The Return-to-Work Supplement Program was established by the Legislature in Labor Code section 139.48, part of Senate Bill 863 to provide supplemental payments to workers whose Workers’ Compensation permanent disability benefits are disproportionately low in comparison to their earnings loss.

After Labor Code section 139.48 took effect on January 1, 2013, the Department, in coordination with the Commission on Health and Safety and Workers’ Compensation, commissioned an implementation study from the Rand Corporation. Guided by the Rand study, which was completed in February 2014, the Department developed and adopted California Code of Regulations, title 8, sections 17300 through 17310 to implement the RTWS Program. These regulations went into effect on April 6, 2015, and the Department began accepting applications for RTWS benefits on April 13, 2015.

The California Applicants’ Attorneys Association “CAAA” then petitioned the Director of Industrial Relations in accordance with Government Code section 11340.6 asking for the changes which are the subject matter of these amendments.

CAAA’s petition stated that the requested extension to the application deadline was necessary, because injured workers who received a voucher on or before the April 13, 2015 implementation date of the RTWS application process would no longer be able to apply for an RTWS benefit after April 13, 2016. This was despite the fact that those individuals had not received notice of their eligibility to apply for an RTWS benefit when they received their Vouchers.

CAAA’s petition also notes that the Voucher form, which is supposed to provide notice of eligibility to apply an RTWS benefit, was not updated to include that notice until approximately December 1, 2015. Moreover, while section 17303 required claims administrators to provide notice of eligibility via a cover sheet accompanying all Vouchers issued until the Voucher form was amended by DWC, the Department has been informed that at least some vouchers issued prior to December 1, 2015 were not accompanied by the required notice.

CAAA believes that the lower than expected number of applicants to the RTWS Program in 2015 (less than 12,000 when at least 24,000 were projected by the Rand study which the Department relied on when developing the Program) was largely due to this lack of notice of eligibility. The Department conducted a public hearing on CAAA’s petition on April 15, 2016, and determined to proceed with rulemaking to amend section 17304.

The proposed amendment to section 17304 extends the RTWS application deadline for individuals who became eligible for the benefit prior to December 1, 2015, to address inadequate notice to some individuals within that group of their entitlement to the RTWS benefit.

A public hearing has been scheduled at 10 a.m. on Monday, October 31, 2016, in Room 7, second floor of the Elihu Harris Building, 1515 Clay Street, Oakland, CA 94612. Members of the public may also submit written comments until 5 p.m. that day.

Written comments can be sent by email to LC139.48Comments@dir.ca.gov or by fax to (510) 286-6997.

The proposed amendment, notice and the California Applicants’ Attorneys Association (CAAA) RTW Petition and Notice of Public Hearing on Petition to Amend Regulations can be found on the DIR website.