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Legal Resources | Labor Code |  LC  4636  

Eligibility and assigning a representative for rehabilitation services.   

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(a) When aggregate total disability continues for 90 days, the employer immediately shall provide to the employee in the form and manner prescribed by the administrative director, information that provides notice of rights under the Americans with Disabilities Act and the provisions of the Fair Employment and Housing Act relating to individuals with a disability, and that explains the employee's rights and obligations pertaining to vocational rehabilitation, the nature and scope of vocational rehabilitation services to which the employee may be entitled, the maintenance allowance payable under Section 139.5, the effect of any delay in the treating physician's determination of medical eligibility, and that additional information may be obtained from an information assistance officer. When aggregate total disability exceeds 90 days and the employee has not previously been identified as meeting the medical eligibility requirements of paragraph (1) of subdivision (a) of Section 4635, the employer shall provide the employee's treating physician with a job description, developed jointly with the employee and the employer, and the physical requirements of the employee's duties at the time of injury in the form and manner prescribed by the administrative director, and request the treating physician to determine the employee's medical eligibility for vocational rehabilitation services. The treating physician's determination of medical eligibility shall take into account the employee's current and probable future medical condition, an estimate of the employee's current and potential functional limitations, the ability of the employee to accept and participate in vocational rehabilitation services if and when indicated, recommendations for subsequent evaluation or services, if any, the ability of the employee to engage in light work in a modified or alternative capacity, if available, and other information as may reasonably be prescribed by rules and regulations of the administrative director.

(b) If the employee's treating physician is unable to make the assessment of medical eligibility at the time of initial contact, the employer shall continue to monitor the employee's recovery and request the treating physician to report as soon as the physician is able to determine whether the employee is medically eligible for vocational rehabilitation services. The treating physician shall report to both the employer and the employee no less frequently than every 60 days thereafter. The report also shall include an opinion concerning the physical capabilities of the employee at the time of each report. The reports shall continue to be made until the physician provides a report concluding one of the following.

(1) The employee is released to return to work at his or her usual occupation or, if the employee was engaged in another occupation at the time of injury, the occupation the employee was engaged in at the time of injury.

(2) The employee's permanent disability as the result of the injury, whether or not combined with the effects of a prior injury or disability, if any, permanently precludes, or is likely to preclude, the employee from engaging in the employee's usual occupation or the occupation in which the employee was engaged at the time of injury.

(c) When aggregate total disability exceeds 365 days and the employee has not been previously identified as medically eligible for vocational rehabilitation, there shall be a rebuttable presumption that the employee is medically eligible for vocational rehabilitation services.

(d) Immediately upon receipt of the treating physician's final report required by this section, the employer shall provide a copy to the employee together with notice of the procedure to be followed in contesting the treating physician's determination. The notice shall be in writing in the form and manner prescribed by the administrative director, and shall include the following:

(1) Notice of whether the employer will be able or unable to offer modified or alternative work.

(2) Notice that the employee may be eligible for services if the employee is unable to return either to his or her usual occupation or the occupation in which he or she was engaged at the time of injury.

(Amended by Stats. 1993, Ch. 121, Sec. 47.)