RU-94 Is Unnecessary For An Undocumented Alien

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.

Case: Liberty Mutual Ins. V. WCAB (Pinzon)

Harvey Brown
3501 Jamboree Rd. Suite 602
Newport Beach, CA 92660

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