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Note: Authority cited: Sections 59, 129, 129.5, 133 and 5307.3, Labor Code. Reference: Sections 7, 124 and 129.5, Labor Code.
s 10115. Appeal of Notice of Compensation Due.
An audit subject which has filed a timely Objection under Section 10110 of these Rules may seek further review of a Notice of Compensation Due by filing an appeal with the Workers Compensation Appeals Board, and serving copies of the appeal on the injured worker, any other person to whom the payment is due as specified in the Notice of Compensation Due, and the Administrative Director, within 15 days of receiving the Notice.
Note: Authority cited: Sections 59, 129.5, 133, 4603.5 and 5307.3, Labor Code. Reference: Sections 129, 129.5, 3207, 4550, 4600, 4621, 4636 through 4638, 4639, 4701 through 4703.5, 4900 and 4902, Labor Code; and Section 10952, Title 8, California Code of Regulations.
s 10115.1. Appeal of Notice of Penalty Assessment -Filing and Contents.
(a) Within 7 days after receiving a Notice of Penalty Assessment issued under Labor Code Section 129.5(a) and (c), the claims administrator may appeal all or a portion of the penalty assessments in the Notice by filing with the Administrative Director and serving the Audit Unit with a request for an appeals conference or a request for a written decision without a conference.
(b) If a request for a written decision or request for appeals conference is not timely filed and served, the Notice of Penalty Assessment will become final 7 days after the claims administrator received it, and must be paid in accordance with Labor Code s129.5(c) within 15 days of receipt.
(c) The request shall be in writing in a form specified by the Administrative Director and shall include at least the following information:
(1) The name and address of the person filing the request;
(2) A copy of the Notice of Penalty Assessment which is disputed.
(d) Within 21 days after the request for a written decision or appeals conference is filed, the appellant shall file with the Administrative Director and serve the Audit Unit with a written statement listing the assessments appealed, specifying the legal or factual basis of the appeal, and including documentation or other evidence, if any, which supports the appellant's position. If the written statement and supporting documentation are not timely filed and served, the the Administrative Director shall dismiss the request for written decision or appeals conference. The Notice of Penalty Assessment becomes final on the date of the Administrative Director's notice of dismissal. Penalties shall be paid within 15 days of receipt of the notice of dismissal.
(e) The appellant is deemed to have finally waived any legal or factual basis for appeal which is not stated in a timely filed appeal or timely filed supporting statement. However, the appellant may move the Administrative Director, upon a written showing of good cause filed and served not later than thirty days after its written statement was timely filed, for leave to amend its appeal or statement to add a legal or factual basis for appeal not previously stated. The motion shall attach a copy of the proposed amendment. The motion may include a request to file additional supporting documentation, which shall also be attached. If leave to amend is granted, the proposed amendment shall be deemed filed on the date the Administrative Director's order is served.
(f) Documentation which the appellant did not file with its appeal or supporting statement (including an amended appeal and statement allowed under subsection (e)) will not be admitted into evidence in support of the appeal without a showing of good cause. Good cause requires the appellant to show that the additional documentation was not reasonably available to accompany its appeal statement, and also requires that the appellant serve a copy of the proposed additional documentation on the Audit Unit before the hearing, as soon as the document becomes available.
(g) The appellant shall mail or deliver an original and one copy of its request under subsection (a) and its statement, documentation and any motion under subsections (d) or (e) to the office of the Administrative Director at the address shown in the report of audit findings. Requests, statements, documentation and motions are timely if they were:
(1) Placed in the United States mail in a fully prepaid, sealed envelope postmarked within the times specified in subsections (a), (d) and (e); or,
(2) Delivered to the office of the Administrative Director between the hours of 8:00 a.m. and 5:00 p.m. within the periods specified in subsections (a), (d) and (e).
If a date to submit a request under subsection (a) or to submit a filing under subsections (d) or (e) falls on a weekend or holiday, that date is extended to the next business day.
(h) The appellant shall serve two copies of any request, statement, document or motion filed with the Administrative Director concurrently on the Audit Unit, by the same means of delivery as the original which was filed with the Administrative Director. The original and all copies of any filing shall attach proof of service, which may be made as provided in Title 8, California Code of Regulations, Section 10975.
(i) If a request for a written decision or an appeals conference, or a written statement in support of the appeal, contests only a portion of a Notice of Penalty Assessment, the portions of which are not appealed (or not included in the supporting statement(s)) shall become final on the same date an entire Notice of Penalty Assessment would become final if not timely appealed or supported, and appellant shall pay the uncontested assessments by the date payment would be due under subsection (b) if an entire Notice of Penalty Assessment were involved.
Note: Authority cited: Sections 59, 129.5, 133 and 5307.3, Labor Code. Reference: Sections 129 and 129.5, Labor Code.
s 10115.2. Appeal of Notice of Penalty Assessment; Conference Process and Delegation of Authority; Notice of Findings, Service.
(a) The Administrative Director may appoint a designee to conduct the appeal conference.
(b) The conference shall be held at the place, time, and date scheduled unless, upon a showing of good cause, a continuance has been granted. Notice of the conference date will be provided to the parties no late than thirty days before the conference.
(c) The appeals conference is an informal hearing in which the parties are given an opportunity to explain their positions and to present evidence in support of their positions. The conference need not be conducted in accordance with the formal rules of evidence, and legal representation is not required.
(d) The conference will be tape recorded, unless a party chooses to have it recorded by a court reporter. The Administrative Director and the opposing party shall be notified no later than five days before the conference that a party will supply a court reporter. The party choosing to use a court reporter is responsible for making the arrangements and for paying the costs of the reporter and transcription, including the cost of a copy of the transcript for the Administrative Director.
(e) Either party may present live testimony or documentary evidence at the conference. The Administrative Director may issue subpoenas for the attendance of witnesses at the conference, or subpoenas duces tecum for the production of documents, if requested by a party in writing within a reasonable time before the conference. Any person who is subpoenaed to appear may, instead of appearing at the time specified in the subpoena, agree with the party at whose request the subpoena was issued to appear at another time or upon agreed notice. Any failure to appear according to that agreement may be treated in all respects as a failure to appear in response to the original subpoena. The facts establishing or disproving the agreement and failure to appear may be proved by an affidavit of any person having personal knowledge of the facts.
(f) All testimony shall be made on oath or affirmation administered by the Administrative Director or designee.
(g) The Administrative Director or the Director's designee shall preside over the conference and shall have authority to admit any testimony or documentary evidence into the record which (s)he deems relevant and to decide any issues which arise during the conference including objections to evidence, privileges, claims and defenses.
(h) If the appellant fails to appear at the conference, the Administrative Director shall dismiss the request for conference and issue an order affirming the notice of penalty assessment.
(i) Within 15 days of the date the appeal is submitted for decision, the Administrative Director shall issue a Notice of Findings. When a written decision without a conference was requested, the date of submission is the date the Administrative Director receives the Audit Unit's written response to the appeal unless that date is extended by the Administrative Director for good cause. The time limits for action by the Administrative Director are directory and not jurisdictional.
(j) The Notice of Findings shall be served on the appellant by registered or certified mail, and is final for purposes of judicial review upon receipt.
(k) The appellant must pay any amount found due by the Administrative Director within 30 days after receiving the Notice of Findings, but the 30-day period shall be tolled if the appellant files a timely petition for writ of mandate, as to any assessment included for review in the petition proceeding, until that proceeding has become final.
( l) The appellant may file a petition for a writ of mandate from the Administrative Director's Notice of Findings in accordance with Labor Code Section 129.5(e). The deadline for filing the petition for writ is 30 days after receipt of the Notice of Findings.
Note: Authority cited: Sections 59, 129.5, 133 and 5307.3, Labor Code. Reference: Sections 7, 129 and 129.5, Labor Code.
s 10115.3. Appeal of Civil Penalty.
Note: Authority cited: Sections 59, 129.5, 133 and 5307.3, Labor Code. Reference: Sections 7, 124 and 129.5, Labor Code.
s 10116. General: Definitions.
As used in this Article, the following definitions apply:
(a) Claims Administrator. A self-administered workers' compensation insurer, a self-administered self-insured employer, a self-administered joint powers authority, or a third-party claims administrator for an insurer, a self-insured employer, a legally-uninsured employer or a joint powers authority; or an attorney or agent of any of those entities.
(b) Claim Form. The official Division of Workers' Compensation DWC Form 1 Employee's Claim for Workers' Compensation Benefits, as set forth in Section 10117 of this Article.
(c) Employee. An employee, a person claiming to be an employee, his or her dependents, or agent.
Note: Authority cited: Sections 133 and 5307.3, Labor Code. Reference: Sections 5401, 5401.7, 5402 and 5404.5, Labor Code.
s 10116.1. General: Employer Obligation.
Nothing in this article shall abrogate the duty of an employer to provide timely compensation to an injured worker, even if the employee has not completed and filed the form required by Labor Code Section 5401 and this article.
Note: Authority cited: Sections 133 and 5307.3, Labor Code. Reference: Sections 5401 and 3200-6208, Labor Code.
s 10117. Claim Form.
Note: Authority cited: Sections 133 and 5307.3, Labor Code. Reference: Sections 5401, 5401.7 and 5402, Labor Code.Authority cited: Sections 133 and 5307.3, Labor Code. Reference: Sections 5401, 5401.7 and 5402, Labor Code.
s 10117.1. Claim Form and Notice of Potential Eligibility for Benefits.
The employee's form for filing a workers' compensation claim (DWC 1) and the Notice of Potential Eligibility for Benefits is a mandatory form set forth in Section 10118.1 of this Article. The employer portion of the form may also include other information pertinent to the claim, including a logo or other employer-identifying information, but such information shall in no way impose additional duties or prohibitions on the employee or delay the processing of the claim. The claim form consists of an original and three (3) copies.
Note: Authority cited: Sections 133 and 5307.3, Labor Code. Reference: Sections 5401, 5401.7 and 5402, Labor Code.Authority cited: Sections 133 and 5307.3, Labor Code. Reference: Sections 5401, 5401.7 and 5402, Labor Code.
s 10118. Form.
s 10118.1. Workers' Compensation Claim Form (DWC 1) and Notice of Potential Eligibility.
Note: Authority cited: Sections 133 and 5307.3, Labor Code. Reference: Sections 139.5, 4600, 4604.5, 4616, 4658.5, 4658.6, 5401, 5401.7 and 5402, Labor Code.Authority cited: Sections 133 and 5307.3, Labor Code. Reference: Sections 139.5, 4600, 4604.5, 4616, 4658.5, 4658.6, 5401, 5401.7 and 5402, Labor Code.
s 10119. Employer's Responsibility to Process Claim Form, Claims Administrator's Duty to Provide Claim Form.
(a) Within one working day of receipt of a claim form, the employer shall date the claim form and provide a dated copy of the form to the employee and the employer's claims administrator.
(b) If the claims administrator obtains knowledge that the employer has not provided a claim form, it shall provide one to the employee within three working days of its knowledge that the form was not provided.
(c) If the claims administrator cannot determine if the employer has provided a claim form to the employee, the claims administrator shall provide one to the employee within 30 days of the administrator's date of knowledge of the claim.
Note: Authority cited: Sections 133 and 5307.3, Labor Code. Reference: Sections 5401 and 5402, Labor Code.
s 10120. Dismissal of Inactive Claim by Operation of Law After Notice.
(a) Where a claim form has been filed for an injury that occurred prior to January 1, 1994, the claim has been denied, and there has been no activity for 180 days, the claims administrator may issue a notice of dismissal of the claim as follows:
(1) The notice shall include the following:
NOTICE REGARDING WORKERS' COMPENSATION CLAIM
You applied for workers' compensation benefits. A copy of your claim form is attached. We have not heard from you since we sent you a letter denying your claim on [Date]. Your case has been inactive for at least 180 days. If you are still claiming benefits, you must file an Application for Adjudication of Claim with the Workers' Compensation Appeal Board within 180 days of the date this notice is served on you. The date of service is listed at the bottom of this form. IF YOU DO NOT FILE THE APPLICATION BY THE DEADLINE, THE CLAIM WILL AUTOMATICALLY BE DISMISSED "BY OPERATION OF LAW". This means you will not be able to claim benefits for the injury or illness listed on the claim form unless you file the Application for Adjudication of Claim by the deadline. Please call me at [phone number] if you want more information or help figuring out the deadline for filing an Application.
You can get the Application form, help figuring out the deadline for filing an Application, and information about your claim by calling the State of California Division of Workers' Compensation Information and Assistance Office. [Enter telephone number of district Information and Assistance Office closest to injured workers' residence.] You may hear recorded information by calling 1-800-736-7401. You may also consult an attorney.
__________ [Claims Administrator Representative]
Date Notice Is Served:
(2) The blank(s) in the prescribed notice language shall be completed by the claims administrator to specify the information described in brackets. The date of service of the Notice shall be inserted on the Notice by the claims administrator or process server to accurately reflect the date service is effected in accordance with the Code of Civil Procedure as specified in subsection (d).
(b) Where a claim form has been filed for an injury that occurred prior to January 1, 1994, benefits have been furnished, and there has been no activity for 180 days, the claims administrator may issue a notice of dismissal of the claim as follows:
(1) The notice shall include the following:
NOTICE REGARDING WORKERS' COMPENSATION CLAIM
You applied for workers' compensation benefits. A copy of your claim form is attached. Your case has been inactive for at least 180 days.
Your right to workers' compensation benefits will end on [Insert date - either five years from the date of injury or one year from the last furnishing of benefits, whichever is later], unless you file an Application for Adjudication of Claim by that date. That date is [insert either "five years from the date of your injury", or "one year from the date of the last benefit provided to you."]
IF YOU DO NOT FILE THE APPLICATION BY THE DEADLINE, THE CLAIM WILL AUTOMATICALLY BE DISMISSED "BY OPERATION OF LAW". This means you will not be able to claim further benefits for the injury or illness listed on the claim form unless you file the Application for Adjudication of Claim by the deadline. Please call me at [phone number] if you want more information.
You can get the application form and information about your claim by calling the State of California Division of Workers' Compensation Information and Assistance Office at [Enter telephone number of district Information and Assistance Office closest to injured worker's residence.] You may hear recorded information by calling 1-800-736-7401. You may also consult an attorney.
__________ [Claims Administrator Representative]
(2) The date of last furnishing of benefits shall be the latter of: the latest date of receipt by the employee of medical or rehabilitation services, or the latest date that payment of any compensation benefit was mailed or personally delivered to the employee or any service provider.
(3) The blanks in the prescribed notice language shall be completed by the claims administrator to specify the information described in brackets.
(c) The Notice under (a)(2) and (b)(2) shall further contain the date(s) of injury, name of the employee, the name of the employer, identification of the claims administrator, including address and telephone number, and claim number, if any. A copy of the claim form(s) shall be attached to the notice prior to service.
(d) The claims administrator shall serve notice on the employee in the manner prescribed for a summons in a civil action in accordance with Article 3 (commencing with Section 415.10) of Chapter 4 of Title 5 of the Code of Civil Procedure.
If the employee is represented by an attorney, the claims administrator shall in addition serve a copy of the notice on the attorney by personal delivery or first class mail. Where no Application for Adjudication of Claim has been filed, but the Workers' Compensation Appeals Board has assigned a case number to the matter because of a pre-Application filing, the claims administrator shall also serve a copy of the notice on the appeals board. Proof of service shall be made in accordance with Title 8, CCR section 10975.
(e) The occurrence of any of the following during the 180 days prior to service of the notice is evidence that the claim is not inactive and there can be no dismissal under (a)(1) or (a)(2): the employee has made demand for payment or provision of benefits (whether indemnity, medical, or other), the claims administrator has knowledge that there are benefits due and unpaid, there has been treatment rendered for the industrial injury, there has been a medical-legal evaluation of the employee, there has been a deposition in regard to the claim, the claims administrator has other knowledge that the employee is actively pursuing his or her claim.
Note: Authority cited: Sections 133, 5307.3 and 5404.5, Labor Code. Reference: Sections 5401, 5402 and 5404.5, Labor Code.
s 10121. Date of Denial for Purposes of End of Tolling of Limitations Period.
For purposes of Labor Code Section 5401(c), the date "the claim is denied" for determining when the claim form ceases to toll the specified limitations periods is:
(a) the date the written denial notice is personally served, or
(b) five days after the written denial notice is placed in the mail if the address is within the State of California, ten days if the address is outside the State of California, but within the United States and twenty days if the address is outside of the United States.
The written denial notice must be issued in accordance with the notice regulations in Title 8, CCR, Subchapter 1, Article 8, Sections 9810 et seq. in order to cease the claim form's tolling of the limitations periods.
Note: Authority cited: Sections 133 and 5307.3, Labor Code. Reference: Section 5401, Labor Code.
s 10122. Definitions.
The following definitions apply to this article and are in addition to those as set forth in Labor Code section 4635:
(a) Alternative Work: A job or occupation, other than modified work, with the same employer which is compatible with the injured employee's work restrictions. Alternative work for injuries occurring on or after 1/1/94 shall also meet the criteria of Labor Code Section 4644(a)(6).
(b) Claims Administrator. The person or entity responsible for the payment of compensation for a self-administered insurer providing security for the payment of compensation required by Divisions 4 and 4.5 of the Labor Code, a self-administered self-insured employer, or a third-party claims administrator for a self-insured employer, insurer, legally uninsured employer, or joint powers authority.
(c) Correct Rehabilitation Unit District Office. The district office venue assigned by the Rehabilitation Unit.
(d) Employer. The person or entity that employed the injured employee at the time of injury.
(e) In-House Qualified Rehabilitation Representative. An employee of the claims administrator who is capable of developing and implementing a vocational rehabilitation plan and whose experience and regular duties involve the evaluation, counseling or placement of disabled persons, and who is familiar with this article and Article 2.6 (commencing with Section 4635) of Chapter 2 of Part 2 of Division 4 of the Labor Code.
(f) Insurer. Has the same meaning as in Labor Code Section 3211.
(g) Modified Work: An injured employee's usual and customary job or occupation with the same employer after modification to accommodate required work restrictions. Modification includes, but is not limited to, changing or excluding certain tasks, reducing the time devoted to certain tasks, modifying the work station, changing the work location, and providing helpful equipment or tools. Modified work for injuries occurring on or after 1/1/94, shall meet the criteria of Labor Code Section 4644(a)(5). An Employer's provision of ergonomic or safety equipment or devices for injury prevention purposes shall not give rise to liability for vocational rehabilitation services.
(h) Notices. Required notices letters generated by the claims administrator and directed to the injured employee.
(i) Parties. The employee, claims administrator and their designated representatives, if any.
(j) Rehabilitation Provider. A person or entity providing vocational rehabilitation services for a fee.
(k) Rehabilitation Unit. The unit established within the Division of Workers' Compensation.
(l) Regular Position: A position arising from the ongoing business needs of the employer which consists of defined activities that can be reasonably viewed as required or prudent in view of the company's business objectives and is expected to last at least 12 months.
(m) Represented Employee: An injured employee who has retained an attorney-at-law who is a member in good standing of the State Bar of California.
Note: Authority cited: Sections 133, 139.5 and 5307.3, Labor Code. Reference: Sections 124, 139.5, 4635 and 4644, Labor Code.
s 10122.1. Weekend or Holiday Deadlines.
If the date or deadline (including any applicable extension) to perform any act falls on a weekend or state holiday (as defined by Government Code s6700 and s6701), the act may be performed on the first business day after the weekend or holiday.
Note: Authority cited: Sections 133, 138.4, 139.5 and 5307.3, Labor Code. Reference: Sections 133, 139.5 and 4637, Labor Code.
s 10123. Reporting Requirements.
(a) Except for notices required by this article to be sent to an employee, all forms or correspondence submitted to the Rehabilitation Unit shall include:
(1) Rehabilitation Unit file number, or
(2) Case Initiation Document or promulgated form requesting action which includes the Rehabilitation Unit file number as the cover sheet for the information being submitted.
Documents which have neither a Rehabilitation Unit file number or a Case Initiation Document will be returned to the sender with instructions for proper filing.
(b) All forms, notices, reports and other communications subject to Labor Code section 139.5 and article 2.6commencing with Labor Code section 4635 are to be served simultaneously on all parties.
(c) All forms and reports as required by this article shall be submitted to the correct Rehabilitation Unit District Office in the manner prescribed by the Administrative Director.
(1) Incomplete forms or forms with incomplete information attached may be returned to the sender. Each form has instructions as to the reports/information which must be attached.
(2) A form filed without the attachments and a specific listing of all enclosures as required by the instruction section of the form is deemed incomplete and shall be denied or returned to sender for proper submission. All incomplete requests will be date stamped.
(3) The Rehabilitation Unit shall serve a copy of the transmittal information upon the other parties when a form is returned.
(d) Filing instructions and venue lists shall be provided upon request by the Rehabilitation Unit. Requests shall be submitted to:
REHABILITATION UNIT HEADQUARTERS
P. O. BOX 420603
SAN FRANCISCO, CA 94142
(e) All forms submitted to the Rehabilitation Unit shall bear original signatures and shall be on forms as issued by the Administrative Director or forms approved by the Administrative Director.
(1) No forms, notices or reports shall be forwarded to the Rehabilitation Unit when the claims administrator has raised a good faith issue of injury arising out of and occurring in the course of employment, until the claims administrator has accepted liability for the injury or there has been a finding of injury by the Workers' Compensation Appeals Board.
(2) Any requests for provision of rehabilitation services and for intervention/dispute resolution require confirmation by the employee or his/her representative that liability for the injury has been accepted.
Forms sent to the Rehabilitation Unit when a good faith issue of injury exists or where there has been no confirmation of acceptance of injury, shall be returned to the sender.
(f) All required notices shall be sent to the employee and his or her attorney, if any, on a timely basis by the claims administrator in the form and manner prescribed by the Administrative Director. Failure to provide notices timely shall subject the insurer, third party administrator or self-insured employer to administrative or civil penalties. The notices are timely when sent according to the requirements of Section 9813.
(g) The insurer shall advise the employer of a potential refund as described in Labor Code section 4638 no later than the required date of the initial notice of potential eligibility.
(h) The claims administrator shall retain a true copy of all notices sent to the employee and shall provide the unit with a copy upon request.
(i) When an employer, claims administrator or an employee chooses to be represented in matters pending before the Rehabilitation Unit, the represented party or representative shall notify the Rehabilitation Unit by completing and filing DWC Form RU-101, "Case Initiation Document." Notice of representation to the Appeals Board shall not be considered notice to the Rehabilitation Unit.
Note: Authority cited: Sections 133, 139.5 and 5307.3, Labor Code. Reference: Sections 139.5, 4636, 4637, 4638 and 4645, Labor Code.
s 10123.1. Reproduction of Forms, Notices.
Any person or entity may reproduce all the forms required by this article and Article 2.6 of Chapter 2, Part 2 of Division 4 of the Labor Code (commencing with section 4635), including the pamphlet entitled "Help In Returning To Work-94" (Section 10133.2), and may only modify the heading to permit imprinting the name, address, telephone number and logo-type or other identifier of an employer, insurer or third party administrator.
The forms may be reproduced on white paper and must otherwise be comparable in type size, typestyle and format, to that promulgated by the Administrative Director in this section.
Note: Authority cited: Sections 133, 139.5 and 5307.3, Labor Code. Reference: Sections 139.5, 4636, 4637, 4638 and 4645, Labor Code.
s 10123.2. Unrepresented Employees.
The Rehabilitation Unit shall assist an unrepresented worker in complying with section 10123 of these regulations. Such assistance may include directing the worker to the correct Rehabilitation Unit district office, obtaining all reports and/or obtaining information necessary to make a determination on disputed issues.
Note: Authority cited: Sections 133, 139.5, 139.6 and 5307.3, Labor Code. Reference: Sections 139.5, 4636, 4637, 4638 and 4645, Labor Code.
s 10123.3. Referral to Rehabilitation Providers; Facilities.
(a) An insurer may not refer an injured worker to a rehabilitation provider or facility in which the insurer has a proprietary interest. Nothing in this subdivision shall be construed to restrict or prohibit return-to-work services provided by a health care organization certified under Section 4600.5 of the Labor Code.
(b) A rehabilitation provider may not refer an injured worker to a work evaluation facility or education or training program in which the rehabilitation provider has a proprietary interest or contractual relationship, express or implied. This extends to the provider's spouse, employer, co-employee or any party with whom he or she has entered into a contract, express or implied.
(c) An in-house qualified rehabilitation representative may provide vocational rehabilitation services only if the expenses charged to a claim for such services are disclosed to the insured and agreed to in advance.
(d) This section applies only to injuries which occur or or after January 1, 1994.
Note: Authority cited: Sections 133, 139.5, 139.6 and 5307.3, Labor Code. Reference: Section 139.5(h), Labor Code.
s 10124. Identification of Medical Eligibility.
(a) For Injuries Occurring on or after 1/1/90 through 12/31/93 at 90 days of Aggregate Total Temporary Disability.
Within 25 days of receipt of the assignment required by subdivision (a) of Labor Code section 4636, the qualified rehabilitation representative shall:
(1) Meet with the employee to explain the services available to assist the employee in returning to work. If the employee's medical eligibility for vocational rehabilitation services has not yet been determined, the qualified rehabilitation representative shall assist the employee and confer with the employer in the joint development of a job description, using either DWC Form RU-91, "Description of Employee's Job Duties" or a narrative description, which may include a video tape of the tasks, worksite and equipment.
(2) Submit DWC Form RU-90, "Treating Physician's Report of Disability Status," and the job description to the employee's treating physician and request the physician to determine the employee's medical eligibility for vocational rehabilitation services.
(3) Provide the injured worker with the "Help In Returning to Work " pamphlet published by the Department of Industrial Relations, Division of Workers' Compensation.
(b) For Injuries Occurring on or after 1/1/94.
When 90 days of aggregate total disability occurs, the claims administrator shall, within 10 days, provide the employee "Help In Returning to Work-94 " along with information on how to contact an Information and Assistance officer. (Reference 9813(d)(1).
(1) If the employee's medical eligibility for vocational rehabilitation services has not yet been determined, the claims administrator shall assist the employee in the joint development of a job description, using DWC Form RU-91, Description of Employee's Job Duties or a narrative description which may include a video tape of the tasks, worksite and equipment. If the employee unreasonably refuses to participate in the development of a joint job description, the employer's description shall be presumed to be the joint description.
(2) In the event that a dispute regarding the job duties cannot be resolved by the parties, the claims administrator shall submit this dispute to the Rehabilitation Unit. The Rehabilitation Unit will resolve the dispute on an expedited basis.
(3) The claims administrator must submit the DWC Form RU 90 "Treating Physician's Report of Disability Status", and the job description to the employee's treating physician and request the physician to determine the employee's medical eligibility for vocational rehabilitation services. In the event the treating physician is unable to determine if the employee is medically eligible for services, the claims administrator shall continue to contact the physician at no less than 60 day intervals until the physician can make a determination.
Note: Authority cited: Sections 133, 139.5 and 5307.3, Labor Code. Reference: Sections 139.5 and 4636, Labor Code.
s 10124.1. Identification of Vocational Feasibility.
(a) The Qualified Rehabilitation Representative (QRR) selected pursuant to Labor Code section 4637(a)(5) shall determine the employee's "vocational feasibility" as defined in Labor Code section 4635(a)(2). The QRR's determination of vocational feasibility may include the following steps:
(1) an initial evaluation meeting;
(2) an assessment of existing employment skills;
(3) consideration of the current physical limitations and work restrictions contained in the medical record;
(4) an assessment of the injured employee's perception of his or her physical capacities;
(5) an identification of vocational strengths;
(6) an identification of factors that may prevent or enhance participation in vocational rehabilitation services; and
(7) the use of vocational testing and/or work evaluation services when appropriate.
(b) The QRR shall prepare an initial report using DWC Form RU-120 addressing the employee's vocational feasibility prior to completing the "Vocational Rehabilitation Plan", DWC Form RU 102. The QRR shall thereafter continue to address the employee's vocational feasibility using DWC Form RU-121. For employees injured on or after 1/1/94, where all of the events contained in Section 10125 have occurred, the fees for reports required by this section shall be attributable to the maximum aggregate fees provided for in Section 10132.
(c) The QRR's report of vocational non-feasibility shall identify the specific factor(s) preventing the employee from benefiting from the provision of vocational rehabilitation services. The report shall further identify any recommended action the employee should pursue in order to attain vocational feasibility.
(d) Where the QRR determines an employee lacks vocational feasibility, the claims administrator may, after notice to the employee pursuant to Sections 9812(d) or 9813(a)(3), discontinue vocational rehabilitation services and vocational rehabilitation temporary disability or maintenance allowance payments.
(e) The employee may dispute the claims administrator's discontinuance of benefits under subdivision (d) by filing a "Request for Dispute Resolution", DWC Form RU-103, pursuant to Section 10127(c) or (d). Notwithstanding Section 10127(e), the Rehabilitation Unit shall consider the dispute on an expedited basis, and shall issue a determination within ten (10) days of receipt of the RU-103.
Note: Authority cited: Sections 133, 138.4, 139.5 and 5307.3, Labor Code. Reference: Sections 4635 and 4637, Labor Code.
s 10125. Maximum Vocational Rehabilitation Expenditures for Injuries Occurring On or After 1/1/94.
The maximum expenditure for counseling fees, training, maintenance allowance, and costs associated with and arising out of vocational rehabilitation services shall begin when all of the following events have occurred:
(a) The claims administrator has identified the employee as medically eligible for vocational rehabilitation services and has sent a notice of potential eligibility to the employee;
(b) The employee has received notice in writing that confirms the lack of alternate or modified work with the employer;
(c) The employee has made a request for vocational rehabilitation services.
Nothing in this article shall be construed to limit or discourage the use of additional public or private resources in addition to the maximum expenditure payable by the insurer as a part of a vocational rehabilitation plan.
Note: Authority cited: Sections 133, 139.5 and 5307.3, Labor Code. Reference: Sections 139.5, 4636, 4638 and 4642, Labor Code.
s 10125.1. Vocational Rehabilitation Maintenance Allowance.
(a) Vocational Rehabilitation Maintenance Allowance (VRMA) payments shall be made every 14 days on the day designated with the first payment.
(b) If the employee fails to reasonably cooperate with the provisions of vocational rehabilitation services subsequent to a request, the claims administrator may notify the worker of the claims administrator's intent to withhold the employee's maintenance allowance in accordance with Section 9813 (c)(4) and (d)(4). Failure to cooperate includes unreasonable failure to attend scheduled meetings and unreasonable failure to follow-up on tasks assigned in the development or implementation of a vocational rehabilitation plan.
(c) When the injured worker is receiving or should be receiving VRMA, the maintenance allowance payable during any delay caused by the employer or claims administrator shall be paid to the injured worker at the temporary disability rate. "Delay" includes any delay in the employer's provision of notice to the employee in accordance with subdivision (d) of Section 4636 of the Labor Code. For injuries occurring on or after 1/1/94, such payments will not be counted against the maximum allowable expenditure for vocational rehabilitation services or against the 52 week limitation on maintenance allowance payments.
Note: Authority cited: Sections 133, 139.5 and 5307.3, Labor Code. Reference: Sections 139.5, 4636, 4638 and 4642, Labor Code.
s 10125.2. Vocational Rehabilitation Additional Living Expenses.
Additional living expenses to an employee that are necessitated by the provision of vocational rehabilitation services may include, but are not limited to, reasonable costs for food, lodging, transportation, clothing, and dependent care. The employee may elect to waive provision of additional living expenses provided such waiver is documented in the "Vocational Rehabilitation Plan", DWC Form RU-102.
Note: Authority cited: Sections 133, 139.5 and 5307.3, Labor Code. Reference: Sections 139.5 and 4641, Labor Code.
s 10125.3. Entitlement to Vocational Rehabilitation Temporary Disability or Vocational Rehabilitation Maintenance Allowance.
An employee shall be entitled to continuous payments of vocational rehabilitation temporary disability (VRTD), or for injury dates on or after 1/1/90 where the employee is permanent and stationary, vocational rehabilitation maintenance allowance (VRMA), during any period of entitlement to vocational rehabilitation services, including periods while participating in eligibility evaluation, plan development and during pendency of plan approval and implementation. However, entitlement to VRTD or VRMA payments, in addition to any other requirements, shall be contingent upon the employee's cooperation in and availability to receive vocational rehabilitation services. VRTD shall be payable in the same manner and at the same rate as temporary disability indemnity. For dates of injury on or after 1/1/94, VRMA payments shall not exceed 52 weeks in the aggregate unless the overall cap on vocational rehabilitation services may be exceeded pursuant to Labor Code Sections 139.5, 4642 or 4644.
Note: Authority cited: Sections 133, 138.4, 139.5 and 5307.3, Labor Code. Reference: Sections 139.5, 4642 and 4644, Labor Code.
s 10126. Vocational Rehabilitation; Plans and Offers of Modified or Alternative Work.
(a) For Injuries occurring prior to 1/1/94,
(1) Within ninety (90) days after determination of the employee's vocational feasibility, the claims administrator shall either:
(a)(a) Submit Vocational Rehabilitation Plan, DWC Form RU-102, agreed to by the parties with appropriate attachments or;
(b)(b) Advise the Rehabilitation Unit of any dispute by filing a "Request For Dispute Resolution", DWC Form RU-103, to the Rehabilitation Unit, attaching a summary of the informal conference and the results thereof, including identification of the issues, issues resolved, issues pending, position of the parties and the rationale/supporting information for the position(s).
(2) A vocational rehabilitation plan that provides for modified or alternative work with the same employer and has been agreed to by the employer and employee shall not be subject to Rehabilitation Unit approval prior to implementation.
(3) Where a question arises concerning the duration of alternate plans of equal merit, the unit shall approve the plan that expedites the employee's return to suitable gainful employment.
(b) For Injuries Occurring On Or After 1/1/94.
(1) Offers to provide alternative or modified employment with the employer which meet the criteria of Labor Code Section 4644(a)(5), (6), or (7) do not require a written plan nor approval from the Rehabilitation Unit. The offer shall be made on DWC Form RU-94. The injured employee shall accept or reject a bona fide offer within 30 calendar days of receipt of the offer. In the event that the offer is not accepted or rejected within 30 days, the offer is deemed rejected unless the time period for reply is extended by the employer or by the terms and conditions of a collective bargaining agreement. The claims administrator shall submit a copy of the acceptance or rejection of the re-employment offer to the Rehabilitation Unit within 30 days of the acceptance or rejection.
(2) Plans developed for unrepresented employees or plan developed without the service of a Qualified Rehabilitation Representative require the approval of the Rehabilitation Unit. The plan must be submitted, on DWC Form RU 102, to the Rehabilitation Unit within 15 days of the agreement to the provisions of the plan.
(3) Agreed plans developed by a Qualified Rehabilitation Representative for represented employees do not require Rehabilitation Unit approval. The claims administrator shall submit a copy of the plan to the Rehabilitation Unit upon submission of the Notice of Termination of Vocational Rehabilitation Services at the time of completion.
(4) Plans which provide the employee with discretionary monies to be used on a non-specific and/or self-directed basis must be reviewed by the Rehabilitation Unit to determine whether the plan is in conflict with Labor Code Section 4646. Any plan found to be in conflict with Labor Code Section 4646 shall not terminate an insurer's liability to provide vocational rehabilitation services and any money expended on such a plan shall not be counted against the maximum expenditure for vocational rehabilitation services.
(5) An employee may be granted a waiver of the services of a Qualified Rehabilitation Representative if the employee has made substantial progress towards the completion of a certificate or degree program from a community college, California State University, or the University of California. Substantial progress includes but is not limited to situations where the employee can demonstrate all of the following:
(a)(a) The employee is, was, or will be enrolled as a full-time student taking 12 units or more;
(b)(b) The employee has completed 35% or more of the units necessary to complete the degree or certificate program and has attained at least a "C" grade in those courses necessary to complete the degree or certificate program;
(c)(c) The employee has produced a letter of recommendation from the school in which the employee is enrolled supporting the employee's course of study from one of the following: the Dean of Admissions, the school department head or the school counselor. Accompanying the letter shall be an outline of the courses to be taken and the estimated time frames for completion of each course.
(d)(d) The employee has identified the vocational goal to be achieved, the resources and time frames required to achieve the goal and, if the goal extends beyond the maximum expenditures and time frames allowed, the alternative resources available to the employee to complete the program.
The Rehabilitation Unit will assist the employee in completing the DWC Form RU 102.
(c) All plans must contain a description of the level of participation expected of the employee in order to continue to receive maintenance allowance. If the employee fails to adhere to the agreement, the claims administrator may petition to withhold the employee's maintenance allowance as described in Section 9813.
(d) Nothing shall preclude the claims administrator or employee from requesting the Rehabilitation Unit to approve a modification of the plan because of an unforeseen circumstance arising subsequent to the initial plan agreement.
(e) Within 15 days after the employee and claims administrator have agreed to the terms and conditions of a vocational rehabilitation plan, the plan shall be submitted to the Rehabilitation Unit for review and approval where approval is required. Within thirty (30) days of receipt of a properly submitted, documented and signed plan, the Rehabilitation Unit shall approve or disapprove the plan. If disapproval is not made within thirty (30) days of receipt of a properly submitted plan, the plan shall be deemed approved.
Notice of approval shall issue only in instances where the plan has been previously disapproved. Plan commencement shall not be deemed approval.
(f) Plans that are in conflict with Labor Code Section 139.5(h) or Section 10123.3 of these regulations shall not terminate the insurer's liability to provide vocational rehabilitation services and, for injuries occurring on or after 1/1/94, shall not be counted against the maximum expenditure for vocational rehabilitation services.
(g) A vocational rehabilitation plan is complete when the claims administrator and employee have fulfilled their respective obligations specified in the plan or when applicable maximum expenditures for vocational rehabilitation services have been reached, whichever occurs first.
(h) For injuries occurring on or after 1/1/94, a rehabilitation plan must be completed within 18 consecutive months from the date of plan approval, or, if approval is not required, from the date of plan commencement. Except as provided in Subdivision (i), the job placement period in a plan shall not exceed 60 days.
(i) For employees injured on or after 1/1/94 who initiate rehabilitation benefits or services pursuant to Section 10125 on or after 1/1/98, the period of job placement in a rehabilitation plan may be up to 90 days where the plan exclusively utilizes transferable skills and experience for direct placement.
(j) A second vocational rehabilitation plan will not be provided where the claims administrator has fulfilled its obligations under the plan and the employee has completed, or with reasonable diligence could have completed the vocational rehabilitation plan, unless the employee can demonstrate a deterioration of his or her disability to the point where the employee is unable to meet the physical demands of the first plan.
(k) Private providers of vocational training selected to provide training as part of a vocational rehabilitation plan shall have either approval from the Bureau for Private Postsecondary and Vocational Education, approval from a California state agency that has an agreement with the Bureau for the regulation and oversight of non-degree-granting private postsecondary institutions, accreditation from the Western Association of Schools and Colleges, or certification from the Federal Aviation Administration.
(l) Vocational rehabilitation plans for employees who lack English language proficiency may include English language training when necessary to return the employee to suitable gainful employment. (continued)