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NO CREDIT FOR WAGES EARNED AGAINST VRMA
By Geoffrey H. Spencer

A recent court decision of Medrano vs. WCAB 36CWCR219 the Court of Appeals, in a certified decision, annulled the Workers' Compensation Appeals Board ruling that allowed credit for liability for VRMA for wages earned during post injury employment.

The applicant suffered an admitted injury on May 2, 2002, for which he received temporary disability through October 10, 2004. On June 11, 2003, he received notice saying that modified work was available and, as such, he was not entitled to vocational rehabilitation.

The applicant’s treating physician had found the applicant totally temporarily disabled through March 31, 2004.

Applicant filed with the Rehabilitation Unit requesting VRMA from April 1, 2004, to the present and continuing. The Rehabilitation Unit granted the applicant’s request less wages earned on a wage loss basis.

Defendants appealed the Rehabilitation Unit decision. After hearing on the same and failure by either party to submit a Trial Brief as requested by the WCJ, a decision was issued awarding the applicant VRMA with no credit for wages earned.

The Workers' Compensation Appeals Board reversed the decision and offered credit for wages earned. After an initial Writ was denied, the Supreme Court then granted review and remanded the case back to the Court of Appeals.

The Court of Appeals after reviewing the applicable Labor Code Sections determined that Labor Code § 139.5(d)d does not list wage loss as part of the formula used in deciding the amount of VRMA but is simply one of the numerous components allowed. The court noticed that VRMA is a substantially different benefit from temporary disability as it is paid at a lesser amount for a limited period and subject to a cap. The court felt that the applicant should not be penalized for obtaining employment during the period of VR disputes.

On a side note, another Court of Appeals has recently granted a petition to address the exact same issue with a request to the parties to file Briefs discussing the impact of the Medrano decision.

And finally, as everyone is aware, there is a sunset clause for pre-2004 dates of injury in regards to vocational rehabilitation. Any unresolved issues of QIW, eligibility, and entitlement to VRMA can still be resolved before the Workers' Compensation Appeals Board rather than before the Rehabilitation Unit. If someone is entitled to VRMA up to January 1, 2009, the issue can still be litigated only the entitlement to benefit the services on or after January 1, 2009 will cease.

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