regular work.

I need your expertise regarding qualification/eligibility for the SJDB Voucher when injured worker is an undocumented worker.  Is a non US citizen eligible for the Voucher?

An undocumented worker would be eligible for an SJDB voucher UNLESS the employer can demonstrate that it would have medically appropriate work for the employee absent his/her undocumented status.  To make such a demonstration, the DWC would expect the employer to make a conditional offer of employment; the condition would be that the employee must present documents showing a legal right to work in the U.S. period within the 30 day time frame allowed for a response to the work offer.  Federal law prohibits an employer from knowingly offering work to an undocumented alien so the preceding strategy may, at first blush, seem inappropriate.  However, keep in mind that this offer is conditional upon the employee presenting valid documents so the offer is, in fact, no different that an offer to a U.S. citizen because we all have to present proof of citizenship or legal status at the time of hire.  Also, we must keep in mind that the DWC’s expectation of a conditional job offer is reasonable – how else would the employer demonstrate that it actually has work available “but for the applicant’s undocumented status?”  If the DWC had no such requirement, employers could simply say they had work available in all cases (without proving it), even where they originally hired the applicant knowing full well that s/he was undocumented. 

The bottom line – an otherwise eligible undocumented injured worker can get an SJDB voucher unless the employer makes a conditional work offer.

I have a claim where the Claimant was declared P&S by the treating physician with no lost time. She obtained an attorney and began receiving self procured medical treatment and the new doctor placed her off work on TTD.  We objected to the new treatment bills and denied TTD based on the fact that she had already been declared P&S.  EDD began paying her benefits.  I received the AME report which states NO TTD but the claimant does have permanent impairment.  Are we required to send out an SJDB Notice to the Claimant if WE – the CARRIER did not pay TTD but EDD did pay?

No.  Since no TTD was paid, there is no “trigger” to initiate the requirement to send a Notice of Potential Rights (DWC AD 10133.52), although it wouldn’t hurt to send one since the Notice does not obligate you to provide anything (it is simply an information notice).  If the WPI is sufficient to require job modification and the employer has no appropriate work, the applicant would be entitled to a voucher even though there was no TD. 

Our case was resolved by two separate stipulated awards.  Applicant is QIW (eligible for a voucher).  There were two separate injuries.  In the old days, we would argue which claim made the person QIW, etc. (i.e., if there was a pre-cap vs. no cap dispute).  The argument was, you’re not entitled to two separate plans just because a combination of injuries made you QIW.  You’re only entitled to one VR plan.  In this case, the applicant’s attorney says the claimant is entitled to two separate vouchers.  One for 4K based on the stip award, and another for 6K based on the other stip’d award.  He says that has to be – in light of the Benson decision – that each injury is to be treated separately.  I say he’s wrong.  Think of a case where the applicant has 15 separate claims.  Would we possibly owe 15 separate 4K or more vouchers?

It is conceivable that an applicant could be eligible for more than one voucher based on distinct injuries but that should be a rare occurrence.  In almost all cases where there are multiple injuries, the employee returned to his or her regular duties until the LAST injury; it was the final injury that rendered the employee unable to continue in his U&C occupation.  Since the voucher is a benefit provided to persons who cannot return to their U&C occupation, the employee in this situation is entitled to just one voucher – for the last injury.  It doesn’t matter whether there were 2 or 15 injuries. – the employee gets only one voucher.

An employee MIGHT be entitled to multiple vouchers in a situation where s/he was disabled from the U&C occupation and was placed into a modified or alternative occupation (documented with a DWC AD 10133.53) and was also injured at that mod/alt job AND was permanently unable to return to EITHER job.  It could happen – but isn’t very likely. 

I received a report from an AME who states Claimant has ZERO WHOLE PERSON IMPAIRMENT.  However under “restrictions” he imposes work restrictions. Would the applicant be entitled to a voucher if the insured cannot accommodate the restrictions?

By statute, an applicant is only entitled to a voucher if s/he has permanent disability.  0% PD is not an award so you would not owe a voucher even though there are work restrictions that appear to require job modification or reassignment.  This situation is one of the unfortunate consequences of the AMA Guides and the 2005 PDRS – one we hope the DWC will soon rectify.

We offered the employee a permanent modified job based on her work restrictions. However, the job was not within 85% of her prior wages.  She declined the offer and now wants a voucher.  What do you think? Does the same law apply to voucher as it did when voc rehab was around? Do we owe +15 PD?  We offered her a job!

You owe the applicant a voucher.  L.C. § 4658.6 sets out the criteria that enable the employer to avoid liability for a voucher.  One of the criteria is that the job pays the applicant at least 85% of his/her pre-injury wage.  The employee is not obligated to accept an offer that pays less than 85%. 

You also owe the 15% PD increase because the definitions of “modified” and “alternative” work include a requirement that these jobs pay at least 85% of the pre-injury wage (see L.C. § 4658.1).

I have an employer who wants to offer an injured worker a lower position making less money than she is now working a temporary modified duty job. My question is - if the salary of the position being offered is less then 85% of the amount she is making now, does the injured worker have to accept it? And if not, will she be entitled to a voucher?  

Since this is a temporary modified job, you cannot use the 85% requirement.  Prior to P&S, you MUST do a wage loss calculation on any wages paid when the employee returns to work and pay him/her whatever the calculation requires.  The 85% requirement applies only to permanent modified or alternative jobs offered after P&S.

Assuming the job is physically appropriate, the applicant must either accept the temporary job or forego his/her TTD (again, modified by the wage loss calculation). 

The SJDB voucher would not be at issue until the applicant is P&S.  After P&S, the applicant would not be entitled to a voucher if the employer makes a timely offer of modified or alternative work pursuant to L.C. § 4658.6.

If the claimant has not returned to work for employer at 30 days, and the claims administrator is sending the notice for the voucher, and there is a dispute between 12% PD and 35% PD, how much do they put down on the voucher for eligible amount?

Remember that a voucher is not due until there is a resolution of the case at the WCAB (see AD Reg § 10133.56(c)).  If the case is resolved with an F&A, the WCJ will determine the level of PD.  If there is a Stipulation with award, the parties agree on the amount of PD which is approved by the WCJ.  In both cases, you will have a PD level to determine the value of a voucher.

Problems with the value of a voucher can arise when the parties resolve the case with a C&R agreement but fail to agree on (a) the amount of PD, or (b) the value of the voucher.  If the parties fail to do (a) or (b) in the C&R, they may have to return to the Board for a determination of the value of the voucher if they cannot agree among themselves.  Note that the DWC’s Return to Work Unit cannot resolve this problem since only the Board has the jurisdiction to determine PD.

When an employer advises that they cannot accommodate the permanent work restrictions, is there a specific letter that goes out like back in the days of rehab when we sent out the NOPE/no mod work letter?  The voucher offer is issued when carrier has an award correct?

There is no equivalent notice letter to the NOPE for dates of injury on/after 1/1/2004.  If the employer cannot accommodate the employee’s work restrictions, the only requirement is that the SJDB voucher must be sent to the employee within 25 days of an award at the WCAB (see AD Reg § 10133.56(c)).  It does seem odd that we must make an offer of modified or alternative work within 30 days but, if such an offer cannot be made, the worker hears nothing until months later when his or her case is resolved at the WCAB.  Odd – but true.

Is it possible to settle a voucher with an unrepresented applicant?  I've heard it both ways and would appreciate clarification.

There is no prohibition against settling the SJDB voucher contained in L.C. § 4658.5.  In fact, the Notice of Potential Eligibility (AD Reg 10133.52) advises the injured worker that s/he CAN settle their right to the voucher; no mention is made of legal representation.  An unrepresented injured worker CAN settle his/her right to the SJDB benefit, although I would expect the WCJ would have the worker discuss the ramifications with an I&A Officer first.

I have a claim with a date of injury 9/2/99 with a CT ending in 2005. Is he due VR/VRMA or a voucher?

Assuming the applicant continued working at his U&C occupation until 2005, he would be due a voucher.  This issue has already been litigated at least once – see Eugen Cioban v. WCAB.   In this case, the WCAB determined that the applicant is entitled to the benefit in effect at the time the employee is unable to continue at his/her regular duties and that neither physicians nor a WCALJ has the right to second guess the employee’s ability to perform his or her usual and customary duties. 

I was hoping that you could answer a couple of questions for me.  We have a client who is dealing with an applicant who could be entitled to a voucher.  The problem is, the employer is unable to determine if a position is available because the injured worker is not willing to participate in the interactive placement process with the employer.  That being said, is our client still on the hook for services?   Additionally, for future references, can you let me know if an injured worker is eligible for S.J.D.B if there are retired?

Assuming the applicant’s unwillingness is fully documented, I would suggest the employer make an offer of work to the employee based on the best it can do from the work restrictions available.  Then the applicant is clearly not entitled to a voucher.  If the applicant has declined to participate in the interactive process, I think you have a good argument even without an offer via the 10133.53; however, the DWC’s RTW Unit may disagree if the issue is presented to them.

I have a voucher related question, concerning apportionment between 3 different employers. This applicant is entitled to a voucher (based on his inability to do his job). The treating doctor apportions the PD between 3 employers with at lest 25% to each. I can’t find anything anywhere on how we would deal with the voucher; would he be entitled to the overall amount for 15% impairment rating at $6000?  Or is he entitled to a voucher based on each employers’ liability, which would actually net him a larger voucher and I don’t think that was the legislative intent?

This is an apportionment/reimbursement issue that is no different than what we faced with the VR benefit.  The applicant was able to continue working at his/her regular duties until the third injury which was the proximate cause of a need for a change in occupation.  The applicant is entitled to a $6000 voucher based on his 15% PD.  The claims administrator for the third employer provides the voucher and then seeks reimbursement from each of the previous employers (assuming the employee uses the voucher) based on their proportion of the overall disability. 

The last I heard, there is no  "statute of limitations" for an injured worker eligible to utilize the SJDB….. has that changed?  If not, then the injured worker is entitled to the SJDB voucher until he/she dies correct?

Correct.  An SJDB voucher is good until the worker dies or the money runs out, whichever occurs first.  There are no statutory time limitations on its use.

You have previously advised that the language in the SJDB notices cannot be modified in any way.  We would like to add a paragraph at the beginning or the 10133.52 Notice of Rights and 10133.57 Voucher letters advising the applicant that “the undersigned is handling their workers’ comp claim” and a paragraph at the end with the standard contact advise for the claims examiner, attorney, I&A Officer, etc.  We would not make any changes to the 10133.52/10133/57 language which would be positioned between our two added paragraphs.  Since we are not making any changes to the regulatory language, do you see any problems with our additions?

The additions you propose make a lot of sense but it has always been my opinion that you cannot make any change to regulatory language no matter how noble your intentions.  Because there have been so many questions on this subject, I provided copies of the proposed letters to Sandy Cortes at the DWC Return to Work Unit.  The following is the relevant portion of her response:

To answer your question, ……..  Your letters are very professional and on their face appropriate. But, as you note, the notices are regulations and cannot be altered.  Our legal unit is very steadfast regarding not altering them.  Therefore, my response would have to be that they are NOT okay.

So, no changes to the Notices or Forms.  If you want to provide additional information to injured employees, you should do so with a cover letter.

How long does an injured worker have to use his/her voucher? 

There is no statute of limitations for the voucher.  This may sound crude (my apologies) but the voucher “expires when the funds do or the applicant does, whichever occurs first.”  L. C. §5410 does not apply to the SJDB voucher because the voucher is not rehabilitation.  There is also no language in L. C. §§4658.5 or 4658.6 to suggest that the Legislature intended to limit the time period during which the voucher can be used.  Applicants therefore do not need to be concerned about training programs (e.g., a college degree program) extending beyond five years from their date of injury.  Insurers and employers, on the other hand, will have concerns about the reserve and payment implications for injured workers who elect to use their vouchers more than five years after their date of injury.

Recently a Judge at the LA WCAB awarded an applicant attorney a fee on the rehab voucher due the applicant. The applicant is due an $8,000 voucher based on his PD. The judge said the AA could get a 15% "fee" on this? I can't find anything that says an AA can get a "fee" on part of the voucher due to the applicant. What is your opinion on this?

The WCJ was wrong - there is no provision in the Labor Code or the AD Regulations for attorney fees on a voucher.  L. C. §4658.5 specifies that payment can be made to a school, a QRR (up to 10% of the voucher) or to the applicant as reimbursement for tuition paid at an approved training facility.  No mention of an attorney or attorney fees.  Attorneys have NEVER been able to get a percentage of anything except VRMA and the voucher is not a maintenance payment of any type.  The only way an attorney can get a fee from the voucher is if the voucher is settled in a C&R - and I think even that is questionable since it represents, in a way, transference of the (non-transferable) voucher, which is prohibited by 4658.5(a).

Does an injured worker have to be represented to settle his/her voucher entitlement?

The short answer is – No.  There is nothing in the statute or regulations specifying that the voucher can only be settled by represented injured workers.  The statute, in fact, is completely silent on the issue of settlement.  The ability to settle a voucher comes from CCR § 10133.52 and it makes no mention of legal representation as a prerequisite for settling the voucher.  You should also note that the new C&R form includes a mechanism to document settlement of the voucher and use of the new C&R format is mandated for all settlements after 7/1/06 including in proper applicants.

The requirement for representation applies only to pre-2004 settlements of the VR benefit pursuant to the “ghostly” L.C. § 4646 (see Godinez v. Buffets, Inc., Specialty Risk Services (2004) 69 CCC 1311) .

Is there an obligation to send notices regarding the SJDB where the applicant has 0% PD but the treating physician has imposed work restrictions?

There is no requirement to send an SJDB voucher to an injured worker who has work restrictions but 0% PD.  That isn’t likely to change but what is likely (and should) change is the PD rating for injuries where the work restriction is appropriate and clearly calls for a change in occupation.  Perhaps the best example is a chemical sensitivity case.  The injured worker appropriately has 0% PD when removed from the work environment that worker obviously cannot return to the work environment without a recurrence of the disabling condition.  The DWC will have to re-visit the issue of PD and work restrictions and accommodate those cases where work restrictions are appropriate.   

Are SJDB voucher notices required on denied cases?

Where injury is denied AOE/COE, the applicant would not be due a Notice of Potential Rights unless the issue of injury is resolved at the Board in favor of the applicant.  If injury is found AOE/COE, the Notice of Potential Rights would be due within 10 days of the final TD payment (often a single lump sum payment in these cases) and the voucher would be due within 25 days of case resolution.  Keep in mind that the last payment of TD is the trigger for issuing the Notice of Potential Rights and TD is rarely paid in denied cases.  Also, a denial affects all potential workers’ compensation benefits, including the voucher so your denial notice should be sufficient until the matter is resolved at the Board.

Would an injury incurred during training under the Voucher benefit be compensable, like it was under VR?

Good question.  I would argue that such an injury would not be compensable because the defendant has no control over the choice of program, choice of school, location of the school, etc.  But I cannot say I have great confidence in the argument because the rationale for an injury during rehab being compensable was that the applicant would not have been in rehab but for the original injury.  That argument also applies to a voucher program.  The defendant’s lack of control over training circumstances and the fact that the case in chief has been resolved might change might change the equation when a case is eventually argued at the Board – but I wouldn’t bet on the outcome.

I have a claimant with a 2003 injury with another carrier where VR was provided under the old rules.  He has an injury in 2004 with us where he may be entitled to the voucher.  Can he get both voc rehab and a voucher?

There are circumstances where an applicant could get both VR and a voucher.  For example, the applicant could be eligible for VR on a 2003 injury and a voucher on a 2004 injury where the injuries were with different employers and each injury required a change in occupation.  It can also happen where each injury, by itself, would require a change in occupation.  This will not be a common occurrence but I have seen it happen.

When are SJDB Notices and Voucher Due?

Do we have to file and serve DWC-AD 10133.53 to the AD each time EE is released to return to work modified?   Here is an example: EE is TTD from 01/01/09 to 01/30/09 - released to modified duty on 01/30/09 (light duty/transitional work).  A Notice of Potential Rights is sent within 10 days of TTD ends and AD 10133.53 within 30 days then cc: AD within 30 days of the offer.  EE is TTD again from 02/05/09 to 02/28/09- released to mod on 03/01/09.  Do we need to repeat sending the Notice of Potential Rights within 10 days of TTD ends and AD 10133.53 within 30 days of the offer?  Are we required to file and serve these documents via EAMS each time EE is released to modified duty to the AD or not?

You need to send the Notice of Potential Rights (DWC AD 10133.52) to the applicant only once and there is no requirement to file the document with the AD via EAMS.  In fact, there is no EAMS version of the 10133.52.

The DWC AD 10133.53 Notice of Offer of Modified or Alternative Work (EAMS version) must be filed with the AD within 30 days of the offer (or when the applicant replies, whichever occurs first).  Assuming the applicant returns to the same modified or alternative job, there would be no need to complete and file a second form; the job is unchanged so a second form would not be providing any new information to the AD.  However, if the job assignment is further modified to accommodate new work restrictions, then you would need to complete, file and serve a new DWC AD 10133.53.  The process and rational are essentially the same as for the old RU-94 – you need to send a new form only if the job changes.  Note however that your one year time frame has been extended by 23 days (the length of time for the second period of TTD).

Where an employee voluntarily quits is the adjuster still required to send the perm. mod/alt. work offer to get the 15%?  Also, I do not think they are entitled to the voucher since they quit, but just want to make sure.

If you want to take the 15% PD credit (and insure that you avoid the 15% PD increase) allowed by L.C. § 45658(d)(3)(A), you will need to send the employee an offer of regular, modified, or alternative work.  This Labor Code section says the employer gets the 15% PD credit when an offer of work is made; it does not – unfortunately – include any exceptions.  There is no case law on this subject yet so it is possible that the courts will make a common sense decision at some future point to at least preclude a PD increase where an employee quits and takes the RTW option out of the employer’s hands.  Until then, the only safe way to take your 15% credit is to make an offer and let the former employee either reject the offer or fail to respond. 

The same concept applies to the SJDB voucher; make the offer.  If the employee rejects the offer or fails to respond, the employer has no obligation to provide a voucher.  If no offer is made, L.C. § 4658.5 arguably requires the employer to provide a voucher simply because no offer was made.

When someone does return to work, regardless of returning temporary or full duty, after being off and is a part time employee, do we still need to send the Notice Regarding Return to Work and the Notice of Potential Right to Supplemental Job Displacement Benefit?   We are sending these notices for all employees who are full time when they return to work. I was just wondering if a part time person would be eligible.

It makes no difference whether the injured employee was working full time or part time at the time of injury.  When TD stops, you must send the employee a Notice of Potential Rights (DWC AD 10133.52) within 10 days.  If you have regular or modified/alternative work available, you must make the appropriate offer whether the employee was full or part time at the time of injury; you can, of course, offer comparable work to the employee (i.e., full time work to the employee who worked full time and part time work to the part time employee).

I hope you can help me with my question. If the injured worker is deemed QIW, is he still entitled to a SJDB voucher if he was fired from his job for due cause?

There is nothing in the statute or regulations to cover situations where an employee is fired for cause.  It makes sense that we would not want to reward aberrant behavior BUT the Labor Code only says the applicant gets a voucher if the employer fails to offer modified or alternative work when such work is needed.  Your employer is not going to offer work in this situation so you have two choices: (1) provide the voucher, or (2) deny the voucher and litigate the issue.  If you elect option #2, your attorney will need good documentation of the circumstances that resulted in the termination and witnesses to testify at the Board.  If you do not have good evidence and witnesses, option #1 will be the cheaper and more efficient alternative.

You have stated that AD Reg. 10133.56(c) indicates a voucher is due "... 25 days from the issuance of a C&R or Award."  The Regulation states “Award” and nothing about a C&R.  We know from case law that a C&R is not an Award of PD for apportionment purposes.  Is there case law addressing this issue?  I would assume the PD amount would have to be agreed to by the parties and listed in the C&R.

For the purposes of voucher eligibility, you must treat a C&R the same as an award.  There is, in fact, case law indicating that a C&R is not an award but it did not address voucher issues.  We know we can settle a voucher exposure in a C&R and that wouldn’t make much sense if the employee wasn’t eligible for a voucher.  Also, I doubt the Legislature would knowingly create a benefit for which more than 80% of injured workers are ineligible (about 85% of all indemnity cases are settled by C&R).  Unless the voucher entitlement is settled in the C&R, injured workers who otherwise meet the requirements are entitled to a voucher.

I have been helping some attorneys as they are trying to get the vouchers for their clients, but the carriers do not respond to the request, can they file a DOR and if yes, under what regulation or ruling?  Can you please give me that information to pass on.

Pursuant to AD Reg § 10133.56(c), an SJDB voucher must be sent to an eligible injured worker within 25 days of a C&R or Award by the WCAB.  Assuming the right to the voucher was not settled in a C&R, the employee does not have to ask for the voucher; it must be sent automatically.  If the injured employee is entitled to a voucher and it is not sent timely, the employee or his/her attorney should file a DWC AD 10133.55 Request for Dispute Resolution Before the Administrative Director with the DWC.  The address where the form should be filed is on the form.  The employee or the attorney should attach a position statement indicating that s/he is entitled to the voucher; a copy of the medical report indicating a need for modified or alternative work and a copy of the C&R, Stip, or Award should also be attached.  The DWC will make a decision based on the record.  A DOR would not be required unless a party is appealing the DWC determination to the WCAB.

School/Training Facility Issues

Verification of “approved” status for vocational schools is an on-going problem.  BPPVE no longer exists and its web site indicates that that the extension list is no longer valid because the legislation that created it has sunset.  How can I find out if a school is certified or approved within the meaning of L.C. § 4658.5(a)?

I would think any school that wants to be paid its tuition and fees would provide you with the necessary information but it appears some schools do not know if they are approved by any other acceptable entity and they expect claims examiners to do the research for them.  It is not up to a claims examiner to do the research; the examiner is only required to verify that the school has the particular certification it claims to have.  School officials need to note that the ‘Provider Approval Number’ is in the section of the voucher (DWC AD 10133.57) to be completed by the training facility.  The BPPVE number will not suffice; the school must provide evidence of certification or approval by some other accepted entity such as the U.S. Dept. of Education or any other California agency.  Does the school provide training that is approved by another California agency?  You are probably on their “approved” list – where can the examiner find that information?  PROVIDE THE EXAMINER WITH A COPY OF THE WEB PAGE!!!! 

Voucher Payment Issues

I have a quick question for you – is job placement an allowed activity under the voucher?  I see that the voucher can be used for “tuition, fees, books and other expenses required by the school for retraining or skill enhancement”, but can it also be applied to placement activities?

In a word, “No.”  As you note, the statute specifies that the voucher can be used for “tuition, fees, books, and other expenses required for skills enhancement” but nowhere in the statute or regulations is there any mention of job placement.  It is an unfortunate oversight because job placement assistance is the one return-to-work element that would be of the greatest value to most injured workers.  However, the statute is pretty specific about what voucher monies can be used for so there really isn’t latitude for using the voucher for job placement only.  Vocational schools can include placement assistance as a service but injured workers who already possess skills but just need some assistance in developing a resume, finding job leads, and preparing for the interview process are out of luck.

We are a training facility and thus cannot file a dispute with the DWC.  If there is a problem with a voucher,  we suggest that a student file a dispute when the insurance carrier is not following regulations.  Naturally the next question is "What happens after I file dispute?"  Since we have never filed a DWC AD 10133.55 ourselves, we are not sure what comes next. I was hoping you would be able to give us some insight.

If your student is having a problem getting his/her voucher or having legitimate tuition and fees paid for the voucher, the student does have to be the one to file for dispute resolution. S/he can do this by completing a DWC AD 10133.55 Request for Dispute Resolution Before the Administrative Director form and attaching a position statement describing the nature of the problem.  The student should also attach copies of any documents that would serve to support his/her position (e.g., a copy of the C&R showing that the voucher was not settled, a copy of the medical report showing a need for a change in occupation, copies of your requests for payment, etc.).  The 10133.55 and all attachments should be mailed to the DWC at the address that is on the form with a copy to the insurance company.  The insurance company has 30 days to file its response.  In about 60 days from the original 10133.55, the DWC’s RTW Unit should issue a Determination.  If either party disagrees with the Determination, it can be appealed to the WCAB within 20 days (plus 5 for mailing).

If there is no response from the DWC’s RTW Unit within 60 days, the original request is deemed to be denied and should be immediately appealed if the student wishes to pursue the matter further.  By the way, if the student isn’t sure how to proceed with the dispute resolution process, s/he can always consult with the Information & Assistance Office at the local Board.

The claimant has a $4000 voucher on a C&R claim (still within 5 years of DOI).  She requested reimbursement, which we did, for $800 for a class last year. She is now requesting additional reimbursement to the same school for another $800. Do we continue to reimburse up the amount of the voucher as long as we are within the 5 years of DOI?  Does the 5 years matter or is there no timeframe for reimbursement?

At the present time, there is no statutory time limit on use of an SJDB voucher nor is there a limit on how many times the applicant can use the voucher.  The only limit is the value of the voucher itself.  You do, in fact, have to pay the tuition for the second program and the applicant will still have $2400 in “credit” left on her voucher which may be used for additional training programs.  The Legislature is considering a 5 year limit for using the voucher but no legislation has been passed or signed into law as yet.  Even if such a bill does pass, it will almost certainly apply only to vouchers issued AFTER enactment.

The IW enrolled in school and dropped out after one class, ostensibly because he was too ill.  I need to know if he owe a balance to the school, or have they given him a full refund? If he did not receive a full refund do you believe the law or the Regulations require us to reimburse him for the money he is out of pocket as a result of this aborted attempt at retraining?

The school is required to have a reimbursement policy for students who drop out of a training program prior to completion.  You would be required to reimburse the applicant only for the portion of tuition (if any) that he is required to pay the school according to its reimbursement policy.  Let’s say that the tuition is $6000 and the school will refund 90% of the tuition when a student drops out after attending just one class.  The applicant would owe the school $600 and that is the amount you would owe him upon submission of proof that he actually paid that amount.

In review of 10133.56(h) it indicates the claims administrator shall issue the reimbursement payments to the employee or direct payments to the VRTWC and the training providers w/I 45 days……  Does this mean that if I receive a direct billing from the school I would need to allow same or can I force the claimant to make the initial payment and then reimburse him?  What would his recourse be if I forced his hand in this manner?

You cannot force the employee to pay the tuition first and then provide him or her with reimbursement.  The Regulation you sited allows for payment to either the school or the employee; it is really the employee’s choice to make.  As long as the school sends you (1) an invoice, (2) a copy of the voucher signed by the employee, (3) proof of enrollment by the employee, and (4) proof of accreditation of the school by an appropriate agency, you must pay the school within 45 days or advise the school in writing why you cannot pay their invoice.

I have already sent the SJDB voucher. The issue is reimbursement. Can you give me details on L.C. sec 4658 and AR 10133.56?  The IW enrolled in school and dropped out after one class, ostensibly because he was too ill.  I need to know if we owe a balance to the school, or have they given him a full refund? If he did not receive a full refund do you believe the law or the Regulations require us to reimburse him for the money or is he out of pocket as a result of this aborted attempt at retraining?

Approved training facilities must comply with a variety of rules, one of which covers tuition refunds.  If a student is unable to complete a program, the school must refund a portion of the tuition paid according to the schedule established by the BPPVE or other accrediting agency.  Your question doesn’t contain enough information to hazard a guess on whether there is tuition to be refunded; you need to ask the school for a copy of their refund policy.  Typically, refunds are not available once the student reaches the half way point of the training program.

Who would get the refund is another story.  If the student paid the tuition and is asking you to reimburse him, you would owe him the portion of the tuition the school will not refund (e.g., if the school refund schedule says he gets only 25% back, you would owe him 75% of the tuition).  If you paid the tuition directly to the school, any refund due should be sent to you to be credited back against the claim file.

I have a claimant that’s wishes to use his voucher for $10k. The rehab counselor has called and wants to know how to go about this as both of us have never dealt with this issue. I was wondering if you could tell me how this is to be paid out and or how this should be billed to us.

This is a very common question, perhaps because the statute and regulations fail to provide a clear guideline on how the process should work

1.  You provide the applicant with a copy of the voucher (10133.57) within 25 days of case resolution at the WCAB.

2.  The applicant provides a signed copy of the voucher to the counselor.

3.  The counselor bills you for services up to $1000 (maximum allowed by law – see L.C. § 4685.5).

4.  The applicant chooses an approved school to attend and completes the enrollment.

 process.

5.  The applicant provides the school with a signed copy of his/her voucher.

6.  The school bills you for tuition and provides you with a copy of the signed voucher,

copy of the enrollment form, and proof that it is an approved facility.

7.  You pay the school for tuition and required books, fees, and equipment, not to exceed the remaining money left on the voucher (i.e., $10K - counselor fees).  You are required to pay for only those books, fees, and equipment specified in the school syllabus as being required for all students.

Please note that the counselor is not required to provide progress reports.  However, the services provided should be specified on the counselor’s invoice and a copy of the invoice should be served on the injured employee and his/her attorney (if represented). 

This is my first claim with a voucher issue.  EE is entitled to the voucher and ****** Schools has sent me an invoice stating payment is due now (he is just starting school).  Do I pay the school or await completion and proof of payment from EE?  The school representative insists that other carriers always pay for training up front.

Pursuant to AD Reg. § 10133.56(h), schools must be paid within 45 days of receipt of appropriate documentation.  Appropriate documentation includes the school’s detailed invoice, a signed copy of the SJDB voucher, a copy of the applicant/student’s enrollment form, and a copy of school certification form.  Payment is due in full within that 45 day time frame.  If you are NOT going to make full payment, you must advise the school, in writing, regarding the problem(s) with their request for payment and identify what you need in order to make full payment.  Keep in mind that both the statute and the regulations allow the applicant to pay the tuition and seek reimbursement OR to enroll in an approved program and have the school seek payment; the choice is up to the applicant, not the defendant.

I have a Work Comp claimant entitled to a voucher.  She is attending a community college and sent a request for reimbursement for mileage, books, parking and registration while attending the college. The date of injury is 10/23/04. Is the claimant entitled to reimbursement for any of these expenses?  It is my understanding that we would only issue a payment to the school up to the value of the voucher.

Assuming that all the expenses she is claiming occurred after her date of injury, the applicant is entitled to reimbursement for school tuition, required fees (including registration), and required books and equipment.  She is not entitled to reimbursement for mileage or parking as these are not included in the voucher (mileage is not included and parking is an optional fee).

If the client (the claims administrator) sends the voucher, does the applicant have to pay for the cost of the school up front and seek reimbursement, or should the client send the cost of the tuition upon receipt of a call or documentation from the school of the cost of the tuition?

This continues to be a common question and a sore point with schools.  The statute and regulations allow for an applicant to be reimbursed for the cost of tuition and fees at an approved school BUT AD Reg § 10133.56(h) also provides that the school can also bill the claims administrator directly and the invoice must be paid within 45 days:

(h) The claims administrator shall issue the reimbursement payments to the employee or direct payments to the VRTWC and the training providers within 45 calendar days from receipt of the completed voucher, receipts and documentation

To be paid directly, the school must provide the claims administrator with its invoice, a copy of the voucher issued by the claims administrator that has been signed by the injured employee, proof that the employee has registered for a course(s) at the school, and evidence that the school is appropriately “approved” (see the first question under “VR Issues” below).  Failure to pay the school within 45 days when appropriate documentation has been submitted could result in possible DWC audit penalties.

I received a message from a claimant whom I sent a voucher few months ago.  He requested I send a new voucher - he is claiming that he has misplaced the old one.  Is it okay for me to send him another one?  I am not inclined to trust this applicant based on past problems - I am afraid he will try to use both vouchers.

Send him another voucher and label it as a "replacement."  It doesn't matter if he tries to use both - you are going to stop paying when the maximum value of one voucher has been paid.  The problem is that people will lose vouchers so we cannot refuse to provide replacement documents any more than we can refuse to provide a replacement check when the applicant claims the original was lost or never received.   We cannot place a “stop payment” on a lost voucher but we can certainly insure our file is well documented that the claimant said he lost the original and only the “replacement” voucher should be honored.

A quick question for you – is applicant’s attorney entitled to 15% of the value of the voucher?  I have an attorney making a demand for the same.  I know that a portion of the voucher can be used for a QRR to assist – but attorney fees?

There is no provision in the statute for an attorney to receive a portion of the voucher.  L.C. § 4658.5(b) specifies that the voucher money may be paid to (1) an injured worker to reimburse him/her for the payment of tuition at an approved facility, (2) an approved training facility can be paid directly when the eligible injured employee enrolls, and (3) a VRTWC (we don’t use the QRR term for voucher cases) who can be paid up to 10% of the face value of the voucher for counseling services provided to the employee.  Because the statute is specific, I see no argument for paying an attorney a fee from the voucher unless it is settled as part of a Compromise & Release Agreement.  An applicant’s attorney may argue that s/he is entitled to 15% based on efforts to obtain a voucher for his/her client and using the Roche principle.  However, Roche allowed a 15% deduction for attorney fees against VRTD/VRMA; the SJDB voucher is a “non-transferable” training benefit.  Absent case law to the contrary, I would deny payment of the fee.

What Labor Code or Regulation addresses the requirement to send an SJDB voucher within 25 days of an Award?  We are getting requests for tuition reimbursements prior to an award – sometimes we don’t even know what the value will be for the voucher.  Are we obligated to pay prior to an award?

 
In a word – No.  The requirement to pay within 25 days of the award can be found in AD Reg 10133.56(c).  A claims administrator is not required to pay tuition to a school or reimburse the employee for tuition paid prior to the award.  The only exception would be where you voluntarily issued a voucher early – you would then be required to pay up to the value you placed on the voucher (usually $4000).

Although the claim has not yet settled,  it appears that the employee has completed a 3 month training program and the school is asking for reimbursement.  I have not paid them, so they have filed RU-103.  Can you please clarify when the SJDB voucher is reimbursable?  Can you give me case law or regs for reference?

L . C. § 4658.5(b) does allow for the applicant to be reimbursed for tuition and fees paid to an approved training program and CCR § 10133.56(h) requires payment to be made to the employee, approved training facility, or VRTWC within 45 days of receipt of the appropriate documentation.  No payment is due, however, until you issue the voucher at the time the case is resolved at the Board by C&R/Stip/F&A.  Once the voucher is issued, you would have to reimburse the employee or pay the school within the allotted 45 days assuming (1) the training occurred after the date of injury, (2) the school is an approved facility, (3) the school or employee provides proof of enrollment, (4) there is an invoice for training and applicable fees, and (5) you are provided a copy of the voucher signed by the injured employee. 

Also, the Rehab Unit will reject the RU-103 because it has no jurisdiction for cases with DOIs on/after 1/1/04.  Requests for dispute resolution must be submitted to the DWC (not the Rehab Unit) on DWC AD 10133.55 forms for dates of injury on/after 1/1/2004 (the address for submission is on the form).  In addition, only applicants and employers/insurers can request dispute resolution using this form.  If the school has an issue, it must file with the WCAB.

I have inherited a file that was given the voucher (sent 08/08/07) up to $6000.00 for 25% of PD, not yet settled with approved award; after talking with IW she has indicated she is in school.. I do not have a request for tuition fees or a bill of any kind from the school.. I have called to the school they do not have a copy of the voucher document… Am I obligated to send a copy or are they out of luck for re-payment?

The voucher should be sent to the claimant (as you did on 8/8/07); it is up to her to either provide it to the school so they can send you an invoice OR to ask you for reimbursement, which would require her to show you proof that she paid for tuition, books & fees.  If she doesn't do anything with the voucher, you have no obligation to provide payment.  If she has mis-placed her voucher, you would be required to send her another copy so she can present it to the school OR request reimbursement from you.

We are obligated to pay a 4K voucher.  We received a bill from a state approved school for $3995.  2K of that is for tuition and $1995 is for a laptop computer.  Am I obligated to pay the school for providing her with a laptop or why can’t I just buy her a laptop for $499 so she can take her classes?  Why do I have to buy a top of the line computer just because it’s within the 4K voucher? 

This is, unfortunately, a common question and points to a couple of disturbing practices by a few training facilities.  These few facilities appear to be engaging in practices designed to improve their profitability without regard to the welfare of injured workers who have this very limited benefit to support their re-employment effort.  You may wish to consider the following to help determine whether reimbursement is due the school and if the charge is reasonable:

First, the voucher does not automatically cover any and all purchases of equipment.  The statute says, “The voucher may be used for payment of tuition, fees, books, and other expenses required by the school for retraining or skill enhancement.”  The requirement for a computer (or any other piece of equipment) must be specified in the school’s syllabus or class description for the particular course.  This requirement must exist for ALL students and not just those who happen to have a voucher; it is certainly unethical, and may even be illegal, for a training facility to require the purchase of a computer for a voucher student but not levy this requirement of other students in the program. 

Second, the school cannot require the purchase of a computer if the student already possesses a computer adequate for the class training purposes.  The school syllabus can say (if it is, in fact, appropriate) that the student must have a computer that meets minimum requirements for the program (e.g., 1.2 gigabyte processor, 1 gigabyte of RAM, 100 gigabyte hard drive, 128 megabyte video memory, color monitor, etc.).  If the student does not possess a computer meeting the reasonable requirements, the school can provide one at a reasonable cost - but the student must have the option of making the purchase on their own.  A claims administrator can therefore agree to provide the necessary funds or reimbursement directly to the student for purchase of a computer appropriate to the training program.  [Claims administrators should note that their reimbursement requirements must serve to facilitate appropriate purchases.]

Third, the attributes and cost of the computer should correspond to the training needs of the program selected by the injured worker.   Most training program requirements will be served quite handily by a computer system costing approximately $800.  The question above mentions a $499 computer – that might be a little too basic.  However, advertisements for Fry’s Electronics, Circuit City, Best Buy, etc. routinely display name brand (HP, Toshiba, Sony, Gateway, Acer, Lenovo) laptops for $599 that are perfectly adequate for most training programs.  You can purchase a name brand inkjet or laser printer for less than $100.   $800 would cover the cost of both items plus sales tax and a cable or two.  I would suggest allowing $1000 so the injured worker can purchase a service contract but that is not required by the statute (because the school cannot require the student to purchase a service contract).

There are some exceptions to the above.  Injured workers who enroll in a CAD drafting program, multimedia programs, programs involving voice activation software, and the like would need a more powerful computer – top end systems costing $1995 or more would be appropriate.  These programs are rare in the SJDB voucher system, as they were in vocational rehabilitation so any time we see charges exceeding $1000 for a computer, we should examine the program closely.  Regrettably, I have seen schools charge as much as $2200 for a computer that was to be used to learn Microsoft Windows and Office.  My $700 laptop (Toshiba with a 1.66 Duo processor, 2 gigabytes of RAM, 200 gigabyte hard drive) handles these programs quite well along with PowerPoint, Adobe Photoshop, etc.  If the questioner’s injured worker was enrolling in a program to learn office software programs, the $1995 charge for a computer is absurd and should be challenged. You might want to ask for the specifications of the $1995 computer (make and model, screen size, RAM, HD, etc.).  Then find the same model on line to see what it would cost at a retail outlet.

Should the school be allowed to charge a fee for providing a computer system to the student where there is a demonstrable need?  A modest fee is not unreasonable.  The school fronts the money for the purchase and must wait for reimbursement by the claims administrator.  And the school must pay for delivery or send someone to make the purchase.  A reasonable “modest fee” would be 10%, particularly when we consider that the school probably obtains discounts for volume purchases that the injured worker could not obtain. 

So what do we do when we receive an invoice that includes an apparently high charge for a computer?

First, make sure the program actually requires a computer – ask for a copy of the program syllabus or published course description. 

Second, ask for the specifications (make, model, etc.) for the computer the school wants to provide to the injured worker.  Find out what you can about the type of computer needed for the proposed training program.  Do you have an IT person at your company you can talk to?  Perhaps you have a co-worker who is very knowledgeable about computers.  Or drop by your local computer store, find a $600-700 computer on display and ask the sales person if it would handle the software in question.

Third, advise the school in writing that you will not pay the charge without an explanation regarding the need for the computer invoiced.  I would fax or e-mail the letter as well as send it via regular mail.  Be sure to send a copy to the applicant and applicant’s attorney if there is one.

Fourth, consider filing a DWC AD 10133.55 Request for Dispute Resolution to dispute the charge.  You will need to attach a position statement and a copy of the invoice to the 10133.55.  I would also attach copies of recent ads or information off the internet to support your argument.

Finally, consider discussing the issue with applicant’s attorney (if there is one) or directly with the unrepresented injured worker.  This would be a good opportunity to negotiate for the direct purchase of a computer adequate for the injured worker’s training needs.

Is an applicant entitled to reimbursement for mileage while attending a training program on an SJDB voucher?

The voucher does not cover mileage.  The statute specifies tuition, fees, and books.  It could be stretched to include required equipment - but not mileage.

One of my claimants registered for a class and purchased a Microsoft software program that was required for the class.  However, he dropped out of the class before it even started.  Am I required to reimburse him for the software program?

No.  Because he dropped out of the class before it started, he would have no need for the software program so he would not be entitled to reimbursement.  Per 4658.5(b), an applicant is only entitled to reimbursement for expenses related to enrollment at a certified program.

An injured worker attended and completed a training program at XYZ training facility.  There is still money left on the voucher and the employee now wants to go back to the school to take an advanced course.  Is the claims administrator required to issue a new voucher or can the school submit a second invoice based on the original voucher?

The claims administrator can issue a modified SJDB voucher is s/he chooses but I see no requirement to do so (but I think it would be a good idea to issue a revised voucher as it would make your bookkeeping task easier).  The employee is entitled to use his/her entire entitlement and can continue to enroll in training programs up to the limit for his/her voucher.  The school can submit a second invoice for training up to the limit of the voucher and the claims administrator would be required to pay the invoice (assuming the school program is still approved) up to that limit.  As an example, let us assume the employee has an $8000 voucher and enrolled in and completed a $5000 training program.  The employee chooses to enroll in a subsequent (approved) $4000 training program.  The claims administrator would be required to pay for $3000 in tuition for the second program; the remaining $1000 would be the employee’s responsibility because the claims administrator is not required to exceed the $8000 face value of the original voucher.

The injured worker is eligible for a $6000 voucher.  He wants to undergo training in 2 schools and the cost is split as $1500 for one school and $4500 for the other.  Can we split the vouchers between the 2 schools?

The injured worker can use the voucher at as many schools as s/he wants as long as the total cost does not exceed the value of the voucher.  The injured worker in your question can, in fact, use his voucher for these two schools since the total tuition cost does not exceed the $6000 value of the voucher.

The employee enrolls in a training program but never starts (or never completes) the course.  Who gets the tuition refund?

Logic would dictate that the refund should go back to the payer.  Unfortunately, the DWC regulations are silent on the refund issue, indicating only that the school is required to issue a pro rata refund based on attendance.  I would suggest advising the training facility that any refunds are to be returned to the claims administrator but there is little the claims administrator can do to enforce its requirement other than filing a DWC 10133.55 Request for dispute Resolution with the DWC.

Return-to-Work Issues and Documentation

A question regarding the return to work notices has come up. I recall during your recent training session on the Notice of Offer of Regular Work, you advised that the notice does not require the employee to respond for the administration of Workers’ Comp PD benefits. Please confirm this information is correct.

An employer satisfies its obligations vis-ŕ-vis both the PD offset and the SJDB voucher requirements by virtue of making a bona fide job offer of regular, modified, or alternative work.  As noted in the training session, the offer must be made via a DWC AD 10118 (regular work) or DWC AD 10133.53 (modified or alternative work) for the offer to be considered valid pursuant to DWC regulations.  The employer may take the 15% PD credit and is NOT obligated to provide a voucher whether the employee accepts the offer, rejects the offer, or fails to respond to the offer.

I have an account in which all workers are strictly seasonal.  There are several breaks through out the year and employees only work when the seasonal work is available.  If the employer in this line of business is able to provide a mod or alt job within the injured worker’s permanent restrictions, what does the employer need to do to make a valid offer?  Again the job will not run full 12 months in the year.

AD Reg 10160(a)(1)(A) provides that an offer of modified or alternative work for comparable time periods lasting 12 months satisfies the employer’s work offer requirements and relieves the employer of the obligation to provide an SJDB voucher.  Thus, if the employee (pre-injury) worked for a total of 5 months spread over a 12 month period and the employer offers modified or alternative work lasting a total of 5 months spread over a 12 month period AFTER the employee becomes P&S, the employer has met its obligations and has no liability for the SJDB voucher.  Note that the 12 month period would not begin with the offer of work but would start when the employee actually starts work.  The reason is that there is no proof the employer actually has the promised work until the employee starts working.

I have a general question regarding whether an injured worker would be entitled to a voucher at time of settlement.  We have a psych claim where the employee was P&S and the mod/alt offer question was posed to the employer.  It is my understanding that when the employer met with the employee regarding the offer of an alternate modified work he declined all offers and terminated his employment with the employer.  My question is will he be entitled to a voucher?

The issue here is whether the employee was ever sent a Notice of Offer of Modified or Alternative Work (DWC AD 10133.53).  The DWC expects to see some evidence that there was actual, medically appropriate work available for the employee.  If there is no 10133.53, the DWC is likely to find the applicant entitled to a voucher (I have, in fact, seen that outcome on case very much like this one).  The DWC assumes the employer did not have any appropriate work so the applicant’s rejection of “all work” is meaningless (at least to the DWC).  If, on the other hand, the employer sent an offer of modified work via the 10133.53 and the applicant rejected it or failed to respond, the employer has – by statute – met its obligations. 

In the situation above, it appears that a 10133.53 was never sent because the applicant rejected “all offers” during the interactive process meeting with the employer.  Unless you are willing to make case law, I believe the DWC will find that you owe a voucher.

I have several questions regarding use of the 10133.53:

1. If we are sending the DWC-AD 10133.53 within 30 days of terminating TTD, do we need to send a copy of the form to the AD?  We understand the need to send the form to the AD- if it is an offer of permanent modified work or alternative work due to permanent restrictions- but is the form needed to send to the AD when terminating TTD only?

2.  Do we need to send the DWC AD 10133.53 if employee is released to full duty?  The form is called offer of modified or alternative work, but the statute says send the form within 30 days of terminating TTD- it did not make a distinction between full duty and modified duty. 

3. We note that the OCR version of the form does not have proof of service- is this not required anymore?  

These questions are fairly common and bear repeating in light of the first item above:

1.        The DWC requires that a copy of the DWC-AD 10133.53 must be sent to the Administrative Director within 30 days of the date the form was mailed to the employee OR when the employee responds to the job offer, whichever occurs first.  As noted above, the “trigger” for notifying the AD about an offer of permanent modified or alternative work is the P&S date, not the termination of TTD. 

2.        If an employee is released to FULL or REGULAR duty, he or she should be sent a DWC-AD 10118 Notice of Offer of Regular Work (formerly designated as DWC-AD 10003). 

3.        The proof of service is not required – but I would recommend you use one anyway.  A proof of service is usually the only evidence that you have to show that a document was mailed.

PD Offset Issues

Please provide your information regarding the 15% reduction applies only to the weekly benefit and not the entire PD value.  I need to forward information to my defense attorney.  

Refer your attorney to L. C. § 4658(d)(3)(A) which says that "each disability payment.....shall be reduced by 15%."  The Labor Code says nothing about adjusting the PD rating.

If the injured worker is at minimum PD can you take the 15% credit once an offer has been made and pay below minimum?

Yes.  You can pay below the minimum just as you can pay above the maximum.  The PD adjustments in L.C. § 4658(d) are an adjustment to the legal rate so you allowed to pay whatever rate results from the appropriate calculation.  This means you can end up pay 15% above the maximum rate – or 15% below the minimum rate.  The concept here is no different that the PD Supplement under the old VR benefit.  You may recall that we sometimes paid a weekly PD Supplement rate that was much higher than the legal maximum rate for PD.

I have an injured worker with a 2007 date of injury….Now P&S and able to RTW at Full Duty.   Projected 8% PD.   However, the employer does not have work for the employee, due to slow down in business and employee has been off work for over one year.   Can I make an Offer of Regular Work to the employee?    Can we take a 15 % reduction in PD, or increase 15 % ?   I don’t see how he is eligible for Voucher.

You cannot make an Offer of Regular Work to the employee unless there is an actual job for the injured worker to return to.  Since there is no job for the person to return to, you must increase weekly PD payments by 15% beginning on day 61 after the worker is determined to be P&S.  L.C. § 4658(d)(2) is quite clear in requiring the employer to offer work or pay the 15% PD increase.  Sending a DWC AD 10003 is really meaningless unless the employee can accept the offer and return to work. 

Because he was released to full duty, the injured worker is not eligible for a voucher.  

I have a question…If the injured worker resigns voluntarily or retires, are we still responsible to send the offer of regular work?  Would the 15% increase apply if we didn’t send this notice?

This may not make much sense but….. When an employee voluntarily retires prior to P&S, the employer must still make an offer of employment to get the 15% PD credit.  Failing to send an offer may require a 15% increase in weekly PD payments.  This admittedly flies in the face of common sense; why should an employer be obligated to increase weekly PDAs for an employee who took him or herself out of the labor market via a voluntary retirement?

The problem – as is often the case – is in the “plain language” of the statute.  L.C. § 4658(d)(2) says that the 15% PD increase is due if no offer is made within 60 days.  L.C. § 4658(d)(3)(A) provides that the employer can take the 15% PD credit immediately after the applicant becomes P&S and an offer is made.  The operative factor for the PD increase or decrease is the offer of work.  In a way it does make some sense: how can an employer show that it would have had work available but for the employee’s retirement?  The answer, is to make an offer.  If the employee declines the offer or fails to respond, the employer still gets to take the 15% PD credit immediately upon making the offer.  If the employee decides s/he would like to “un-retire,” a job has to be available.  Whether you agree with this logic or not, the only sure way to support a 15% PD reduction and avoid the 15% increase is to – make an offer.

If the Employer has fewer than 50 employees, are we still able to take the 15% decrease if a modified/Alt/regular job has been offered to the employee?

The PD adjustment provisions of L.C. § 4658(d) do not apply to employers with fewer than 50 employees.   Those employers are eligible instead for reimbursement for the costs of job accommodation under the provisions of L.C. § 139.48.

When determining if the employer is subject to the 15% increase because they have 50 or more employees and are unable to accommodate modified or alternate work, is the employee count determined by the policy in effect at time of injury, the current policy, or the policy in effect when the injured worker was deemed MMI?

The number of employees is determined by AD Reg §10117(a):

AD Reg. Sect 10117(a) This section shall apply to all injuries occurring on or after January 1, 2005, and to the following employers:

FEHA Issues

If someone is retired, does the Employer need to conduct an Interactive Accommodation (Interactive Process) meeting under FEHA?

Technically, an Interactive Process meeting is only required where the employee wants to return to work and is requesting or needs a reasonable accommodation to do so.  A person who has retired presumably does not want to return to work and is not requesting an accommodation – so no need for an Interactive Process meeting.   However, the issue isn’t always that simple, especially where the injury begins in the workers’ comp arena.  For example, let’s say that the employee alleges s/he retired because there was no work s/he could do in light of the work restrictions imposed by the treating physician.  This might be considered a “forced retirement” rather than a voluntary one so the employee believed (rightly or wrongly) that retirement was the only viable option.  Under the FEHA, the employer is arguably on notice that the employee does not really want to retire so an Interactive Process should begin to determine if, in fact, there is any other work for which the employee is qualified and that s/he might wish to do.  The “safest” result for the employer would be to find such work via the Interactive Process and offer it to the employee.  Whether the employee accepts or rejects the offer, the employer has made a good faith effort to address its obligations in light of its knowledge that the employee’s retirement may have been less than fully voluntary.   Even where the employer is reasonably certain that the retirement was fully voluntary, the safe course may be to ask the employee if s/he wishes to engage in an Interactive Process to discuss re-employment.  Let the employee tell you, “What, are you nuts?  You attended my retirement party – what makes you think I would want to go back to work?”

I have a 2007 case where permanent work restrictions were provided by the treater.  The employer was unable to accommodate them and sent out a termination letter on 12/1/08.  I believe the +15% will apply to the PD and he will be entitled to the SJDB, however my concern is actually the termination triggering a 132a claim. Have you heard of employers sending out termination notices if unable to accommodate the restrictions?

I believe it is fairly common for employers to send out termination notices once it has been determined they cannot accommodate the employee, although many employers wait until the cases is resolved at the WCAB before sending such notices.  132A claims are a potential problem for employers but the bigger problem is an FEHA claim, especially where the employer did not engage in an “interactive process” with the employee before making the decision that accommodation was not possible.  The workers’ comp return to work process does not protect employers from either 132A claims or FEHA complaints. 

You have indicated that FEHA doesn’t care about what restrictions are agreed upon at the WCAB and that for safety’s sake, a person should be accommodated based upon the treating physician’s restrictions. My supervisor had me get the restrictions per the AME and my question is, for FEHA issues, does an AME supersede a treater? I am still inclined to go with the more severe restrictions; however, perhaps it should be the most recent restrictions and I believe that they came from the AME. I will double-check that.

DFEH doesn't have a definitive policy on AME's but their attorneys told me they probably would go with the AME opinion because both parties agreed to abide by the decision of that physician.  The AME's work restrictions would be used for any RTW effort under workers' comp and there is no logical reason to use other work restrictions for FEHA.  Where the issue is a QME opinion vs. a treating physician’s opinion, DFEH will always consider the treating physician’s opinion as more compelling because the treating physician 9usually) has seen the applicant many times while the QME evaluated him/her only once.

I have a question that JAN was unable to answer.  I am trying to reassign an employee.  She has a bad hand so my anticipation is that where ever I put her, she will have to have special equipment to do her clerical job duties.  I am not sure what I will help her with yet because it depends on the position.  But there is a possibility of voice activated to help out.

A lot of positions I am looking at for her require a typing test.  She can't compete that way and so I can't really get HR to say she is qualified.  Yet, if we can figure out how to set her up, she might be able to do well in a position.  But I need to get her past that point.  But HR won't really budge that way.  I know they don't have to change their qualification standards.  But if I don't figure out a way around this it is going to block me/her out of a lot of jobs she might be successful in. 

Both the ADA and FEHA require an employer to make modifications to the job application process unless such modifications would present an “undue hardship.”  This means you either have to provide the equipment necessary for testing OR find a vendor who would be willing to administer the testing (under your supervision of course) in hopes of selling you the equipment if the employee meets requirements.  Since this person is already an employee, I think your agency would have a very weak defense if it chooses to forego your recommendation.

I have an employer who has referred a file for an Interactive Accommodation Meeting.  However, with the referral I received a form signed by the Health Care provider indicating that the employee is not currently able to perform work of any kind and it is anticipated that he will be off-work for 12 months.  (Employee has metastasized colon cancer).  Is an interactive accommodation meeting required in this case?    Should the employer wait until they have a medical release statement from the health care provider or a request from the employee? 

The employer should wait until the employee is released to return to work.  It certainly wouldn't hurt to tell the employee that the employer wants to have such a meeting when he is ready to RTW but there isn't much point in having one now when you don't even know what his final work restrictions will be.

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 IW, 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 IW has 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?

WC 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 1/1/2004.  Under the FEHA however, the applicant could be entitled to back pay, reinstatement, front pay, unlimited punitive damages, and payment of legal fees. 

RTW Case Law

I had an interesting experience in court with a Judge who insisted that an employer's failure to attempt to modify and go through ADA interactive procedures may be a FEHA violation but was outside of his jurisdiction for LC§ 132A.   I think he is wrong wrong wrong!   A LC§ 132A action is found if the employer makes no effort to return applicant to work with either to another available job or to make job modifications.   In other words failure to do the FEHA routine is a violation of LC§ 132A as well.   Do you know of any specific cases addressing this?

I am not an attorney – but I am inclined to agree that an employer’s failure to engage in the interactive process would be a L. C. §  132A violation, especially if it could be shown that the employer takes employees back when they return from non-industrial medical leaves.  WCJs cannot find violations of FEHA but they certainly can determine violations of 132A.    There actually is a case on point.  In City of Moorpark v. Superior Court of Ventura County (Dillon), (1998) 63 CCC 944, the California Supreme Court found that FEHA was an additional remedy to workers compensation (i.e., workers comp was not an “exclusive remedy” where employment discrimination based on disability existed).  The Court said, in essence, that the injured employee can pursue an FEHA complaint even where the Board has found a 132A violation. 

FEHA Case Law

Is an employer required to engage in an “interactive process” with an employee it believes to be disabled but who is not actually disabled?

In Gelfo v. Lockheed Martin Corp (B178676), the Court of Appeal (2^nd District) found that the Fair Employment and Housing Act (FEHA) required an employer to engage in the interactive process where it believed its employee to be disabled.   This decision is in marked contrast to many ADA cases where the courts have found an employer to have no obligations or exposure where the employee didn’t actually have the disability in question.

This decision when we consider that the FEHA, by Legislative intent, provides far broader protection to employees and others with disabilities.  Lockheed believed Gelfo had a disabling back condition and declined to hire him for an alternative position based on a perception that his disability would preclude his performance of the essential functions of the position.  The FEHA very clearly requires an employer to engage in the interactive process where it has reason to believe (or here, regards) the employee has a disabling condition.  Lockheed failed to initiate this process; had it done so, it would have learned that the employee did not have a disabling back condition and reasonable accommodation was unnecessary. 

The lesson here for employers is – “follow the process.”  Where an employer has reason to believe the employee may need accommodation (i.e., s/he may have a disabling condition), talk to the employee.  If the employee has a disability and accommodation may be necessary, the employer can ask for appropriate medical substantiation and move on to the reasonable accommodation assessment.  If the employee advises that there is no disabling condition, then the employer need worry only about the usual performance standards.

The workers’ compensation “exclusive remedy” doctrine does not apply to issues of disability discrimination in an employment setting.

An employer is not protected by the exclusive remedy doctrine where employment discrimination based on disability is found.  An employee may file a cause of action under both Labor Code § 132 (a) and the employment discrimination provisions of the Fair Employment and Housing Act (FEHA).  City of Moorpark v. Superior Court of Ventura County (Dillon) (1998) 63 CCC 944 (Supreme Court)

In Wood v. County of Alameda, (1995) 60 CCC 71 (DCA Published), it was determined that an Injured Worker who suffered injury on the job, became disabled, and filed for Workers' Compensation under California law, was not precluded from bringing a simultaneous or subsequent claim under the Americans with Disabilities Act (ADA). The Exclusive Remedy Doctrine in California law is preempted by the federal ADA.

A FEHA claim is not barred by the exclusive remedy provisions of workers’ compensation where the employee’s claim for injury is based on the employer’s unlawful business practices.  Marilyn Bagatti v. Dept. of Rehabilitation/State of California (2002) 67 CCC 528 (DCA Published)

A California Supreme Court case has made it easier for disabled employees to sue their employers for failing to provide job accommodations.  In Colmenares v. Braymer (Feb. 20, 2003) Braemar Country Club, Inc., No S098895, the Court confirmed that the California Fair Employment and Housing Act. (FEHA) requires only that the disabled person is limited in performing a major life activity, rather than having to meet the substantially limited standard required by the federal Americans with Disabilities Act (ADA) and that the more favorable criteria existed prior to the recent passage and implementation of AB 2222.  This decision has some implications for the workers’ compensation industry.

FEHA requires employers to consider requests for accommodation for the types of injuries we see daily in workers’ compensation.  Employers who fail to respond appropriately to requests for accommodation can be assessed substantial costs through the courts including reinstatement of the individual, back pay, and unlimited punitive damages.  This is not the insurer’s concern – unless the insurer fails to properly discharge its statutory duties properly.

Insurers are required to assist employers in assessing modified/alternative work availability and offer such work to QIW injured employees.  Insurers who fail to conduct such investigations place the employer at risk under FEHA; an employer who suffered economic loss due to the insurer’s failure would certainly have a cause of action against the insurer.  Similarly, an insurer who settled it’s VR obligation without consulting with the employer would be placing that employer at risk because the settlement does not necessarily resolve the employer’s obligations under FEHA.  Arguably, the insurer has an obligation to advise its insured employer that this settlement may not resolve its obligations under other State or federal statutes.  Most insurers understandably prohibit their examiners from providing “legal” advice to their insureds.  In light of the Supreme Court’s decision, insurers may wish to revisit their policies for managing these issues.

An employer must take an active role in assisting an employee in returning to work after a disabling injury.

An employer may be required to assist a disabled employee with a transfer to a vacant position as a reasonable accommodation.  It is not enough for the employer to simply advise the employee that s/he may apply for the position.  Spitzer v. The Good Guys, Inc. (2000) 2 WCAB Rptr. 10,223 (DCA Published).

An employee’s rights to protection under FEHA can be resolved in a C&R provided the employee is aware of the settlement (see also Claxton v. Waters).

The terms of a Compromise and Release agreement that released “all claims and causes of action” related to the injury extended to a FEHA action for damages related to the same events.  The employee knew of potential FEHA claims against the employer and therefore had the responsibility for expressly excluding the FEHA claim from the C&R.  Mary J. Jefferson v. California Dept. of Youth Authority (2002), 67 CCC 727, No. S097104 (Calif. Supreme Court).

Union collective bargaining agreements may, in some situations, supersede FEHA/ADA protections for employees with disabilities.

An employer may deny a request for accommodation based on its seniority rules provided that those rules are uniformly enforced.  US Airways v. Barnett (2002), 67 CCC 424, No. 00-1250 (U.S. Supreme Court).