What to Expect with Workers Comp Vocational Rehabilitation
How to Avoid the Suspension of Workers Comp Benefits After Vocational Rehabilitation Starts
You suffered a severe back injury at work that required lumbar fusion surgery.
So far, your employer and its workers comp insurer have treated you ok. They accepted your claim, and the Workers Compensation Commission entered an Award Letter providing wage loss benefits and lifetime medical treatment for injuries from your workplace accident.
However, the claim adjuster has now hired a vocational rehabilitation counselor. This person is supposed to “help” you return to the labor force because your treating orthopedic surgeon has released you to return to light-duty work, but not your pre-injury job as a truck driver. But you are concerned about what the vocational rehab provider is asking you to do.
What are your next steps?
Vocational rehabilitation in workers compensation cases places you at risk of losing your workers comp benefits. Though, in theory, vocational counseling and job search services seem like an excellent way to help you move past an occupational injury, an insurer’s decision to refer your claim to a vocational rehabilitation provider gives the insurer additional ways to stop payments under workers comp.
Much litigation arises from the insurance carrier’s application for a hearing to terminate income replacement payments based on an allegation that you have failed to cooperate with job placement services. But you can overcome this.
This article’s purpose is to explain your rights and responsibilities when the insurer asks you to participate in vocational rehabilitation after a work injury and provide some points on dealing with the vocational counselor. I hope you use these tips to protect your benefits, defeat an application for a workers comp hearing, and increase the settlement value of your workers compensation case.
Keep reading to learn more.
If you have any questions or would like a free consultation with a work injury lawyer, call me: (804) 251-1620 or (757) 810-5614. I have guided hundreds of injured employees through the workers comp claims process. And my injury law firm is ready to help you.
Do Workers Comp Laws Cover Vocational Rehabilitation?
Yes. Many states have workers comp laws that address vocational rehabilitation services.
For example, Virginia Code Section 65.2-603(A)(3) states:
The employer shall also furnish or cause to be furnished, at the direction of the Commission, reasonable and necessary vocational rehabilitation services; however, the employer shall not be required to furnish, or cause to be furnished, services under this subdivision to any injured employee not eligible for lawful employment.
Vocational rehabilitation services may include vocational evaluation, counseling, job coaching, job development, job placement, on-the-job training, education, and retraining. Those vocational rehabilitation services that involve the exercise of professional judgment as defined in § 54.1-3510 shall be provided by a certified rehabilitation provider pursuant to Article 2 (§ 54.1-3510 et seq.) of Chapter 35 of Title 54.1 or by a person licensed by the Boards of Counseling; Medicine; Nursing; Optometry; Psychology; or Social Work or, in accordance with subsection B of § 54.1-3513, by a person certified by the Commission on Rehabilitation Counselor Certification (CRCC) as a certified rehabilitation counselor (CRC) or a person certified by the Commission on Certification of Work Adjustment and Vocational Evaluation Specialists (CCWAVES) as a Certified Vocational Evaluation Specialist (CVE).
In the event a dispute arises, any party may request a hearing and seek the approval of the Commission for the proposed services. 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.
The Virginia Workers Compensation Commission has also issued Vocational Rehabilitation Guidelines to “facilitate appropriate vocational rehabilitation and eliminate needless conflict and litigation.” Unfortunately, vocational rehabilitation still results in many disputes requiring Commission intervention.
When Does the Vocational Rehabilitation Process Start?
Usually, the vocational rehabilitation process starts when your treating physician releases you to return to work but with restrictions (also known as selective employment or light duty).
After learning of your release to some form of work, the insurer will likely ask your pre-injury employer if it has light duty available for you. If it does not, many insurers and third-party administrators such as Sedgwick and Gallagher Bassett will refer your file to a vocational rehabilitation provider.
The vocational rehabilitation provider will be a private company that assigns one of its counselors or employees to your case. This employee will then contact you (or your attorney) to tell you that the insurer referred the claim to them and schedule the first meeting.
What Does Workers Comp Consider Vocational Rehabilitation?
There are two types of vocational rehabilitation available through workers compensation: job placement services and education or retraining.
However, rehabilitation services are usually limited to job placement.
Job Placement Services
The first type involves assistance from the employer and its insurer with finding a new job. These services typically include:
Retraining or Education Expenses
The second type involves your request for retraining or education.
However, employers and insurers often resist attempts by injured employees to get retraining or education expenses such as technical courses in cosmetology or typing, college classes, home-based GED courses for persons who do not have a high school diploma because these items are so expensive.
Further, the Commission usually orders the insurer to pay for retraining or additional education only if vocational rehabilitation has exhausted efforts to find employment within your remaining work capacity. In addition, the training or education requested must increase the likelihood that you will find a job that decreases the insurer’s future liability for compensation benefits.
Later in this article, I discuss how to increase the chances the Commission will force the insurer to pay for retraining or education after a work injury.
What is the Purpose of Vocational Rehabilitation through Workers Comp?
In theory, workers comp vocational rehabilitation has two goals – both of which are admirable.
First, to help you return to gainful employment through vocational training and the rebuilding of work skills.
Second, reduce your employer’s (and its insurer’s) financial burden of paying future compensation under workers comp law. Every dollar you earn through a new job is one less dollar the insurer has to pay in temporary total disability or temporary partial disability benefits.
However, in practice, vocational rehabilitation is often used as a weapon against injured workers.
Most, if not all, of the injured workers I represent want to return to employment that makes them feel productive. And they are willing to get training and education to move into a new career.
But that is rarely the rehabilitation provider’s primary goal. Instead, many insurers push the vocational rehabilitation companies they use to act aggressively to find a job for you – regardless of whether it fits your skills, desires, schedule, or family responsibilities. And to report any time you are late to an appointment or do not follow up on a job lead that concerns you. This pressure results in conflicts.
Who Chooses the Vocational Rehabilitation Provider?
Employers and insurance companies get to choose the vocational rehabilitation provider, not you.
Usually, insurers hire large companies such as Genex, Conduent, or CorVel to provide vocational rehab and medical case management services.
Who Pays for Vocational Rehabilitation in Workers Comp Claims?
The employer or its workers comp insurer pay for job placement services and other types of vocational counseling. You don’t.
These services are not cheap. On average, a rehabilitation provider charges $100 to $400 per hour.
What Qualifications Does a Vocational Rehabilitation Provider Need?
The individual vocational rehabilitation provider assigned to your case must be certified by the Commonwealth of Virginia and comply with the Regulations Governing the Certification of Rehabilitation Providers, 18 VAC 115-40-10 et seq., Part V Standards of Practice.
I recommend asking the provider to show this certification when they first contact you. Otherwise, you can move to quash (stop) vocational rehabilitation.
The Virginia Code defines a “certified rehabilitation provider” as a person who is certified by the Board of Counseling as possessing the training, the skills, and the experience as a rehabilitation provider to form an opinion by discerning and evaluating, thereby allowing for a sound and reasonable determination or recommendation, as to the appropriate employment for a rehabilitation client and who may provide vocational rehabilitation services the Workers Compensation Act that involves the exercise of professional judgment.
This same statute defines “professional judgment” as including consideration of the client’s level of disability, functional limitations and capabilities; consideration of client aptitudes, career and technical skills and abilities; education and pre-injury employment; and identification of return-to-work options and service needs which culminate in the determination or recommendation of appropriate employment for the rehabilitation client.
It is unlawful for a person to hold themself out as a rehabilitation provider without having proper certification.
What are the Vocational Rehabilitation Provider’s Responsibilities in a Workers Comp Case?
Your vocational counselor must do the following:
- Provide services in a manner that is in the public’s best interest
- Provide services within their competency, training, and experience
- Make full use of professional, technical, and administrative resources available to injured workers
- Stay up to date on new developments and practices in finding employment for disabled persons
- Give you accurate information of what to expect in the form of tests, evaluations, rehabilitation plans, and schedules before starting services
- Provide an objective, independent opinion based on factual determinations within their area of expertise
- Specify what services they will provide
- Assess employment opportunities by contacting potential employers directly when possible or through labor market research to determine how the job is typically performed in the local economy
- Only ask you to apply or interview for positions within your medical restrictions or that you can perform with accommodation
- Help you with all aspects of the job search process, including appropriate presentation, interviewing skills, and other employability efforts
- Give reasonable accommodation for your personal life, such as medical appointments, physical or mental health conditions, or transportation issues when scheduling meetings and interviews
- Provide an advance notice, in writing or by phone, of meetings
Do I Have to Cooperate with Vocational Rehabilitation if I am Released to Light Duty Work?
Yes – within reason.
You must cooperate with vocational rehabilitation if your doctor states you can perform some type of work other than your pre-injury employment. A failure to comply with vocational rehabilitation could result in the suspension or termination of income replacement benefits (more on that later in this article).
Code Section 65.2-603(3)(B) describes the penalty for failing to comply with vocational rehabilitation services:
The unjustified refusal of the employee to accept such medical service or vocational rehabilitation services when provided by the employer shall bar the employee from further compensation until such refusal ceases and no compensation shall at any time be paid for the period of suspension unless, in the opinion of the Commission, the circumstances justified the refusal. In any such case the Commission may order a change in the medical or hospital service or vocational rehabilitation services.
Unfortunately, some vocational rehab providers ask injured workers to participate in job search activities or withhold information from potential employers in violation of vocational rehabilitation guidelines and regulations. When this happens, you may be able to stop cooperating with vocational rehabilitation. But you should take specific procedural steps first.
Do I Have to Participate in Vocational Rehabilitation if My Doctor Continues to Disable Me from All Work?
Yes – but with some modifications.
A vocational provider cannot ask you to participate in job development, job placement, or on-the-job training unless your doctor has medically released you for work.
However, the provider can require you to meet to determine your potential for work, prepare resumes, and schedule future training in anticipation of a light duty release and employment.
In my experience, many insurers will not spend money on vocational rehabilitation until your physician releases you to light duty work, despite the ability to have you participate in these activities when totally disabled.
Will I Benefit from Job Placement Services Offered through Workers Comp?
In my experience and opinion, no.
I can count on one hand the number of times a vocational counselor found a light duty job that was a good match for the client. And this is out of hundreds of cases.
Typically, services offered by the rehabilitation counselor fail to help the injured employee find a new job. Instead, these services are more likely to result in conflict. Indeed, I find that vocational rehabilitation is more likely to end with the insurer attempting to stop compensation payments based on allegations of a failure to cooperate with the rehabilitation provider than with placement in the labor force.
Therefore, I rarely recommend asking the insurer to provide rehabilitation in the form of job placement services.
There are several reasons that vocational counseling is often unsuccessful. However, the primary reason is that the vocational counselor has a conflict of interest between their professional duty to you and their economic interest in making the insurer happy (by finding work and limiting the insurer’s exposure) so that they continue to receive referrals and business.
How Cooperative Do I Need to be with the Vocational Rehabilitation Provider?
To reduce the risk of losing benefits due to a failure to cooperate with vocational rehabilitation, you should:
- Attend job interviews if the positions are suitable with or without accommodation, even if the potential job does not fit your child care needs or preferred hours
- Meet with the counselor as requested. However, call an attorney if the rehabilitation provider asks you to attend more than one meeting per week or wants to hold the meetings at unreasonable times or places.
- Show interest during interviews
- Attend job preparation training
However, you do not have to:
- Invite the rehabilitation provider onto your property or into your home
- Answer telephone calls before 9:00 a.m. or after 6:00 p.m. unless there is an emergency
- Meet with the provider or attend an employment interview unless you have at least two calendar days’ notice
- Apply to telemarketing and commission sales positions unless you have experience or demonstrated an aptitude for this work
- Interview with sheltered workshops unless they provide the potential for legitimate development of job skills
- Look in the classified section of newspapers
- Check listings with the Virginia Employment Commission
- Register with temporary staffing agencies for short-term jobs
- Contact a specific number of potential employers per week
What Happens at the First Meeting with the Vocational Counselor?
The vocational counselor gathers background information at the first meeting.
This includes a description of the work injury and information concerning your employment history, education, medical treatment, and restrictions.
Can My Attorney Attend Meetings with the Vocational Rehabilitation Provider?
You have the right to have your attorney present at the initial rehabilitation meeting. Indeed, I like for the first vocational meeting to take place at my office.
There are several benefits to having an attorney present at this conference. For example, your lawyer can:
- Determine whether the provider has proper certification
- Explain limits on the vocational counselor’s actions
- Review the Commission’s Guidelines on Vocational Rehabilitation
- Ask for copies of all reports generated by the provider
- Set boundaries on what is and is not appropriate rehabilitation
- Ask for a specific rehabilitation plan in writing
- Establish control of the process
Further, you may contact your attorney at any time during the rehabilitation process.
Do I Have to Withhold Information about My Work Injury or Medical Restrictions During Job Interviews or on Employment Applications?
No.
Some vocational counselors tell employees to withhold information about their injuries or physical restrictions. But this is wrong.
Under the Commission’s guidelines, a rehabilitation provider cannot instruct you to hide your injury or limitations from potential employers during interviews or the application process. You can – and should – tell these companies about your condition.
However, you cannot go so far as to sabotage the interview or application.
The best way to avoid allegations that you have sabotaged a job interview is only to tell potential employers whether you can perform the job with or without accommodation.
Can the Rehabilitation Provider Ask About My Family and Finances?
The vocational counselor can ask for personal or financial information, but you do not have to give it to them.
For example, typically, you do not have to tell the rehab provider:
- Your spouse’s (or significant other’s) employment situation
- The number of children you have (or their ages)
- Your credit history or score (some potential employers may run a credit check)
However, you have to disclose:
- Whether you can work legally in the United States
- Your Social Security number
- Whether you have a valid driver’s license
- Your criminal history (any felony or misdemeanor convictions). However, you do not have to tell the provider the details of these convictions.
- Your employment history (past jobs)
Can the Vocational Rehabilitation Provider Manage My Medical Care or Come to Doctor Appointments?
No.
The vocational rehabilitation provider cannot medically manage your treatment.
Further, they cannot force you to sign a consent form (release) allowing them to speak with your doctor or come into your appointments if you request a private examination with the physician.
However, you cannot stop the rehabilitation provider from speaking with your doctor outside your presence if your doctor allows it. This is because HIPAA and the physician-patient confidentiality do not apply to workers comp.
Does the Vocational Counselor Have to Consider Other Medical Conditions I Have?
Yes – if the conditions preexisted the work injury.
The Commission has held that the insurer takes you as it finds you and must consider any preexisting restriction when providing job placement services.
Who Pays for Transportation to the Rehabilitation Meetings and Job Interviews?
The insurer must reimburse travel expenses related to vocational rehabilitation efforts.
This includes mileage costs for trips to meetings, obtaining or submitting applications, attending interviews, and other travel at the rehabilitation provider’s direction.
If you do not have access to transportation, you must notify the vocational rehabilitation provider to arrange an Uber, Lyft, or taxi ride.
What to Do When the Vocational Rehabilitation Provider Violates the Rules
When the vocational counselor is too aggressive and misbehaving, your first thought might be to stop cooperating completely. Do not do this.
Instead, file a motion to quash vocational rehabilitation(also called a protective order) with the Commission, asking it to order the insurer to stop vocational rehabilitation efforts. You should attach a signed affidavit explaining your version of events and any emails, letters, or text messages that support the motion.
Next, subpoena the vocational rehabilitation provider’s file. You should get copies of all correspondence between the provider, insurer, and defense counsel.
Then, consider taking the vocational rehabilitation provider’s deposition to establish the pattern of misbehavior.
Finally, consider hiring an independent vocational expert to provide expert witness opinion on the vocational rehabilitation provider’s performance at the workers comp hearing on the matter.
How Can I Persuade the Workers Comp Commission to Order the Insurer to Pay for Retraining or Education after an Occupational Injury?
Earlier in this article, I explained that it can be challenging to get the insurer to pay for additional education or retraining as part of your workers comp claim.
However, this does not mean it is impossible.
By paying attention to the factors below, you can increase the possibility of getting additional education and vocational training paid for by the insurer.
First, you should present evidence from your treating physician stating that you have reached Maximum Medical Improvement (MMI) and have been released to light duty work with permanent restrictions that prevents you from doing your pre-injury job. This is because the insurer does not have to pay for vocational rehabilitation if you have been released to full duty with no restrictions. You can use medical records (office visit notes, narrative reports, or disability letters from your doctor) to prove you are at MMI.
Second, the Commission will look at how long it’s been since your doctor released you to light duty work. The employer has a reasonable time to try to find suitable light duty employment for you. Therefore, the Commission will deny a request for retraining if you file it immediately after receiving a light duty release and before the employer has tried to place you in an existing position using your residual work capacity and acquired job skills.
There is no bright-line rule for how much time the insurer has to try to find a job before the Commission will order it to pay for retraining. However, I recommend waiting until at least one year after reaching MMI to seek retraining or further education at the insurer’s expense.
Third, I recommend presenting evidence that the insurer’s vocational rehabilitation efforts have failed.
After reasonable efforts, an insurer must provide retraining if vocational rehabilitation has failed to find a job comparable to your pre-injury employment.
You can prove that rehabilitation has failed through your testimony and the testimony of the rehabilitation provider assigned to your claim. I recommend focusing on the number of applications completed versus the number of interviews and job offers. Fewer interviews and offers can strengthen your case.
Fourth, the Commission requires that you request a specific retraining program. It is not good enough to ask for retraining or courses for an associate’s or liberal arts degree. You must present a specific program with evidence as to why it should be approved
Finally, the Commission will consider your options for obtaining light duty employment with long-term earning potential comparable to your pre-injury wages. For example, the Commission ordered the insurer to pay for student loans from retraining as an electronic repairman in one case.
The fourth and fifth steps usually require testimony from an expert witness with training in vocational rehabilitation.
Do I Have to Continue to Participate in Vocational Rehabilitation if I Find a Job on My Own?
Yes – if you still have wage loss.
The employer and its insurer have the right to continue vocational rehabilitation efforts if your new job pays less than your pre-injury job.
Do I Have to Repay a Portion of Vocational Rehab Expenses if I Settle a Third-Party Action Arising from the Workplace Accident?
No.
In addition to the workers comp claim, some of you may have a third-party lawsuit in civil court arising from the same workplace accident. For example, you can sue the other driver for negligence (a tort) if you were hurt in a work-related car crash.
However, the workers comp insurer has a lien against the third-party case’s settlement proceeds or judgment (verdict) under the law of remedies.
But this lien cannot include money the insurer paid for job placement. The Commission has held that vocational rehab is an activity performed by insurers to adjust the claim (reduce its financial losses) rather than a benefit to the injured worker.
Do Not Let the Vocational Rehabilitation Provider Harm Your Workers Comp Case. Instead, Get Help from a Skilled Injury Lawyer Today!
Many injured workers and their families have lost much-needed wage loss payments because they did not know how to deal with the vocational rehabilitation provider. But you do not have to be one of them!
Email me or call now for more information on the vocational rehabilitation process under workers comp and more tips on dealing with an aggressive rehabilitation provider: (804) 251-1620 or (757) 810-5614. By being proactive and hiring a lawyer to meet with the vocational counselor, you may be able to avoid the temporary (or permanent) suspension of income replacement and obtain leverage in settlement negotiations.
Corey Pollard is a top-rated personal injury attorney focused on recovering monetary damages for injured workers and accident victims. He has secured over $50 million for clients in Virginia workers' compensation, Social Security disability, traumatic brain injury (TBI), spinal cord injury (SCI), product liability, and construction accident cases.
Latest posts by Corey Pollard
(see all)
