Vocational Rehabilitation in Virginia Workers’ Compensation

 

If you are receiving temporary total disability benefits through Virginia workers’ compensation, your employer or its insurance carrier may send you a letter telling you to attend a meeting with a vocational rehabilitation counselor. Do not attend this interview alone! The person conducting the vocational interview works for your employer and its insurance company. He or she is looking out for the insurer’s interests, not yours.

 

Attending a vocational rehabilitation meeting without a workers’ compensation attorney in your corner is a mistake. You may say or do something that has a negative impact on your workers’ comp claim or the value of your workers’ compensation settlement. Call, text, or email Corey Pollard today if you get a call or letter from a vocational rehabilitation counselor: 804-251-1620 or 757-810-5614. You’ll get a free strategy session.

 

What is the Point of Vocational Rehabilitation in Workers’ Compensation Cases?

 

There are two goals of vocational rehabilitation: 1) to restore an injured employee to gainful employment through vocational training and the rebuilding of work skills and 2) to relieve the employer’s burden of future compensation under the Workers’ Compensation Act.

 

Vocational rehabilitation sounds good in theory; however, it is often used as a weapon against injured workers. Most, if not all of our clients want to go back to work. But the goal of vocational rehabilitation is not to find the injured worker a meaningful job that he or she wants. Nor is it an opportunity for the injured worker to select a new career and receive training that will allow him or her to succeed on their new path, though that does happen from time to time.

 

In practice, workers’ comp insurance carriers use vocational rehabilitation services to pressure the injured worker into a low settlement or to give up their claim. Some vocational rehabilitation counselors push the boundaries and occasionally violate the Commission’s vocational rehabilitation guidelines. If you suspect that your counselor is violating the rules, contact a Virginia workers compensation attorney immediately.

 

Why do so many vocational counselors push the boundaries? They do this because insurance carriers want them to. Our experience is that insurance carriers use vocational rehabilitation for one reason – to find a way to get you, the injured employee, to make a mistake. All the insurer has to do is allege that you made a mistake and the Commission will allow the insurer to stop paying benefits. Though you may be able to get workers’ compensation benefits restarted, it will usually take a hearing before a deputy commissioner to do so. This means you have to go several months without income.

 

Examples of Vocational Rehabilitation in Virginia

 

As an injured employee in Virginia, you may be entitled to the following vocational rehabilitation benefits under the Workers’ Compensation Act:

 

  • A vocational evaluation

 

  • On-the-job training

 

  • Job coaching

 

  • Job development

 

  • Counseling

 

Vocational rehabilitation services must be provided by rehabilitation providers certified in accordance with the Virginia Code. Certified rehabilitation providers must comply with the Regulations Governing the Certification of Rehabilitation Providers, 18 VAC 115-40-10 et seq., Part V Standards of Practice. If the rehabilitation provider does not have the proper certification, your attorney can move to quash vocational rehabilitation.

 

Virginia Workers’ Compensation Vocational Rehabilitation Guidelines

 

The Virginia Workers’ Compensation Commission has issued guidelines with the hope that the guidelines will provide the parties with a better understanding of appropriate vocational rehabilitation and to reduce litigation over vocational rehabilitation.

 

What Vocational Rehabilitation is Required if the Injured Employee is Restricted from All Work?

 

Under the Vocational Rehabilitation Guidelines, the rehab provider should not ask the injured employee to engage in job development, job placement, or on-the-job training until the employee is medically released for work by his or her treating physician. The rehab provider may, however, require the injured employee to meet to assess the employee’s potential for work and to prepare resumes or schedule job preparation training upon the employee’s release to light duty work.

 

The Vocational Rehabilitation Provider’s Responsibilities under Virginia Workers’ Compensation

 

The vocational rehabilitation provider must assess employment opportunities by contacting potential employers directly or by researching the labor market to determine how a particular job is performed locally. The provider’s assessment should determine whether there is a suitable position available within the injured employee’s light duty restrictions. Only then should the provider ask the employee to apply or interview for that position.

 

A vocational rehabilitation provider should not ask an injured employee to apply or interview for a position that is not suitable within the employee’s light duty restrictions or that cannot be performed without accommodation. Nor should the provider ask you to look in newspapers, search internet job sites, check listings at the VEC, or register with temporary staffing agencies. These actions are not considered appropriate “vocational rehabilitation.”

 

The vocational rehabilitation provider must help the injured employee with all aspects of the vocational rehab process. This includes how to present oneself, interviewing skills, how to discuss limitations with employers, and other employability facts. But the provider cannot advise the injured employee to withhold information about his or her injury or job capabilities during job interviews or on applications.

 

Nor can the vocational rehabilitation counselor ask you to apply for telemarketing positions or take a job with a sheltered workshop that is subsidized by the employer or insurance carrier. The only exceptions are: 1) if you have demonstrated the ability to perform telemarketing work previously and 2) if the sheltered workshop position is expected to provide legitimate vocational rehabilitation.

 

Meetings Between the Employee and Vocational Rehabilitation Counselor

 

Meetings must be held at reasonable times and in reasonable locations. Employees do not have to allow counselors on to their property and both parties must make reasonable accommodation for one another.

 

Telephone calls should take place between 9:00 a.m. and 6:00 p.m. Only in the case of an emergency should calls be made before 7 am or after 10 pm.

 

The rehabilitation provider should provide a minimum of two calendar day’s notice of any meeting or employment interview.

 

At meetings the injured employee must provide the following: whether he is legally allowed to work; whether he has a valid driver’s license; whether he has a felony conviction; and past work history. An employee does not have to provide personal or financial information, such as how many children he or she has.

 

Role of a Workers’ Compensation Attorney in Vocational Rehabilitation

 

An injured worker has the right to have his or her attorney present at the initial meeting. An injured worker may also consult with is or her attorney at any time. We recommend that you have a Virginia workers compensation attorney present at the first meeting.

 

Because the vocational rehabilitation counselor is retained by the insurance company, I always ask to attend the first meeting between my client and the vocational counselor. I make the vocational counselor aware of the Commission’s vocational rehabilitation guidelines and make it clear that I will be monitoring their actions. If the vocational counselor acts inappropriately, I will file a motion to terminate services with the Commission.

 

After the first meeting, the vocational counselor will conduct an interview with you. He or she will ask about your prior work, your education, your injuries, and your current work restrictions. He or she is then supposed to come up with a game plan to try to find you a job within your restrictions.

 

Transportation and Costs

 

You are entitled to reimbursement for expenses incurred during vocational rehabilitation. This includes mileage costs for trips to meetings, obtaining or submitting applications, attending interviews, and other travel done at the rehabilitation provider’s direction.

 

If you do not have access to transportation, you must notify the vocational rehabilitation provider so that he or she can arrange transportation.

 

Job Interviews Scheduled by the Workers’ Comp Vocational Rehabilitation Provider

 

If the vocational counselor schedules you for a job interview, you must go to the job interview. Not only that, you must also put forth your best effort at the job interview.

 

That means you must dress appropriately – show up in business attire if you own it. You should also act professionally and not do anything to sabotage the interview so that you don’t get hired.

 

Remember that the vocational counselor has to “pre-screen” available job opportunities to make sure they are appropriate based on your work restrictions and vocational and educational background. If the job interviewer tells you that the job requires standing 6 hours per day and lifting more than 50 lbs, but your treating doctor has restricted you to a sedentary job that can be performed at a desk only, you need to tell the interviewer about your limitations. That job won’t work. Then tell the vocational counselor too – and put your concerns and a brief account of the interview in writing.

 

Unfortunately we’ve seen vocational counselors ask employees to apply to jobs that are outside of their light duty restrictions often. We can help you if you’re facing this situation or feel that the counselor is treating you unfairly. Don’t take action until you’ve spoken with a workers compensation lawyer. You should seek help from the Commission before refusing to attend a scheduled job interview. A wrong move during the vocational rehabilitation process can lead to months without benefits.

 

Employee Refusal of Vocational Rehabilitation

 

If an employee refuses vocational rehabilitation, then his or her right to weekly temporary total disability benefits may be suspended. The question then becomes whether the employee’s refusal was justified. An employee cannot be required to participate in voc rehab unless they have received a medical release to return to some form of work.

 

We recommend that you contact a workers compensation attorney in Virginia if your employer or its insurance company asks you to participate in vocational rehabilitation. Some voc counselors are aggressive and will ask you to do things not permitted by the Virginia Workers’ Compensation Commission’s Vocational Rehabilitation Guidelines. Your attorney can help keep the voc rehab counselor in line and make sure your benefits continue.

 

Do the Employer and Its Insurance Carrier Have to Pay for Education and School Courses as Part of Vocational Retraining under Workers’ Compensation?

 

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.

 

Vocational 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 Vocational 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.

Speak to a Workers’ Compensation Lawyer

 

Dealing with vocational counselors in Virginia workers compensation takes experience and knowledge of the laws and Commission’s guidelines. For more information on the vocational rehabilitation process and Virginia workers’ compensation in general, contact Corey Pollard at 804-251-160, or by completing our online contact form.