By Allan Leno
 
<i>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?</i>
 
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.
 
<i>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.</i>
 
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>I have received the AME report which states Claimant has 7% permanent disability and is able to go back to regular duties without work restrictions or modifications. However, the Claimant has been laid off – would he be entitled to the voucher?</i>
 
As in the question above, the employee is not entitled to an SJDB voucher if s/he is released to regular duty, even if there is no job to return to. The employee is entitled to a weekly 15% PD increase beginning on Day 61 after P&S.
 
<i>If the employer fails to make the job offer within 60 days after the injured worker's condition becomes P&S, is the employer then precluded from asserting the 15% reduction in the P.D. rate or can the employer still begin to pay at the 15% reduced P.D. rate from the date of the letter?</i>
 
This is one of those questions that will have to be clarified by the courts. I would argue that the Legislature intended to “reward” those employers who retained their injured employees and those employers should be able to take the 15% PD credit when they make the job offer, even if it is after 60 days. Of course, the employer would have to pay the 15% increase from day 61 until the offer is made. I would expect an applicant’s attorney to take the position that the 15% increase is due from day 61 until the PD is paid out or the case is settled via C&R. Your employer should consult with an attorney, make a policy decision, and handle the issue consistently until there is either case law or further regulation to clarify the matter.
 
<i>I've got a situation where the offer of work was made within 60 days and for 5 weeks before the letter was sent the injured worker was paid P.D. at the rate of $187.85. As of the date of the letter, the P.D. rate was reduced by 15% to $159.67. At the full rate the total P.D. before the 15% reduction would have been $24,608.35 (30% P.D. at $187.85 x 131 weeks). How much do you calculate should be the total P.D. dollars paid to the injured worker in this case? Would it be (5 weeks x $187.85) + 126 weeks x $159.67)?</i>
 
When an offer of regular, modified, or alternative work is made within 60 days of P&S, the employer owes PDAs at the statutory L. C. §4650 rate from the P&S date to the date the offer is made via DWC AD 10003 or DWC AD 10133.53. From the date of the offer is made, the employer can assert the 15% PD credit. In your example, it was appropriate to pay the regular PD rate of $187.85 for 5 weeks and then pay the reduced rate of $159.67 per week for the remaining weeks remaining on the PD award.
 
<i>We just found out that some of the forms/notices were revised as of 8/22/08 & some now do not have a "proof of service" attached to them (Example: Notice of Offer of Regular Work 10133.53). Do we now have to use these new forms?</i>
 
The forms you are referencing are the new EAMS (Electronic Adjudication Management System) forms for the DWC’s new optical character recognition system. The DWC would like all parties to start using the new forms but there is no requirement to do so until there are regulations in place that require use of the forms. DWC estimates that the new regulations could become effective as early as mid-October. You can continue to use the old forms until that time. However, your company should be preparing its forms and processes for the OCR or electronic forms because they will be required at some point in the relatively near future. For more information about EAMS, go to the DWC Newslines at http://www.dir.ca.gov/dwc/dwc_newsline.html.
 
<i>I have a scenario that I'm not sure how to handle.... I have a claim where the Employee was offered, and accepted, a permanent/modified position back in March. We reduced the PD by 15% (and actually finished paying that out a few weeks ago in its entirety). We have not yet formally settled her claim, however. I just got a call from the employer indicating that they may not, in fact, be able to meet the commitment to 12 months of the perm/mod position and may have to let the Employee go earlier than that. I know that this would entitle her to the voucher, but since the PD was previously paid out in its entirety, we don't have to send a supplemental PD payment increasing it by 15%, do we?</i>
 
Pursuant to L.C. § 4658(d)(3)(B), you would owe the 15% increase on any PD remaining to be paid after the employee is laid off. You do not have to go back and modify payments already made. However, if the employee is due additional PD at the time of stipulation or award, she would be entitled to the 15% increase on the additional PD amount. As you noted, the employee is now entitled to a voucher as well.
 
<i>We have an admitted injury. Applicant has PD and is unable to return to prior job, not only because a position is not available, but even if it was, the employer can not legally take him back as it has been established the Applicant is undocumented. Would he be entitled to the SJDB? </i>
 
Since the employer would not have work available even if the employee had the appropriate legal documents, I believe you owe the voucher. If the employer had a position available, then you could take the position that the voucher is not due. However, it appears the DWC would expect you to make the offer using the DWC AD 10133.53 Offer of Modified or Alternative Work form (you would indicate on the form that the offer is contingent on the employee providing evidence of a legal right to work within 30 days of the offer).
 
<i>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.</i>
 
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.
 
Please Note: If you are submitting a DWC AD 10005 Request for Reimbursement and STD 204 form for your insured employer or advising your insured employer on submission of a Request, please note that the address for submitting these documents is:
 
Office of the Administrative Director
PO Box 420603
San Francisco, CA 94142
 
AD Reg 10004 advises you to submit these documents to an address on a particular page at the DWC web site; the address is not listed on the site.
 
<b>VR Issues</b>
 
After 1/1/09 if we have an applicant of with a 2003 date of injury who has become QIW and entitled to Voc Rehab, who do we file the RU-103 with? However, we know that the Unit is no longer in existence, and Section 139.5 (l) repeals section 139.5 but it is NOT retroactive, consequently issues relating to retro VR supposedly would still be the subject of an RU-103 (if a Unit existed). Also, if the case is settled after 1/1/09, the applicant would normally have one year from the date of settlement to request VR. How do we obtain those benefits if there is no Unit? The former Presiding Judge of the LA WCAB told me that he was hoping that the consultant at the LA Rehab Unit would be allowed to stay to handle these issues. Do you know of any regs or rumors to this effect?
 
After 1/1/09, all VR disputes will have to go directly to the WCAB so the applicant’s attorney will have to file the appropriate documents with the local Board. There will be no more RU-103 (the statutory authority for the RU forms disappears along with the authority for the Unit) so applicant attorneys will have to file the same documents for VR issues as they would for the case in chief – an Application for Adjudication of Claim and a Declaration of Readiness (DOR) to get the issue before a WCJ. The WCJ’s “hope” that Mr. Kirkeby could stay on to handle VR issues is misplaced unless the Administrative Director can find some means to designate the RTW Unit to attempt an administrative resolution of disputes prior to having those disputes filed at the Board.
 
Only VR issues pending prior to 1/1/09 will have standing before the Board – there is no entitlement to VR benefits or services after 1/1/09. Note that L.C. § 5405.5 was repealed effective 1/1/04 so there is no entitlement to VR benefits and services for one year after settlement for those QIW injured workers who never used their VR entitlement. There are no prospective benefits or services available to injured workers after 1/1/09 unless the claims administrator agrees to provide such benefits and services. The Rehab Unit cannot issue a Determination ordering a claims administrator to provide benefits or services on or after 1/1/09. Only retro VRMA issues will remain in play after 1/1/09. If an eligible injured worker wants to use their prospective right to VR benefits and services, they must do so in 2008 or, as the saying goes, “forever hold their peace.”
 
<b>Training</b>
 
IEA is introducing its new CA-14: Return to Work and Disability Management in the WC System: CA-14 was previously the Vocational Rehabilitation course required as part of the WCCA certificate program. The revised course covers RTW process, procedures, and documentation requirements as well as related topics including the SJDB voucher, PD “bump up/bump down” requirements, and FEHA/ADA considerations. Visit the IEA web site ( http://www.ieatraining.com) for information on Return-to-Work programs in your area. IEA offers both semester courses and half day workshops to assist claims specialists, return-to-work specialists, rehab nurses, brokers, and employers in learning how to address and manage RTW issues.
 
The National Association of ADA Coordinators will hold its Fall 2008 national conference in Las Vegas, Nevada beginning October 27, 2008. Program information is now available at the NAADAC web site ( http://www.jan.wvu.edu/NAADAC/).

Allan Leno is principal of Leno & Associates, a vocational rehabilitation firm in Newbury Park, Calif.