By Allan Leno

The injured employee is eligible for a $4000 voucher. He enrolls in a BPPVE approved program with a tuition cost of $1500.00. He purchases a $1000 computer and computer software valued at $500 to facilitate his studies. Is the carrier required to reimburse the $1500 for the computer and software as well as pay for the school, tuition? A number of claims examiners have asked how they are to determine what constitutes a "reimbursable" expense.

By statute (L.C. Section 4658.5(b)), a voucher may be used to pay for school tuition and related expenses required by the training facility for that program. Claims examiners should check to see if the training program has been approved by BPPVE (see https://app.dca.ca.gov/bppve/school-search/default.htm). Claims examiners should not pay for ANY expenses (including tuition fees, and supplies) unless the training program is approved by BPPVE. If the program is approved, the school's catalog should list all materials and equipment required for the program. Many approved programs include the cost of required equipment and materials, including computers and software.

What is to prevent unscrupulous persons from creating phony school receipts for injured workers that are presented to claims examiners for reimbursement? Claims examiners will not have the time or means to check out such receipts. Claims professionals are legitimately worried about the potential for fraudulent misuse of the SJDB voucher.

As noted above, a voucher may only be used at BPPVE approved training facilities. Claims examiners can visit https://app.dca.ca.gov/bppve/school-search/default.htm to determine if a training program is approved and if a training facility is currently certified and the school's catalog should specify all costs including tuition, books, fees, and equipment. An invoice for training and requests for reimbursement must be paid within 45 days, which should allow adequate time to verify that a facility is in good standing with BPPVE. Where there is doubt, the claims examiner can object to the payment/reimbursement request in writing and ask the training facility or injured employee for additional documentation.

How do we determine if a training program has been approved for a voucher program?

Vocational schools know that they must include a current BPPVE approval number on the injured worker's SJDB voucher in order to receive payment for tuition and approved fees. As noted above, the claim examiner can check for current certification by going to https://app.dca.ca.gov/bppve/school-search/default.htm on the internet. Tuition bills should not be paid unless the training facility's approval code is entered on the voucher and that approval number corresponds to the number found at this site. If the number does not correspond, return the invoice to the facility with a brief letter explaining that the invoice cannot be paid without a current approval number.

Can the SJDB voucher be settled via the RU-122? This is a common question from examiners who want to resolve voucher liability so they can close the claim file.

The RU-122 applies only to the vocational rehabilitation benefit and falls within the jurisdiction of the Rehabilitation Unit. For injuries on or after 1/1/2004, there is no vocational rehabilitation benefit and no Rehabilitation Unit. The RU-122 therefore CANNOT be used to settle the voucher because (a) the RU-122 is not valid for injuries on/after 1/1/04, and (b) the Unit has no jurisdiction for the SJDB voucher. An RU-122 completed and submitted to the Unit for a date of injury on/after 1/1/2004 will be returned to the submitting party. If the parties wish to settle the voucher, they must do so via a Compromise & Release (C&R) agreement. It should be noted that this is specified in CCR Section 10133.52; no other document will satisfy this requirement.

What is the penalty for late voucher notices?

There is currently no penalty for late Notice of Potential Rights or late SJDB vouchers. HOWEVER, the DWC has proposed a $2500 penalty for a late notice or voucher; the public comment for the proposed penalty regulation (CCR Section 10225.1(g)(4)(C)(5-6)) ended on December 15, 2005. It is likely that the regulation will be finalized and implemented some time during the Spring 2006.

There are still many insurers, third party administrators, and employers who have yet to implement a process to insure compliance with the SJDB voucher requirements, perhaps assuming there is no pressing need to do so until penalty regulations are in place. It is likely that penalties will apply to failures to send the Notice of Potential Rights (CCR Section 10133.52), the voucher (CCR Section 10133.57), and to pay voucher expenses timely per (CCR Section 10133.56(h)) as of August 1, 2005. This is the point at which defendants knew their obligation to provide the NoPR, the voucher, and to pay voucher expenses; it therefore seems probable that penalties will be assessed by the DWC Audit Unit as of that date.

What is the time frame for a response on a voucher dispute? Several people have advised that they are aware of disputes filed in December 2005 and an Order has yet to issue.

As previously reported, Otis Byrd has been appointed by the Administrative Director as the DWC official responsible for resolving SJDB voucher disputes. Mr. Byrd indicated in December 2005 that nearly 200 DWC-AD Form 10133.55 Request for dispute Resolution forms had been submitted.

CCR Section 10133.54(d) provides that the "opposing party" has 20 days to respond to when a DWC-AD 10133.55 form has been filed requesting dispute resolution. Presumably, five days for mailing can be added to this period. Once the response period has passed, Mr. Byrd has 30 days to review the record and issue a decision pursuant to CCR Section 10133.54(f). It should be noted that this period can be extended where Mr. Byrd believes one or both parties have not submitted all required information or he needs additional information to render a decision.

Parties should therefore expect that it will take 50-60 days to receive a decision after the initial submission of a DWC-AD Form 10133l.55 Request for Dispute Resolution. These early requests make take somewhat longer since many parties will submit incorrect forms or may fail to attach all relevant documents.

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

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