In a post within the last several weeks I noted that CHSWC (the California Commission on Health, Safety and Workers' Compensation) had heard a report on unimpressive results in the Return-To-Work Program that was established in Labor Code 139.48.

Out of $500,000 available for distribution to employers seeking funds to help pay for workplace accommodations, only $8,744.44 was distributed from August 18, 2006 to December 15, 2008. I noted that the cost of the program seemed very extraordinary compared to its results.

This program does sunset on 1/1/2010, and I noted that it seemed to be a failure.

Today at the DWC conference I had the chance to speak with the DWC's chief of legislation and policy, Susan Gard. Gard makes a good observation.The program cost figures I quoted in my earlier blog post apparently include the costs for staffing for other functions of the Retraining and Return to Work Unit as well. Exactly how an auditor would allocate RRTW Unit funding between various functions may be open to interpretation. A draft report prepared for CHSWC cited figures for some program expenses but not others. It is true that the RRTW deals with supplemental retraining voucher issues as well.

But Gard's point is that the return to work program is not nearly as expensive as I'd indicated. I'll accept that and offer apologies for any confusion caused by conflating other program costs and the Return-To-Work program. The blog may take strong and even provocative positions at time, but I'm striving to be accurate and fair, and I welcome reader feedback.

But Gard noted in an statement faxed to me that the program "has simply not gotten off the ground". Should we care? Here are some further thoughts.

Let's all keep in mind that the goal of this program is very laudable, as I noted in my earlier post.

At my office (Boxer & Gerson) we have four employment civil litigation lawyers, all of whom do FEHA reasonable accommodation/disability discrimination civil cases. Our office does something that is somewhat unique: the civil attorneys offer a free monthly informational workshop to workers who are having accommodation issues, even if we don't represent them in the comp case.

I'm quite mindful of the struggles that injured workers have when they need accommodations. About a year ago I struggled for 6 months to get a major grocery chain to consider revamping the height and shape of the checkout stand so one of my clients could remain on the job. It's critical that workers be able to get accommodations.

It's also understandable that small employers are often likely to balk
on account of cost. The goal of the Return-To-Work program is to provide a source of funding for some of these costs.

If workers can stay on the job, it's a win for everyone. The 2003 legislation led to the demise of vocational rehab for workers injured after 1/1/04. I've yet to meet many attorneys or injured workers who feel that the supplemental job voucher is an adequate replacement for the loss of the prior $16k retraining benefit.

So in the final analysis we see a Return-To-Work Program that may not be as expensive as I'd alleged, but which has been on the books since August 2006 with very little to show for itself. A program which has been around for over a year and a half and which sunsets in around nine months.

As an armchair quarterback, perhaps more could or should have been done to promote the program up until now.

Apparently one major problem is that few employers have ever heard of the program. The March 2009 draft CHSWC report notes at one point that :
"It is possible that the efforts undertaken by the RRRTW Unit to publicize the program did not reach the intended audience. Small employers may be difficult to reach through educational conferences. The RRTW Unit plans to conduct informational workshops about the program around the State in 2009. Careful design and planning of future outreach may need to consider how, where, and when small employers usually receive information relevant to their businesses..."

Ms. Gard indicates that the DWC has recently undertaken a comprehensive plan to market the program to small employers, enlisting the help of small business advocates. That's good. She indicates that she expects to see more results in the coming months. That's good.

This is a program that all stakeholders want to see become successful.
But without a quick showing of results. it's hard to envision the program surviving the 1/1/2010 sunset.

In my next post I'll share some reflections on some of the topics covered at the Oakland DWC conference.

Julius Young
www.boxerlaw.com

At the bottom of this post there is a link to a DWC newsline issued today.

The DWC advises that the right to vocational rehabilitation sunsets at the end of 2008 for those workers injured before 2004 who might otherwise be eligible.

A benefit that had no dollar limits before 1994 and a $16,000 cap after 1994 may be expiring forever.

There is some controversy over this. I've heard some applicant attorneys advance the argument that voc rehab may still be pursued after January 1, particularly if rehab was started (or demanded) before January 1.

We are coming up on Halloween, so it's a fitting time to note that some attorneys believe that the courts could enforce voc rehab by recognizing
"ghost statutes" even though the Voc Rehab "bureau" or "unit" as it has been called will no longer exist.

Perhaps. But that's an untested and risky strategy.

So those workers seeking VR now have a window of time to use it or lose it. Workers injured after 1/1/04 will remain eligible for a job retraining voucher.

The DWC newsline can be seen here:
http://www.dir.ca.gov/dwc/dwc_newslines ... 62-08.html

Stay tuned.

Julius Young
www.boxerlaw.com
(you can subscribe to the blog by clicking on the RSS reader button on the lower right column under "Most Recent Entries")

AB 1636 passed the California Senate on September 7 and appears headed toward the Governor. The bill would expedite the provision of a retraining voucher to injured workers who have been determined unable to return to work.

If the worker does not return to work within 60 days of being found permanent and stationary, a retraining voucher would be due within 74 days after the date the worker was determined permanent and stationary.

You can see a pdf version of the bill by clicking here:
http://www.leginfo.ca.gov/pub/07-08/bil ... en_v97.pdf

This bill would apply only to injuries after 1/1/08, thus offering no assistance to workers with current pending claims.

California's injured workers lost their rights to a full vocational retraining program in 2004. Prior to reforms in the early 1990s there was no set dollar limit on vocational retraining programs. Reforms under Governor Pete Wilson provided a $16,000 cap on vocational retraining benefits (including the weekly voc rehab maintenance allowance payable during a retraining program). And under Governor Schwarzenegger, injured workers lost their rights to a retraining program. Instead, the law now provides a "job displacement voucher"
worth between $4,000 to $10,000 for workers unable to return to work.

AB 1636 would speed up the process of getting a voucher into the hands of workers. The idea is that injured workers need to use the voucher as soon as possible to take classes at state accredited schools. Although better than nothing, in practice, the voucher usually is "too little, too late."

Many workers who need to retool their careers will require much more training than the vouchers will finance. And, unlike the old retraining benefit, the voucher does not address living expenses while the worker takes classes. Unfortunately, the rent and grocery bills continue.

But hats are off to Voters Injured at Work www.viaw.org, which has worked hard to push this bill. The bill never made it onto the California Chamber of Commerce job killer list. Let's hope this is a bill that runs the remaining gauntlet past the Governor's veto pen.

Julius Young
www.boxerlaw.com
*

In 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:
http://www.rehab.cahwnet.gov/

Julius Young
www.boxerlaw.com