Heyl Royster

 


Heyl Royster

 

Commission Finds Vocational Rehab Assessment Must Be Prepared by Counselor of Respondent's Choice

By: Bruce Bonds, Champaign Office

Statutory background

Most of us are familiar with the general principles that govern vocational rehabilitation in Illinois workers’ compensation cases. The statutory basis is Section 8(a) of the Illinois Workers’ Compensation Act which provides that in addition to medical treatment the employer “. . . shall also pay for treatment, instruction and training necessary for the physical, mental and vocational rehabilitation of the employee, including all maintenance costs and expenses incidental thereto.” Unlike many states, the Illinois statute does not specifically set forth the circumstances in which vocational rehabilitation should be awarded, nor the specifics of the process it should take. Section 8 states only that an employer “. . . shall also pay for rehabilitative efforts when “necessary.”

Did you know?

Rule 9110.10 of the Rules Governing Practice Before the Commission requires that a written vocational rehabilitation assessment be prepared any time it can reasonably be determined that the injured employee will be unable to return to regular work and/or when they have been totally incapacitated for 365 days. According to the rules, that report thereafter is required to be updated in writing every four months until the case is resolved. The Commission provides a form for this assessment here: https://www2.illinois.gov/sites/iwcc/Documents/ic31FORM.pdf.

In over 35 years of practice before the Commission the author has only rarely seen such an assessment prepared, let alone followed. In fact, this provision is routinely ignored. Since it outlines the expectations of vocational rehabilitation, it is appropriate for us to familiarize ourselves with its provisions. Section 9110.10 states:

Section 9110.10 Vocational Rehabilitation

a)   An employer’s vocational rehabilitation counselor, in consultation with the injured employee and, if represented, with his or her representative, shall prepare a written assessment of the course of medical care and, if appropriate, vocational rehabilitation required to return the injured worker to employment. The vocational rehabilitation assessment is required when it can be reasonably determined that the injured worker will, as a result of the injury, be unable to resume the regular duties in which he or she was engaged at the time of injury. When the period of total incapacity for work exceeds 365 days, the written assessment required by this subsection shall likewise be prepared.

b)   The assessment shall address the necessity for a plan or program that may include medical and vocational evaluation, modified or limited duty, and/or retraining, as necessary.

c)   At least every 4 months thereafter, or until the matter is terminated by Order or Award of the Commission or by written agreement of the parties approved by the Commission, the employer, or his or her representative, in consultation with the employee and, if represented, with his or her representative, shall:

  1. if the most recent previous assessment concluded that no plan or program was then necessary, prepare a written review of the continued appropriateness of that conclusion; or
  2. if a plan or program had been developed, prepare a written review of the continued appropriateness of that plan or program, and make in writing any necessary modifications.

d)   A copy of each written assessment, plan or program, review and modification shall be provided to the employee and/or his or her representative at the time of preparation, and an additional copy shall be retained in the file of the employer and, if insured, in the file of the insurance carrier. Copies shall be made available for review by the Commission, on its request, until the matter is terminated by Order or Award of the Commission or by written agreement of the parties approved by the Commission.

e)   The rehabilitation plan may be prepared on a form furnished by the Commission.

f)    Nothing in this Section abridges the rights of the parties.

(Source: Amended at 40 Ill. Reg. 15823, effective November 9, 2016)

Who is responsible for this vocational assessment?

The Commission addressed this issue in the case of Broner v. Saks 5th Avenue, 20 IWCC 0187; 2020 Ill. Wrk. Comp. LEXIS 225, in a decision rendered on March 16, 2020. Strangely, the parties in Broner did not raise the implementation of this rule at issue at arbitration. The Arbitrator accepted that both the medical evidence and the lack of a tender of a job within the petitioner’s permanent restrictions required a vocational rehabilitation assessment under 9110.10. The Arbitrator ordered the respondent to pay for such an initial assessment performed by a counselor selected by the petitioner.

Although the parties did not raise the implementation of the rule as an issue at arbitration, the Commission held the Arbitrator’s finding appropriate. However, the Commission rejected the Arbitrator’s conclusion that the vocational counselor be of the petitioner’s choice. The Commission stated, “No such proposition (that the counselor be of the petitioner’s choice) is evident from the rule, which requires the contrary. As noted above, the rule specifically provides that the written assessment be prepared by the employer’s vocational rehabilitation counselor.” The Commission modified the Arbitrator’s Decision to provide that the Respondent’s vocational rehabilitation counselor shall prepare the written assessment in accordance with Section 9110.10(a) of the Commission Rules.

What is the significance of the Broner decision?

Some Petitioners’ counsel aggressively assert demands for vocational rehabilitation and insist that the assessment be performed by a counselor of their choice at the respondent’s expense. Broner stands for the proposition that the employer has a right to retain the counselor who prepares the initial assessment. By extrapolation, respondent may argue that it is not responsible for paying for any assessment prepared at the request of the Petitioner’s counsel. Broner did not definitively address that issue, but did by implication.

Where vocational rehabilitation is necessary, it would be appropriate for the respondent’s counsel to advise Petitioner and/or Petitioner’s counsel up front that pursuant to the Rule and this case, the assessment will be prepared by a counselor of Respondent’s choice and indicate that Respondent will not be voluntarily paying for an assessment performed at the request of the Petitioner’s counsel. If they object, that matter can be litigated.

Is an employee required to request vocational rehabilitation services in order to trigger the requirement under a Section 9110.10 assessment?

The short answer is “No.” The rule places no duty on an employee to prepare a written assessment as to the course of appropriate rehabilitation nor is the employee required to formally request vocational rehabilitation from the employer before maintenance may be awarded. Maintenance is payment at the TTD rate paid subsequent to maximum medical improvement and during the time vocational rehabilitation is undertaken.

Is the employer required to advise the Petitioner that vocational rehabilitation is available?

Section 6(d) of the Act requires employers to advise employees of their right to rehabilitation services and advise the employee of the locations of available public rehabilitation centers and any other such services available. No timeframe is provided for when the employer must provide this information to the employee, but one would assume it should be at a time when rehabilitation to return to work would be appropriately discussed.

Will Petitioners still retain their own vocational counselor?

Petitioner’s attorneys will almost certainly continue to retain their own counselors and seek for the employer to pay for those services. They will argue that these services are addressed in Section 8(a) under the employer’s responsibility to pay for medical and vocational rehabilitation services. Where the rehabilitation plan process of 9110.10 is properly followed, a strong argument can be made that not only does Broner prohibit the Petitioner from seeking payment for their vocational counselor, but that the plan itself requires the cooperation of both parties in a document signed by Petitioner so reflecting. By following the provisions of 9110.10, the petitioner is agreeing to the plan and any costs associated with the retention of their own counselor should be considered unnecessary and superfluous.

When is vocational rehabilitation necessary?

Notwithstanding the provisions of Rule 9110.10, the possibility of vocational rehabilitation should be considered from the outset. Respondent’s representatives should always be wary of the possibility that a case with serious injuries could result in a claim of odd lot permanent total disability.

Given the absence of any legislative guidance regarding when vocational rehabilitation is appropriate, the Illinois Supreme Court in the seminal case of National Tea Company v. Industrial Commission, 97 Ill. 2d 424 (1983) addressed the issue. National Tea established a number of factors to consider when determining if vocational rehabilitation is appropriate:

  • relative cost and benefits to be derived from a vocational rehabilitation program
  • evidence that vocational rehabilitation will increase earning capacity
  • evidence that compensable injury reduced employee’s earning capacity
  • potential for loss of job security as a result of the injury
  • likelihood of obtaining employment upon completion of the program
  • whether the employee has sufficient skills to obtain employment without further training or education
  • the ability and motivation of the employee to undertake the program
  • whether the employee is “trainable” due to age, education, training and occupation

The Court indicated that these factors are not exclusive and are intended to be flexibly applied. As a practical matter, vocational rehabilitation should be considered in any case where it is apparent that the petitioner will be unable to return to their original job.

A determination must be made whether “successful vocational rehabilitation” means job placement or claims resolution. This is especially important when the petitioner claims a “failed job search,” at which point the burden of proof has shifted to the employer to show that there is indeed a reasonably stable market for jobs in the geographic location the petitioner resides within their physical abilities as well as within their age, experience and education.

Where vocational rehabilitation is unavoidable, consider the following:

  1. A determination if the petitioner will have permanent restrictions that will prohibit him or her from returning to their original job.
  2. Can the employer provide a “real” job within the medical restrictions to the petitioner at or near their pre-injury wage
  3. Extend a fair and perhaps slightly generous offer to the petitioner to avoid vocational rehabilitation costs and expedite settlement
  4. Retain a vocational specialist for purposes of performing a labor market survey
  5. Transmit the labor market survey to the petitioner’s attorney and make a lump sum offer based on the labor market survey conclusions
  6. Enhanced vocational rehabilitation (where necessary), which could include:

a)   assisting the petitioner in the preparation of resumes and with interviewing skills;

b)   educating the petitioner with respect to job search strategies and provide the petitioner with potential job leads;

c)   where appropriate, perform testing to determine petitioner’s capabilities and job skills for use in a transferrable job skills analysis;

d)   regular meetings with the petitioner (often weekly) to review their efforts and provide assignments for the future; and

e)   if absolutely necessary, identify an occupation to which the petitioner is otherwise capable and interested in and determine the cost associated with re-training or even junior college

   7. Document non-cooperation and, where appropriate, suspend maintenance benefits

Returning a petitioner to work in any capacity upon completion of medical treatment is essential to reducing overall exposure in a workers’ compensation case. In light of recent decisions favoring wage differential awards over other permanency determinations, returning the petitioner to work in a position earning as close to their pre-injury wages as possible becomes even more important. The successful use of a vocational rehabilitation program and counselor can significantly affect the likelihood of that return to work and therefore result in a significant savings in the claim.

Takeaways

  1. The respondent is required to prepare a vocational assessment after it appears an individual is unable to return to their regular job and/or has been off work 365 days.
  2. The assessment required by Section 9110.10 of the Act is to be done at the request of and by the vocational counselor chosen by the respondent, not the petitioner. However, be prepared because in this author’s experience petitioner’s counsel will want to fight you on this issue.
  3. Vocational rehabilitation and/or the threat of vocational rehabilitation coupled with an offer under the “carrot and stick” approach can be successfully used to minimize costs and expedite resolution.