By Jim Cline and Erica Shelley Nelson
This article is the 37th in a multiple part series covering the rights your injured and disabled members have and how you, as a union or guild representative, can best assist them. Over the several weeks and continuing for the next several weeks, we’ll be publishing, in various segments, information on how state and federal laws protect your members who are hurt or otherwise unable to work. We’ll cover topics including disability discrimination law, the FMLA, job protection rights under the CBA, workers compensation, disability benefits, and the right to bring a civil lawsuit.
The topics we are covering all also going to be addressed in detail in an upcoming book we’re publishing: Helping the Injured or Disabled Member: A Guidebook for the Washington Law Enforcement and Fire Union Representative. It is also our intention over the course of the next year to travel through the state and provide training to public safety union and guild representatives on how best to enforce these rights. Expect to hear more on that in the months ahead.
The 37th article in these newsletter series provides a discussion introducing the topic what rights employees have to vocational services when they are ultimately unable to return to work. For more information, visit our Premium Website. On the website you’ll find an on line version of the Injured or Disabled Member’s Guidebook and other information on the laws covering your members.
Unfortunately, an officer or firefighter may incur an injury so significant that a return to work duty is unlikely. At this point, the Department offers vocational rehabilitation services to help the employee find a new line of work.
Vocational rehabilitation services may also be extended to assist the injured member in returning to work in the same job. Early intervention services may be provided at the outset to assist the injured member in returning to work. These services may include helping the employer identify light-duty work, identifying and providing accommodations in the workplace, and/or completing workplace job analyses for the health care provider to review.[1]
Following any early intervention assessment, the Department or self-insured employer, may refer the injured member to an Ability to Work Assessment. This assessment is conducted by a vocational rehabilitation counselor (VRC) selected by the Department or self-insured employer. The purpose of the assessment is to determine whether the injured employee is “employable”[2] or requires vocational rehabilitation services. The assessment services may include:
(1) Documenting work restrictions;
(2) Performing job analyses;
(3) Evaluating the worker’s ability to work at the job of injury;
(4) Assessing transferable skills;
(5) Conducting labor market surveys as defined in WAC 296-19A-140;
(6) Evaluating the worker’s ability to work at any other job;
(7) Evaluating the worker’s ability to benefit from plan development services, including vocational testing if appropriate; and
(8) Assessing the worker’s need for preferred worker status and when appropriate educating the worker on the preferred worker benefit.[3]
An important point to remember is that the job analyses created by the VRC (which describe the job of injury, each past job performed, other employment the worker can perform with his or her work skills, and any physical or mental health limitations) may be sent to any medical provider, who will determine whether the injured employee can perform the job duties associated with the job analyses. Prior to the medical provider’s approval or disapproval, it is critically important for the injured member to request that his or her attending physician also review the job analyses to determine whether there are work skills or duties outlined in the analyses that are concerning to the worker.
Once the job analyses are submitted to the medical provider and approved or disapproved, several outcomes are possible.[4] First, if any of the job analyses are approved, a labor market survey will be conducted by the VRC to assess whether there are positions in the labor market that the injured worker can perform. If there are positions in the labor market that the injured worker can perform, then the VRC will conclude the worker is “employable” and will prepare a “closing report,” which is forwarded to the Department.
Second, if the medical provider does not approve any of the job analyses, but the VRC concludes that vocational services are necessary and will likely enable the worker to become employable, then the VRC will probably determine that the worker is eligible for vocational rehabilitation plan development services.[5] This is not as common as an outcome as one might think. Indeed, few injured workers receive the benefits of plan development services because of the broad “employability” standard.
On the other hand, if the VRC concludes that the worker is not employable based on transferable skills and will not benefit from vocational rehabilitation plan development services, then the claim will most likely be forwarded to pension adjudicators for further review of whether the worker has a permanent disability.
During the vocational process, it is important to cooperate with the VRC. Having an attorney present during meetings with the VRC is strongly recommended. The VRC has no obligation to provide copies of the job analyses, assessment, or report to the injured member. Therefore, it is important for the worker to request these documents from the VRC to stay abreast of developments during the VRC process. Any disputes involving vocational issues are resolved by the Vocational Dispute Resolution Office at the Department.[6]
In the event an injured worker is referred for plan development services, the VRC will work with the employee to develop a rehabilitation plan.[7] Once the plan is approved, the injured worker has two options: Option 1: follow the Department’s approved plan, or Option 2: develop his or her own plan.[8] At present, both plans offer the injured worker up to $17,599.11 for retraining (which is adjusted on July 1 each year).[9] Under Option 1, the employee only has two years for training, but continues to receive time loss and medical benefits while retraining. Under Option 2, the employee’s claim is closed, and time loss and medical benefits end, but the employee is provided a vocational award equal to six months of time loss benefits. It is up to the injured worker to decide which option best suits their needs. However, Option 1 is highly recommended because if an employee is not fully retrained in six months, then it extends the time period for up to two years in which an employee can retrain while continuing to receive time loss and medical benefits.
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[1] WAC 296-19A-050.
[2] WAC 296-19A-010 (“(a) ‘Employable’ means having the skills and training that are commonly and currently necessary in the labor market to be capable of performing and obtaining gainful employment on a reasonably continuous basis when considering the worker’s: (i) Age, education, and experience; (ii) Preexisting physical and mental limitations; and (iii) Physical and mental limitations caused, at least in part, by the worker’s industrial injury or occupational disease. (b) Physical and/or mental conditions that arose after the industrial injury/occupational disease that were not caused or aggravated by the industrial injury/occupational disease are not considered in determining whether the worker is employable under the Industrial Insurance Act. (c) If there are no physical or mental restrictions caused by the worker’s industrial injury/occupational disease, the worker must be found employable under the Industrial Insurance Act.”
[3] WAC 296-19A-065.
[4] WAC 296-19A-070.
[5] Id.
[6] WAC 296-19A-460.
[7] WAC 296-19A-090.
[8] WAC 296-19A-600-670 et seq.
[9] See http://www.lni.wa.gov/ClaimsIns/Claims/RTW/Training/Default.asp.
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