Vocational Rehabilitation As It Once Was – No Longer Exists

For several years, vocational rehabilitation was considered to be one of the most important benefits within the California Workers Compensation system. The idea was that if an injured worker was unable to return to their usual and customary occupation, they could obtain vocational rehabilitation services to assist them in returning to the labor market.

Unfortunately, that benefit —- which included (for several years) the payment of a biweekly monetary benefit (VRMA) while participating in vocational rehabilitation services , the assistance of a VR counselor to find a job in the workforce using the qualified injured workers’ transferable skills or enrollment in a vocational training schooling program, supplies for schooling and preparation for job interviews ended long ago. To be precise, the statute that provided for such vocational rehabilitation programs, Labor Code, Section 139.5, was repealed.

The legislature in 2003 completely revised the California Workers’ Compensation vocational rehabilitation system by repealing the former Labor Code, Section 139.5 as well as Labor Code, Sections 4635 and 4647 “Vocational Rehabilitation” provisions.

In the place of same, the legislature enacted Labor Code, Sections 4658.5 and 4658.6 as well as a new section 139.5, which created a much more limited and rigid supplemental job displacement benefit for injured workers who sustained their injuries on or after 1/1/2004.

The 2003 version of Labor Code, Section 139.5 relating to the supplemental job displacement benefit was repealed in 2004, however, those benefits remained intact due to Labor Code, Sections 4658.5 and 4658.6. The Legislature to a significant extent reinstated the previous Labor Code, Section 139.5, but added that such previous version of vocational rehabilitation was only available to employees injured before 1/1/2004 and that Labor Code, Section 139.5 would remain in effect until 1/1/2009 unless a subsequent Statute had the effect of extending or deleting Labor Code, 139.5. It was not extended.

Multiple cases thereafter dealt with under which specific circumstances the right to full vocational rehabilitation benefits would continue – whether the monetary vocational rehabilitation maintenance been (VRMA) was due, and owing, as well as the procedures related to or affecting such entitlements.

At this point, for injuries occurring on or after 1/1/2004 the vocational benefit to an injured worker comes in the form of a supplemental job displacement voucher (SJDV).

For injuries on or after 1/1/04 but before 1/1/13 the injured workers employer is not automatically liable for the supplemental job displacement benefit/voucher. Specifically the employer is not liable for such if within 30 days of the termination of temporary disability indemnity payments, the employer offers, and the employee rejects or fails to accept modified or alternative work as set out in Labor Code, Section 4658.6 Labor Code, Sections 4658.1(b) and 4658.1(c) which define what is considered “modified” or “alternative” work California Code of Regulations Section 10133.56 (b) sets forth when an employee is eligible for said benefit.

The amount of the voucher for injuries on or after 1/1/04 and before 1/1/13, depends on an injured workers level of disability, as follows:

• as much as $4,000 for permanent partial disability awards of less then 15 percent;
• as much as $6,000 for permanent partial disability awards from 15 percent to 25 percent;
• as much as $8,000 for permanent partial disability awards from 26 percent to 49 percent and
• as much as $10,000 for permanent partial disability awards from 50 percent to 99 percent.

The issued voucher must be used for (a) education – related retraining and/or skill – enhancement (b) at state – approved or accredited schools. The voucher can then be used for the payment of tuition/fees, books and other expenses required for the retraining or enhancement, with any 10% being used for vocational/return-to-work counseling.

It is also important to know that an injured worker, as part of the settlement of his/her case by Compromise & Release may settle their entitlement to such a voucher.

For injuries on or after 1/1/13 the “voucher” system remains in effect, but with some noticeable changes. Unlike injuries before 1/1/13, Labor Code, Section 4658.7 (b) allows an employer to offer “regular” work in addition to modified or alternative work. Labor Code, Section 4658.1 defines such “regular”, “modified”, and “alternative” work. The offer of work must be for employment lasting a least 12 months and within a reasonable commuting distance of the injured worker’s residence.

Additionally, for injuries on or after 1/1/13 the employer now has 60 days to offer work following the receipt of a report from a qualifying physician finding that the disability from all conditions for which compensation is claimed became “permanent and stationary” and the injury has actually caused the injured worker permanent partial disability.

Most significantly, at least for some injured workers is the fact that for injuries on or after 1/1/13 the entitlement to the voucher cannot be settled by an injured worker and the fact that the voucher my be redeemed (not settled) for, at most 6,000 and not from $4000-$10,000 (depending on disability level) as it was for injuries before that time.

It seems odd, does it not, that as our cost of living goes higher, the benefits available to injured workers to retain and re-make themselves is diminishing over time. In fact, I remember one vocational rehabilitation case our office handled years ago where over $90,000 was spent on the injured workers vocational benefits and vocational training programs.

Those days are, unfortunately, gone.