DWC California standards governing timeliness and quality of vocational rehabilitation services

In September 1989, Governor Deukmejian signed the Margolin-Bill Greene Workers' Compensation Reform Act which required the Division of Workers' Compensation to develop standards governing the timeliness and quality of vocational rehabilitation services for the industrially injured employee. {Labor Code 139.5, section A (5)} (Appendix A)

In July, 1993, Governor Wilson signed into law further workers' compensation reform which placed limits on the amounts of funds available for the rehabilitation of the employee and also placed limits on the extent of counselor services available to the employee.

In 1997 the Legislature adopted a two-phase fee schedule and modified the extent of placement services in Plans offering direct placement services only. For dates of injury occurring on or after 1/1/94, where rehabilitation benefits and services have been initiated on or after 1/1/98, the period of placement may be up to 90 days where the plan exclusively utilizes the employee's transferable skills and experience.

In developing these standards, the Division of Workers' Compensation has sought and considered the views of practicing rehabilitation professionals, claims administrator representatives, insurer representatives, representatives of employees and other interested persons.

These standards are hereby adopted to serve as guidelines for the effective delivery of vocational rehabilitation services to industrially injured employees of the State of California.

CODE OF ETHICS

The delivery of quality vocational rehabilitation services to the industrially injured employee in a fair and open manner and in keeping with the spirit and intent of the law best serves all citizens of the State of California. All persons who contribute to this process shall behave in a legal, ethical and moral manner in the conduct of their profession.

The members of the rehabilitation community are expected to continually strive to insure that vocational rehabilitation services are extended with the highest respect for the dignity and rights of the individual, and promote the personal, social and economic independence of individuals with disabilities.

Individuals participating in the management, administration and direct provision of vocational rehabilitation services are expected to abide by the ethical standards described herein:

* The ethical foundation for the delivery of vocational rehabilitation services rests on the integrity, mutual respect and quality performance of individuals providing those services.

* Individuals responsible for the provision of rehabilitation services shall conduct their professional activities with candor and the highest of principles. They shall never permit the pursuit of financial gain or other personal benefit to impede the exercise of sound professional judgment and practices nor abuse their relationships with their disabled clients to promote personal or financial gain or the financial gain of the employing agencies.

* Counseling relationships should only be initiated or continued when there is a genuine expectation that the relationship will yield an objective, fair and productive result. When this criterion is not met, appropriate alternatives shall be identified.

* Individuals responsible for the provision of rehabilitation services should strive to direct disabled individuals to consider occupations and circumstances that are consistent with the disabled clients' overall abilities, vocational limitations, physical restrictions, general temperament, interest and aptitude patterns, social skills, education, general qualifications and other relevant characteristics and needs. The responsible professionals will only place or encourage the placement of disabled individuals in positions that are in keeping with the best interest and welfare of the individual, the prospective claims administrator and the public good.

* It is a fundamental obligation of providers of rehabilitation services to contribute to and facilitate the vocational rehabilitation process by formulating and expressing their professional opinion in an honest, objective and straightforward manner. The specific costs of the various alternatives available must be presented, discussed and agreed to by the employee. If restrictions have been placed on the counselor, these restrictions should be documented.

* Individuals responsible for the provision of rehabilitation services will strive to understand accessibility problems of persons with cognitive, hearing, mobility, visual and/or other disabilities and will enhance their own sensitivity and awareness toward persons with disabilities.

* Providers of rehabilitation services shall not discriminate against injured workers on the basis of race, gender, religion, disability or national origin nor condone practices which result in such discrimination.

* The rehabilitation professional should continuously participate in professional educational activities and organizations in order to keep abreast of new developments, concepts, and practices that are essential to providing the highest quality of services to their clients.

THE EARLY IDENTIFICATION PROCESS FOR INJURIES OCCURRING PRIOR TO 1-1-94

Labor Code Section 4636* is intended to expedite the identification of potentially eligible injured employees within the workers' compensation system. To facilitate this process, the law requires the assignment of a qualified rehabilitation representative (QRR), as defined by Labor Code Section 4635(b)*, subsequent to 90 days of aggregate total temporary disability. The QRR at this point in time is to advise the injured employee of his or her rights and obligations pertaining to vocational rehabilitation, the nature and scope of vocational rehabilitation services, the maintenance allowance payable, the effect of any delay in the treating physician's determination of medical eligibility, and to develop a job description for the treating physician to review.

It is the responsibility of the QRR to explain to the injured employee the points outlined in the "Help in Returning to Work" pamphlet developed by the Division of Workers' Compensation. The QRR is expected to leave with the injured employee the "Help in Returning to Work" pamphlet or a similar pamphlet approved by the Administrative Director for this purpose. The QRR is also expected to advise the injured employee of the address and telephone number of the nearest Rehabilitation Unit district office.

The qualified rehabilitation representative shall recommend to the claims administrator/insurer whether a DWC RU-91 (Description of Employee's Job Duties) or a narrative job description is more appropriate in describing the physical demands of the employee's job to the treating physician. This recommendation shall be based on the nature of the employee's illness or injury. The injured employee should be provided with a copy of the job description or analysis submitted to the treating physician as soon as possible, but not later than the time it is submitted to the treating physician.

In the event that the injured employee fails or refuses to participate in this meeting, the QRR should fully document that every reasonable effort was made to discharge the claims administrator's obligation. The QRR may proceed with the development of a job description utilizing input from the claims administrator upon authorization from the claims administrator/insurer when the injured employee has not participated.

The QRR is expected to monitor the employee's recovery until the treating physician makes a determination regarding medical eligibility pursuant to the requirements of Labor Code section 4636(b).

* Labor Code references contained in Appendix A.

FOR INJURIES OCCURRING AFTER 1-1-94

The claims administrator has the responsibility to provide notice to the employee of the potential rights to vocational rehabilitation services after the employee accrues 90 days of temporary total disability. The notice must include "Help in Returning to Work-94" as well as provide information on how to contact an Information and Assistance Officer.

If medical eligibility for services has not been determined, the claims administrator will assist the employee in the joint development of a Description of Employee's Job Duties (RU-91) which accurately reflects the job duties of the employee. If a dispute occurs as to the job duties, the claims administrator shall immediately submit the dispute to the Rehabilitation Unit for resolution.

If the employee refuses to participate in the development of the job description, the claims administrator should submit a job description based on the best information available to the treating physician.

The completed job description and the Treating Physician's Report of Disability Status (RU-90) should be submitted by the claims administrator to the employee's treating physician and request that the physician determine the employee's medical eligibility for services.

If the treating physician is unable to determine eligibility, the claims administrator shall continue to contact the physician at no less than 60 day intervals until the physician can make a determination.

SELECTION OF THE QUALIFIED REHABILITATION REPRESENTATIVE

In selecting a qualified rehabilitation representative (QRR), the claims administrator/insurer and employee representative (if any) should take into consideration the following factors:

1. Whether the QRR is employed in the rehabilitation of disabled employees and meets the criteria as outlined in Labor Code section 4635(b)*;

2. The background, experience and education level of the QRR;

3. The geographic location of the injured employee;

4. Special skills or attributes of the QRR, such as foreign language abilities, specific medical subspecialties, specific vocational subspecialties, and/or counseling strategies;

5. Availability of the QRR to timely and efficiently provide the necessary services;

6. Membership in a professional organization or certification by a professional organization which has a peer review mechanism;

7. Amount of money available for counselor services.

In keeping with the above, it is recommended that the claims administrator/insurer provide the unrepresented employee or the employee's representative with at least three names of qualified rehabilitation representatives and propose a reasonable time by which the selection should be made. If the parties cannot agree on the selection of the qualified rehabilitation representative, either party may request the Rehabilitation Unit to appoint an Independent Vocational Evaluator.

* Labor Code references contained in Appendix A.

THE INITIAL INTERVIEW

When the QRR meets with the injured employee following the determination of medical eligibility, a complete history should be taken, including the injured employee's educational background, vocational background, potential employment skills, current medical condition and other pertinent information necessary to build a foundation for a thorough evaluation. This should also include comments concerning the potential benefit of pre-vocational activities, such as English as a Second Language (ESL) classes or involvement in substance abuse programs which would enhance the employee's ability to benefit from the provision of services, if the employee is not ready to participate in the development of a plan. Following completion of the interview, the counselor shall complete the standardized DWC form RU-120(Initial Evaluation Summary).

It is anticipated that the employee will have many questions regarding the vocational rehabilitation process. The QRR should make every effort to answer questions posed by the employee or, if appropriate, refer the employee to the claims administrator/insurer representative, an Information and Assistance Officer, the Rehabilitation Unit or an employee representative.

The success of a rehabilitation program is dependent on a clear understanding by each party of their responsibilities and the limits of the vocational rehabilitation benefit. The employee should be advised of the phases of the fee schedule and participate in the allocation of funds for rehabilitation services. This information should be given to the injured employee at the initial interview. (See Appendix B for example)

VOCATIONAL FEASIBILITY IDENTIFICATION

It is the responsibility of the qualified rehabilitation representative (QRR) to determine, as soon as practicable and in a cost effective manner, whether the employee meets the vocational feasibility requirements contained in Labor Code §4635(a)(2).

The employee meets the criteria for initial vocational feasibility when the QRR determines that the employee will be able to return to suitable gainful employment through the provision of vocational rehabilitation services.

The steps taken by the QRR to determine initial vocational feasibility may include, but are not limited to:

a. An initial evaluation meeting;

b. Assessment of existing employment skills;

c. Consideration of the current physical limitations and work restrictions contained in the medical record;

d. Assessment of the employee's perception of his/her physical capacities;

e. Identification of vocational strengths;

f. Identification of factors that may prevent or enhance participation in vocational rehabilitation services;

g. Consideration of vocational/work evaluation services when appropriate.

The Initial Evaluation Summary (Form RU-120) should contain the QRR's determination of the employee's initial vocational feasibility. If a determination of vocational feasibility is deferred, or a determination of vocational non-feasibility is made, the QRR shall identify the recommended action the employee should pursue to ultimately attain vocational feasibility.

The following information shall be clearly identified in the QRR's report:

a. The date on which vocational feasibility was determined;

b. The factors which support the determination;

c. The cost of vocational rehabilitation services to date.

Should the QRR be unable to determine vocational feasibility within 45 days of the initial interview, the QRR shall state the reasons why vocational feasibility has not been determined, and shall list the specific steps that need to be taken in order to complete the determination. It is recommended that an informal conference be held if the parties are unable to agree on the steps needed to complete the determination.

The QRR's determination of continuing vocational feasibility shall be prepared utilizing the Vocational Rehabilitation Progress Report (Form RU-121) and should identify any factors that have the capacity to prevent or enhance the employee's participation in the vocational rehabilitation process. These factors include, but are not limited to the following:

a. The employee's perception of his/her physical capacities;

b. Medical, financial, family, and dependent care issues;

c. Transportation, and legal issues impacting on the employee;

d. The employee's expectations and perceptions regarding the vocational rehabilitation process;

e. The employee's interest in continuing to participate in vocational rehabilitation; and

f. the employee's readiness for employment.

VOCATIONAL REHABILITATION FEASIBILITY FACTORS CHECKLIST

Employee:_______________________________ Claim #:_________________

Report Date:__________________ Period Covered:______________________

The following factor(s) appear to be interfering with the injured employee's ability to benefit from vocational rehabilitation services.

Factors of Non-Feasibility	Action Needed to Attain Feasibility
o Perception of physical capacities	____________________________________________________________
o Medical Issues	____________________________________________________________
o Financial Issues	____________________________________________________________
o Dependent Care Issues	____________________________________________________________
o Transportation Issues	____________________________________________________________
o Legal Issues	____________________________________________________________
o Family Issues	____________________________________________________________
o Perception of current benefit from participation in vocational rehabilitation.	____________________________________________________________
o Interest in continued participation in voc. rehab.	____________________________________________________________
o Readiness for employment	____________________________________________________________
o Other Factors -- Define	____________________________________________________________

QRR (Print Name) ___________________________________________________________________________

Signature:________________________________________________________________Date:______________

VOCATIONAL FEASIBILITY IDENTIFICATION PROCEDURES

Vocational feasibility, as defined in Labor Code §4635(a)(2), is a concept which incorporates the definitions of "suitable gainful employment" and "vocational rehabilitation services". In order for an employee to be vocationally feasible, the employee must reasonably be expected to return to "suitable gainful employment" (as defined in Labor Code §4635(f)) through the provision of "vocational rehabilitation services" (as defined in Labor Code §4635(d)). Should the employee demonstrate an inability to either benefit from services or to return to suitable gainful employment, the QRR should be guided by Administrative Rule (A.R.) §10124.1, which provides a determination standard.

A vocational feasibility determination must take into account the employee's behavior. In order to be determined vocationally feasible, an employee must demonstrate behavior that is consistent with the concept of vocational feasibility. When the employee's behavior does not meet the conditions of feasibility found in Labor Code §4635, a finding of non-feasibility can be made pursuant to A.R. §10124.1 and The California Standards Governing Timeliness and Quality of Services.

Communication is the cornerstone of counseling. It is the responsibility of the QRR to advise the employee at the initial meeting of the types of behavior the employee is expected to demonstrate in order to remain a "qualified injured worker", with entitlement to VRMA and vocational rehabilitation services.

In addition, the QRR's vocational feasibility determination should identify those aspects of the employee's behavior that are relevant to the issue of vocational feasibility. If during the determination process the QRR identifies behavior that is impeding the employee from being deemed vocationally feasible, the QRR must take action designed to change that behavior. An intervention counseling session is strongly recommended.

The QRR should use the intervention counseling session to inform the employee that based on specific factors identified by the QRR, the requirements for vocational feasibility are not being met. The consequences of a finding of non-QIW status should be explained to the employee in a non-confrontational and non-threatening manner. It is critical that the QRR elicit from the employee the steps the employee plans to take to change the behavior that is impeding his or her vocational feasibility. The intervention counseling session has more of a chance for success when the employee is able to describe a clear course of action that will be taken within specific reasonable timeframes.

The results of a successful intervention counseling session allow the QRR to render an opinion of initial or continuing feasibility pursuant to AR. §10124.1, which enables the rehabilitation process to continue.

In the event the employee fails to change his or her behavior as agreed to in the intervention counseling session, the QRR may determine that the employee is not vocationally feasible. However, it is recommended that the QRR consider an informal conference prior to determining the employee is vocationally non-feasible. In some instances the small group setting inherent in the informal conference process can succeed where the intervention counseling session failed. Following the informal conference, if the QRR is still persuaded that the employee does not meet the vocational feasibility criteria, a determination of non-feasibility should be rendered.

The intervention counseling session may not result in assurances from the employee that those factors that are preventing vocational feasibility can be eliminated to a degree that would allow the employee to become vocationally feasible. Should the employee need time to resolve these factors of non-feasibility, the parties may elect to interrupt services upon proper notice pursuant to A.R. §9813(a)(4). In situations where interruption is not an option, it is recommended that the QRR proceed to the informal conference process in order to discuss the factors of non- feasibility, and to attempt to remove barriers to the employee's feasibility.

ASSESSMENT OF EXISTING EMPLOYMENT SKILLS

The initial evaluation may lead the counselor to the assumption that the injured employee has employable skills. The QRR should be able to identify the existence or absence of existing employment skills by considering the following:

1. History

a. Data-people-thing history

b. Training acquired

c. Certifications

d. Familiarity with products, subject matter, services and materials

e. Time factors: (1) period of experience with the skill (2) time elapsed since skill was performed.

2. Physical abilities and preclusions

a. Medical reports

b. Injured employee's perception of work capacity

c. Work evaluation or situational assessment

3. Measurement

A measured demonstration of the employable skills by the injured employee may be obtained through utilization of such methods as:

a. In-house situational assessment

b. Evaluation of employee's perception of skills

c. Work evaluation/situational assessment d. Interest testing

4. Research

The availability of jobs under consideration in a given geographic area using available information such as:

a. Occupational supply and demand information from the California Occupational Information System, if the system is available in the labor market area

b. Classified ads

c. Contacts with employers, schools and/or organizations involved in the vocational target areas

d. Occupational Outlook Handbook e. Employment Development Department 5. Statement of Employability

The QRR should be able to state the following as a result of this information:

a. A specific job, or list of jobs, meet the criteria of suitable gainful employment as defined by Labor Code section 4635 (f)*, or

b. No identified jobs meet the criteria of suitable gainful employment.

* Labor code references contained in Appendix A.

VOCATIONAL TESTING

A qualified rehabilitation representative should assess whether vocational testing is necessary to develop a vocational rehabilitation plan, and provide rationale when testing is indicated. The rationale may be based on the need to:

1. Provide information about a person's interests, aptitudes, physical abilities, and temperaments with respect to employment that are otherwise unattainable;

2. Document and validate the reasonableness and feasibility of a particular rehabilitation plan;

3. Observe and evaluate the physical stamina, endurance, agility and range of motion in relation to industrial performance requirements;

4. Evaluate the degree to which a particular impairment is a limitation to an employment objective.

When vocational testing is indicated, the qualified rehabilitation representative, certified vocational evaluator, or licensed professional shall:

1. Determine the appropriate tests for the injured employee and assess the areas in need of diagnosis or clarification;

2. Seek agreement by the employee on the extent and cost of testing after review of all the testing alternatives available;

3. Select the test site;

4. Provide the injured employee with the results of the test in the manner by which the injured employee can understand the results of the test;

5. Provide a written report of the testing results. This report should include:

(a) Identity of the injured employee

(b) Date(s) that tests were administered

(d) A description of the test site

(e) Behavioral observations during testing

(f) Norm groups utilized in scoring and interpreting results

(g) Results of tests administered

(h) Interpretation of test results and physical tolerance assessments where applicable.

The effective administration of vocational tests requires that the QRR, certified vocational evaluator, or licensed professional have general knowledge of test principles and of the limitations of test interpretations. Although the level of such knowledge may vary according to the complexity of the evaluation being conducted, as a minimum, the test user must:

1. Be knowledgeable about testing principles;

2. Understand the concept of measurement error;

3. Have the ability to interpret obtained scores;

4. Understand the literature relevant to the test or testing problem.

Persons administering vocational tests must carefully follow the standardized procedures described below:

Level A: This level includes tests which can adequately be administered, scored and interpreted with the aid of a manual and a general orientation toward the kind of organization in which one is working. Examples of Level A tests are educational achievement and vocational proficiency tests. Certification, licensure or training in the relevant area of assessment or specific area of testing may be required.

Level B: This level includes tests which require technical knowledge of test construction and use of such areas as statistics, individual differences, standard error, reliability and validity. Examples of Level B tests are interest inventories, general intelligence tests, and general and specific aptitude testing. Formal training in testing and measurements is mandatory to utilize Level B tests. A master's level degree, professional licensure or certification is required.

Level C: Tests falling into this category require substantial understanding of testing and support in psychological topics, together with supervised practicums in the use of these instruments. Level C tests are not generally used. Examples of Level C instruments are tests of personality, behavior and interpersonal characteristics. A master's level degree with specialized training or doctorate degree is required to utilize Level C tests. Professional licensure or certification is required.

PLAN DEVELOPMENT

For injuries prior to 1-1-94, the benefits available are not limited. For injuries after 1-1-94, there is a $16,000 limit. In developing a plan that will return the injured employee to suitable gainful employment, the QRR should consider all the information gathered, including the funds available for benefits and services.

For injuries prior to 1-1-94, it is incumbent on the QRR to first consider the possibility of a vocational plan involving modification of the usual and customary job or alternate work with the same or similar employer utilizing existing employment skills. If appropriate modified or alternate work with the same employer is not available, the QRR should consider other plan alternatives that expedite the worker's return to suitable gainful employment.

For injuries after 1-1-94, the Claims Administrator makes contact with the employer to determine if a job is available. If a suitable job is available, the employee is not entitled to provision of services. Note, however, that if an employee is advised that alternate or modified work is not available, then subsequently such work becomes available, a formal written plan may be developed.

The selection of an appropriate vocational goal requires a systematic approach, especially when appropriate goals are not obvious. However, the QRR may also consider existing job opportunities, such as an available on-the-job training program or direct placement possibility, as long as the criteria for suitable gainful employment is met.

At the discretion of the QRR a description of the job may be secured to ensure physical appropriateness of all the following plan types:

Modified Work Programs

If a modification of the usual and customary job or job at time of injury is available and a written plan is required, the QRR should consider the following:

1. Whether wages, hours and conditions are similar to those at the time of injury;

2. Whether the job represents suitable gainful employment.

Alternate Work Programs

If alternate work with the same or similar employer is available and a written plan is required, the QRR should consider the following:

1. Whether wages, hours and conditions are similar to those at time of injury;

2. Whether the employee can perform the job;

3. Whether the job represents suitable gainful employment for the employee.

Job Placement Programs

An assessment of existing employment skills may lead to an opinion by the QRR that a direct job placement plan is the most appropriate means to return the employee to suitable gainful employment. A direct job placement Plan may also be provided when the injured employee does not have existing employment skills or if the targeted job does not require a specific vocational or educational background.

The QRR should consider and include the following in the plan documentation when the plan recommendation is for direct job placement:

1. Identification of vocational goal(s) and substantiation that it is consistent with the employee's skills, abilities, and interests;

2. Relevant labor market assessment, with an opinion from the QRR that the worker can presently compete for employment in the target areas;

3. Confirmation that the employee met the employer's requirements;

4. Advice that the job placement is limited as outlined in Labor Code section 4644(c)*:

a. For all dates of injury where rehabilitation benefits or services have been initiated prior to 1/1/98, job placement is limited to 60 (sixty) days and cannot be extended if the injury occurred after 1-1-94.

b. For injuries occurring on or after 1/1/94, where rehabilitation benefits or services have been initiated pursuant to A.R. 10125* on or after 1/1/98, job placement is limited to 90 (ninety) days and cannot be extended in a plan that exclusively utilizes transferable skills and experience for direct placement.

* Labor Code and Administrative Rule References contained in Appendix A.

On-The-Job Training Programs

The QRR should consider on-the-job (OJT) training as a means of returning the injured employee to suitable gainful employment when:

1. The injured employee needs additional skills or work experience in the chosen goal;

2. The vocational evaluation indicates that the injured employee would benefit from learning via demonstration;

3. Labor market assessment indicates that employers are likely to provide on-the-job training in the targeted goal;

4. An available opportunity meets the definition of suitable gainful employment.

When a suitable OJT is located, the QRR shall fully document in an on-the-job training agreement the following information:

1. A full description of the work to be performed during the plan and the identity and qualifications of the trainer;

2. The start date, completion date, work schedule, and training schedule;

3. A statement of salary earned and a determination that the employee/trainee is earning at least minimum wage; if the injured employee is considered a trainee and not receiving minimum wage, the claims administrator shall verify that the training concurs with applicable state and federal wage laws and regulations;

4. Verification that the employer is covered by workers' compensation insurance;

5. A statement that the new employer shall pay into and deduct Social Security taxes, FICA, and Federal and State taxes as required by law;

6. A description of whether the injured employee is an employee or trainee. If the employee is considered a trainee and is not expected to remain with this employer upon the completion of training, the training shall meet the requirements of Administrative Rule 10126 (j) regarding approval by the Council for Private Post Secondary & Vocational Education. The QRR shall describe subsequent anticipated services;

7. A statement specifying if the employee's new salary will entitle him/her to maintenance allowance on a wage-loss basis, including the amount and schedule of payments;

8. The schedule of monitoring and its costs to be provided by the QRR;

9. A schedule of the amount of payments to the employer, if any, as well as a clear description of how the trainer is to request payment from the carrier/claims administrator;

10. That the new employer agrees to report the injured employee's progress to the QRR on a monthly basis, outlining the status of the training, absences, and whether training is proceeding according to schedule, as well as a final evaluation to determine if the anticipated skills have been acquired. The QRR shall provide a copy to the injured worker.

Formal Training Programs

A vocational rehabilitation plan which involves formal training or retraining into a new occupation is often difficult to successfully implement. Strong motivation on the part of the injured employee and sufficient funding are key components. A plan of this nature should only be considered under certain conditions:

1. When the injured employee has limited existing employment skills which prevent placement into an appropriate occupation;

2. When there is a poor labor market for occupations utilizing existing employment skills;

3. When training would lead to occupations more compatible with the employee's physical limitations;

4. When a combination of limiting factors require consideration of formal training to compensate for limitations and increase employability; and/or

5. Sufficient funding is available through workers' compensation and/or other available resources.

If the QRR is convinced that formal training is the most appropriate way to provide the injured employee with the opportunity to return to suitable gainful employment, the QRR should also consider the probability of success given the injured employee's motivation to pursue the training and his/her unique circumstances. Items may include:

1. Whether the employee has the basic skills to successfully complete a formal training program;

2. The length of time the employee has been absent from school and its effect on the probability of successful completion;

3. A review of prior grades/transcripts;

4. Whether vocational testing supports the recommendation;

5. Whether the labor market is positive for the vocational goal;

6. Whether the injured employee actively pursues information about various training programs when formal training is under consideration;

7. Transportation issues which may affect the injured employee's ability to attend training;

8. Whether the injured employee will be required to temporarily or permanently relocate to pursue training or placement, and;

9. Whether the combination of possible limiting factors can be overcome and the methods available to reduce the risk of plan failure.

The selection of the training program should be based on the needs of the injured employee, the quality of instruction and whether the program will lead to suitable, gainful employment.

When the parties encounter a dispute that they are unable to resolve among themselves over the selection, nature or extent of a training program(s), the QRR shall be prepared to evaluate the disputed program(s) and recommend the option which best meets the criteria of suitable gainful employment in conjunction with available funds and time limits.

Self-Employment Programs

The Rehabilitation Unit recognizes that self-employment is an arduous, high risk pursuit. Unless the injured employee has previously been successfully self-employed or there is otherwise a persuasive rationale for self-employment, the Rehabilitation Unit will require that all other reasonable vocational alternatives be fully explored before approving a self-employment plan. It is incumbent on the QRR to provide an opinion and supporting documentation as to whether self-employment is the most appropriate alternative and whether it is likely to represent suitable gainful employment.

Self-employment plans may include a review of the self employment proposal including, but not limited to: Market analysis, competition location, pricing, income/revenue projection, prior experience and other sources of income. To facilitate this requirement, the plan documentation should include:

1. A report on the self-employment proposal from an established financial institution or management consulting firm which comments on the advisability and viability of the proposed business undertaking, or a statement from the QRR as to why such a report cannot be procured or is unnecessary, as well as an opinion from the QRR as to the advisability and viability of the proposed business undertaking.

2. Vocational rehabilitation maintenance allowance to be paid on a wage-loss basis during the plan, subject to available funds.

JOB SEEKING ACTIVITIES

The job seeking phase of a plan requires active participation of the injured employee and the QRR or job developer. The QRR should evaluate the level of assistance needed by the injured employee to facilitate a successful result, giving consideration to:

1. job seeking skills training prior to placement activities which may include:

a. The employment application process;

b. Resume preparation, if applicable;

c. Interviewing techniques and follow-up;

d. The employee's grooming and dress;

e. Sources of job leads;

f. Techniques on discussing employment and skill history with potential employers;

g. Techniques on discussing physical capabilities with prospective employers;

h. The unique needs of an injured employee on a case by case basis.

Job placement expectations should be a clearly outlined to the injured employee. Generally, the responsibilities should include:

1. That the QRR and/or job developer provide information about specific job openings for the injured employee, interview coordination, and follow up contact with the injured employee and prospective employer subsequent to the interview for an assessment of the results.

2. That the injured employee be expected to include a reasonable number of self-generated employer contacts, and a regular schedule of contacts with the QRR and/or job developer and school placement specialist, if applicable.

3. Except as provided in A.R. 10126(i)*, the job placement period in a plan shall not exceed 60 (sixty) days.

4. If no jobs are found within the specified time frames, the QRR shall assess and document the reasons for the lack of success. The QRR shall comment on whether the services agreed to by the parties have been provided by the QRR.

* Labor Code and Administrative Rule References contained in Appendix A.

COMPLETION OF SERVICES

The QRR will report to all parties within ten days of the completion of services. The report should include where applicable:

1. A description of the injured employee's employment status

a. If employed, the place of employment, job title and current wage;

b. If unemployed, the QRR's opinion as to the reasons for or factor(s) contributing to the lack of employment and a brief summary of the services provided.

2. An opinion from the QRR as to whether the agreed upon services have been provided.

APPENDIX A LABOR CODE REFERENCES

Labor Code section 139.5. Vocational Rehabilitation Unit; composition and duties.

(a) The administrative director shall establish a Vocational Rehabilitation Unit, which shall include appropriate professional staff, and which shall have the following duties:

(1) To foster, review, and approve vocational rehabilitation plans developed by a qualified rehabilitation representative of the claims administrator, insurer, state agency, or employee. Plans agreed to by the claims administrator and employee do not require approval by the Vocational Rehabilitation Unit unless the employee is unrepresented.

(2) To develop rules and regulations, to be promulgated by the administrative director, providing for a procedure in which an employee may waive the services of a qualified rehabilitation representative where the employee has been enrolled and made substantial progress toward completion of a degree or certificate from a community college, California State University, or the University of California and desires a plan to complete the degree or certificate. These rules and regulations shall provide that any such waiver as well as any plan developed without the assistance of a qualified rehabilitation representative must be approved by the rehabilitation.

(3) To develop rules and regulations, to be promulgated by the administrative director, which would expedite and facilitate the identification, notification and referral of industrially injured employees to vocational rehabilitation services.

(4) To coordinate and enforce the implementation of vocational rehabilitation plans..

(5) To develop a fee schedule, to be promulgated by the administrative director, governing reasonable fees for vocational rehabilitation services provided on and after January 1, 1991. The initial fee schedule promulgated under this paragraph shall be designed to reduce the cost of vocational rehabilitation services by 1 percent from the level of fees paid during 1989. [3] On or before July 1. 1994, the administrative director shall establish the maximum aggregate permissible fees that may be charged for counseling. Those fees shall not exceed four thousand five hundred dollars ($4,500) and shall establish maximum aggregate permissible fees for evaluation, plan development, and job placement services. Those fees shall not exceed four thousand five hundred dollars ($4,500) and shall be included within the sixteen thousand dollar ($16,000) cap. The fee schedule shall permit up to (A) three thousand dollars ($3,000) for vocational evaluation, evaluation of vocational feasibility, initial interview, vocational testing, counseling and research for plan development, and preparation of the Division of Workers' Compensation Form 102, and (B) three thousand five hundred dollars ($3,500) for plan monitoring, job seeking skills, and job placement research and counseling. However, in no event shall the aggregate of (A) and (B) exceed four thousand five hundred dollars ($4,500).

(6) To develop standards, to be promulgated by the administrative director, for governing the timeliness and the quality of vocational rehabilitation services.

(b) The salaries of the personnel of the Vocational Rehabilitation Unit shall be fixed by the Department of Personnel Administration.

(c) When an employee is determined to be medically eligible and chooses to participate in a vocational rehabilitation program, he or she shall continue to receive temporary disability indemnity payments only until his or her medical condition becomes permanent and stationary and thereafter, may receive a maintenance allowance. Rehabilitation maintenance allowance payments shall begin after the employee's medical condition becomes permanent and stationary, upon a request for a period not to exceed 52 weeks in the aggregate, except where the overall cap on vocational rehabilitation services can be exceeded under this section or Section 4642 or subdivision 9d0 or 9e0 of section 4644.

The employee also shall receive additional living expenses necessitated by the vocational rehabilitation services, together with all reasonable and necessary vocational training, at the expense of the claims administrator, but in no event shall the expenses, counseling fees, training, maintenance allowance, and costs associated with, or arising out of, vocational rehabilitation services incurred after the employee's request for vocational rehabilitation services, except temporary disability payments, exceed sixteen thousand dollars ($16,000). The administrative director shall adopt regulations to ensure that the continued receipts of vocational rehabilitation maintenance allowance benefits is dependent upon the injured employee's regular and consistent attendance at, and participation in, his or her vocational rehabilitation training program.

(d) The amount of the maintenance allowance due under subdivision (c) shall be two-thirds of the employee's average weekly earnings at the date of injury payable as follows:

(1) The amount the employee would have received as continuing temporary disability indemnity, but not more than two hundred forty-six dollars ($246) a week for injuries occurring on or after January 1, 1990.

(2) At the employee's option, an additional amount from permanent disability indemnity due or payable, sufficient to provide the employee with a maintenance allowance equal to two-thirds of the employee's average weekly earnings at the date of injury subject to the limits specified in subdivision (a) of section 4453 and the requirements of section 4661.5. In no event shall temporary disability indemnity and maintenance allowance be payable concurrently.

If the claims administrator disputes the treating physician's determination of medical eligibility, the employee shall continue to receive that portion of the maintenance allowance payable under paragraph (1) pending final determination of the dispute. If the employee disputes the treating physician's determination of medical eligibility and prevails, the employee shall be entitled to that portion of the maintenance allowance payable under paragraph (1) retroactive to the date of the employee's request for vocational rehabilitation services. These payments shall not be counted against the maximum expenditures for vocational rehabilitation services provided by this section.

(e) No provision of this section nor of any rule, regulation, or vocational rehabilitation plan developed or promulgated under this section nor any benefit provided pursuant to this section shall apply to an injured employee whose injury occurred prior to January 1, 1975. Nothing in this section shall affect any plan , benefit, or program authorized by this section as added by chapter 1513 of the Statutes of 1965 or as amended by chapter 83 of the Statutes of 1972.

(f) The time within which an employee may request vocational services is set forth in sections 5405.5, 5410, and 5803.

(g) An offer of a job within state service to a state employee in state bargaining unit 1, 4, 15, 18, or 20 at the same or similar salary and the same or similar geographic location is a prima facie offer of vocational rehabilitation under this statute.

(h) It shall be unlawful for a qualified rehabilitation representative or rehabilitation counselor to refer any employee to any work evaluation facility or to any education or training program if the qualified rehabilitation counselor, or a spouse, claims administrator, coworker, or any party with whom he or she has entered into contract, express or implied, has any proprietary interest in or contractual relationship with the work evaluation facility or education or training program. It shall also be unlawful for any insurer to refer any injured worker to any rehabilitation provider or facility if the insurer has a proprietary interest in the rehabilitation provider or facility or for any insurer to charge against any claim for the expenses of employees of the insurer to provide vocational rehabilitation services unless those expenses are disclosed to the insured and agreed to in advance.

(i) Any charge by an insurer for the activities of an employee who supervises outside vocational rehabilitation services shall not exceed the vocational rehabilitation fee schedule, and shall not be counted against the overall cap for vocational rehabilitation or the limit on counselor's fees provided for in this section. These charges shall be attributed as expenses the insurer and not losses for purposes of insurance rating pursuant to article 2 (commencing with section 11730) of chapter 3 of division 2 of the Insurance Code.

(j) Any costs of an claims administrator of supervising vocational rehabilitation services shall not be counted against the overall cap for vocational rehabilitation or the limit on counselor's fees provided for in this section.

Labor Code section 4635. Terms of article defined.

As used in this article:

(a) "Qualified injured worker" means an employee who meets both of the following requirements:

(1) The employee's expected permanent disability as a result of the injury, whether or not combined with the effects of a prior injury or disability, if any, permanently precludes, or is likely to preclude, the employee from engaging in his or her usual occupation or the position in which he or she was engaged at the time of injury, hereafter referred to as "medical eligibility."

(2) The employee can reasonably be expected to return to suitable gainful employment through the provision of vocational rehabilitation services, hereafter referred to as "vocational feasibility."

(b) "Qualified rehabilitation representative" means a person capable of developing and implementing a vocational rehabilitation plan and whose experience an regular duties involve the evaluation, counseling, or placement of disabled person, who is familiar with this article. It is the intent of the Legislature to allow use of an in-house qualified rehabilitation representative. It the injured worker is represented by an attorney, and an in-house qualified rehabilitation representative is utilized, communication directly with the in-house qualified rehabilitation representative by the injured worker's attorney shall not constitute a violation of rule 2-100 of the State Bar Rules of Professional Conduct.

(c) "Independent vocational evaluator" means a qualified rehabilitation representative, who, in addition to the requirements of subdivision (b), has one of the following qualifications:

(1) A doctorate or master's degree in vocational counseling or its equivalent and one or more years full-time experience in vocational counseling of industrially injured employees.

(2) A doctor of medicine degree and one or more years full-time experience in psychiatric or psychological evaluation of disabled adults in relation to rehabilitation counseling.

(3) A doctorate or master's degree in counseling or psychology or their equivalent and two or more years full-time employment using rehabilitation counseling techniques and conducting vocational evaluations of disabled adults under the direct supervision of an independent vocational evaluator.

(4) A baccalaureate degree in any field and three or more years full-time employment using rehabilitation counseling techniques and conducting vocational evaluations of disabled adults under the direct supervision of an independent vocational evaluator.

(d) "Vocational rehabilitation services" means those services required to determine if an employee can reasonably be expected to return to suitable gainful employment and those services reasonable necessary to provide an employee with the opportunity to return to suitable gainful employment. These services may include, but are not limited to, vocational and medical evaluation, counseling, job analysis, job modification assistance, retraining, including on-the-job training for alternative employment, formal training, academic instruction, and job placement assistance.

(e) "Vocational rehabilitation plan" means the written description of and rationale for the manner and means by which it is proposed that a qualified injured worker may be returned to suitable gainful employment. The plan may contemplate [1] direct job placement assistance, on-the-job training, formal training, academic instruction, job placement assistance, or self-employment. The plan shall specify the anticipated completion date of vocational rehabilitation services and the amount and source of payments to be made to the qualified injured employees during the pendency of the plan. The plan shall also define the responsibilities of the employee, employer, qualified rehabilitation representative, and any other parties in implementing the plan. The plan my contemplate modification of the employee's occupation at the time of injury or provision for alternative work if the claims administrator has initially failed or refused to provide modified or alternative work to the injured employee.

(f) "Suitable gainful employment" means that employment or self-employment which offers an opportunity to restore the employee as soon as practicable and as near as possible to maximum self-support, due consideration being given to the employee's qualifications, likely permanent disability, vocational interests and aptitudes, pre-injury earnings and future earning capacity, and the present and projected labor market. No one factor shall be considered solely in determining suitable gainful employment.

Labor Code section 4636. Physician's assessment period and final report.

Physician's assessment period and final report.

(a) When aggregate total disability continues for 90 days, the claims administrator immediately shall provide to the employee in the form and manner prescribed by the administrative director, information that provides notice of rights under the Americans with Disabilities Act and the provisions of the Fair Employment and Housing Act relating to individuals with a disability, and that explains the employee's rights and obligations pertaining to vocational rehabilitation, the nature and scope of vocational rehabilitation services to which the employee may be entitled, the maintenance allowance payable under section 139.5, [2] the effect of any delay in the treating physician's determination of medical eligibility, and that additional information may be obtained from an information assistance officer. When aggregate total disability exceeds 90 days and the employee has not previously been identified as meeting the medical eligibility requirements of paragraph (1) of subdivision (a) of section 4635, the [3] employer shall provide the employee's treating physician with a job description, developed jointly with the employee and the employer, and the physical requirements of the employee's duties at the time of injury in the form and manner prescribed by the administrative director, and request the treating physician to determine the employee's medical eligibility for vocational rehabilitation services. The treating physician's determination of medical eligibility shall take into account the employee's current and potential functional limitations, the ability of the employee to accept and participate in vocational rehabilitation services if and when indicated, recommendations for subsequent evaluation for services, if any, the ability of the employee to engage in light work in a modified or alternative capacity, if available, and other information as may reasonably be prescribed by rules and regulations of the administrative director.

(b) If the employee's treating physician is unable to make the assessment of medical eligibility at the time of initial contact [4] the [5] employer shall continue to monitor the employee's recovery and request the treating physician to report as soon as the physician is able to determine whether the employee is medically eligible for vocational rehabilitation services. The treating physician shall report to both the employer and the employee no less frequently than every 60 days thereafter. The report also shall include an opinion concerning the physical capabilities of the employee at the time of each report. The reports shall continue to be made until the physician provides a report concluding one of the following:

(1) The employee is released to return to work at his or her usual occupation or, if the employee was engaged in another occupation at the time of injury, the occupation the employee was engaged in at the time of injury.

(2) The employee's permanent disability as the result of the injury, whether or not combined with the effects of a prior injury or disability, if any, permanently precludes, or is likely to preclude, the employee from engaging in the employee's usual occupation or the occupation in which the employee was engaged at the time of injury (c) When aggregate total disability exceeds 365 days and the employee has not been previously identified as medically eligible for vocational rehabilitation, there shall be a rebuttable presumption that the employee is medically eligible for vocational rehabilitation services.

(d) Immediately upon receipt of the treating physician's final report required by this section, the employer shall provide a copy to the employee together with notice of the procedure to be followed in contesting the treating physician's determination. The notice shall be in writing in the form and manner prescribed by the administrative director, and shall include [6] the following :

(1) Notice of whether the claims administrator will be able or unable to offer modified or alternative work.

(2) Notice that the employee may be eligible for services if the employee is unable to return to his or her usual occupation or the occupation in which he or she was engaged at the time of injury.

4644.

(a) The liability of the employer for vocational rehabilitation services shall terminate when any of the following events occur:

(1) An employee who has received notice of potential eligibility to participate in a rehabilitation plan under section 4637 declines vocational rehabilitation services in the form and manner prescribed by the administrative director.

(2) A qualified injured worker completes a vocational rehabilitation plan except as otherwise provided in subdivisions (c) and (d).

(3) The qualified injured worker unreasonably failed to complete a vocational rehabilitation plan.

(4) An employee has not requested vocational rehabilitation services within 90 days of the notification that the employee is medically eligible for vocational rehabilitation services. The liability of the employer for vocational rehabilitation services shall not terminate under this paragraph unless the employer, not earlier than 45 days nor later than 70 days after the employee's receipt of the notice required by section 4637, reminds the employee of his or her right to vocational rehabilitation services or until the 21st day after the employee receives the reminder notification. The reminder notification shall be in writing, in the form and manner prescribed by the administrative director, and shall be served by certified mail. The provisions of this paragraph shall not apply if the employee shows he or she was unable to comprehend the consequences of failing to timely request vocational rehabilitation services, or that, because of conditions beyond the control of the employee, the employee was unable to exercise his or her right to accept or decline vocational rehabilitation services.

(5) 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, provided that an employer who offers modified work that is available for the 12-month period required by this paragraph meets the requirements of this paragraph even if the employee voluntarily quits prior to the end of that 12-month period.

(6) The employer offers and the employee accepts or rejects, in the form and manner prescribed by the administrative director, alternative work meeting all of the following conditions:

(A) The employee has the ability to perform the essential functions of the job provided.

(B) The job provided is in a regular position lasting at least 12 months. An employer who offers alternative work that is available for the 12-month period required by this paragraph meets the requirements of this paragraph even if the employee voluntarily quits prior to the end of the 12-month period.

(C) The job provided offers wages and compensation that are within 15 percent of those paid to the employee at the time of injury.

(D) The job is located within reasonable commuting distance of the employee's residence at the time of injury.

(7) The employer offers, and the employee accepts, in the form and manner prescribed by the administrative director, work not meeting the conditions of paragraph (5) or (6) provided that the work lasts at least 12 months. The employee shall be required to reject the offer, in the form and manner prescribed by the administrative director, in order for the employee to be eligible for vocational rehabilitation services. An employer who offers work that is available for the 12-month period meets the requirements of this paragraph, even if the employee voluntarily quits prior to the end of that 12-month period.

(b) Nothing in this article shall preclude the deferral or interruption of vocational rehabilitation services upon agreement of the employee and employer or, if no agreement can be reached, upon a good cause determination by the administrative director.

(c) (1) Except as provided in this section, vocational rehabilitation plans prepared pursuant to section 4638 shall be limited to one plan per injured worker. The plans shall be completed within an 18-month period after approval of the plan [1]. The plan shall not include a period of job placement exceeding 60 days unless the plan is exclusively utilizing transferable skills and experience for direct placement activities. In these cases, the period of job placement may be up to 90 days.

(2) The employee shall be entitled to one additional vocational rehabilitation plan only if the original plan is determined to be inappropriate due to one of the following:

(A) The employee's disability has deteriorated to the point where the worker is unable to meet the physical demands of the first plan.

(B) The first plan is disrupted due to circumstances beyond the control of the employee.

(C) Failure by the employer to provide timely service required by this article and the vocational rehabilitation plan when the plan has not been completed.

The cost of the original and the additional plan plus all other vocational rehabilitation costs shall not exceed the overall cap and the counselor fee cap established in subdivision (c) of section139.5.

(d) Notwithstanding subdivision (c), an employee may apply to the rehabilitation unit for approval of a second vocational rehabilitation plan which exceeds the overall cap provided for in subdivision (c) of section 139.5 if all of the following conditions are met:

(1) The employee has a permanent disability rating of 25 percent or greater. In reaching this determination, the rehabilitation unit shall consider any treating physicians' reports.

(2) The first plan cannot be completed due to circumstances beyond the control of the employee. Those circumstances include the deterioration of the employee's disability to the point where the worker cannot meet the requirements of the first plan.

(3) The rehabilitation unit finds that a second plan is necessary to provide the employee the opportunity for suitable gainful employment. Approval for circumstances other than a change in the employee's disability must be based on objective and verifiable facts pursuant to rules promulgated by the administrative director.

However, in no case shall the cost solely attributable to the second plan exceed the overall cap and the counseling fee cap contained in subdivision (c) of section 139.5.

(e) Notwithstanding subdivision (c), an employee may receive a second vocational rehabilitation plan that exceeds the overall cap provided for in subdivision (c) of section 139.5 if the rehabilitation unit finds that the employee cannot complete the plan because the school or other training facility has closed or the worker has a sudden and unexpected change in disability that renders the plan inappropriate or other similar circumstances.

(f) Notwithstanding paragraph (2) of subdivision (a), if a qualified injured worker returns to modified or alternative work with the same employer or to work with a different employer as a result of direct job placement assistance and that employment terminates, other than for cause, within 12 months of the date the employee was employed at the modified or alternative work, and if that work is unavailable in the labor market, the employer shall be liable, subject to section 4642, for additional vocational rehabilitation services, provided that the employer's liability for vocational rehabilitation services shall terminate if the employee voluntarily quits prior to the end of that 12-month period. To qualify for additional vocational rehabilitation services, the employee shall demonstrate an inability to compete for suitable gainful employment with his or her existing skills.

(g) An employer shall not be liable to provide vocational rehabilitation services at a location outside the state, unless upon agreement of the employer and the employee, or a determination by the Division of Workers' Compensation that those services are more cost-effective than similar services provided in the state.

APPENDIX B RESPONSIBILITIES DURING VOCATIONAL REHABILITATION

Everyone must contribute fully for rehabilitation to be successful. Here is a general list of your responsibilities during rehabilitation and those of your rehabilitation counselor, your claims administrator, and the Rehabilitation Unit of the Division of Workers' Compensation.

Injured Worker Responsibilities

1. Keep all appointments. If any emergency occurs and you can't keep an appointment, contact your counselor immediately.

2. Make participation in rehabilitation a priority and be available to participate to the fullest extent permitted by your medical condition.

3. Help your counselor by suggesting and discussing jobs which you feel are suitable for you.

4. Arrange for your own transportation during rehabilitation. Talk to your counselor or claims administrator if this is a problem. Recording and requesting mileage reimbursement is your responsibility. Check with your counselor to find out how to obtain the necessary forms for mileage reimbursement.

5. Keep your counselor and claims administrator informed of your current address and telephone number, or where you can be reached if you do not have a telephone.

6. Ask about anything you do not understand during the rehabilitation process.

7. Participate in the development of a rehabilitation plan.

8. State your acceptance or rejection of specific services and its cost.

Rehabilitation Counselor Responsibilities

1. Provide or arrange for all agreed to and needed rehabilitation services, which may include such things as counseling, testing, practice in interviewing for a job, placement assistance.

2. Evaluates whether rehabilitation services will help you to return to suitable gainful employment.

3. Advise employee of alternatives available for evaluation and testing and their costs.

4. Works with you to develop a plan that will provide the opportunity to return you to suitable gainful employment.

5. Provides a final recommendation for the most appropriate rehabilitation plan.

6. Answers any questions you have about rehabilitation or assigned duties.

7. Advises you of any community resources which might assist you during the rehabilitation process.

8. Refers any questions you have about any of your other workers' compensation benefits to your claims administrator or to an Information and Assistance Officer or attorney, if represented.

Claims Administrator Responsibilities

1. Pays all agreed vocational rehabilitation benefits due you on a timely basis. This usually includes temporary disability/maintenance allowance PD advances and mileage expenses.

2. Pays for agreed services of the rehabilitation counselor and all expenses for any agreed rehabilitation plan on a timely basis.

3. Explains any benefit changes.

4. Considers all recommendations of the rehabilitation counselor.

5. Submits all necessary paperwork required by the Rehabilitation Unit of the Division of Workers' Compensation for review and decision.

6. Answers any questions/concerns you might have about rehabilitation or your other benefits.

Rehabilitation Unit Responsibilities

1. Oversees the delivery of vocational rehabilitation services.

2. Reviews plans submitted for approval and disapproval.

3. Attempts to resolve problems between the employee and the claims administrator on a timely basis.

January 2006