The Employer May Have to Pay for Education and School Courses As Part of Your Vocational Retraining after a Work Injury in Virginia
Under Virginia Code Section 65.2-603(A)(3) the employer must:
furnish or cause to be furnished, at the direction of the Commission, reasonable and necessary vocational rehabilitation services …
Vocational rehabilitation services may include … education, and retraining …
Such services shall take into account the employee’s preinjury job and wage classifications; his age, aptitude, and level of education; the likelihood of success in the new vocation; and the relative costs and benefits to be derived from such services.
An employer is required to provide vocational training services to all injured employees, even those who are permanently and totally disabled under the law.
As you can imagine, this part of the Workers’ Compensation Act has led to countless disputes. Injured employees who are receiving wage loss benefits want to find a way to retrain and return to the work force in some capacity following their work accident, while employers and insurance companies want to avoid having to pay for the retraining.
This article explains what retraining expenses, including educational programs and school courses, the employer is responsible for under Virginia workers compensation laws. If you have any questions about your case, or are looking to negotiate a workers compensation settlement so that you can move forward with your life, contact Virginia work injury lawyer Corey Pollard today for a free consultation.
Retraining Expenses under the Virginia Workers Compensation Act
Vocational retraining is expensive. Educational courses and programs can easily cost tens of thousands of dollars. Because of this, employers and insurance companies often resist attempts by injured employees to get retraining expenses paid for under the Virginia Workers Compensation Act.
Though it may not be easy, you can get your retraining expenses covered. But you must prepare your claim and know what the Commission is looking for.
First, the Commission will review the medical evidence to determine whether you have reached maximum medical improvement and been released to light duty work with permanent restrictions. If your doctor has released you to return to your pre-injury work then the employer and its insurance company will not have to pay for vocational rehabilitation and education. Rogers v. Universal Life Insurance Company, 73 O.W.C. 178 (1994).
You can prove that you have reached maximum medical improvement and have permanent light duty restrictions through your medical records and narrative reports from your doctors.
Second, the Commission will look at how long it’s been since your doctor released you to light duty work. The Commission will deny a request for retraining if you file it immediately after getting your light duty release. The employer has a reasonable time to try to find you suitable light duty employment. Ramey v. Dickenson County Medical Center, 74 O.W.C. 102 (1995). Before directing the employer to provide retraining the Commission expects that the employer will make an effort to place you in an existing light duty position using your acquired job skills from before the injury. Kelly v. Appalachian Learning Center, 62 O.I.C. 262 (1983).
There is no bright-line rule regarding how much time is enough time for the employer to try to find you a job. Usually I wait until one year after the injured employee has reached maximum medical improvement to file a claim for retraining.
Third, the Commission will evaluate whether the employer’s vocational rehabilitation efforts have been successful. An employer must provide retraining if vocational rehabilitation is unsuccessful after reasonable efforts have been made. Burton v. Giant Food, Inc., 62 O.I.C. 94 (1983). Vocational rehabilitation is unsuccessful if the employer is unable to find you a job that is comparable to your pre-injury employment. United Parcel Service of America, Inc. v. Godwin, 14 Va. App. 764 (1992).
An injured employee can show that vocational rehabilitation was unsuccessful by deposing the vocational rehabilitation counselor and forcing him or her to testify at hearing. It is also helpful to point out the number of applications completed versus the number of interviews. Fewer interviews can help you prove your vocational retraining claim. It also helps if you have used state resources and programs to try to find a job but been unsuccessful.
Fourth, the Commission requires that you request a specific retraining program. It is not good enough to simply ask for retraining. You must present a specific program with evidence as to why it should be approved. Meyland v. Dittmar Company, 74 O.W.C. 5 (1995).
Finally, the Commission will consider your options for obtaining light duty employment with long term earning potential that is comparable to your pre-injury wages. Potter v. Russell A. Potter, 71 O.W.C. 244 (1992) (finding the employer responsible for the payment of student loans from retraining as an electronic repairman).
The fourth and fifth steps usually require testimony from an expert witness who is trained in the field of vocational rehabilitation. A labor market survey and documents regarding the success of the retraining program you want to participate in can be helpful to winning your claim. Statistics can help you get the retraining services you want covered.
If the Commission orders the employer to provide the retraining service requested, then the employer must also reimburse you for transportation costs and other expenses related to attending the program, such as school books and course material.
Sample Virginia Workers Comp Cases Involving Requests for Retraining and Education
Below are brief summaries of cases regarding requests for retraining and education under the Virginia Workers Compensation Act.
Coleman v. Super Suds Mgmt., VWC File No. 202-02-45 (Feb. 20, 2003). In this case the claimant sought a home-based GED course based on her treating physician’s recommendation. The employer denied the request and offered a county-sponsored program. The Commission awarded the home-based program.
Coleman is an important case for injured employees who do not have a high school diploma. I represent many employees who left high school early and started working as carpenters, construction workers, electricians, and union members. They made good money working in physically demanding jobs that they can no longer do because of the job accident. And they’re unable to obtain any sedentary positions because they lack a high school degree. By requesting retraining in the form of a GED class these workers now have a better chance of returning to the labor force.
Collier v. Elliott, Inc., 64 O.I.C. 87 (1985). In this case the Commission established that the test in determining whether an employer is responsible for education courses is whether the employee is being trained for a specific skill or trade that can lead to re-employment.
Collier should be read in conjunction with cases like Hatten v. Westvaco/Liquid Packaging Division, 70 O.I.C. 314 (1991) (finding the employer responsible for cosmetology training) and Brown v. CSC, VWC File No. 210-24-60 (June 30, 2004) (finding that the employer was not responsible for an associate’s degree because the curriculum would help the employee obtain employment in a wide range of occupations and industries and the course work was not focused on a specific skill). Your retraining program should be specific and focused on finding you job in a narrow field or occupation. The more specific the better.
City of Salem v. Cosgrove, 228 Va. 290 (1984). In this case the Virginia Supreme Court held that the employer was not responsible for a four-year college program that did not provide retraining for a specific skill or trade. Cosgrove, along with Yeargain v. Daniel Int’l, 9 Va. App. 82 (1989), makes it difficult to get the Commission to approve a liberal arts program at college as vocational retraining.
If you’re an injured worker who needs help with your workers compensation claim in Virginia or with obtaining vocational training and education to help you find new employment, contact Corey Pollard for a free consultation. Depending on your age, education, and past relevant work, you may be entitled to Social Security Disability Insurance (SSDI) or Supplemental Security Income (SSI) benefits while receiving work comp payments and going through retraining. As a Richmond disability lawyer and Newport News Social Security attorney, Corey Pollard can also help you with that claim also.