Time Appropriateness for Providing Vocational Rehabilitation
One of the most important considerations in any workers’ compensation case involving prolonged disability is to determine the point at which an employer is obligated to provide vocational rehabilitation to an injured employee. It is an important consideration given the costs involved with such rehabilitation and its impact on the overall defense of a case. Under Section 8(a) of the Illinois Workers’ Compensation Act the employer can be required to pay for vocational rehabilitation or retraining of the employee. The employer may also be required to provide maintenance costs and expenses incidental to the vocational rehabilitation while that course is being pursued.
Section 7010.10 of the rules governing practice before the Illinois Workers’ Compensation Commission provides that the employer or a selected representative shall prepare a written assessment with a course of medical care and when appropriate, the rehabilitation required to return an injured worker to employment when it can be reasonably determined that the injured worker will not return to his regular duties or the period of incapacity exceeds 120 continuous days, whichever occurs first. The assessment shall address the necessity for a plan or program which may include medical and vocational evaluation, modified or limited duty and retraining, as necessary. Thereafter, the employer shall prepare, in consultation with the injured employee or his representative, a written update of the appropriateness of the plan to create, developed or, in the case where no plan was deemed necessary, a written assessment of why that decision continues to be appropriate. A copy of the plan shall be retained by the employer and provided to the employee. The plan is to be submitted on forms made available by the Commission.
A claimant is entitled to vocational rehabilitation when he sustains a work-related injury which causes a reduction in his earning power and there is evidence that rehabilitation will increase his earning capacity. National Tea Company v. Industrial Commission, 97 Ill.2d 424, 73 Ill.Dec.575, 454 N.E.2d 672 (1983). An employee need not request vocational rehabilitation services. Id.
Illinois courts acknowledge that there is no set standard for determining when and what type of vocational rehabilitation services should be provided. In short, the decision to provide vocational rehabilitation services is a factual question for the arbitrator. Respondents generally take the position that the employee must first make a good faith effort to seek employment and show an inability to find employment within his physical restrictions in order to merit vocational rehabilitation services at the expense of the respondent. Moreover, the petitioner should be required to show that participation in the specific vocational rehabilitation program will result in successful employment placement. The Appellate Court has noted that these factors are not exclusive factors in determining whether vocational rehabilitation should be made available. Howlett’s Tree Service v. Industrial Commission of Illinois, 160 Ill.App.3d 190, 111 Ill.Dec. 836 (2nd Dist. 1987). Other factors include a showing from petitioner that his economic earning capacity will be increased as a result of participation in a rehabilitation program or that vocational rehabilitation has never been tried.
In most cases respondents should first demand that the petitioner engage in a job search and demonstrate that job search was unsuccessful before offering vocational rehabilitation services. This is not a full proof prerequisite that will be requested by the Commission. However, a strong argument can be made that the petitioner will need to present evidence from a vocational rehabilitation expert demonstrating the necessity of vocational rehabilitation absent evidence of a job search. In some cases it is obvious that the employee has significant restrictions and no transferable skills so that vocational rehabilitation services are necessary to avoid a permanent total award.
It is important for the employer to follow the provisions of Section 7110.10. Completion of these plans could conclude that vocational rehabilitation is not appropriate given external factors such as ongoing medical treatment. Alternatively, vocational rehabilitation may not be appropriate because there is no anticipated loss of earning capacity. Keeping good records with regard to vocational rehabilitation plans will assist in defending against any request for vocational rehabilitation and the determination of when vocational rehabilitation is appropriate. Preparing and submitting the plans need not involve a vocational rehabilitation counselor and therefore preparation can be relatively inexpensive. The petitioner’s unsuccessful efforts to obtain alternative employment is still the most important factor to consider in deciding whether to offer vocational rehabilitation services.
Originally published in the Fall 2008 edition of Quinn Quarterly.