SAYONARA

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 The WCAB no longer maintained jurisdiction to award voc rehab or retro VR benefits.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 [email protected])

Category: Vocational retraining