Call or email us anytime
(805) 484-0333
Search Guide
Today is Thursday, March 28, 2024 -

Industry Insights

SJDB vouchers - Even More FAQs

  • State: California
  • -  0 shares
By Allan Leno

It seems (unfortunately) that there are far more questions than answers on the voucher and the related issue of the PD adjustment. Here are a few more.

What constitutes an acceptable offer of modified/alternative work for a seasonal worker. What if the "season" lasts for just 10 weeks? Does this mean the employer must bring the employee back for 5 plus years to meet its obligation?

This is a difficult question - and the statute and regulations provide little guidance. Is the intent to guarantee 12 months of employment? Or 12 months of equivalent employment (i.e., 10 weeks employed and 42 weeks unemployed)? My interpretation is that the statute and regulation intend to provide an equivalent situation for the injured worker. That is, an acceptable offer of modified/alternative work for a seasonal employee must return them to their comparable pre-injury situation. That might mean 10 weeks working and 42 weeks not working, which is the situation the worker was in prior to injury. I do not believe the statute requires, or intended to require, that the injured worker must work a cumulative 52 weeks (or 5.16 years) in order for the employer to meet its obligations under L.C. section 4658.6. I am also quite certain an applicant's attorney would view this situation quite differently. I expect it will require case law to resolve the issue.

My suggestion for employers is to bring injured workers back for as long as it makes business sense for you to do so. I would hope that case law will not be established by an employer who brought the employee back with the intent to dismiss them on the 366th day.

I have a case (2005 DOI) where I estimated PD at 5% and paid PD advances to 4% (i.e., 80% pf the estimated PPD). Much later, the Board determined PD to be 10%. The employer was unable to provide mod/alt work so some PDA's (those paid after the 60th day from P&S) were increased by 15%. When the Board found a higher PD level, is that PD subject to the 15% increase?

The short answer is "Yes." The Board's decision results in an obligation to make weekly PD payments retroactively. Weekly PDAs are subject to the 15% adjustment so you would have to make any retroactive payments at the increased rate. For that matter, PD payments made weekly as the result of an F&A or Stipulation with Award are also subject to the 15% adjustment. Only a C&R is exempt from the 15% PD adjustment requirement in L.C. section 4658(d) because a C&R provides for a lump sum payment, not weekly payments.

Are defendants required to send copies of offers of modified/alterative work to the DWC? What about offers of regular work? Why would this be necessary? What does the DWC intend to do with the information?

Copies of all offers of modified or alternative work must be sent to the DWC Administrative Director as indicated at the bottom of the DWC Form AD 10133.53 Notice of Offer of Modified or Alternative Work (page 1). We should expect that a failure to send copies of these forms to the DWC will result in administrative penalties. To date, the DWC has not indicated that it intends to do any data collection from the forms submitted but this knowledge does not relieve defendants from the obligation to comply with the regulatory requirement.

There is no current requirement to file copies of offers of regular work with the DWC. The form for documenting offers of regular work is still in a "proposed" state so insurers/employers are not required to use it. And there is no indication - yet - that the DWC is going to require a copy of the form to be filed with the Administrative Director.

When do we have to send the DWC Form AD 10133.53 Offer of Modified or Alternative Work? Is it only after the employee is paid 90 days of TTD?

One of the dangers of administering two benefits simultaneously is that it is difficult to keep the requirements separate. The 90 day requirement applies only to pre-2004 cases; there is no 90 day requirement for the SJDB voucher. A 10133.53 Offer form is required for a 2004 (or later) case where (1) TD has been paid, (2) the applicant has PD, and (3) the applicant requires a modified or alternative job. If these conditions exist, the offer must be made within 30 days of the last payment of TD. It doesn't matter if the applicant has been paid 90 days of TD - or just one day of TD.

The employer provided a modified job to the injured employee but has to fire her 'for cause before the 12 month period has expired. Does the employer now owe the employee an SJDB voucher?

There is no guidance on this issue in the statute or regulations so the answer depends on who you ask - and the courts will have the final word. I would argue that the employer does not owe a voucher as long as it can properly document a "for cause" termination. I do not believe the Legislature intended to reward employee behavior that resulted in a legitimate "for cause" termination. However, I suspect an applicant's attorney would argue that statute makes no distinction regarding the reason for a modified or alternative job not lasting for 12 months and his/her client should be entitled to a voucher irrespective of the reason for termination. The courts will have the last word on this issue.

So what should an examiner do when faced with this dilemma? Find out what kind of documentation your employer has and discuss the matter with your attorney. If your employer properly documented its actions, you can deny the voucher in good faith. If not, you may want to provide the voucher (remember that bad cases make bad case law).

I have received an invoice from a school that is not on the BPPVE approved list and from a counselor who is not on the DWC list. Do I have to pay them?

There is no question that the school should NOT be paid. The statute is quite specific that a school must be approved by BPPVE, the Western Association of Colleges and universities, or the FAA. The Regs expand approval to include out of state institutions approved by similar agencies (you can get a list of approving agencies for other states by calling BPPVE at (916) 574-7720.

The counselor is a different issue. At present, the DWC has converted the old IVE list to be its temporary "approved" list for VRTWCs. However, DWC has not established an application procedure yet for counselors who would otherwise meet the requirements of CCR section 10133.50(a)(15). If the counselors meet the requirements of this section, you may need to pay them. If in doubt, you or the counselor can submit a DWC Form AD 10133.55 Request for Dispute Resolution to Otis Byrd at the DWC.

I just received an invoice from a counselor along with a report documenting the evaluation and advice given to an injured worker (2005 DOI) for various training programs. The invoice is within the 10% allowed by L.C. section 4658.5(b). Should I pay the invoice?

You should not pay the invoice unless it was accompanied by a copy of the SJDB voucher signed by the injured worker. A signed copy of the voucher is your indication that the injured worker has agreed to retain the counselor to assist him/her with vocational choices. Without a signed copy of the voucher, the injured worker could challenge the counselor's invoice and guess who gets left holding the bag?

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

-------------------------------

The views and opinions expressed by the author are not necessarily those of workcompcentral.com, its editors or management.

No Comments

Log in to post a comment

Close


Do not post libelous remarks. You are solely responsible for the postings you input. By posting here you agree to hold harmless and indemnify WorkCompCentral for any damages and actions your post may cause.

Advertisements

Upcoming Events

  • May 13-15, 2024

    NCCI's Annual Insights Symposi

    Join us May 13–15, 2024, for NCCI's Annual Insights Symposium (AIS) 2024, the industry’s premier e …

  • Jul 29 – Aug 2, 2024

    76th Annual SAWCA Convention

    SAVE THE DATE! 76th Annual SAWCA Convention July 29 – August 2, 2024 Hotel Effie Sandestin 1 Grand …

  • Aug 14-17, 2024

    CSIMS 2024 Annual Dual Track C

    California Society of Industrial Medicine and Surgery (CSIMS) is combining its two conferences, PI …

Workers' Compensation Events

Social Media Links


WorkCompCentral
c/o Business Insurance Holdings, Inc.
PO Box 1010
Greenwich, CT 06836
(805) 484-0333