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SJDB Voucher -- FAQs

  • State: California
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By Allan J. Leno

The employee has an injury on 4/21/05 resulting in surgery on 7/1/05 and an eventual PD rating of 6%.  He is TTD until 8/21/05 and returns to modified duty on 8/22/05.  The employee is released to full duty on 11/10/05 and is P&S on 1/5/06.  My counterparts and I have had a discussion regarding this scenario and whether a voucher is due when somebody is released to and returns to regular work for the employer and what notices are issued. 

This applicant was due a Notice of Potential Rights letter (DWC AD 10133.52) by 8/31/05.  According to the DWC, he should also have been sent a DWC AD 10133.53 Notice of Offer of Mod/Alt Work by September 19, 2005 (I think that requirement is debatable because the form is misleading and inappropriate for temporary modified duty).  If you were still paying PDAs after 9/2006, you would have owed the applicant a DWC AD 10003 Offer of Regular Work so that you could take the 15% PD reduction allowed by LC 4658(d)(3)(A).  I expect you paid out the PD before CCR Sect. 10003 became effective (the 10003 form was not yet available) so you would have been able to take the reduction based on the fact that the applicant did return to full duty.
 
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.
 
We had a claim situation where it took us 60 days from the date of P&S to get the actual permanent work restrictions.  We are in the process of determining whether or not we can offer her a permanent job.  Problem: The employee is saying that because we did not offer her a job within 30 days of ending TTD benefits, we have no right to even think about offering her a job now.

Of course you can, although it is possible you still may owe her a voucher.  L. C. § 4658(d) says you have 60 days to make the offer to take the 15% PD offset so you should go ahead and send either the DWC 10003 for a regular position or the DWC 10133.53 for Mod/Alt work (whichever is applicable).  The 30 day requirement in L. C. §§ 4658.5/4658.6 is pertains only to your liability for an SJDB voucher.
 
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.
 
Although the claim has not yet settled,  it appears that 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 a question that an attorney asked me about today. If the client got injured initially in 2003 and then re-injured himself on 2004 does he get Rehab for the 2003 case and a voucher for the 2004 DOI? This is CT case.  Please advise.

The only way the injured worker could get both benefits is if he returned to modified duty after the 2003 injury that was not properly documented with an RU-94 and then was unable to perform the modified job after the 2004 injury.  If the injured employee returns to regular duty after the 2003 injury, s/he would be eligible for the voucher only after the 2004 injury.
 
PD Adjustments

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.
 
Does the 15% increase/decrease apply to employers who have 50 or more employees in California only or nationwide?

The 15% applies if the applicant is covered under California workers’ compensation law regardless where they work or where the employer is located.  You would therefore look to the policy that covers the injury.

Allan Leno is a principal with Leno & Associates in Newbury Park, Calif. He can be reached at 818-370-8859 or by email at allanleno@leno-assoc.com

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