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Chapter 4.5. Division of Workers' Compensation
Subchapter 1.5. Injuries on or After January 1, 1990
Article 6. RETRAINING AND RETURN TO WORK -DEFINITIONS AND GENERAL PROVISIONS

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§10116.9. Definitions for Article 6.5 and 7.5.

The following definitions apply to the provisions of Articles 6.5 and 7.5 governing injuries occurring on or after January 1, 2004:

(a) “Alternative work” means work (1) offered either by the employer who employed the injured worker at the time of injury, or by another employer where the previous employment was seasonal work, (2) that the employee has the ability to perform, (3) that offers wages and compensation that are at least 85 percent of those paid to the employee at the time of injury, and (4) that is located within a reasonable commuting distance of the employee's residence at the time of injury.

(b) “Approved training facility” means a training or skills enhancement facility or institution that meets the requirements of section 10133.58.

(c) “Claims administrator” means a self-administered insurer providing security for the payment of compensation required by Divisions 4 and 4.5 of the Labor Code, a self-administered self-insured employer, a self-administered joint powers authority, a self-administered legally uninsured, or a third-party claims administrator for a self-insured employer, insurer, legally uninsured employer, or joint powers authority.

(d) “Employer” means the person or entity that employed the injured employee at the time of injury.

(e) “Essential functions” means job duties considered crucial to the employment position held or desired by the employee. Functions may be considered essential because the position exists to perform the function, the function requires specialized expertise, serious results may occur if the function is not performed, other employees are not available to perform the function or the function occurs at peak periods and the employer cannot reorganize the work flow.

(f) “Furnished” means five days after the date of deposit in the United States mail or the date of personal service.

(g) “Insurer” has the same meaning as in Labor Code section 3211.

(h) “Modified work” means regular work modified so that the employee has the ability to perform all the functions of the job and that offers wages and compensation that are at least 85 percent of those paid to the employee at the time of injury, and located within a reasonable commuting distance of the employee's residence at the time of injury.

(i) “Nontransferable voucher” means a document provided to an employee that allows the employee to enroll in education-related training or skills enhancement. The document shall include identifying information for the employee and claims administrator.

(j) “Notice” means a required letter or form generated by the claims administrator and directed to the injured employee.

(k) “Offer of modified or alternative work” means an offer to the injured employee of medically appropriate employment with the date-of-injury employer through the use of Form DWC-AD 10133.53, Notice of Offer of Modified or Alternative Work for Injuries Occurring Between 1/1/04 - 12/31/12 or Form 10133.35 Notice of Offer of Regular, Modified, or Alternative Work for Injuries Occurring on or after 1/1/13.

(l) “Parties” means the employee, the claims administrator and their designated representatives, if any.

(m) “Permanent and stationary” means the point in time when the employee has reached maximal medical improvement, meaning his or her condition is well stabilized, and unlikely to change substantially in the next year with or without medical treatment, based on (1) an opinion from a treating physician, AME, or QME; (2) a judicial finding by a Workers' Compensation Administrative Law Judge, the Workers' Compensation Appeals Board, or a court; or (3) a stipulation that is approved by a Workers' Compensation Administrative Law Judge or the Workers' Compensation Appeals Board.

(n) “Permanent partial disability award” means a final award of permanent partial disability determined by a workers' compensation administrative law judge or the appeals board.

(o) “Receipt” means the date of actual receipt by electronic delivery, personal service, or five days after the date of deposit in the United States mail.

(p) “Regular work” means the employee's usual occupation or the position in which the employee was engaged at the time of injury and that offers wages and compensation equivalent to those paid to the employee at the time of injury, and located within a reasonable commuting distance of the employee's residence at the time of injury.

(q) “Seasonal work” means employment as a daily hire, a project hire, or an annual season hire.

(r) “Supplemental job displacement benefit” means an educational retraining or skills enhancement allowance for injured employees whose employers are unable to provide work consistent with the requirements of Labor Code sections 4658.5, 4658.6 and 4658.7.

(s) “Vocational & return to work counselor (VRTWC)” means a person or entity capable of assisting a person with a disability with development of a return to work strategy and whose regular duties involve the evaluation, counseling and placement of disabled persons. A VRTWC must have at least an undergraduate degree in any field and three or more years full time experience in conducting vocational evaluations, counseling and placement of disabled adults.

(t) “Work restrictions means permanent medical limitations on employment activity established by the treating physician, qualified medical examiner or agreed medical examiner.

Note: Authority cited: Sections 133, 4658.5, 4658.7 and 5307.3, Labor Code. Reference: Sections 124, 4658.1, 4658.5, 4658.6 and 4658.7, Labor Code; and Henry v. WCAB (1998) 68 Cal.App.4th 981.

HISTORY

1. Renumbering of former section 10001 to new section 10116.9, including amendment of section heading, section and Note, filed 11-17-2008; operative 11-17-2008 pursuant to Government Code section 11343.4 (Register 2008, No. 47).

2. Amendment of section heading and first paragraph, new subsections (f) and (o), subsection relettering, amendment of newly designated subsections (i), (k) and (r) and amendment of Note filed 12-20-2012 as an emergency; operative 1-1-2013 pursuant to Government Code section 11346.1(d) (Register 2012, No. 51). A Certificate of Compliance must be transmitted to OAL by 7-1-2013 or emergency language will be repealed by operation of law on the following day.



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