Insurance Commish Steve ("the turtle will beat the hare") Poizner and
eMeg Whitman are duking it out this weekend at the GOP Convention in Santa Clara.

Whitman has finally started talking, after a disastrous phony town hall meeting in Orange County:
http://www.youtube.com/watch?v=_t3kSLSBBHs

But you, dear readers, have more lofty aims for your Saturdays than watching phony politicians set up their manipulations.

You could be reading substantive studies on the comp system. Studies like the RAND study recently posted on the CHSWC website on return to work programs. The study, "How Effective are Employer Return To Work Programs?" was written by Christopher McLaren, Robert T. Reville, and Seth A. Seabury. It's available here:
http://www.dir.ca.gov/chswc/Reports/201 ... ANDRTW.pdf

The summary notes that work injuries are costly and "policymakers are
continuously motivated to find new ways to reduce the duration of work-related absence and improve early return-to-work". The authors note that some states offer subsidies to employers who accommodate, hire or retrain injured workers.

The RAND study surveyed efforts at 40 large self-insured employers and 17,000 workers injured between 1991 and 1995.

The findings noted that workers at a company with a return-to-work program returned approximately 1.4 times sooner than at companies without a program. This was equivalent to a reduction of 3-4 weeks on average duration of work absences for workers in their sample.

RAND concludes that "these programs are cost-efective for large employers" but that "more work is needed to determine whether these programs could be adopted successfully by smaller firms".

California did establish a program under Labor Code 139.48 to help some employers pay for workplace accommodations. In earlier posts I noted that there had been an underwhelming response to that program:
http://www.workerscompzone.com/index.ph ... 310-213410

But with vocational rehabilitation gone (replaced by the job displacement voucher), return to work programs are important. The RAND paper is an interesting study which confirms that return to work programs can be a win-win for employers and workers. The study is currently posted on the CHSWC website for comments.

Stay tuned.

Julius Young
www.boxerlaw.com

Sayonara to voc rehab.

Workers injured before 1/1/04 who still hoped to avail themselves of vocational retraining, or who had hopes to collect voc rehab maintenance allowance money for times when voc rehab was disputed are out of luck.

Today the WCAB issued a unanimous en banc ruling on the VR issue, in its ruling in Lawrence Weiner vs. Ralphs Company and Sedgwick Claims.
Here's a pdf version of the decision:
http://www.dir.ca.gov/wcab/EnBancdecisi ... Weiner.pdf

The bottom line? Voc rehab did sunset 1/1/09. The WCAB does not beleive it has the authority to enforce undecided rehab claims that were in process before 1/1/09. The concept of "ghost statutes" does not fly.

Mr. Weiner went to trial on 11/24/08 on VR entitlement issues. A decision was not rendered by the workers' comp judge until 1/13/09. That was too late for Weiner. The WCAB no longer maintained jurisdiction to award voc rehab or retro VR benefits. Even though he had made timely demands for VR, his VR rights were not "vested".

Let's take a trip back on memory lane. Voc rehab was designed to help disabled workers transition to a new vocation.

After a vocational rehab beneft was added to the law, an army of vocational counselors was established. A state "bureau" was established.
In the 1980s and early 1990s the "bureau" took a paternalistic approach.

Sometimes there was form over substance. I recall many cases where the focus was on "the plan". Coming up with a "plan" for worker training or placement was paramount. Unfortunately the worker was sometimes lost in the process.

Anecdotally, I can say results were uneven (perhaps there were statistical studies, but if so I can't cite them). As with any type of professional service, there was varying quality in the effort of rehab professionals. Many came out of voc rehab graduate or social work programs and were dedicated to their clients. Others ran voc rehab mills.

Running parallel to the workers comp voc rehab program were voc rehab benefits under the California Department of Rehab.

Things changed under Governor Pete Wilson in 1994. Voc rehab, which previously had no hard dollar cap, was then capped at $16,000. That sum was useful, but could provide only a limited amount of training.
Carriers liked the limitation on their exposure. But often carriers ran afoul of notice requirements, and disputes over notices or eligibility sometimes led to substantial liability for "retro" voc rehab money.

Some workers whose claims have not been settled before 1/1/09 may have been sitting on such "retro VR" claims that appear now to have turned to dust.

The Weiner case won't necessarily be the last word. Courts of Appeal will visit the issue. The 2nd District Court of Appeal has granted a writ in a case involving similar issues; the case is Beverly Hilton vs. WCAB. But it looks likely that it's really "sayonara". The courts often extend great deference to the WCAB.

Few honest observers will vouch for the adequacy of the current $4k to $10k "supplemental job displacement voucher". It's not vocational counseling. It's not retraining. It's not placement assistance. It's beneficial only to a certain type of disabled worker.

In retrospect, what went wrong? Would it have been better to give more extensive retraining benefits to a smaller group of workers"? Workers who were somehow judged to be more significantly disabled? More motivated or more likely to benefit from retraining? Should voc rehab have been folded into the State Department of Vocational Rehab? Should services have been provided on some matrix of wage loss or assets and need? Did the benefit go downhill as too many fly-by-night schools and vendors fed at the trough? Could better incentives have been built into the program?

These questions are academic now.

But there are strong policy arguments to be made for helping disabled workers transition to a more productive future. Workers who can not transition are more likely to become users of other public (taxpayer) funded services.

The current system which disqualifies some workers from their jobs without retraining (with only a low "whole person impairment" rating and resulting minimal monetary award), is suspect.

There must be a better way.

Julius Young
www.boxerlaw.com
(you can share your opinions or criticisms with me at jyoung@boxerlaw.com)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Julius Young
www.boxerlaw.com

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

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

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

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

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

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

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

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

Stay tuned.

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

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

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

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

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

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

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

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

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

Julius Young
www.boxerlaw.com
*