VOCATIONAL REHABILITATION - Eligibility of vocational rehabilitation benefits–In this case, the parties stipulated the first injury resulted in no temporary disability and the injured worker was able to continue in his usual and customary job until his second injury, four years later, when vocational rehabilitation was no longer available. There was no medical evidence contemporaneous with the first injury, not until after the second injury occurred, which supported the possibility that the first injury contributed in any way to any possible need for vocational rehabilitation. Therefore, vocational rehabilitation benefits were properly denied. Eugene Cioban v. Workers' Compensation Appeals Board, County of Orange 10 WCAB Rptr. 10,116[Writ Denied]
VOCATIONAL REHABILITATION - Vocational maintenance allowance at the delay rate–California Code of Regulations, Title 8 §10125.1–Vocational Maintenance Allowance is generally due upon a finding of medical eligibility for vocational rehabilitation and a written request for vocational rehabilitation service. When an employer unreasonably delays provision of rehabilitation services, the retroactive maintenance allowance will be paid at the full temporary disability rate. (See Teresa Godinez v. Buffets, Inc. (2004) 6 WCAB Rptr. 10,302 (Significant Panel Decision). Fujitsu Consulting Inc. v. Workers' Compensation Appeals Board (Leticia Ordonez) 10 WCAB Rptr. 10,031 [Writ Denied]
VOCATIONAL REHABILITATION - Out-of-state vocational rehabilitation services–Labor Code §4635.1(a)–An employer is not liable to provide vocational rehabilitation services outside the state unless those services are more cost-effective than similar in-state services. (See McKinley v. Workers' Comp. Appeals Bd. (2006) 8 WCAB Rptr. 10,212 [writ denied].) [Writ Granted]
VOCATIONAL REHABILITATION - Out-of-state vocational rehabilitation services–An applicant's request for out-of-state vocational rehabilitation benefits and retroactive VRMA may be denied pursuant to former Labor Code §4644(g), when the parties have not agreed on a vocational rehabilitation counselor and the cost of the out-of-state services has not been evaluated. (See {JUSTICE}LaFrenier v. Workers' Comp. Appeals Bd.{/JUSTICE} (2002) 4 WCAB Rptr. 10,075 [writ denied].) Sedgwick Claims Management Services, Inc. v. Workers' Compensation Appeals Board (Tamiako Lewis) 9 WCAB Rptr. 10,378 [Writ Granted]
VOCATIONAL REHABILITATION - Vocational rehabilitation maintenance allowance–Administrative Director regulation 10125.1(c) requires payment of vocational rehabilitation maintenance allowance at the delay rate only in the case of a delay caused by the employer or claims administrator. [Writ Denied]
VOCATIONAL REHABILITATION - Vocational rehabilitation maintenance allowance–Once participation in a vocational rehabilitation plan has begun, the maximum maintenance allowance is specified in Labor Code §139.5(d)(1). The delay rate prevails only for the period of the delay. (See Labor Code §4642(a).) Michele Kebede v. Workers' Compensation Appeals Board, Southern California Permanente Medical Group 9 WCAB Rptr. 10,365 [Writ Denied]
VOCATIONAL REHABILITATION - Pursuant to Labor Code §4644(a)(1), an employer may request termination of a rehabilitation plan involving an out-of-state rehabilitation plan. In this case, the employer failed to request termination and the WCJ properly found that the injured worker was entitled to vocational rehabilitation services at the delay rate. [In this case, the employer never denied that the worker was a qualified injured worker and simply began providing services by asking applicant whether he wanted vocational rehabilitation services. The employer never determined that the plan involved out-of-state services and thereby waived this issue.] Ralphs Grocery Stores v. Workers' Compensation Appeals Board (Salvador Corvera) 9 WCAB Rptr. 10,318 [Writ Denied]
VOCATIONAL REHABILITATION - Delay in submitting vocational rehabilitation plan-The failure of the claims administrator, within 90 days of the determination of vocational feasibility, to submit a plan or request the Rehabilitation Unit to resolve a dispute constitutes a delay caused by the claims administrator. In this case, the plan was not timely submitted because the applicant did not agree to the plan within 90 days of the feasibility determination. Roger Laredo v. Workers' Compensation Appeals Board, Sav-On Drug Stores 9 WCAB Rptr. 10,300 [Writ Denied]
VOCATIONAL REHABILITATION - Did the Appeals Board err in its award of retroactive vocational rehabilitation maintenance allowance at the temporary disability rate after Labor Code §4642 was repealed effective January 1, 2004? Silgan Container Corporation and Gallagher Bassett Services, Inc. v. Workers' Compensation Appeals Board (Lawrence Buford) 9 WCAB Rptr. 10,265 [Writ Granted]
VOCATIONAL REHABILITATION - The Rehabilitation Unit may reopen a prior determination based on an intervening finding by a WCJ. (See Reitmeier v. Workers' Comp. Appeals Bd. (2002) 2 WCAB Rptr. 10,153 [writ denied].) [In this case, the Rehabilitation Unit made an initial determination that the employer had properly offered alternative work. This determination was qualified by the treating physician finding that the injured worker was temporarily totally disabled and the alternative work offer was no longer valid. The WCJ rejected the treating physician's findings and the Rehabilitation Consultant returned to his original finding that a proper alternative work offer had been made. The result was that the request by the employee for rehabilitation services was properly denied.] Concepcion Cholula v. Workers' Compensation Appeals Board, Gordito Burrito 9 WCAB Rptr. 10,134 [Writ Denied]
VOCATIONAL REHABILIATION - Request for reinstatement of rehabilitation services–Where rehabilitation entitlement has been previously adjudicated, neither the Rehabilitation Unit nor the Appeals Board has jurisdiction to entertain a further request for rehabilitation, unless it is made within five years from the date of injury. (See Youngblood v. Workers' Comp. Appeals Bd. (1989) 216 CalApp.3d 764.) Bernardine Anderson v. Workers' Compensation Appeals Board, Walt Disney Company 9 WCAB Rptr. 10,084[Writ Denied]
VOCATIONAL REHABILITATION - Vocational Rehabilitation Maintenance Allowance–Cal. Code of Regulations, Title 8 §101251(c)–If the employer or claims administrator causes a delay in VRMA payments, the amount is increased to the employee's temporary disability rate and is not counted against the employee's $16,000 maximum benefit or 52–week limitation. Paramount Farms v. Workers' Compensation Appeals Board (Maria Guadalupe Garcia de Velasquez) 8 WCAB Rptr. 10,311 ___Cal.App.4th___
VOCATIONAL REHABILITATION-Labor Code §5404.5—An initial request for vocational rehabilitation benefits may be made within one year from the date of the last finding of permanent disability. (See Youngblood v. Workers' Comp. Appeals Bd. (1989) 216 Cal.App.3d 764 and Sanchez v. Workers' Comp. Appeals Bd. (1990) 217 Cal.App.3d 346.) [In this case the injured worker within five years of her date of injury filed a Petition to Reopen for New and Further Disability and later amended the petition adding a prayer for vocational rehabilitation benefits.] Fresno Unified School District v. Workers' Compensation Appeals Board (Linda Butcher) 8 WCAB Rptr. 10,317 ___Cal.App.4th___
VOCATIONAL REHABILITATION-When an injured worker is ultimately held to be a qualified injured worker, then the injured worker is entitled to receive vocational rehabilitation benefits from the date of demand. The First American Corp, Zenith American Ins. Co. v. Workers' Compensation Appeals Board (Judy Fletchhar) 8 WCAB Rptr. 10,324 [Writ Denied]
VOCATIONAL REHABILITATION-Labor Code §139.5–An employer is not entitled to credit for wages earned from concurrent employment during the time an applicant is receiving vocational rehabilitation maintenance allowance. Clifford Gamble v. Workers' Compensation Appeals Board, United Airlines 8 WCAB Rptr. 10,276 ___Cal.App.4th___
VOCATIONAL REHABILITATION-Eligibility for VRMA–Labor Code §4644(g)–Vocational Rehabilitation Maintenance Allowance should not be paid while the cost-effectiveness of an out-of-state rehabilitation program is being investigated. (See City of Long Beach v. Workers' Comp. Appeals Bd. (Pike) (2000) 2 WCAB Rptr. 10,359 [writ denied].) Matthew McKinley v. Workers' Compensation Appeals Board, Baer Enterprises 8 WCAB Rptr. 10,212 [Writ Denied]
VOCATIONAL REHABILITATION- If an injured worker is determined to be a Qualified Injured Worker, vocational rehabilitation maintenance allowance should begin form the date of the request for vocational rehabilitation services, even if there is no prima facie evidence that the injured worker was entitled to QIW status at the time of the request. (See Industrial Indemnity v. Workers' Comp. Appeals Bd. (Elizondo) (1985) 165 Cal.App.3d 633.)The May Department Stores Company v. Workers' Compensation Appeals Board (Scott Schwartz) 8 WCAB Rptr. 10,055 [Writ Denied]
VOCATIONAL REHABILITATION- Duty to give notice of eligibility–Labor Code §§4636 and 4637–In this case, the earliest date that the employer could have had the requisite knowledge necessary to trigger his duty to give notice to the employee of eligibility for vocational rehabilitation was when he was served with medical reposts showing the employee was TTD for more than 90 days. (See Webb v. Workers' Comp. Appeals Bd. (1980) 28 Cal.3d 621.) Felipe Iribe v. Workers' Compensation Appeals Board, Guillermo Alvarado dba Tree Service 8 WCAB Rptr. 10,034 [Writ Denied]
VOCATIONAL REHABILITATION- VRMA benefits–Labor Code §3207–An injured municipal police officer is not entitled to receive a vocational rehabilitation maintenance allowance after the effective date of his or her disability retirement under the Public Employee Retirement System (PERS). (See Ritchie v. Workers' Comp. Appeals Bd. (1994) 24 Cal.App.4th 1174.) James Meiers v. Workers' Compensation Appeals Board, City of Long Beach 8 WCAB Rptr. 10,036 [Writ Denied]
VOCATIONAL REHABILIATION- Labor Code §4644–Offer of alternative work—A proposal of alternative work must meet all four conditions set forth in Labor Code §4644 to terminate the employer's vocational rehabilitation liability: (1) the employee has the ability to perform the essential functions of the job, (2) the job is a regular position lasting at least 12 months, (3) the compensation is not less than 15% of that paid at the time of the injury, and (4) the work site is within a reasonable commuting distance of the worker's residence at the time of the injury. (See Allan Hancock Joint Community College v. Workers' Comp. Appeals Bd. (Moore) (2000) 2 WCAB Rptr. 10,180 [writ denied].) Max's Restaurant v. Workers' Compensation Appeals Board (Marilyn Williams) 8 WCAB Rptr. 10,022 [Writ Denied]
VOCATIONAL REHABILITATION– Statute of limitation extensions– Labor Code §5410– When there has been a finite extension of the five-year statute of limitations while rehabilitation has been interrupted and applicant has not requested reinstatement within that period, he is barred from further vocational rehabilitation benefits. (See Sacramento County Office of Education v. Workers' Comp. Appeals Bd. (DeBoard) (2000) 82 Cal.App.4th 107, 2 WCAB Rptr. 10,269.) Jimmy Adams v. Workers' Compensation Appeals Board, Santa Barbara Metro Transit District 7 WCAB Rptr. 10,190 [Writ Denied]
VOCATIONAL REHABILITATION– Undocumented worker–Once an employer discovers an employee is undocumented, the employer is precluded by law from offering any work solely because of immigration status. In this case, at the time the employee was terminated for his undocumented status, no physician had declared the worker to be QIW. Horacio D. Hermosillo v. Workers' Compensation Appeals Board, Thor California 7 WCAB Rptr. 10,125
VOCATIONAL REHABILITATION– Failure to obtain approval of vocational rehabilitation plan–An injury sustained while participating in a vocational rehabilitation program may be a compensable consequence of the original industrial injury if the vocational rehabilitation program is properly approved. (See Rodgers v. Workers' Comp. Appeals Bd. (1985) 168 Cal.App.3d 567.) [In this case, the injured worker pursued a self-procured teacher credential program but failed to obtain a QRR waiver, did not obtain an approval of a formal rehabilitation plan, did not obtain approval to interrupt vocational rehabilitation services after the initial assessment by the Rehabilitation Unit, and never forwarded an accounting of the expenses she incurred in the credential program for reimbursement.] San Diego State University v. Workers' Compensation Appeals Board, Zoological Society of San Diego, Liberty Mutual Insurance Company (Robin Senecal) 7 WCAB Rptr. 10,111
VOCATIONAL REHABILITATION– Vocational rehabilitation maintenance allowance–Administrative Director Rule 10125.3–An injured worker is entitled to vocational rehabilitation maintenance allowance while the out-of-state vocational rehabilitation plan is being evaluated for cost-effectiveness. (See GTE/Verizon v. Workers' Comp. Appeals Bd. (Austin) (2001) 3 WCAB Rptr. 10,061 [writ denied].) State of California, Department of Industrial Relations v. Workers' Compensation Appeals Board (Evelyn Nash) 7 WCAB Rptr. 10,093
VOCATIONAL REHABILITATION– Labor Code §139.5–Is an employer entitled to credit for wages earned from concurrent employment during the time an applicant is receiving a vocational rehabilitation maintenance allowance? Clifford Gamble v. Workers' Compensation Appeals Board, United Airlines 7 WCAB Rptr. 10,075
VOCATIONAL REHABILITATION–Labor Code §4644–Offer of alternative work to undocumented worker–Until a good faith offer of actual alternative or modified work that fits the injured worker's restrictions and could be performed by him but for his legal status, the employer is not relieved of it rehabilitation obligations. Orton's of Chicago v. Workers' Compensation Appeals Board (Luis Ruvalcaba) 6 WCAB Rptr. 10,334
VOCATIONAL REHABILITATION– Labor Code §5410–When an applicant fails to timely request reinstatement of vocational rehabilitation services prior to the expiration of an agreed interruption, is a request for reinstatement made beyond five years from the date of injury barred by Labor Code §5410? Konjid M. Worknhe v. Workers' Compensation Appeals Board, Peter S. Asteris dba Pete's Burger Stop, Mid-Century Insurance Company 6 WCAB Rptr. 10,314
VOCATIONAL REHABILITATION– Labor Code §139.5–Qualified injured worker status–When an employee is unable to perform his or her usual and customary duties, he or she is a qualified injured worker regardless of whether he or she could perform other or lighter duties. (See Vasquez v. Workers' Comp. Appeals Bd. (1991) 226 Cal.App.3d 867.) Los Angeles Unified School District v. Workers' Compensation Appeals Board (Helen Babcock) 6 WCAB Rptr. 10,276
VOCATIONAL REHABILITATION– Labor Code §139.5–Rules applicable to injuries prior to January 1, 2004–Vocational rehabilitation rules applicable to injuries occurring before January 1, 2004 are governed by laws in effect prior to enactment of SB899. Los Angeles Unified School District v. Workers' Compensation Appeals Board (Helen Babcock) 6 WCAB Rptr. 10,276
VOCATIONAL REHABILITATION– Labor Code §139.5–In this case the defendant contended that applicant was entitled to vocational rehabilitation services because he retired and moved from the state. The WCJ found no merit to these contentions because applicant credibly testified that he did not permanently remove himself from the labor market, was forced into early retirement after his injury, would have continued working until age 85 and would accept a job within his medical restrictions if offered. United Airlines, Inc. v. Workers' Compensation Appeals Board (Aubrey Feagin) 6 WCAB Rptr. 10,287
VOCATIONAL REHABILITATION– Labor Code §5410– When a vocational rehabilitation plan is interrupted or suspended for a specified period of time, and the employee does not either request the resumption of vocational rehabilitation services or an extension of the suspension within that specified period, any further request for vocational rehabilitation services will be barred unless made within five years of the date of injury. (See Sacramento County Office of Education v. Workers' Comp. Appeals Bd. (DeBoard) (2000) 82 Cal.App.4th 107, 2 WCAB Rptr. 10,269.) Konjit M. Worknhe v. Workers' Compensation Appeals Board, Pete's Burger Stop 6 WCAB Rptr. 10,266
VOCATIONAL REHABILITATION– To trigger the employer's obligation to notify the employee of vocational rehabilitation rights, the injured worker must provide the employer with prima facie evidence of eligibility to support a request for vocational rehabilitation benefits. (See Blunt v. Southern California Permanente Medical Group (1984) 49 Cal.Comp.Cases 678.) [In this case, applicant's counsel wrote to the employer: "Our client may be eventually entitled to vocational rehabilitation. Should the employee be unable to return to his/her usual and customary job, this letter shall be deemed by the employee to be a demand by the employee for rehabilitation services."] Irlanda Lopez v. Workers' Compensation Appeals Board, Health Cookie Co., Inc., dba Crystal's Gourmet Kitchen 6 WCAB Rptr. 10,270
VOCATIONAL REHABILITATION– Labor Code §46449(c)(2)(A)– For injuries before January 1, 2004, a second vocational rehabilitation plan limited to the same total benefit cap may be awarded when the first plan is found to be inappropriate because the employee's disability has deteriorated to the point at which the injured worker is unable to meet the physical or mental demands of the first plan. Merced Community College v. Workers' Compensation Appeals Board (John E. Gonzales II) 6 WCAB Rptr. 10,200
VOCATIONAL REHABILITATION– Labor Code §139.5(c)– An injured seasonal worker is not entitled to VRMA benefits during regular off-season periods when not employed. (See Jimenez v. San Joaquin Valley Labor (2002) 4 WCAB Rptr. 10,048 [en banc].) Kimberley Davis v. Workers' Compensation Appeals Board, Processing Tomato Advisory Board. 6 WCAB Rptr. 10,197
VOCATIONAL REHABILITATION– Labor Code §4644– There are seven elements for an employer's written offer of modified or alternative work: (1) a description of the activities to be performed, (2) the physical requirements necessary to complete the activities, (3) the length of the required work activity, (4) the location where the work is to be performed, (5) the rate of compensation, (6) the job title, and (7) a showing that the offer involves work at as regular position related to the employer's business objectives. (See Jack-in-the-Box v. Workers' Comp. Appeals Bd. (Morrison) (2003) 5 WCAB Rptr. 10,028 (unpublished opinion).) American Home Assurance v. Workers' Compensation Appeals Board (Keith Bernard Pacey) 6 WCAB Rptr. 10,109
VOCATIONAL REHABILITATION– Labor Code §4646– The amendments to Labor Code §4646, which permit a defendant and a represented employee to settle prospective vocational rehabilitation services under specified circumstances, are applicable to injuries before the January 1, 2003 effective date of the amendments. Clarence Pebworth v. Workers' Compensation Appeals Board, Allan Hancock College. 6 WCAB Rptr. 10,083
VOCATIONAL REHABILITATION– Notice of Eligibility– Labor Code §4636(a) provides that when an injured worker's industrial temporary disability continues for more than ninety days, the defendant must provide notice to the injured worker regarding his rights to vocational rehabilitation. [In this case, there was no substantial evidence that the applicant was actually temporarily disabled for ninety days following his injury. Three years after the injury, an AME reported that the appropriate temporary disability for a sprained ankle, even with a knee problem, "was perhaps three months."] Jim Shepherd v. Workers' Compensation Appeals Board, Heath Construction. 6 WCAB Rptr. 10,080
VOCATIONAL REHABILITATION– Retroactive VRMA– Cal.Code of Regs., Title 8, §1004– The employer is required to advise an injured employee of his or her potential right to vocational rehabilitation services, upon the occurrence of either: (1) immediately upon knowledge that the employee's medical condition may permanently preclude a return to his or her usual and customary occupation or the position in which he or she was engaged at the time of injury, or (2) immediately following 180 aggregate days of total disability. Failure to notify the employee after either event occurs warrants retroactive benefits. (See Pereira v. Workers' Comp. Appeals Bd. (1987) 196 Cal.App.3d 1.) Thomas Mora v. Workers' Compensation Appeals Board, Seung Moo Yang & Young Yang dba Pikadely Steak Café, Uninsured Employers Fund. 6 WCAB Rptr. 10,076
VOCATIONAL REHABILITATION– Labor Code §4635(a)– Can an injured worker obtain vocational rehabilitation benefits only if it can be established that the worker cannot return to her prior position and the worker can reasonably be expected to return to the labor market? Can an injured worker receive vocational rehabilitation benefits if she could return to work but removed herself from the labor market by retiring? Los Angeles Unified School District v. Workers' Compensation Appeals Board (Helen Babcock) 6 WCAB Rptr. 10,071
VOCATIONAL REHABILITATION– Labor Code §4636(b)– The employer had an obligation to provide vocational rehabilitation when the employer has actual knowledge that the employee might not be able to return to his or her usual and customary occupation or when the employee was totally disabled for at least 90 days. [In this case, the employer had no duty to notify applicant of her vocational rehabilitation rights before being supplied medical reports and a request for vocational rehabilitation services.] Rafaela Valdez v. Workers' Compensation Appeals Board, H/R Technology Inc. 6 WCAB Rptr. 10,009
VOCATIONAL REHABILITATION– Labor Code §4646– Are the amendments to Labor Code §4646, which permit a defendant and a represented employee to settle prospective vocational rehabilitation services under specified circumstances, applicable to injuries before the January 1, 2003 effective date of the amendments? Clarence Pebworth v. Workers' Compensation Appeals Board, Allan Hancock College. 5 WCAB Rptr. 10,353
VOCATIONAL REHABILITATION– An injured worker is entitled to vocational rehabilitation benefits if the medical evidence shows that the worker is precluded from engaging in his or her usual or customary occupation of the position in which he or she was engaged at the time of injury. In this case, the medical evidence showed that neither an orthopedic nor psychiatric evidence showed the worker was medically eligible for vocational rehabilitation benefits. Steven Hesami v. Workers' Compensation Appeals Board, Pioneer Commercial Funding Corp. 5 WCAB Rptr. 10,344
VOCATIONAL REHABILITATION– Labor Code §4644– The employer's tender of an appropriate alternative job that would have been offered but for applicant's termination for violation of company absenteeism policy does not constitute a good faith offer of modified/alternative work as contemplated by Labor Code §4644, thereby relieving employer of any further responsibility for vocational rehabilitation. Abraham Robertson v. Workers' Compensation Appeals Board, Mountain People's Warehouse. 5 WCAB Rptr. 10,315
VOCATIONAL REHABILITATION– The effect of a Thomas finding is to abrogate applicant's entitlement to vocational rehabilitation. [In this case, the Thomas finding was based on the statute of limitations defense, the lack of employment relationship, and the injury being diagnosed as nonindustrial by the treating physician.] Arnold Tanner v. Workers' Compensation Appeals Board, Taco Bell 5 WCAB Rptr. 10,213
VOCATIONAL REHABILITATION– Labor Code §4644– Does the employer's tender of an appropriate alternate job that would have been offered but for applicant's termination for violation of company absenteeism policy constitute a good faith offer of modified/alternate work as contemplated by Labor Code §4644, thereby relieving employer of any further responsibility for vocational rehabilitation? Abraham Robertson v. Workers' Compensation Appeals Board, Mountain People's Warehouse. 5 WCAB Rptr. 10,175
VOCATIONAL REHABILITATION– Labor Code §4644(g)–Vocational rehabilitation services while the worker is out-of-state–A worker who is out-of-state does not lose his or her entitlement to vocational rehabilitation services as part of the legislative intent to control costs. Labor Code §4644(g), which provides an employer shall not be liable to provide vocational rehabilitation services at a location outside the state, unless upon agreement or a determination by DWC that those services are more cost-effective than similar services provided in the state, deals with liability for out-of-state services, not entitlement to those services. [In this case, the only evidence was that the injured worker was out-of-state and no evidence was offered on the issue of cost effectiveness and this was not a sufficient showing to make the case on the issue of the applicability of Labor Code §4644(g).] County of Los Angeles v. Workers' Compensation Appeals Board (Pamela Lee-Carey) 5 WCAB Rptr. 10,117
VOCATIONAL REHABILITATION– Time limit for requesting vocational rehabilitation services–Labor Code §5410–When there is an agreed-upon interruption period that expired within the five-year period as set forth in Labor Code §5410, and the injured worker's request for additional vocational rehabilitation services is made after the five-year period had expired, the request is not an original request for services and is barred by Labor Code §§5405.5 and 5410. (See Sacramento County Office of Education v. Workers' Comp. Appeals Bd. (DeBoard) (2000) 82 Cal.App.4th 107, 2 WCAB Rptr. 10,269.) Coleen M. Stenson (Schlabes) v. Workers' Compensation Appeals Board, State of California Department of Corrections. 5 WCAB Rptr. 10,066
VOCATIONAL REHABILITATION– Notice of eligibility–California Code of Regulations, Title 8 §9813(d)(2)–Within 10 days after receipt of a physician's report or knowledge of a physician's opinion that an employee is medically eligible for vocational rehabilitation, the claims administrator shall notify the employee of his or her potential eligibility for vocational rehabilitation services. Meristar Hotel & Resorts v. Workers' Compensation Appeals Board (Aracely Valiente) 5 WCAB Rptr. 10,055
VOCATIONAL REHABILITATION– Qualified injured worker status–When there is no proven or accepted injury, the applicant cannot be QIW. Since the defendant had in good faith denied the injury as alleged, the vocational rehabilitation notice requirements of Labor Code §4636 et. seq. were not triggered by the receipt of a report of the treating physician, which stated the applicant was in need of vocational rehabilitation. [An accepted or proven injury is required pursuant to the definition of QIW as set forth in Labor Code §4635(a).] Pedro Martinez v. Workers' Compensation Appeals Board, Union Building Maintenance. 5 WCAB Rptr. 10,054
VOCATIONAL REHABILITATION– Offer of modified or alternate work–Labor Code §4644–To be effective, an offer of modified or alternate work must include information sufficient to meet the minimum requirements set forth in Labor Code §4644(a)(5): The information must include a description of the activities to be performed, the physical requirements for performing these activities, the duration of the work, the compensation for the work, and the location of the work. Jack in the Box, Inc. v. Workers' Compensation Appeals Board (Levi Morrison) 5 WCAB Rptr. 10,028
VOCATIONAL REHABILITATION– Offer of modified work–The applicant's performing of modified work over a year is not a waiver of AD rules. Labor Code §4644(a) provides that the employer's liability for vocational rehabilitation services terminates, if among other things, the employer offers, and the employee accepts or rejects, in the form and manner prescribed by the Administrative Director, modified work lasting at least 12 months. AD Rule 10126 requires that the defendant file a Form RU-94 when the applicant is offered a modified position. (See generally Liberty Mutual Ins. Co. v. Workers' Comp. Appeals Bd. (Pinzon) (2002) 4 WCAB Rptr. 10,020.) [In this case, there was no evidence that an RU-94 was filed within 30 days of the offer of modified work.] Yellow Freight Systems, Inc. v. Workers' Compensation Appeals Board (David Casper) 5 WCAB Rptr. 10,022
VOCATIONAL REHABILITATION– Retroactive vocational rehabilitation maintenance allowance §4642–It is improper to award retroactive vocational rehabilitation maintenance allowance when the defendant had a reasonable belief that the applicant was not medically eligible based upon the report of the primary physician and the fact that the applicant had returned to work at his usual and customary occupation. Queen of Angels/Hollywood Presbyterian Hospital v. Workers' Compensation Appeals Board (Rostam Gabri) 5 WCAB Rptr. 10,009
VOCATIONAL REHABILITATION– Termination of vocational rehabilitation services– If an employee fails to object to the Notice of Termination of Vocational Rehabilitation [Form RU-105] within 20 days of service of the notice, the employer's liability for vocational rehabilitation services will be presumed terminated. (Administrative Director Rule 10131(b).) John Stiglich v. Workers' Compensation Appeals Board, Contra Costa Fire Protection District. 4 WCAB Rptr. 10,287
VOCATIONAL REHABILITATION– Retroactive vocational rehabilitation maintenance allowance §4642– Is it improper to award retroactive vocational rehabilitation maintenance allowance when the defendant had a reasonable belief that the applicant was not medically eligible based upon the report of the primary physician and the fact that the applicant had returned to work at his usual and customary occupation? Is there a breach of the vocational rehabilitation notice requirements if the applicant is not totally temporarily disabled for less than 90 days? Queen of Angeles/Hollywood Presbyterian Hospital v. Workers' Compensation Appeals Board (Rostam Gabri) 4 WCAB Rptr. 10,263
VOCATIONAL REHABILITATION– Offer of modified work– An employer may avoid vocational rehabilitation liability by providing modified work lasting at least twelve months provided the employee had the ability to perform the essential functions of the job. [In this case the defendant properly train the applicant in how to perform the modified work and there was no evidence that the applicant was able to perform the essential function of the modified job.] Sunrise Case Center Willits and Rskco v. Workers' Compensation Appeals Board (Beatriz Reynaga) 4 WCAB Rptr. 10,204
VOCATIONAL REHABILITATION– In this case involving a 1987 injury and the provisions of Title 8, §1006(a)(2) operative July 1. 1988, it was unclear who had the duty to investigate and provide vocational rehabiliation services and therefore appliant was not entitled to VRTD. [The employer filed bankruiptcy I 1987 and its asets liquidated in 1989, the UEF was thereafter a defendant until the coverage issues involving two workers' compensation carriers were resolved in July 2000.] Frank Long (deceased) v. Workers' Compensation Appeals Board, Neilsen Freight Lines. 4 WCAB Rptr. 10,189
VOCATIONAL REHABILITATION– Is a request for vocational rehabilitation, which is not an original request, barred if filed more than five years after the date of injury or more than one year after the last finding of permanent disability? Brenda Martino v. Workers' Compensation Appeals Board, Kaney's Market. 4 WCAB Rptr. 10,168
VOCATIONAL REHABILITATION– Vocational Rehabilitation Maintenance Allowance– An injured worker is not entitled to continuing VRMA pending his unsuccessful appeal of a Rehabilitation Unit determination after he has been found to have no industrial permanent disability. Michael T. Reitmeier v. Workers' Compensation Appeals Board, California Cabinets & Store Fixtures. 4 WCAB Rptr. 10,153
VOCATIONAL REHABILITATION– Labor Code §4644©– The WCJ's decision in this case that applicant was not entitled to further vocational rehabilitation services including a new rehabilitation plan was supported by substantial evidence. [The applicant had continual input into the selection of a vocational rehabilitation counselor, the vocational rehabilitation plan and even the facility where the training would take place. After working hard on the plan for applicant, his prior attorney declined to represent him when applicant decided to drop out of the plan and the Rehabilitation Unit entered an order that a new plan was not warranted.] Michael Isaeff v. Workers' Compensation Appeals Board, Saroni Total Food Co. 4 WCAB Rptr. 10,139
VOCATIONAL REHABILITATION– Retroactive VRMA– Cal.Code of Regs, Title 8, §10125.3– The report of an Agreed Medical Examiner can be prima facie evidence of the need for rehabilitation. (See Industrial Indemnity v. Workers' Comp. Appeals Bd. (Elizondo) (1985) 165 Cal.App.3d 633.) Boeing North American, Inc. v. Workers' Compensation Appeals Board (Bonnie Welder) 4 WCAB Rptr. 10,138
VOCATIONAL REHABILITATION– Request for rehabilitation– In this case the applicant had made a prima facie showing of entitlement to vocational rehabilitation. (See generally, Industrial Indemnity v. Workers' Comp. Appeals Bd. (Elizondo) (1985) 165 Cal.App.3d 633. [The applicant had requested rehabilitation in his applications for adjudication which is a valid request under Belmontez v. Workers' Comp. Appeals Bd. (1992) 7 Cal.App.4th 786.] Janis Kahn v. Workers' Compensation Appeals Board, Owens-Illinois. 4 WCAB Rptr. 10,124
VOCATIONAL REHABILITATION MAINTENANCE ALLOWANCE– Labor Code §139.5– Pursuant to Labor Code §3716.2, the Uninsured Employers Fund is no liable for any penalties or for the payment of interest on any awards. The payment of vocational rehabilitation maintenance allowance at the delay rate for failing to commence vocational rehabilitation services in a timely manner is not considered a penalty. To allow the Uninsured Employers Fund to pay less than the "full maintenance allowance" would frustrate the intent of the workers compensation laws to provide for vocational relief from industrial injuries and provide financial support to encourage the worker's ultimate return to the workforce. (See Moyer v. Workers' Comp. Appeals Bd. (1973) 10 Cal. 3d 222) Stephen J. Smith v. Workers' Compensation Appeals Board (Cesar Saldana) 4 WCAB Rptr. 10,121
VOCATIONAL REHABILITATION– Determination of non-eligibility– The Rehabilitation Unit determination of non-eligibility for vocational rehabilitation was premature and was properly vacated when the agreed medical examiner diagnosed a chronic pain syndrome for which the AME recommended a pain management workup. Scott Performance v. Workers' Compensation Appeals Board (Mike Schiede) 4 WCAB Rptr. 10,076
VOCATIONAL REHABILITATION– Retroactive vocational rehabilitation maintenance allowance– Labor Code §139.5– Once the injured worker becomes eligible for vocational rehabilitation and vocational rehabilitation maintenance allowance is payable, any delay caused by the employer or claims administrator in paying VRMA requires that VRMA be paid at the higher temporary disability rate. In this case the injured worker resided outside California and until it was determined that vocational rehabilitation services would be more cost effective than similar services provided in California, the injured worker is not entitled to retroactive VRMA until the cost effectiveness determination is made. Robert LaFrenier v. Workers' Compensation Appeals Board, Diversified Moving Systems. 4 WCAB Rptr. 10,075
VOCATIONAL REHABILITATION– Labor Code §4644(a)(5)– An offer of modified work to terminate liability for further vocational rehabilitation benefits does not have to be made on the Form RU-94 when it is undisputed modified work is available but cannot legally be offered and accepted due to the worker's undocumented status. Liberty Mutual Insurance Company v. Workers' Compensation Appeals Board (Isela Pinzon) 4 WCAB Rptr. 10,020
VOCATIONAL REHABILITATION– Vocational rehabilitation maintenance allowance (VRMA)– Labor Code §4642– An applicant is entitled to VRMA at the temporary disability rate during the period of time a good faith dispute over whether the applicant was a Qualified Injured Worker. (See San Diego Transit Corp v. Workers' Comp. Appeals Bd.(Renfro) (1980) 28 Cal.3d 635.) Saint John's Hospital & health Center v. Workers' Compensation Appeals Board (Freddie Lee Thomas) 3 WCAB Rptr. 10,342
VOCATIONAL REHABILITATION– Termination of Employer's liability for vocational rehabilitation services– Labor Code §4644(a)(6)– The employer's liability for vocational rehabilitation services terminates when the employer offers and the employee accepts or rejects, alterative work that (1) the employee has the ability to perform the essential functions of the job provided, (2) the job is a 'regular position' lasting at least twelve months, (3) the wages and compensation are within 15 percent of those paid the employee at the time of the injury, and (4) the ob is located within reasonable commuting distance of the employee's residence at the time of the injury. Philip Wike v. Workers' Compensation Appeals Board, All Counties Fence Company. 3 WCAB Rptr. 10,322
VOCATIONAL REHABILITATION– 'Regular position'– Administrative Director Rule 10122(k)– The basic definition of a 'regular position' is that the job be a valid reasonable position of real activities that further the employer's business. Philip Wike v. Workers' Compensation Appeals Board, All Counties Fence Company. 3 WCAB Rptr. 10,322
VOCATIONAL REHABILITATION– Vocational Rehabilitation Allowance– Labor Code §139.5– Vocational rehabilitation maintenance allowance payments must begin after the employee's medical condition becomes permanent and stationary upon a request by the applicant for vocational rehabilitation services. GTE/Verizon v. Workers' Compensation Appeals Board (Richard Austin) 3 WCAB Rptr. 10,309
OCATIONAL REHABILITATION– Vocational Rehabilitation Allowance– California Code of Regulations, Title 8, §10125.3.– An employee who is determined to be a Qualified Injured Worker for purposes of vocational rehabilitation services is entitled to vocational rehabilitation allowance payments while an out-of-state vocational rehabilitation plan is being evaluated for cost effectiveness. GTE/Verizon v. Workers' Compensation Appeals Board (Richard Austin) 3 WCAB Rptr. 10,309
VOCATIONAL REHABILITATION– Labor Code §139,5(c)– The receipt of vocational rehabilitation maintenance allowance (VRMA) depends on an injured worker's attendance at and participation in a vocational rehabilitation program. Therefore, the injured worker is not entitled to VRMA when he was not available to participate in vocational rehabilitation services. J.M. Smucker Company v. Workers' Compensation Appeals Board (Joaquina Melendrez) 3 WCAB
VOCATIONAL REHABILITATION– Labor Code §139.5(c)– An injured worker is entitled to VRMA during participation in a vocational rehabilitation program even though participation occurred during the usual off-season when the injured worker would not have received wages, because the purpose of VRMA is to provide some income to the injured worker during the rehabilitation process. J.M. Smucker Company v. Workers' Compensation Appeals Board (Joaquina Melendrez) 3 WCAB Rptr. 10,274
VOCATIONAL REHABILITATION– Is an undocumented worker entitle to vocational rehabilitation services except for placement, modified/alternative work, and on the job training or self-employment in the United States? Does acceptance of modified work waive non-compliance with notice requirements relating to vocational rehabilitation benefits? Does an AME's approval of modified work as being within restrictions imposed terminate employer's obligations with respect to vocational rehabilitation services? Liberty Mutual Insurance Company v. Workers' Compensation Appeals Board (Isela Pinzon) 3 WCAB Rptr. 10,254
VOCATIONAL REHABILITATION– Statute of limitations– Labor Code §5410– A request for further vocational rehabilitation services is barred by the statute of limitations if; (1) the request is not an initial request for which the provisions of Labor Code §5405.5 would apply, or (2) the request is more than five years post injury. (See Youngblood v. Workers' Comp. Appeal Bd. (1989) 216 Cal.App. 3d 764.) Jackie Mitchell-Santizo v. Workers' Compensation Appeals Board, Alchemy Productions. 3 WCAB Rptr. 10,247
VOCATIONAL REHABILITATION– Labor Code §5410– If there was a timely request for benefits, a unilateral interruption with no interruption notices and no action by the employer to terminate liability prior to applicant's request for resumption of services, the applicant is not barred from resuming vocational rehabilitation services. [See Martinez v. Workers Comp. Appeals Bd. (2000) 84 Cal.App.4th 1079, 2 WCAB Rptr. 10,379] City of Long Beach v. Workers' Compensation Appeals Board (Freddie Clemons) 3 WCAB Rptr. 10,158
VOCATIONAL REHABILITATION– Labor Code §4643– While the defendants may have delayed in paying for the applicant's pharmacy technician course, no prejudice to the applicant resulted since he re-entered the labor market doing the same work as when he was injured. The applicant's request for retraining in a different field was properly denied since the applicant had not shown good cause for further rehabilitation services when he never attempted to work as a pharmacy technician. Ben Villanueva v. Workers' Compensation Appeals Board, Dinwiddie Construction. 3 WCAB Rptr. 10,140
VOCATIONAL REHABILITATION– Delay in payment of Vocational Rehabilitation Maintenance Allowance– Title 8 §10125.1– When an injured worker is receiving or should be receiving VRMA, the maintenance allowance payable during the delay caused by the employer or claims administrator shall be paid to the injured worker at the temporary disability rate and such payments will not be counted against the maximum allowable expenditure of vocational rehabilitation services. [In this case the delay was caused by a four month delay in the receipt by the employer of the treating physician's permanent and stationary report before vocational rehabilitation services were authorized.] Gallagher Bassett Services v. Workers' Compensation Appeals Board (Teresa Lewis) 3 WCAB Rptr. 10,141
VOCATIONAL REHABILITATION– QIW Status– Labor Code §4635– In order to be determined to be a Qualified Injured Worker, it must be shown: (1) that permanent disability permanently precludes or is likely to preclude the injured employee from engaging in his or her usual occupation, and (2) that the injured worker can reasonably be expected to return to suitable gainful employment with provision of rehabilitation. Rsalina Zarate v. Workers' Compensation Appeals Board, Westwood Marquis Hotel 3 WCAB Rptr. 10,105
VOCATIONAL REHABILITATION– Labor Code §4644©(1)– In order for a second vocational rehabilitation plan to be awarded there must be evidence (1) that the first vocational rehabilitation plan was medically inappropriate, or (2) that the applicant was unable to complete the first plan. Jose Luis Lira v. Workers' Compensation Appeals Board 3 WCAB Rptr. 10,107
VOCATIONAL REHABILITATION– Notice of potential rights to vocational rehabilitation benefits – Labor Code §4636(a)– When the employer breaches its duty to notify the injured worker of their potential vocational rehabilitation benefits, the employer is liable for VRMA benefits from the date of breach until it complies with its notice obligations. (See Webb v. Workers Comp. Appeals Bd. (1980) 28 Cal. 3d 621.) 99 Cents Only Stores v. Workers Compensation Appeals Board (Maria Christina Fernandez)3 WCAB Rptr. 10,089
VOCATIONAL REHABILITATION– Date on which VRMA commences– VRMA should commence from the date of the first demand for vocational rehabilitation benefits, or when the employer breaches it duty to notify the employee regarding the employee's right to vocational rehabilitation benefits, whichever occurs first. (See Belmontez v. Workers' Comp. Appeals Bd. (1992) 7 Cal.App. 4th 786.)
VOCATIONAL REHABILITATION– Reopening rehabilitation– Labor Code §5410– There must be evidence of something more than a mere change of applicant's mind in order to justify a grant of reopening after rehabilitation has been declined and then terminated under Labor Code §4644. Virgil Biven v. Workers' Compensation Appeals Board, Veco Drilling. 3 WCAB Rptr. 10,088
VOCATIONAL REHABILITATION– Out-of-state rehabilitation plans– Labor Code §4644(g) which requires an out-of-state vocational rehabilitation plan be more cost effective than an in-state plan does not impeded the right to travel nor does it otherwise violate the right to equal protection of the laws as the statute does serve a rational purpose. Antonette Niedle v. Workers' Compensation Appeals Board, La Salsa Holding Company. 3 WCAB Rptr. 10,083
VOCATIONAL REHABILITATION– Labor Code §139.5– In this case the medical evidence supported a finding that the applicant was QIW as a result of a 1992 specific injury to which the $16,000 cap does not apply. [The $16,000 cap applies to injuries occurring after January 1, 1994.] U.S. Airlines v. Workers' Compensation Appeals Board (Teresa Washington) 3 WCAB Rptr. 10,091
VOCATIONAL REHABILITATION– Labor Code §4644(a)(6)– The employer's liability for vocational for vocational rehabilitation shall terminate when the employer offers and the employee accepts or rejects alternative work which the injured worker can perform, is a position lasting at least 12 months, the compensation is within 15% of the time of injury position, and is within a reasonable commuting distance. Shannon Moana v. Workers' Compensation Appeals Board. 3 WCAB Rptr. 10,076
VOCATIONAL REHABILITATION– Labor Code §4644(a)– The consequence for a late offer of alternative work is not prescribed by any statute and timeliness of the offer is not one of the conditions specified by Labor Code § 4644(a). Shannon Moana v. Workers' Compensation Appeals Board 3 WCAB Rptr. 10,076
VOCATIONAL REHABILITATION– Penalty for delay in furnishing benefits– Labor Code 4642– There is no basis for allowing duplicate penalties for defendant's delays in furnishing vocational rehabilitation services and for delays in paying vocational rehabilitation maintenance allowance when the delays occur during the same period of time. Jeanne R. Waters v. Workers' Compensation Appeals Board, Golden Eagle Insurance Company. 3 WCAB Rptr. 10,040
VOCATIONAL REHABILITATION– Statute of Limitations– Labor Code §5410– If more than 5 years has passed since the date of injury, there is no jurisdiction to award vocational rehabilitation benefits. Clennon Moore v. Workers' Compensation Appeals Board, Triangle Steel and Supply. 3 WCAB Rptr. 10,060
VOCATIONAL REHABILITATION– Delay in providing notice of vocational services– Labor Code §4637– In order for applicant to be entitled to payment of VRMA at the temporary disability indemnity rate for the failure to issue Notice of Potential Eligibility of Benefits (advising whether modified and/or alternative work was available) there must have been a delay in the provision of vocational rehabilitation services. Anita Lim v. Workers' Compensation Appeals Board, Smith Food King. 3 WCAB Rptr. 10,040
VOCATIONAL REHABILITATION– Award of Retroactive Vocational Rehabilitation benefits– California Code of Regulations, Title 8, §10004– Retroactive vocational rehabilitation benefits may be awarded when an employer violates regulatory provisions that require an employer to provide notice of eligibility for vocational rehabilitation when the employer is in receipt of information suggesting rehabilitation might be necessary. (See Webb v. Workers' Comp. Appeals Bd. (1980) 28 Cal. 3d 621.) Maria Cervantes v. Workers' Compensation Appeals Board, Nicholas Makris, dba Jim's Burgers 5 WCAB Rptr. 10,257
VOCATIONAL REHABILITATION– Reinstatement of vocational rehabilitation– Labor Code §5410– If a worker does not timely object to termination of rehabilitation services, the worker must come within the requirements of Labor Code §5410 to reopen rehabilitation where the QIW worker voluntarily signs a compromise and release declining vocational rehabilitation services and the worker understood the terms of the agreement. More than a change of mind is necessary to justify a grant of reopening of services after rehabilitation has been declined. (See Cisneros v. Workers' Comp. Appeals Bd. (1995) 41 Cal. App.4th 759.) Pamela Lopez v. Workers' Compensation Appeals Board, Daughters of Charity of St. Vincent de Paul 5 WCAB Rptr. 10,259
VOCATIONAL REHABILITATION– Eligibility for second rehabilitation plan– Labor Code §4644(c)– An injured employee is entitled to an additional rehabilitation plan only if it is determined the employee's disability has deteriorated to the point where the worker is unable to meet the physical demands of the original rehabilitation plan, the first plan is disrupted due to circumstances beyond the control of the employee, or failure to provide timely services caused the plan not to be completed. Jorge Lopez v. Workers' Compensation Appeals Board, INCA Plastic Molding Inc. 5 WCAB Rptr. 10,260
VOCATIONAL REHABILITATION– Labor Code §4635(a)(1)– An injured worker's entitlement to vocational rehabilitation is based on the injured worker's medical inability to return to her usual and customary job duties. [In this case, the injured worker's usual and customary job duties were as an educational aide, and not her disclosure or alleged failure to disclose her previous training and skills as a cosmetologist.] Los Angeles Unified School District v. Workers' Compensation Appeals Board (Nicole Johnson) 5 WCAB Rptr. 10,262
VOCATIONAL REHABILITATION–Labor Code §5405.5–Time to request vocational rehabilitation–Labor Code §5405.5 extends the time for filing an initial request for rehabilitation benefits beyond five years from the date of injury, as long as the request is filed within one year from the last finding of permanent disability or within one year from the date of filing of the approval of a Compromise and Release on other issues. See Sanchez v. Workers' Comp Appeals Bd. (1990) 217 Cal.App.3d 346.) Deats Construction v. Workers' Compensation Appeals Board (Louis Hodge) 5 WCAB Rptr. 10,278
