REHABILITATION TEMPORARY
DISABILITY RETROACTIVELY ?
issued a "draft" opinion in regard to
settling retroactively vocational
rehabilitation temporary disability
(vrtd). It is not a final opinion yet,
but will have significant impact, if
decided as currently written.
WCAB
demand for rehabilitation on his
application in 1989. A compromise
and release was entered into in 1992.
The agreement included language,
"This agreement settles any and all
claims for T.D. and V.R.T.D. to
date." They stipulated that the
applicant was not QIW at the present
time and if the applicant wanted
rehabilitation at a future date no
benefits would be paid until the
applicant was seen by an AME. The
judge signed an order approving the
language.
One issue became whether the
applicant could receive retroactive
VRTD. This Court intends to hold that
you cannot settle accrued vocational
rehabilitation benefits where no basis
exists for the application of the good
faith exception cited in Labor Code
section 5100.6. Under that section the
commutation or settlement of vrtd is
prohibited. Therefore, you need a
Thomas type of good faith exemption
to settle retroactive vrtd in the
non-Thomas case.
language in a C&R specifically
requires a judge to expressly approve
applicant's release of any rehabilitation
benefits. Therefore, the judge must put
in the Order Approving that the
applicant is settling retroactive
vocational rehabilitation. Theoretically,
there must be an offer of proof to
support that. The Court also is intent
on finding that the starting date for
instituting benefits would be the date
of the original application. The
decision will thus establish that
be sufficient to settle accrued vrtd. It
is common practice when preparing
a Compromise and Release for a
Thomas case to prepare an Order for
the Judge indicating that you are
requesting a Thomas finding. It is not
clear at this point how specific one
will have to be based on this decision
in settling retroactive vrtd. It may be
that you can simply cite Estrada v.
WCAB. However, caution would
indicate if this decision holds up that
you also include specific language as
you do in a Thomas situation.
Firm: SAMUELSEN, GONZALEZ,
VALENZUELA AND SORROW
Phone: 310 831-0872
Address: 350 West 5th Street # 105
San Pedro, CA 90731
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