The Centers for Medicare & Medicaid Services (CMS) has updated its Workers' Compensation Medicare Set-Aside Arrangement (WCMSA) Reference Guide (Reference Guide). The latest version, Version 3.5, was published Jan. 10, 2022. The Reference Guide was updated to clarify the use of non-CMS-approved products to address future medical care.
It has long been recognized that an employee's ability to participate vocational retraining is a significant factor that must be considered in assessing the worker's permanent disability. (LeBoeuf v. WCAB (1983) 48 CCC 587, 597.) An employee's inability to compete in the open labor market could support an award of permanent total disability. Even though vocational rehabilitation was repealed and replaced with the supplemental job displacement benefit, in Ogilvie v. WCAB (2011) 76 CCC 624, the Court of Appeal held that an employee could still rebut a scheduled rating by establishing that he or she was not amenable to rehabilitation.
