Workers’ Compensation Certificate Program
University of California, Riverside Extension Department
- Vocational Rehabilitation - 4/10/02
Vocational rehabilitation is getting the applicant back into the work force.
This is generally the first place the injured worker can “take control.”
Labor Code - is the law
Administrative Rules - are descriptive of how to implement the law
Rehabilitation Administrative Guidelines - further clarify use of the law
Standards for Quality Service - more guidelines for use
Assignments:
Job Description - RU-91
Job Analysis - watch, evaluate, weigh etc. particulars of any given occupation
Initial Interview - needs to be of a real person
Rehab. Plan - RU-102
Spartans - left the weak or “damaged” to die
Athens - the disabled were killed
Rome - people were abandoned
“They were not treated as real people.”
Middle Ages - mental illness was believed caused by “possession”
Individuals were tortured.
Bedlam was a mental hospital.
Early America - people had to carry their own weight
There was a lack of medical knowledge.
These ideas restricted immigration.
1880s - people started working with disabilities
Perkin’s Institute worked with the deaf.
1844 - Dorothy Dicks was a pioneer for the mentally ill
There were alms houses, basically jails for the mentally ill.
People with physical disabilities were considered freaks.
1900s - saw the rise of Social Darwinism
Government had no role in protecting the disabled.
1908 - Civil Employee’s Act - laid ground for Workers’ Compensation law
Industrial Revolution brought people into jobs with hazards
1910 - First compulsory Workers’ Compensation law
Still no provisions for Voc. Rehab.
1913 - April, the initiation of income tax - government was getting some money to work with
Medicine was still not advanced.
Survival of the fittest ruled.
1917 - Smith - Hughes Act
First time federal funds were given to states on a matching basis for Voc. Rehab.
People were moving from farms to cities and needed training.
Federal Board of Voc. Rehab. established.
1918 - Soldiers’ Rehab. Act
For the first time the focus was on the return of injured to work.
1920 - First civilian rehab. program
There was resistence.
Smith - Fess Act
There was the allowance for voc. guidance.
Homemaking was considered an occupation.
There was very little government involvement.
1935 - Social Security
F.D.R. was president.
The programs in place were made permanent programs.
The focus was on the population as a whole regarding those with physical disabilities.
A person “uses a wheelchair,” he/she is not “in a wheelchair.”
W.W.II - penicillin and anti-septic techniques were developed
Many disabled individuals worked “on the home front” during the war.
There were improved prosthetics.
There was a look at injury prevention, cure and rehab.
A.M.A. created the Board of Physical and Rehab. Medicine.
1954 - was the first voc. rehab. law : provided for research and restoration
Advances were including mental illnesses.
There were some research and demonstration grants.
Rehab. facilities were developed.
1956 - the focus was on rehab., not cash payments in regards to Social Security Administration
1965 - Voc. Rehab. Act amended
Things are “done with a person,” not “done to someone” given the focus on independent living and self-advocacy.
1973 - focus shifted to those with greater disabilities first
Voc. Rehab. Act i.e. civil rights for people with disabilities including architectural accommodation.
1993 - Americans with Disabilities Act : beefed up the language of the prior ‘73 act
Master - Servant Concept
Employer - Employee Relationship
Workers’ Compensation defenses included:
Had to prove negligence
Fellow Servant Doctrine
Contributory negligence
Workers’ Compensation system is a compromise.
1. Medical services are quickly provided.
2. Right to sue extensively given up.
It is a no fault system.
A claim is filed, not a lawsuit.
Workers’ Compensation is to be an “exclusive remedy.”
1. Ensure prompt medical treatment, disability payments and rehab.
2. Relieves the burden on public and private charities.
3. Encourages employer participation in safety and remedy i.e. ergonomics.
Today - there has been an erosion of the exclusive remedy concept
Now go to A.D.A. and F.E.H.A.
70% of people with serious disabilities are unemployed.
It is not necessarily about new people finding jobs as much as people hurt keeping their prior employment through accommodation.
Case law has watered down A.D.A. some.
California has a very liberal standard for what is a “disability.”
The intent to use rehab. is about 50 years old.
There is a lot of subtle discrimination that goes on.
“Yes, it’s wrong. Yes, it’s discrimination. Yes, it’s out there.”
Proper way to phrase the question:
Do you have any disability which would preclude you from doing the job you are applying for?
T.T.D. - 2/3 average weekly wage to a max $490
injured after 1/1/03 - max. $604 2003
- max. $824 2004
“We will see how it plays out.”
SB 1829 (Polanco) - Must be evaluated by Qualified Rrehab. Representative to see employment fitness without voc. rehab.
Labor Code §5410
25% of applicants offered voc. rehab. decline.
“Whenever you write a law, it never comes out how you expect it to.”
V.R.M.A. - money to live off while in rehab.
P.D. - permanent disability
P.D.A. - permanent disability advance
Can be added to V.R.M.A. usually to bring applicant up to T.T.D. level, but it taken from future settlement amount.
Date of Injury Date Permanent & Stationary
*----------------------------------*--------------------
T.T.D. V.R.M.A. if in voc. rehab.
Max. $246 weekly
*-------------------
P.D. if no voc. rehab.
Max. $170 weekly
Q.I.W. - qualified injured worker
1. Must be medically eligible
2. Unable to return to usual and customary job
3. Must be vocationally feasible to benefit from voc. rehab.
These are the only applicants entitled to voc. rehab.
Have up to five (5) years from Date of Injury to request, or up to one (1) year from last finding of P.D.
Insurer has ten (10) days from date of medical eligibility to offer voc. rehab. services.
No guarantees to get back to old salary.
Q.R.R. - qualified rehab. representative
Works in the development of plans and explains laws.
No state licensure - so check references and look for academic degrees.
I.V.E. - independent vocational evaluator
Appointed by the state.
A.V.E. - agreed vocational evaluator
Allows both sides to provide input.
Vocational Rehab. Services - are the services needed to get a person back to work
Can be many things i.e. training, counseling, placement assistance etc.
Labor Code §4635
Suitable Gainful Employment - a job within medical limitations
Technically it is minimum wage or above.
“Salary is a huge discussion.”
Usual and Customary Occupation - job being done before injury
Rebuttable Presumption - if missed 365 days of work, applicant is Q.I.W.
Modified Work - regular job, only partially changed
“A lot of modification doesn’t cost a lot of money.”
Alternative Position - were applicant works a different job for the same employer
If within 85% of salary at time of injury, employer doesn’t have to provide voc. rehab.
Transferrable Skills - skills employees can take from job to job, no position specific
Vocational Feasibility - if applicant can’t benefit from services, not feasible
Eligibility can change with time.
Exclusive Remedy - applicant can only go through the Workers’ Compensation system, not civil
There are notable exceptions i.e. third-party civil actions.
Family Medical Leave Act - were an employee can take up to twelve (12) weeks unpaid for taking care of a family member.
Disabilities Management - a coordination of benefits
