SJDB Voucher Information

At a CWCI Return-to-Work Committee meeting on November 29th, Otis Byrd confirmed that he has been designated by the Administrative Director as the DWC official responsible for resolving disputes regarding the SJDB voucher. Requests for dispute resolution should be sent to the Administrative Director (Attn: Otis Byrd) at the address indicated on Form DWC-AD 10133.55. The party requesting dispute resolution should state the action requested and provide all supporting documentation. The responding party must submit a Form DWC-AD 10133.55, a position statement, and supporting documentation within 20 days. All decisions will be made "on the record." Any party disagreeing worth Otis Byrds decision must file an appeal with the WCAB within 20 days (plus 5 days for mailing).

Otis Byrd also advised that the DWC has established a site for Vocational Return to Work Counselors (VRTWCs) at http://www.dir.ca.gov/dwc/SJDB/VRTWC_list.pdf. Counselors on the IVE list have been "grandfathered" into the VRTWC list since the requirements for an IVE from the old L.C. section 4635(c) exceed those for a VRTWC. The DWC expects to have an application form available at this site within the next few weeks. The requirements for a VRTWC from SJDB Reg. section 10133.50(a)(15) are:

Vocational & Return to Work Counselor (VRTWC). A person or entity capable of assisting a person with a disability with development of a return to work strategy and whose regular duties involve the evaluation, counseling and placement of disabled persons. A VRTWC must have at least an undergraduate degree in any field and three or more years full time experience in conducting vocational evaluations, counseling and placement of disabled adults. Counselors and firms wishing to be added to this list should check this site within the next few weeks for availability of the application form.

SJDB vouchers - More FAQs

An OBAE (DWC) auditor advised me that a Notice of Potential Rights (DWC-AD 10133.52) letter must go out on every case with a date of injury on/after 1/1/04 where TTD was paid, even when the applicant returned to regular duties. Is this true? This is a frequent question from claims examiners.

Sorry folks but the answer is "Yes." L. C. section 4658.5(c) says the notices is due within 10 days of the last payment of TD so - if you paid any TTD, you must send the notice. The DWC Audit Unit cannot assess a penalty for failure to send this notice since no penalty has been established (at least, not yet) and the penalties in CCR section 10111.1 do not apply. However, L.C. section 4658.5(c) suggests that a voucher may be due the applicant if the notice is not sent so insurers and employers should be sure to send a notice in all cases where TD has been paid. Please note that wage loss counts as TD so a notice would be due where wage loss terminates and it was the only benefit paid.

Can the voucher be settled with the RU-122? Does the applicant have to be represented to settle the voucher? These questions come from a claims supervisor who is trying to establish a policy in response to questions from defense counsel.

The RU-122 cannot be used to settle a voucher. The RU-122 is a rehabilitation form and all aspects of rehabilitation - including all its forms - do not exist for dates of injury on or after 1/1/04. Thus, the RU-122 cannot be used to settle the voucher. The voucher can be settled but only acceptable document for that purpose, at present, is a Compromise and Release. Since CCR section 10133.52 indicates that the voucher can be settled, the C&R must be approved by a WCALJ. Please note that the Rehabilitation Unit has no jurisdiction on dates of injury on/after 1/1/04 so RU Consultants cannot approve settlements of the voucher.

An applicant does not have to be represented to settle his/her right to a voucher. However, defendants should be aware that there may be some danger in settling a voucher with an unrepresented worker unless there is clear evidence that the applicant has had a full explanation of the benefit and the consequences of settling the benefit.

Where can I find a copy of the notice letter to advise applicants that they are entitled to a voucher when their case settles. Many examiners seem to believe there is a requirement to notify the applicant of a voucher entitlement as soon as it is determined that mod/alt work is not available.

There is no requirement to send the applicant a letter advising that s/he is entitled to a voucher and that the voucher will be sent when their case is resolved at the WCAB. There is also no requirement (at present) to advise the applicant that s/he is not entitled to a voucher. The Notice of Potential Rights (DWC-AD 10133.52) advises the applicant that s/he might be entitled to a voucher under certain conditions. If the applicant is entitled to a voucher, the next document s/he receives is the voucher itself (DWC-AD 10133.57). If the employee needs - and the employer offers - modified/alternative work, the applicant will receive the Notice of Offer of Modified or Alternative Work (DWC-AD 10133.53). If the applicant is released to regular duty, there is no current requirement to send a notice of any type (DWC may soon require a Notice of Offer of Regular Work). Please note that these are the only required notices; defendants are not required to send any notice advising the applicant that s/he is entitled to a voucher and that one will eventually be sent.

The applicant was TTD and then returned to work part-time and was paid on a wage-loss basis until released to full-time modified work. When does the 30 day period to send the DWC-AD 10133.53 Mod/Alt work offer begin? This question comes from a claims supervisor who has posed a number of interesting questions.

For pre-2004 cases, L.C. 4636 specified that the 90 Day Notice was due only after 90 days of TTD so we didnt count wage-loss (TPD) in reaching a determination of when the 90 Day Notice was due. However, L.C. 4658.5 indicates that the offer of modified or alternative work is due within 30 days of the termination of TD (which would include wage-loss or TPD) so the Notice of Offer of Modified or Alternative Work (DWC-AD 10133.53) is due within 30 days of the time you stop payment of the wage-loss benefit.

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

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