Tuesday, January 23, 2007, 11:30 PM - Vocational retrainingIn California workers' comp law, what is the difference between vocational rehab and a voc rehab voucher?
Both of these terms refer to what an injured worker may receive in California if the worker is unable to return to work and the employer claims there is no modified or alternate work available.
Some historical perspective is in order here. Until 1994, there was no dollar limit on the cost of a retraining program for workers unable to return to work. Some workers received lengthy and expensive retraining programs. Under Republican Governor Pete Wilson, voc rehab benefits were capped at $16,000. The $16,000 limit covers injuries up until 1/1/04. Expenses that count against the $16,000 cap include the fees of voc rehab counselors, tuition and placement costs, and monies for travel, books, clothing allowance, and so forth. Vocational training was usually recommended by voc rehab counselors and was subject to approval of a "plan" by the state. There was no guarantee that the "plan" would result in the worker actually getting a job. California law allows voc rehab benefits to be settled for up to $10,000, but does not require the insurer to settle at all or offer the full $10,000.
Schwarzenegger's 2004 reform eliminated the voc rehab benefit. In its place is a "supplemental job displacement benefit" known as a "voucher." This voucher is a piece of paper which can be redeemed for tuition costs at a state-accredited school. The amount of the voucher ranges from $0 to $10,000 depending on the level of permanent disability in the case. Because the new Schwarzenegger rating system is based on the very restrictive AMA (American Medical Association) system of impairment assessment, some workers who are unable to return to work due to physical restrictions may receive 0% disability ratings and be unable to receive a voucher. This will be the subject of litigation in many cases.
Keep in mind that injured workers have the right to demand reasonable accommodation and an "interactive process" to determine whether they can be accommodated or placed in a vacant position. Our office holds free monthly workshops for workers seeking reasonable accommodation.
Also note that the State of California has its own Department of Rehabilitation that is not connected to the workers comp system. That website is as follows:
Tuesday, January 23, 2007, 07:47 AM - Medical treatment under WCThe California workers' comp system has a form for doctors to file when the doctor determines that there has been a work injury or occupational disease. The form is known as "Doctor's First Report of Occupational Injury or Illness" and can be downloaded by clicking here:
Sometimes there will clearly have been an accident causing injury (an explosion, for example). In other instances, the worker will already have filed an official California claim form known as a DWC-1. Or perhaps, the worker gave verbal notice of an injury and then filed some other in-house notice form to put the employer on formal notice of an injury. But sometimes the employer will not have notice of the work injury or occupational disease until the doctor files the "First report."
Time frames? The doctor is to file the form within 5 days of the initial exam for an occupational injury or illness. Two copies are to be sent to the workers' comp insurance carrier or the insured employer.
If you need a California workers' comp claim form, you can get a DWC-1 claim form by clicking here:
In a California workers' comp case, the "Doctor's First Report" can be very important. At a later date, examining doctors and treating doctors may look at the "First Report" closely to see what "history" the doctor took or what body parts were mentioned. Sometimes the "Doctor's First Report" is filled out by an ER doctor or clinic doctor who does not spend a lot of time listening to the worker or writing down the accurate history. This can be a major problem later if the injury is disputed and the "First Report" is in error or incomplete.
Monday, January 22, 2007, 08:36 AM - Political developmentsThis year's debate in the California legislature over health care access is important to California injured workers. Most injured workers lose their coverage if they don't return to work after an injury.
Over the last several decades, some large employers have either reduced health care coverage or refused to offer it at all. Wal-Mart has been the "poster boy" for big employers that offered little or no coverage. The result? Since these workers are not paid a salary that will support them buying coverage on their own (even if it were available), the burden has been shifted. Shifted where? To taxpayers. To states and the Federal government under the Medicaid program. And to counties and the various entities that operate local hospitals.
Many non-union employers do not provide health care coverage. As part of health care reform, some states are experimenting with laws to require employers to carry coverage. This is what Maryland did, requiring employers with 10,000 or more employees in the state to pay 8% of their payrolls for health insurance or pay into a state-mandated fund for that purpose. Wal-Mart challenged the law.
In a recent decision, the Fourth Circuit of the United States Court of Appeals (one step below the U.S. Supreme Court) ruled that Maryland's law violated a federal law known as ERISA, which generally governs health and disability plans on a national basis.
You can read a more detailed account from the New York Times by clicking here:
http://www.nytimes.com/2007/01/18/busin ... nted=print
The Clinton administration failed to achieve health care reform and the Bush administration has not tried. So states are beginning to experiment with plans to achieve wider coverage. For a good analysis, look at Bill Ainsworth's piece in the San Diego paper:
http://www.signonsandiego.com/uniontrib ... ealth.html
If states cannot require large employers to carry coverage on their employees, the trend towards offering no coverage may accelerate. Perhaps there will eventually be health care reform by the U.S. Congress, but that is probably at least a few years down the road. Meanwhile, California's legislature begins its debate on the Schwarzenegger, Nunez, Perata and Kuehl health care reform proposals.
This is a debate worth watching closely.
Sunday, January 21, 2007, 05:47 PM - Political developmentsThe term of California Workers' Compensation Appeals Board commissioner Merle Rabine is ending. Earlier this week, I attended a goodbye event honoring Rabine. Held at the San Francisco building which houses the California Supreme Court, the event was pretty much a who's who of California workers' compensation law.
Present were heavy hitters from various groups, including the applicant attorneys (representing injured workers), the defense attorneys, the staff of the Department of Industrial Relations, the workers' compensation judges, the remaining WCAB commissioners, and other figures in the comp industry.
Rabine was appointed to a six-year term in 2000 by then-Governor Gray Davis. Rabine served as chairperson of the WCAB until Gov. Schwarzenegger appointed current chairperson Joseph Miller as the chairperson. Rabine's term was marked by the most significant changes in the system since the 1913 passing of the Boynton Act, which set up much of the system. Separate reforms passed in 2003 and 2004 have been the subject of a huge volume of litigation. Many issues from the 2003 and 2004 reforms addressed by the WCAB during Rabine's term are now headed for the California Courts of Appeal and, in at least one case, the California Supreme Court.
In the eyes of many system observers, Rabine's term was something of a surprise. As a former President of the California Applicants' Attorneys Association and as a partner and protege of legendary Santa Ana applicant attorney Eugene Leviton, many expected Rabine to be reflexively "applicant oriented". During his tenure, there were grumblings from a number of his former colleagues that his decisions did not sufficiently "carry the torch" for injured workers and that decisions on his watch were not especially well crafted. There was never any doubt about Rabine's competence, integrity or work ethic.
Frankly, it is probably too soon to assess Rabine's term on the WCAB. Legal historians may be able to better assess his term some years from now, depending on the outcome of many of the appellate cases under consideration.
In a short speech at his goodbye event, Rabine noted that he felt that one of his major accomplishments was the revision of the WCAB's Rules of Practice and Procedure.
Governor Schwarzenegger now has a chance to further shape the system by filling Rabine's slot with a new six-year appointee. WCAB commissioners do not necessarily always come from a workers' comp legal background . It is not clear how long it will take Schwarzenegger to settle on a new nomination. But any nominee will be subject to legislative confirmation, so the appointment could become wrapped up in Sacramento politics. Stay tuned.
Saturday, January 20, 2007, 03:10 PM - Medical treatment under WCI noted an interesting article in the 1/14/07 Sunday edition of The New York Times. The title? "Company Clinics Cut Health Costs: More Big Companies Are Turning To An Old Idea."
This is an interesting phenomenon, particularly in the context of California's 2004 workers' comp reforms and the upcoming debate in the 2007 California legislature about health care reform.
The article notes that large employers across the nation, frustrated with the escalation in costs of health care, have opened more medical clinics in their own factories and offices. Over 100 of the country's largest 1,000 employers are said to now offer on-site primary care services. The article notes that in the past, on-site company clinics were primarily for occupational injury purposes. The scope of these clinics appear to be widening now so that many employees can get check-ups for a variety of different illnesses and conditions. At many companies, there is no charge for using these clinics. Many of these clinics emphasize health education and preventive treatment. You can download the article by clicking here:
http://www.nytimes.com/2007/01/14/busin ... ref=slogin
If your employer has an on-site clinic, the clinic doctors may be the first doctors you will see for a work-related injury or occupational disease. If the clinic doctor determines that your injury or illness is work-related, the doctor is required by law to file a form known as a "First Report of Work Injury." You can get a copy of that form by clicking here:
We have heard from some injured workers that company clinic doctors attempt to discourage workers from claiming that a condition is work-related. You should note that what you tell the clinic doctor at the time of intake (the "history") will probably be written down and will be in your file. Those notes can be used in later workers' compensation proceedings. If you believe your condition is work-related in whole or in part, you have a right to file a California workers' comp claim. To download a claim form, you can click here: