State Compensation Ins. Fund v. Workers' Comp. Appeals Bd.
| Decision Date | 04 January 1979 |
| Citation | 88 Cal.App.3d 43,152 Cal.Rptr. 153 |
| Court | California Court of Appeals Court of Appeals |
| Parties | STATE COMPENSATION INSURANCE FUND, Petitioner, v. The WORKERS' COMPENSATION APPEALS BOARD of the State of California and ThomasK. Slotten, Respondents. Civ. 20002. |
The sole question presented by this proceeding is whether an industrially injured municipal employee is entitled to the vocational rehabilitation benefits mandated by Labor Code section 139.5, as amended in 1974. 1
In September 1975, Thomas K. Slotten (hereafter applicant) sustained an industrial injury to his head, neck, and shoulders while employed as a police officer by the City of Santa Monica. Following settlement of his workers' compensation claim through a compromise and release agreement, applicant submitted a vocational rehabilitation plan to the Rehabilitation Bureau of the Division of Industrial Accidents. The bureau determined that public employees are entitled to the rehabilitation benefits provided by section 139.5, found that applicant was a qualified injured worker under the rules and regulations implementing the section, 2 approved the rehabilitation plan submitted by applicant, and ordered the city's workers' compensation carrier (State Compensation Insurance Fund, hereafter Fund) to provide the benefits called for by the plan.
The city and the Fund (hereafter petitioners) requested the bureau to reconsider its decision on the ground that there was no mandatory duty on the part of a public employer to provide vocational rehabilitation benefits to its injured employees. The request was treated as a petition for a hearing before a workers' compensation judge on the issue of rehabilitation 3 and such a hearing was held. The workers' compensation judge found that applicant was a qualified injured worker entitled as a matter of right to vocational rehabilitation benefits under section 139.5 4 and upheld the bureau's decision. Petitioners requested reconsideration and the matter was heard by the Workers' Compensation Appeals Board sitting en banc. The board, with two members dissenting, held that section 139.5 mandated vocational rehabilitation for public as well as private employees and affirmed the judge's decision.
Petitioners seek review and annulment of the board's decision on the ground that vocational rehabilitation programs for public employees are governed by division 4.7 of the Labor Code (§§ 6200-6208) which provides for voluntary participation by both employer and employee and that the benefits of section 139.5 extend only to employees in the private sector. We have concluded that the rehabilitation services mandated by section 139.5 must be provided to any qualified injured worker, whether in the public or private sector, and that the board's decision should be affirmed.
In order to place the issue presented by this proceeding in proper perspective, we begin our analysis with a brief review of the history of vocational rehabilitation programs for the industrially injured employee in California.
Prior to 1965, our workers' compensation laws made no provision for vocational rehabilitation. Injured workers in need of rehabilitation had to seek aid outside the workers' compensation system through state and federally funded programs. In 1965, on the recommendation of the California Workmen's Compensation Study Commission, 5 the Legislature made extensive revisions to the California workers' compensation system, including the addition of section 139.5, 6 providing for a voluntary rehabilitation program for "injured workmen" 7 and giving the Division of Industrial Accidents authority to establish a rehabilitation unit within its medical bureau. In the same act, the Legislature amended section 3207 to include "vocational rehabilitation" within the definition of "compensation." 8
The voluntary program authorized by section 139.5 enjoyed little success. Since the statute contained no provisions for notifying employees of the availability of vocational rehabilitation services, many injured workers were ignorant of the opportunity for rehabilitation. Prior to 1975, the rehabilitation bureau consisted of only one rehabilitation officer and one part-time secretary. 9 Between 1966 and 1969, only 141 workers participated in voluntary rehabilitation plans approved by the bureau and 111 of these plans referred the worker to the Department of Rehabilitation so that the cost of rehabilitation was met by the state rather than the employer or insurer. 10 Under section 139.5, the employee's rehabilitation benefit was credited as an advance against his permanent disability indemnity so that he was in effect paying for his own support during rehabilitation from other benefits. As an incentive for employers to furnish vocational rehabilitation, section 139.5 provided that employees' permanent disability percentages were to be computed with reference to their ages and occupations after rehabilitation. (See Moyer v. Workmen's Comp. Appeals Bd., 10 Cal.3d 222, 234-235, 110 Cal.Rptr. 144, 514 P.2d 1224.) However, this provision invariably resulted in lower permanent disability ratings for injured workers. (See Moyer v. Workmen's Comp. Appeals Bd., supra, 10 Cal.3d 222, 234, 110 Cal.Rptr. 144, 514 P.2d 1224.)
In 1971, the Legislature enacted division 4.7 of the Labor Code (§§ 6200-6207) 11 establishing a notification and referral procedure for "full-time public employees who may be benefited by rehabilitation services and retrained for other positions in public service." (§ 6200.) The State Department of Rehabilitation, rather than the Rehabilitation Bureau of the Division of Industrial Accidents, was given the authority to cooperate in designing and monitoring plans. The statute provided for mandatory notice of availability of rehabilitation services to any employee disabled for over 28 days and for mandatory notice to the Department of Rehabilitation of the employee's disability. (§ 6201.) Employees' rehabilitation benefits were expressly made additional benefits, not meant to "be converted to or replace" any other workers' compensation benefits. (§ 6207.) 12
Although division 4.7 directed the formulation of a procedure for notifying injured employees of the availability of rehabilitation services, it was unclear whether delivery of rehabilitation services was intended to be compulsory or voluntary on the part of employers and their insurance carriers. 13 In 1972, the Legislature resolved this uncertainty by adding section 6208, 14 expressly making the initiation and acceptance of a rehabilitation plan under division 4.7 voluntary on the part of the employer, the carrier, and the employee.
In 1974, the Legislature passed two measures bearing upon the issue before us. Responding to the recommendation of the National Commission on State Workmen's Compensation Laws, the Legislature amended section 139.5 (eff. Jan. 1, 1975) to make vocational rehabilitation at the expense of employers or their carriers a matter of right for qualified injured workers. (Stats.1974, ch. 1435, p. 3138.) The Director of the Division of Industrial Accidents was directed to establish a rehabilitation unit with duties to review and approve rehabilitation plans, to adopt rules and regulations, and to expedite identification, notification and referral of industrially injured workers to rehabilitation services.
At the same session, as part of the Berryhill Total Compensation Act, the Legislature added chapter 3.5 to division 5, title 2 of the Government Code (Gov. Code, §§ 18120-18129) providing for industrial disability leave for "state officers and employees who are members of the Public Employees' Retirement System." 15 The law entitles a state employee who suffers temporary industrial disability to receive industrial disability leave benefits in lieu of workers' compensation disability payments, the benefits consisting of a percentage of the employee's full pay. (Gov. Code, § 18122.) "Industrial disability leave" means temporary disability as defined in divisions 4 and 4.5 of the Labor Code and "includes any period in which the disability is permanent and stationary and the disabled employee is undergoing vocational rehabilitation." (Gov. Code, § 18121.) The disability leave payments are made "contingent on the employee's agreement to cooperate and participate in a reasonable and appropriate vocational rehabilitation plan when furnished by the state . . . ." (Gov. Code, § 18127.) Government Code section 18124 provides: "Division 4.7 (commencing with Section 6200) of the Labor Code shall not apply to employees to which this chapter applies."
The Attorney General rendered an opinion in 1975 that section 139.5, as amended in 1974, applies only to employees in the private sector. (58 Ops.Cal.Atty.Gen. 871.) The Rehabilitation Bureau of the Division of Industrial Accidents, however, has interpreted section 139.5 to provide rehabilitation benefits to all employees, public and private, and has, as in this case, ordered ...
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