The workers’ comp claim you’re handling is accepted and, as you conduct your discovery, you learn that the injured worker cannot demonstrate that he/she is legally entitled to work in the U.S., or—at deposition —refuses to answer questions pertaining to “legal status.” Are these facts relevant in terms of vouchers and the 15 percent PD “bump down”?
You bet!
If handled correctly, you should not be liable for a voucher! If handled correctly, you should be able to obtain a 15 percent PD “bump down.”
Statutes & Regs The relevant codes and regulations (always exciting reading) are:
Labor Code § 4658(d)(1) This subdivision shall apply to injuries occurring on or after the effective date of the revised permanent disability schedule adopted by the administrative director pursuant to Section 46…
(3) (A) If, within 60 days of a disability becoming permanent and stationary, an employer offers the injured employee regular work, modified work, or alternative work, in the form and manner prescribed by the administrative director, for a period of at least 12 months, and regardless of whether the injured employee accepts or rejects the offer, each disability payment remaining to be paid to the injured employee from the date the offer was made shall be paid in accordance with paragraph (1) and decreased by 15 percent…
Regulation 10117. Offer of Work; Adjustment of Permanent Disability Payments. (a)(3)…”employer shall use form DWC-AD 10133.53 (Section 10133.53) to offer modified or alternative work, or form DWC-AD 10118 (Section 10118) to offer regular work.
Labor Code 4658.6. The employer shall not be liable for the supplemental job displacement benefit if the employer meets either of the following conditions:
(a) Within 30 days of the termination of temporary disability indemnity payments, the employer offers, and the employee rejects, or fails to accept, in the form and manner prescribed by the administrative director, modified work, accommodating the employee’s work restrictions, lasting at least 12 months.
(b) Within 30 days of the termination of temporary disability indemnity payments, the employer offers, and the employee rejects, or fails to accept, in the form and manner prescribed by the administrative director, alternative work meeting all of the following conditions…
The Case Law: Del Taco v. WCAB
Essential to the argument discussed herein is the 4/20/00 decision, Del Taco v. WCAB, 79 Cal. App. 4th 1437, 65 CCC 342. If you’ve not read this decision, I strongly recommend you do so. In Del Taco, the employer provided modified work to Applicant, but terminated the employment when it was discovered the Applicant couldn’t work legally in the US. In response, the worker claimed VR benefits. After the WCAB awarded VR benefits, the Court of Appeal reversed, holding: “an injured employee is not entitled to vocational rehabilitation benefits where the employee is unable to return to work solely because of immigration status.” (Underline added.)
Some of the more important observations by the Del Taco court include:
- “Worker’s immigration status does not affect his entitlement to [TD] payments [because]…worker is unable to work as a result of the work related injury and is entitled to disability benefits wherever he is residing, legally or illegally.”
- “[VR] services are available only to qualified injured workers…who meet[] both…requirements: ‘(1) The employee’s expected [PD]…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 in at the time of…injury, hereinafter referred to as ‘medical eligibility’ (2) The employee can reasonably be expected to return to suitable gainful employment through the provision of [VR] benefits.”
- “[I]t is not worker’s disability that precludes him from working at Del Taco. It is his immigration status.”
Citing the U.S. Constitution, the Court agreed with Del Taco that the WCAB’s VR award deprived the employer of equal protection. “[Del Taco] meritoriously argues that it will suffer what amounts to a potential $16,000 penalty only because the worker cannot lawfully perform modified work…..The WCAB’s [VR] award relies on an interpretation of the statutes that is irrational and arbitrary. Here, a legal worker would not be awarded job training because Del Taco’s offer of modified work precludes such. The WCAB’s award provides an ‘illegal worker’ more extensive and costly services than would be provided to a similarly situated ‘legal worker.’ This deprives Del Taco of equal protection of the laws.”
Major Points
POINT ONE
“Illegal workers” are generally entitled to any/all workers’ compensation benefits:
“an injured employee is not entitled to vocational rehabilitation benefits where the employee is unable to return to work solely because of immigration status”
POINT TWO
Although Del Taco‘s holding is limited to “vocational rehabilitation benefits,” its reasoning is equally applicable to any workers’ compensation benefit that hinges on Applicant’s “immigration status”. Del Taco‘s holding is based on the Equal Protection Clause: “Here, a legal worker would not be awarded job training because Del Taco’s offer of modified work precludes such. The WCAB’s award provides an ‘illegal worker’ more extensive and costly services than would be provided to a similarly situated ‘legal worker.’ This deprives Del Taco of equal protection of the laws.”
While our issues (vouchers and the 15 percent PD “bump down”) technically do not involve “vocational rehabilitation benefits”, they do implicate Equal Protection AND—IF WE APPROACH THIS CORRECTLY—the employer is deprived of the opportunity to provide permanent modified alternative work and, thus, deprived of the chance to avoid providing a voucher and obtaining the 15% PD “bump down”, because the “employee is unable to return to work solely because of immigration status.”
Note the employers in Del Taco did everything they could legally do: “Here, Del Taco provided modified work to worker and after he commenced the modified work, Del Taco terminated the employment because it discovered that he was not legally permitted to work in the United States.” This is particularly important for potential audit/penalty issues and suspect that an undocumented worker would be eligible for a SJDB voucher UNLESS the employer demonstrates it would have medically appropriate work for the employee absent his/her undocumented status.
To make such a demonstration, the employer can make a conditional offer of employment; the condition would be that the employee must present documents showing a legal right to work in the U.S. within the statutory time frame allowed for a response to the work offer. This is not “discriminatory”; we all have to present proof of citizenship or legal status at the time of hire. In this way the employer can demonstrate that it would and could make work available “but for the applicant’s undocumented status.”
Why Not Just Refuse to Provide Vouchers and Unilaterally Asserting the 15 Percent PD “Bump Down”?
- If the DWC did not enforce the procedural “offer” requirements, employers could simply say they had work available in all cases (without proving it);
- Per Allan Leno, of Leno & Associates, “the DWC is taking a very literal interpretation of L.C. 3 4658(d). If the employer does not offer a job (regular, modified, or alternative) to the employee with ratable PD, the PD offset will apply. It makes no difference whether the employee intends to return to work or retire. The Labor Code anticipates that work would be available and the only way for the employer to “prove” availability is to make an offer via a DWC AD 10118 or 10133.53″;
- When an undocumented worker receives the conditional offer, he/she will—99 percent of the time—not show up on the appointed start date and the issue will simply fall by the wayside;
- Create a paper trail (aka “evidence”) that the employers have done everything they can (like Del Taco) and that it is the undocumented worker’s “fault” he/she hasn’t been returned to work;
- If Applicant fights the issue, DWC-AD 1-133.53’s “Notice Of Offer Of Modified Or Alternative Work”, page 2, includes an area where an injured worker can refuse to accept to be returned to U&C or a modified position. I would fully expect that, if they’re gunning for a fight, they will raise OTHER REASONS they can’t accept the offered position (physical restrictions, geographical locations, the offer is not in “good faith”, etc.). Best to have these arguments raised/documented before MSC;
- Fully expect WCJ/WCAB will argue the defense estopped and/or have otherwise somehow waived the “undocumented” argument by failing to go through the required steps of timely offering modified or alternative work options to injured worker.
Conclusion
Applicable Labor Code provisions, regulations, and case law strongly support the proposition that—in cases where the injured worker (IW) is not legally entitled to work in the US—we can successfully defend against providing vouchers, and obtain the 15 percent PD decrease. However, as a prerequisite to such arguments, it is essential that we coordinate our efforts to ensure the requisite RTW or Mod/Alt Duty forms issue [See DWC-AD 10133.53 (Section 10133.53) and DWC-AD 10118 (Section 10118)] issue in timely fashion.
Donald R. Barthel is a Founding Partner of Bradford & Barthel, LLP, as well as B&B’s Rating & File Consultation Services. Mr. Barthel is an acknowledged expert regarding the AMA Guides (5th) and the 2005 PDRS. Much of his time is dedicated to teaching these topics to adjusters, human resource directors, employer representatives, attorneys, and physicians throughout California and the United States. Have a PDRS or AMA Guides question? Call Don Barthel at (916) 996-1263 or email him at dbarthel@bradfordbarthel.com.
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