California Code of Regulations › Title 8 - Industrial Relations › Division 1 - Department of Industrial Relations › Chapter 4.5 - Division of Workers' Compensation › Subchapter 1.5 - Injuries on or After January 1, 1990 › Article 6 - Retraining and Return to Work-Definitions and General Provisions › Section 10116.9 - Definitions for Articles 6.5 and 7.5

Current through Register 2024 Notice Reg. No. 28, July 12, 2024
The following definitions apply to the provisions of
						Articles 6.5 and 7.5 governing injuries occurring on or after January 1,
						2004:
(a) "Alternative work" means
					 work (1) offered either by the employer who employed the injured worker at the
					 time of injury, or by another employer where the previous employment was
					 seasonal work, (2) that the employee has the ability to perform, (3) that
					 offers wages and compensation that are at least 85 percent of those paid to the
					 employee at the time of injury, and (4) that is located within a reasonable
					 commuting distance of the employee's residence at the time of injury.
(b) "Approved training facility" means a
					 training or skills enhancement facility or institution that meets the
					 requirements of section
					 10133.58.
(c) "Claims administrator" means a
					 self-administered insurer providing security for the payment of compensation
					 required by Divisions 4 and 4.5 of the Labor Code, a self-administered
					 self-insured employer, a self-administered joint powers authority, a
					 self-administered legally uninsured, or a third-party claims administrator for
					 a self-insured employer, insurer, legally uninsured employer, or joint powers
					 authority.
(d) "Employer" means the
					 person or entity that employed the injured employee at the time of
					 injury.
(e) "Essential functions"
					 means job duties considered crucial to the employment position held or desired
					 by the employee. Functions may be considered essential because the position
					 exists to perform the function, the function requires specialized expertise,
					 serious results may occur if the function is not performed, other employees are
					 not available to perform the function or the function occurs at peak periods
					 and the employer cannot reorganize the work flow.
(f) "Furnished" means five days after the
					 date of deposit in the United States mail or the date of personal
					 service.
(g) "Insurer" has the same
					 meaning as in Labor Code section
					 3211.
(h) "Modified work" means regular work
					 modified so that the employee has the ability to perform all the functions of
					 the job and that offers wages and compensation that are at least 85 percent of
					 those paid to the employee at the time of injury, and located within a
					 reasonable commuting distance of the employee's residence at the time of
					 injury.
(i) "Nontransferable
					 voucher" means a document provided to an employee that allows the employee to
					 enroll in education-related training or skills enhancement. The document shall
					 include identifying information for the employee and claims
					 administrator.
(j) "Notice" means a
					 required letter or form generated by the claims administrator and directed to
					 the injured employee.
(k) "Offer of
					 modified or alternative work" means an offer to the injured employee of
					 medically appropriate employment with the date-of-injury employer through the
					 use of Form DWC-AD 10133.53, Notice of Offer of Modified or Alternative Work
					 for Injuries Occurring Between 1/1/04 - 12/31/12, Inclusive, or Form 10133.35
					 Notice of Offer of Regular, Modified, or Alternative Work for Injuries
					 Occurring on or after 1/1/13.
(l)
					 "Parties" means the employee, the claims administrator and their designated
					 representatives, if any.
(m)
					 "Permanent and stationary" means the point in time when the employee has
					 reached maximal medical improvement, meaning his or her condition is well
					 stabilized, and unlikely to change substantially in the next year with or
					 without medical treatment, based on (1) an opinion from a treating physician,
					 AME, or QME; (2) a judicial finding by a Workers' Compensation Administrative
					 Law Judge, the Workers' Compensation Appeals Board, or a court; or (3) a
					 stipulation that is approved by a Workers' Compensation Administrative Law
					 Judge or the Workers' Compensation Appeals Board.
(n) "Permanent partial disability award"
					 means a final award of permanent partial disability determined by a workers'
					 compensation administrative law judge or the appeals board.
(o) "Receipt" means the date of actual
					 receipt by electronic delivery, personal service, or five days after the date
					 of deposit in the United States mail.
(p) "Regular work" means the employee's usual
					 occupation or the position in which the employee was engaged at the time of
					 injury and that offers wages and compensation equivalent to those paid to the
					 employee at the time of injury, and located within a reasonable commuting
					 distance of the employee's residence at the time of injury.
(q) "Seasonal work" means employment as a
					 daily hire, a project hire, or an annual season hire.
(r) "Supplemental job displacement benefit"
					 means an educational retraining or skills enhancement allowance for injured
					 employees whose employers are unable to provide work consistent with the
					 requirements of Labor Code sections
					 4658.5,
					 4658.6 and
					 4658.7.
(s) "Vocational & return to work
					 counselor (VRTWC)" means a person or entity capable of assisting a person with
					 a disability with development of a return to work strategy and whose regular
					 duties involve the evaluation, counseling and placement of disabled persons. A
					 VRTWC must have at least an undergraduate degree in any field and three or more
					 years full time experience in conducting vocational evaluations, counseling and
					 placement of disabled adults.
(t)
					 "Work restrictions means permanent medical limitations on employment activity
					 established by the treating physician, qualified medical examiner or agreed
					 medical examiner.
1.
						Renumbering of former section
						10001 to new section
						10116.9, including amendment of
						section heading, section and NOTE, filed 11-17-2008; operative 11-17-2008
						pursuant to Government Code section
						11343.4
						(Register 2008, No. 47).
2. Amendment of section heading and first
						paragraph, new subsections (f) and (o), subsection relettering, amendment of
						newly designated subsections (i), (k) and (r) and amendment of NOTE filed
						12-20-2012 as an emergency; operative 1-1-2013 pursuant to Government Code
						section
						11346.1(d)
						(Register 2012, No. 51). A Certificate of Compliance must be transmitted to OAL
						by 7-1-2013 or emergency language will be repealed by operation of law on the
						following day.
3. Amendment of section heading and first paragraph,
						new subsections (f) and (o), subsection relettering, amendment of newly
						designated subsections (i)-(j) and (r) and amendment of NOTE refiled 6-26-2013
						as an emergency; operative 7-1-2013 pursuant to Government Code section
						11346.1(d)
						(Register 2013, No. 26). A Certificate of Compliance must be transmitted to OAL
						by 9-30-2013 or emergency language will be repealed by operation of law on the
						following day.
4. Certificate of Compliance as to 7-1-2013 order,
						including amendment of subsection (k), transmitted to OAL 9-27-2013 and filed
						11-8-2013; amendments operative 1-1-2014 (Register 2013, No.
						45).
Note: Authority cited: Sections
						  133,
						  4658.5,
						  4658.7 and
						  5307.3, Labor
						  Code. Reference: Sections
						  124,
						  4658.1,
						  4658.5,
						  4658.6 and
						  4658.7, Labor
						  Code; and Henry v. WCAB (1998) 68 Cal.App.4th
						  981.