If you’ve ever advised a patient with a permanently restricting work injury to “re-train, “you may very well have learned that this is easier said than done!
There are myriads of rules affecting the decision whether a worker is entitled to “vocational assistance” and, if so, what form this assistance will take. Rules vary between Oregon and California, and Federal vocational assistance differs greatly from both. This article concerns vocational assistance for Oregon workers.
One basic reality is that the decision whether a worker will “re-train” is not the doctor’s decision. Doctors may describe their worker patients’ impairments and physical capacities and approve job analyses, but cannot “prescribe” re-training. That decision is made by insurers according to Workers’ Compensation administrative rules. In fact, “vocational assistance” more often than not does NOT involve “re-training”! If workers have any other prior experience or skills consistent with their physical capacity, they will be plugged into another position. Vocational assistance then would not be re-training, but could be relocation or wage subsidies.
For example, a secretary who earned $240/week (@$6.00/hour) can no longer type due to carpal tunnel syndrome. He/she seeks vocational assistance, but qualifies for a minimum wage ($5.50/hour) position as a video rental clerk. Since the weekly wage (even at as little as 35 hours a week) exceeds 80% of her previous wage, he/she is not eligible for vocational assistance.
In other words, with the minimum wage at its present level, assuming the same number of hours per week, any worker making $6.87/hour or less who is still able to do any minimum wage job is immediately disqualified from eligibility for vocational assistance due to the “80% rule” (since $5.50 exceeds 80% of $6.87).
It is important to note that for the purposes of this rule, the average weekly wage forms the basis for calculations. So, for example, an injured logger making $10/hour but who only averaged 27 hours a week would also be disqualified from eligibility for vocational assistance if able to perform a minimum wage job 40 hours a week.
THE “AS CLOSE AS POSSIBLE” RULE
Once an injured worker is determined to be eligible, the rule changes: the goal becomes not to bring the worker back to 80% of the wage at time of injury or aggravation, but “as close as possible” to that old wage. A well-paid mill worker or logger who cannot read, for example, may find himself/herself “vocationally assisted” into a position at only 50% of his/her former wage, if that is all that is available.
The two rules create confusion. The above worker may feel cheated at not getting a job paying at least 80% of former wage. But the “80% rule” only sets the criteria for being eligible for assistance, it does not guarantee the pay level the assistance will bring.
THE INCOME GAP “CATCH-22”
You should be aware of a “Catch-22” built into the system. A worker’s vocational status cannot be assessed until the worker’s residual functional capacity (“RFC”) is known. The RFC usually cannot be determined until a worker is medically stationary. Once a worker is medically stationary, the worker’s “time-loss” income stops.
So, the whole time-consuming and cumbersome process of making decisions regarding vocational assistance may not even begin until the temporary, stop-gap “time loss” income has ended! The worker thus finding him/herself without income may feel pressured to go out and take any job he/she can, just to pay the bills. Depending on the job, this may complicate the vocational assistance application process.
HOW DOCTORS CAN HELP
The treating physician can help by projecting the injured worker’s RFC before the worker becomes medically stationary.
One way to receive income while in the process of receiving vocational assistance is to be in an authorized training program, but these are usually available only to higher paid workers. Unemployment income may also be available. Workers should apply for unemployment as soon as possible after becoming medically stationary. Also, please be sure your patients are aware that they must show their work releases to their employers within 5 days or legal rights may be lost.
THE DOCTOR’S ROLE IN DETERMIING PHYSICAL CAPACITY
Doctors must describe the extent of a patient’s limitations very specifically. Be sure you know and state exactly how many pounds the worker can realistically be expected to lift repetitively on the job. Vocational rehabilitation consultants recommend that doctors be sure they know what 20, 30, 40 and 50 pounds really feels like. Take into account not only repeated lifting, but also what positions your patient can and cannot assume – can he/she bend? squat? turn? Will he/she need to lift while doing so?
An inaccurate estimate may disqualify a worker for vocational assistance or rehabilitation, or may be unsafe for the worker. Be aware that for numerous personal reasons, 10% of workers may want to attempt more than is safe, and 10% of workers may not be willing to attempt what they are capable of doing.
THE SETTLEMENT OPINION
Finally, your worker patients should be aware that they have the option of settling vocational issues in a claim disposition agreement. This is often the most practical way to go. A claim disposition agreement settles all issues except medical services, so the worker retains the right to have future, injury-related medical treatment paid for by the comp, carrier. A good workers’ compensation attorney can help workers explore this option.
This article was prepared by Robert L. Chapman