Chapter 4.5. Division of Workers' Compensation
Subchapter 1.5. Injuries on or After January 1, 1990
Article 7. Vocational Rehabilitation

§10126. Vocational Rehabilitation; Plans and Offers of Modified or Alternative Work.

(a) For Injuries occurring prior to 1/1/94,

(1) Within ninety (90) days after determination of the employee's vocational feasibility, the claims administrator shall either:

(a)(a) Submit Vocational Rehabilitation Plan, DWC Form RU-102, agreed to by the parties with appropriate attachments or;

(b)(b) Advise the Rehabilitation Unit of any dispute by filing a "Request For Dispute Resolution", DWC Form RU-103, to the Rehabilitation Unit, attaching a summary of the informal conference and the results thereof, including identification of the issues, issues resolved, issues pending, position of the parties and the rationale/supporting information for the position(s).

(2) A vocational rehabilitation plan that provides for modified or alternative work with the same employer and has been agreed to by the employer and employee shall not be subject to Rehabilitation Unit approval prior to implementation.

(3) Where a question arises concerning the duration of alternate plans of equal merit, the unit shall approve the plan that expedites the employee's return to suitable gainful employment.

(b) For Injuries Occurring On Or After 1/1/94.

(1) Offers to provide alternative or modified employment with the employer which meet the criteria of Labor Code Section 4644(a)(5), (6), or (7) do not require a written plan nor approval from the Rehabilitation Unit. The offer shall be made on DWC Form RU-94. The injured employee shall accept or reject a bona fide offer within 30 calendar days of receipt of the offer. In the event that the offer is not accepted or rejected within 30 days, the offer is deemed rejected unless the time period for reply is extended by the employer or by the terms and conditions of a collective bargaining agreement. The claims administrator shall submit a copy of the acceptance or rejection of the re-employment offer to the Rehabilitation Unit within 30 days of the acceptance or rejection.

(2) Plans developed for unrepresented employees or plan developed without the service of a Qualified Rehabilitation Representative require the approval of the Rehabilitation Unit. The plan must be submitted, on DWC Form RU 102, to the Rehabilitation Unit within 15 days of the agreement to the provisions of the plan.

(3) Agreed plans developed by a Qualified Rehabilitation Representative for represented employees do not require Rehabilitation Unit approval. The claims administrator shall submit a copy of the plan to the Rehabilitation Unit upon submission of the Notice of Termination of Vocational Rehabilitation Services at the time of completion.

(4) Plans which provide the employee with discretionary monies to be used on a non-specific and/or self-directed basis must be reviewed by the Rehabilitation Unit to determine whether the plan is in conflict with Labor Code Section 4646. Any plan found to be in conflict with Labor Code Section 4646 shall not terminate an insurer's liability to provide vocational rehabilitation services and any money expended on such a plan shall not be counted against the maximum expenditure for vocational rehabilitation services.

(5) An employee may be granted a waiver of the services of a Qualified Rehabilitation Representative if the employee has made substantial progress towards the completion of a certificate or degree program from a community college, California State University, or the University of California. Substantial progress includes but is not limited to situations where the employee can demonstrate all of the following:

(a)(a) The employee is, was, or will be enrolled as a full-time student taking 12 units or more;

(b)(b) The employee has completed 35% or more of the units necessary to complete the degree or certificate program and has attained at least a "C" grade in those courses necessary to complete the degree or certificate program;

(c)(c) The employee has produced a letter of recommendation from the school in which the employee is enrolled supporting the employee's course of study from one of the following: the Dean of Admissions, the school department head or the school counselor. Accompanying the letter shall be an outline of the courses to be taken and the estimated time frames for completion of each course.

(d)(d) The employee has identified the vocational goal to be achieved, the resources and time frames required to achieve the goal and, if the goal extends beyond the maximum expenditures and time frames allowed, the alternative resources available to the employee to complete the program.

The Rehabilitation Unit will assist the employee in completing the DWC Form RU 102.

(c) All plans must contain a description of the level of participation expected of the employee in order to continue to receive maintenance allowance. If the employee fails to adhere to the agreement, the claims administrator may petition to withhold the employee's maintenance allowance as described in Section 9813.

(d) Nothing shall preclude the claims administrator or employee from requesting the Rehabilitation Unit to approve a modification of the plan because of an unforeseen circumstance arising subsequent to the initial plan agreement.

(e) Within 15 days after the employee and claims administrator have agreed to the terms and conditions of a vocational rehabilitation plan, the plan shall be submitted to the Rehabilitation Unit for review and approval where approval is required. Within thirty (30) days of receipt of a properly submitted, documented and signed plan, the Rehabilitation Unit shall approve or disapprove the plan. If disapproval is not made within thirty (30) days of receipt of a properly submitted plan, the plan shall be deemed approved.

Notice of approval shall issue only in instances where the plan has been previously disapproved. Plan commencement shall not be deemed approval.

(f) Plans that are in conflict with Labor Code Section 139.5(h) or Section 10123.3 of these regulations shall not terminate the insurer's liability to provide vocational rehabilitation services and, for injuries occurring on or after 1/1/94, shall not be counted against the maximum expenditure for vocational rehabilitation services.

(g) A vocational rehabilitation plan is complete when the claims administrator and employee have fulfilled their respective obligations specified in the plan or when applicable maximum expenditures for vocational rehabilitation services have been reached, whichever occurs first.

(h) For injuries occurring on or after 1/1/94, a rehabilitation plan must be completed within 18 consecutive months from the date of plan approval, or, if approval is not required, from the date of plan commencement. Except as provided in Subdivision (i), the job placement period in a plan shall not exceed 60 days.

(i) For employees injured on or after 1/1/94 who initiate rehabilitation benefits or services pursuant to Section 10125 on or after 1/1/98, the period of job placement in a rehabilitation plan may be up to 90 days where the plan exclusively utilizes transferable skills and experience for direct placement.

(j) A second vocational rehabilitation plan will not be provided where the claims administrator has fulfilled its obligations under the plan and the employee has completed, or with reasonable diligence could have completed the vocational rehabilitation plan, unless the employee can demonstrate a deterioration of his or her disability to the point where the employee is unable to meet the physical demands of the first plan.

(k) Private providers of vocational training selected to provide training as part of a vocational rehabilitation plan shall have either approval from the Bureau for Private Postsecondary and Vocational Education, approval from a California state agency that has an agreement with the Bureau for the regulation and oversight of non-degree-granting private postsecondary institutions, accreditation from the Western Association of Schools and Colleges, or certification from the Federal Aviation Administration.

(l) Vocational rehabilitation plans for employees who lack English language proficiency may include English language training when necessary to return the employee to suitable gainful employment.

NOTE: Authority cited: Sections 133, 139.5 and 5307.3, Labor Code. Reference: Sections 139.5, 4638 and 4644, Labor Code.

HISTORY

1. New section filed 1-18-90; operative 1-18-90 (Register 90, No. 4). New section is exempt from review by OAL pursuant to Government Code section 11351.

2. Change without regulatory effect amending section filed 1-22-91 pursuant to section 100, title 1, California Code of Regulations (Register 91, No. 10).

3. Amendment of section heading and section filed 12-31-93; operative 1-1-94. Submitted to OAL for printing only pursuant to Government Code section 11351 (Register 93, No. 53).

4. Change without regulatory effect amending subsections (c)(c) and (c) filed 3-14-94 pursuant to title 1, section 100, California Code of Regulations (Register 94, No. 11).

5. Amendment of section heading, amendment of subsections (a)(2), (b)(1) and (h), new subsection (i), subsection relettering, amendment of newly designated subsections (j) and (k) and new subsection (l) filed 8-26-98; operative 9-25-98 (Register 98, No. 35).