Using Vocational Rehabilitation to Resolve Work Comp Cases: Eligibility For Services

Members of the claim management team and other interested stakeholders must make several immediate decisions regarding the eligibility of vocational rehabilitation benefits from the onset of a claim. Given this strict timeliness, several choices must be made, often with limited information. The result is several challenges and potential pitfalls that can change the complexion of a claim and its trajectory. These decisions need to be made with many factors in mind that can result in needless litigation or delay in settlement. Better choices and decisions must be made to avoid excessive program costs.

Understanding Vocational Rehabilitation Eligibility

Determinations of vocational rehabilitation services are defined by statute or administrative rule and vary in each jurisdiction. General characteristics of vocational rehabilitation eligibility include the following:

• Whether the employee is permanently precluded or is likely to be permanently precluded from engaging in their usual and customary occupation or from engaging in the job they held at the time of the work injury;

• Whether the employee cannot reasonably be expected to return to suitable gainful employment with the date-of-injury employer; and

• Considering the treating physician’s opinion of the employee’s work ability, the employee can reasonably be expected to return to suitable gainful employment by providing rehabilitation services.

Deference to the findings and opinions creates many challenges for the claiming team in instances where they question the legitimacy of the work injury or the need for restrictions. Given the timelines, claim handlers are often left without having an expert medical opinion in the form of an independent medical examination.

Challenging Eligibility for Services

The initial request by an employee for vocational rehabilitation services creates an opportunity for the claim team to scrutinize a claim. It also allows the claim handler to consult with legal counsel and discuss strategy. Factors to consider include:

• The course of medical care received to-date and whether it is reasonable and necessary to cure and relieve the effects of the work injury;

• A determination if the employee has fully recovered from the work injury and would not benefit from vocational rehabilitation services; and

• Engage in conversations with employer representatives and determine if a job offer can be made.

Vocational rehabilitation assistance is generally available to injured employees as long as they are precluded from engaging in the same work they were in at the time of the injury. While the initial consultation with a vocational counselor generally has a cost capped under statute or rule, it can be a cost driver on a claim. A careful review should be conducted on claims where the employee seeks to initiate vocational rehabilitation services. It is also crucial to understand there may be a benefit to involving a vocational expert who can assist in return to work and medical management services. Make choices wisely and avoid denying services and needlessly placing issues into litigation.

Development of a Litigation Plan

A request for vocational rehabilitation services signals a significant point in a workers’ compensation claim where a claim handler should consult with defense counsel to determine a litigation plan. While this does not require formally retaining an attorney’s services, it is prudent to get at least a better indication of when one may be needed.

• Make reasonable and justifiable decisions regarding the need for vocational rehabilitation services. This should include discussing the pros and cons of allowing the employee to proceed without objection to at least undergoing a vocational rehabilitation consultation to determine eligibility for services.

• Review the claim and determine the likely expenses and probability of future litigation. Not objecting to a consultation with a vocational counselor by the employee does not waive future rights to entitlement to vocational rehabilitation services.

• Provides time to consider exercising your right to an independent medical examination (IME) or independent vocational evaluation (IVE). Using a medical or vocational expert may be cost-beneficial depending on the nature and posture of a claim.

Every decision regarding vocational rehabilitation services should be made with compassion, empathy, and desire to get the injured employee back to work and close the claim.

Conclusions

Decisions made at the onset of a request for vocational rehabilitation services set the course for a claim. Members of the claim management team must understand eligibility requirements and make reasoned decisions. This should include the use of defense counsel to determine the right path. Claim handlers should also consider other options, such as medical or vocational experts, to address these issues to avoid excessive litigation expenses.

Michael Stack, CEO of Amaxx LLC, is an expert workers’ compensation cost containment systems and provides education, training, and consulting to help employers reduce their workers’ compensation costs by 20% to 50%. He is co-author of the #1 selling comprehensive training guide “Your Ultimate Guide to Mastering Workers’ Comp Costs: Reduce Costs 20% to 50%.” Stack is the creator of Injury Management Results (IMR) software and founder of Amaxx Workers’ Comp Training Center. WC Mastery Training teaching injury management best practices such as return to work, communication, claims best practices, medical management, and working with vendors. IMR software simplifies the implementation of these best practices for employers and ties results to a Critical Metrics Dashboard.

Contact: [email protected].

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Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker, attorney, or qualified professional.