Chapter 4.5. Division of Workers' Compensation
Subchapter 1. Administrative Director--Administrative Rules
Article 8. Benefit Notices; Claims Administrator’s Duties and Responsibilities; Claim Form and Notice of Potential Eligibility for Benefits; Regulatory Authority of the Administrative Director.

§9813. Vocational Rehabilitation Notices.

(a) The following notices are applicable to dates of injury through December 31, 2003. This section shall not apply to dates of injury on or after January 1, 2004.

(1) Notice of First Payment. The first time the claims administrator pays vocational rehabilitation temporary disability or maintenance allowance, the claims administrator shall advise the employee of the amount of indemnity due, how it was calculated, and the duration and schedule of indemnity payments. The notice is due by the 14th day after the employee requested vocational rehabilitation services. The notice shall include, if applicable, the employee's option to add an amount from permanent disability benefits to increase the maintenance allowance payments to the temporary disability rate.

(2) Delay in Providing Vocational Rehabilitation. If upon receipt of a medical report which indicates that an employee is likely to be precluded from his or her usual and customary occupation, or upon receipt of a request for vocational rehabilitation services the claims administrator cannot determine the employee's entitlement to vocational rehabilitation services, a notice of delay shall be sent. The notice shall be sent no later than 10 days from the date of receipt of the medical report or no later than 10 days from receipt of the employee's request for services.

The delay notice shall explain the reason for delay, the need, if any, for additional information required to make a determination and the date by which a determination is likely to be made. If the claims administrator cannot make a determination by the date it specified in a notice to the injured worker, the claims administrator shall send a subsequent notice to the injured worker, not later than the determination date specified in the previous notice, notifying the injured worker of the date by which the claims administrator now expects the determination to be made. The additional delay notices shall include the employee's remedies and shall comply with all requirements for an original delay notice.

(3) Denial of Vocational Rehabilitation Benefits. The claims administrator shall advise the employee of its determination that an employee is not a qualified injured worker, the reasons for it, enclosed a copy of the document in which the determination is based and the employee's remedies. The notice shall include a DWC Form RU 103 Request for Dispute Resolution. The notice is due within 10 days of either:

(A) A request for vocational rehabilitation services; or

(B) Receipt of a treating physician's final report determining medical eligibility subsequent to 90 days of aggregate total temporary disability; or

(c) Receipt of the document upon which the claims administrator relied for its determination.

If the claims administrator denies liability for rehabilitation services but remains liable for paying VRTD or VRMA benefits, the notice shall explain the distinction between the terminated and continuing rehabilitation benefits.

If the denial is on the basis that the employee is not medically eligible, a copy of the most recent version of the DWC informative pamphlet "QME/AME Fact Sheet" shall be provided to the employee.

(4) Interruption or Deferral of Vocational Rehabilitation Services. Within 10 days after agreeing to interrupt or defer vocational rehabilitation services, the claims administrator shall advise the employee of the interruption and the dates it will be in effect. The claims administrator shall send a like notice within 10 days after agreeing to a new or extended period of interruption. The notice shall include an explanation of the specific steps he or she must take to notify the claims administrator that he or she is ready to resume participation (e.g., written or telephonic communication to the claims administrator, the agreed Qualified Rehabilitation Representative or the employee's representative), and information regarding the likely termination of the employee's rights to vocational rehabilitation should the employee fail to request services within 5 years from the date of injury.

If the parties agree to an interruption or deferral which extends beyond the statutory period, the notice shall advise the employee that failure to request services within the agreed upon time frame is likely to terminate the employee's rights to rehabilitation services.

For injuries occurring on or after 1/1/94 where an interruption occurs during a vocational rehabilitation plan, the notice shall explain that the plan must by law be completed within 18 months of approval.

(b) Vocational Rehabilitation Notices for Injuries Occurring Prior to 1990.

(1) Potential Eligibility for Rehabilitation. Within 10 days of receipt of a physician's report or knowledge of a physician's opinion indicating that an employee may be permanently precluded from his or her usual and customary occupation or the position in which he or she was engaged at the time of injury, or if the employee has been totally temporarily disabled for an aggregate of 180 days, the claims administrator shall notify the employee within 10 days of the 180th day of his or her potential eligibility for vocational rehabilitation services. The notice shall include all of the following information:

(A) An explanation of the vocational rehabilitation services and rehabilitation temporary disability benefits available to the employee;

(B) Instructions how the employee may apply for vocational rehabilitation (e.g., by written or telephonic communication to the claims administrator, the agreed Qualified Rehabilitation Representative or the employee's representative);

(C) Notice of the employee's right to participate in selecting an agreed rehabilitation counselor;

(D) Notice that vocational rehabilitation benefits may not be settled or otherwise converted to cash payments;

(E) Either an offer of vocational rehabilitation services, or notice of delay or denial notice in accordance with Section 9813(a)(2) or (3).

(c) Vocational Rehabilitation Notices for Injuries Occurring in 1990, 1991, 1992 or 1993.

(1) At 90 days of Aggregate Temporary Disability Benefits. The claims administrator shall notify the worker no later than 10 days after an employee has accrued 90 days of aggregate temporary total disability benefits of the assignment of the Qualified Rehabilitation Representative (QRR) for the purpose of explaining the employee's potential entitlement to vocational rehabilitation services. The notice shall include a statement that the QRR will be assisting the employee in the development of a job description to submit to the treating physician for an opinion regarding whether the employee may be released to his or her usual and customary occupation. The notice shall further state that the employee will be notified of the physician's opinion when available.

(2) Potential Eligibility for Rehabilitation. Within 10 days of receipt of a physician's report or knowledge of a physician's opinion indicating that an employee is medically eligible for vocational rehabilitation, or if prior notice has not been sent, within 10 days after the employee has been totally temporarily disabled for an aggregate of more than 365 days, the claims administrator shall notify the employee of his or her potential eligibility for vocational rehabilitation services. The notice shall include the following information:

(A) The "Help in Returning to Work" pamphlet published by the Division of Workers' Compensation;

(B) If the notice contains an offer of services, the notice shall include instructions on how to apply for vocational rehabilitation services (e.g., by written or telephonic communication to the claims administrator, the agreed Qualified Rehabilitation Representative or the employee's representative);

(C) If the notice contains an offer of services, the notice shall state that failure to apply within 90 days of receipt of this notice may terminate the employee's entitlement to vocational rehabilitation services;

(D) If the notice contains an offer of services, information on the employee's right to assist in the selection of an agreed upon Qualified Rehabilitation Representative;

(E) If the notice contains an offer of services, advice that the employee may request an evaluation of his or her ability to benefit from the provision of services prior to accepting or rejecting vocational rehabilitation services;

(F) The notice may include a statement from the claims administrator that every effort will be made to identify a modified or alternate job with the same employer to speed the employee's return to the labor market.

(G) Either an offer of vocational rehabilitation services, or a delay or denial notice in accordance with Section 9813(a)(2) or (3) of these regulations.

(3) Reminder of Potential Eligibility. If the employee has not requested vocational rehabilitation services after notification of medical eligibility, the claims administrator shall remind the employee of his or her right to vocational rehabilitation services. The notice shall be made not earlier than 45 nor later than 70 days after the employee's receipt of the Notice of Potential Eligibility.

(4) Intention to Withhold Maintenance Allowance for Failure to Cooperate. If the employee unreasonably fails to cooperate in the provision of vocational rehabilitation services, the claims administrator shall give the employee written notice of any intention to withhold payment of vocational rehabilitation maintenance allowance, the reasons, and the employee's right to object within 10 days of receiving the notice. The notice shall be made at least 15 days before ending payment of vocational rehabilitation maintenance allowance. The notice shall include a DWC Form RU 103 "Request for Dispute Resolution".

(d) Vocational Rehabilitation Notices for Injuries Occurring on or after January 1, 1994 and before January 1, 2004.

(1) At 90 days of Aggregate Temporary Disability Benefits. The claims administrator shall notify the employee no later than 10 days after the employee accrues 90 days of aggregate temporary total disability benefits of the employee's potential rights to vocational rehabilitation. The notice shall include the "Help in Returning to Work" pamphlet as set forth in section 10133.2 of these regulations;

(2) Potential Eligibility for Rehabilitation. Within 10 days of receipt of a physician's report or knowledge of a physician's opinion indicating that an employee is medically eligible for vocational rehabilitation, or if prior notice has not been sent within 10 days after the employee has been totally temporarily disabled for an aggregate of 365 days, the claims administrator shall notify the employee of his or her potential eligibility for vocational rehabilitation services. The notice shall indicate the following information:

(A) The "Help in Returning to Work" pamphlet as set forth in section 10133.2 of these regulations;

(B) If the notice contains an offer of services, the notice shall include instructions on how to apply for vocational rehabilitation services (e.g., by written or telephonic communication to the claims administrator, the agreed Qualified Rehabilitation Representative or the employee's representative);

(C) If the notice contains an offer of services, the notice shall state that failure to apply within 90 days of receipt of this notice may terminate the employee's entitlement to vocational rehabilitation services;

(D) If the notice contains an offer of services, information on the employee's right to assist in the selection of an agreed upon Qualified Rehabilitation Representative;

(E) If the notice contains an offer of services, advice that the employee may request an evaluation of their ability to benefit from the provision of services prior to accepting or rejecting vocational rehabilitation services. The employee must further be advised that fees for such an evaluation are included within the forty-five hundred dollars ($4,500) maximum fees available for counseling services.

(F) The notice shall include a statement from the claims administrator whether a modified or alternate job with the employer is available. In the event that additional investigation into the availability of alternate or modified work is required, a final notice regarding the availability of modified or alternate work shall be sent within 30 days. This time limit may be extended by agreement of the parties.

(G) Either an offer of vocational rehabilitation services, or delay or denial notice in accordance with paragraph (2) or (3) of subdivision (a).

(3) Reminder of Potential Eligibility. If the employee has not requested vocational rehabilitation services after notification of medical eligibility, the claims administrator shall remind the employee of his or her right to vocational rehabilitation services. The notice shall be made not earlier than 45 nor later than 70 days after the employee's receipt of the Notice of Potential Eligibility.

(4) Intention to Withhold Maintenance Allowance for Failure to Cooperate. If the employee unreasonably fails to cooperate in the provision of vocational rehabilitation services, the claims administrator shall give the employee written notice of any intention to withhold payment of vocational rehabilitation maintenance allowance, the reasons, and the employee's right to object within 10 days of receiving the notice. The notice shall be made at least 15 days before ending payment of vocational rehabilitation maintenance allowance. The Notice shall include a DWC Form RU 103 "Request for Dispute Resolution".

   Note: Authority cited: Sections 59, 133, 138.3, 138.4, 139.5(a)(2), 4636(d), 4637 and 5307.3, Labor Code. Reference: Sections 138.4, 139.5, 4061(a), (b), (d), 4636, 4637, 4641, 4643, 4644, 4650(a)-(d), 4661.5, 4700, 4701, 4702, 4703, 4703.5, 4903(a) and 5402, Labor Code.

 HISTORY 

   

1. Repealer filed 7-11-89; operative 10-1-89 (Register 89, No. 28).

2. New section filed 1-7-94; operative 1-7-94. Submitted to OAL for printing only pursuant to Government Code section 11351 (Register 94, No. 1). For prior history, see Register 89, No. 28.

3. Amendment of subsections (a)(2)-(a)(3)(C), (c)(2), (c)(2)(B)-(E), (d)(2) and (d)(2)(B)-(E) filed 2-21-95; operative 2-21-95. Submitted to OAL for printing only pursuant to Government Code section 11351 (Register 95, No.8).

4. Amendment of subsections (a), (a)(2)-(3), (a)(3)(C), (c)(4)-(d)(1),(d)(2)(A) and (d)(4) filed 12-11-2007; operative 4-9-2008 (Register 2007, No. 50).