RU-94 Is Unnecessary For An Undocumented Alien
- Posted By: Harvey Brown
- February 1, 2002
This is a non published opinion. However, it does cite cases that are published which may be used to support the outcome.
The applicant, who only spoke Spanish, had an industrial injury. The applicant returned to work doing a lighter duty. Apparently it was the same job that the applicant returned to as opposed to a modified job. The applicant went to an agreed medical examiner (AME) who found the applicant permanent and stationary. The AME stated the applicant could continue in the present restricted job.
The applicant apparently had another industrial injury and continued to work in the restricted capacity only sporadically. The parties stipulated that the applicant had a permanent disability of 18% and vocational rehabilitation was not necessary. Apparently it was never argued on appeal that this stipulation was binding on the applicant for this appeal.
A Rehabilitation Unit conference was eventually held in which the applicant admitted she was an undocumented alien. The Rehabilitation Unit determined that the applicant was a “qualified injured worker” and entitled to vocational rehabilitation benefits. The Unit also determined that the offer of modified work was not sufficient because it was not made on form RU-94.
This decision was appealed to the Workers’ Compensation Judge (WCJ) who determined the applicant was merely performing light duty and not modified duty. The WCJ also determined that the offer of modified duty was not made on the official RU-94 form and therefore, the employer could not take credit for the previous time worked by the applicant in the lighter duty job.
On petition for reconsideration, by the defendant, the Workers’ Compensation Appeals Board (WCAB) agreed with the WCJ. The appellate court reviewed Del Taco v WCAB (2000) 79 Cal.App.4th 1437.
The appellate court in that case indicated that a worker is precluded from vocational rehabilitation because of mere undocumented status and not there permanent disability. The court determined that offering vocational rehabilitation beyond the modified work requirement, solely due to the worker’s undocumented status, violated the equal protection clause.
This court decided the RU-94 form is irrelevant when it is undisputed modified work is available since the applicant cannot accept the work. Therefore, the applicant was not entitled to rehabilitation.
- Posted In: Work Injury
How To Determine Whether Medical Treatment Is Reasonable And Necessary
- Posted By: Harvey Brown
- January 1, 2002
The case that is discussed in this issue is not certified for publication. However, you can use the material within the opinion that does refer to citeable cases; the case deals with determining if self-procured medical treatment is reasonable and necessary.
The applicant had an admitted injury. The case was resolved-by stipulations with Request for Award. There was an unresolved lien of $39,545.00 for self procured medical treatment. In the Stipulation it was included that the defendant would pay or adjust the self-procured treatment. The Editor of this newsletter does not recommend that this be done: You should state that you will pay, adjust or litigate. Without saying- the word litigate you are saying you must pay something. Therefore, there-probably should have been a penalty issue in this case since the defendant did not pay. The defendant also held the applicant harmless and the editor would not recommend that you do this either.
The lien was tried before a Workers Compensation Judge (WCJ). The WCJ disallowed the lien on the basis that the applicant stated that the treatment was of very little benefit.
The appellate court reviewed the criteria for deciding what is reasonable and necessary to cure and relieve from the effects of an industrial injury. The court reviewed many citeable cases to make their- determination.
Once the employee selects the primary treating doctor the employer acquiesces in the treatment that physician provides. Whether the physician can recover for performing that treatment is not determined by whether the treatment was successful. Many times the treatment will not have a lasting effect. It can still be reimbursable. Treatment that even has no effect can even be reimbursable.
The question becomes whether the treatment that was prescribed was reasonable in light of the applicant’s injuries. Just because treatment, did not cure the applicant is not deterrninative.
In order to prepare for arguing whether self-procured was reasonable and necessary the defendant should take a deposition in which they determine all the treatment that was given over what period of time, and how beneficial this was. The defendant should then send this information, to a physician pursuant to the rules to determine if the self-procured treating doctor has prescribed the correct course of treatment.
- Posted In: Work Injury