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Bar News - August 16, 2017

Workers’ Compensation and Personal Injury Law: Vocational Rehabilitation: State Benefits for Injured Workers


Vocational rehabilitation is one of the most underutilized benefits in the NH Workers Compensation System. Last year, there were 60 referrals; a decade ago, this number was close to 250, and 20 years ago, there were about 850 referrals.

There are many reasons why this has occurred, but the number of people who are left to return to work on their own has increased dramatically. State Vocational Rehabilitation and the Department of Employment Security offer limited services to these individuals. It is the responsibility of the insurance carrier in workers’ compensation cases to assist injured employees in their return to suitable work.

Vocational rehabilitation (VR) provides an individual with the ability to re-enter the workforce in a job that meets his or her capacity after a career-ending injury.

In New Hampshire, per RSA 281-A:25, “If as a result of an injury covered by this chapter, an employee is unable to perform work for which he or she has previous training or experience, the employee shall be entitled to such vocational rehabilitation services including retraining and job placement, as may be reasonably necessary to restore such employee to suitable work.”

The goal of VR is to restore the employee (with an occupational injury) to suitable work. Suitable work restores an injured person to as close as possible to his or her prior earning capacity as measured by the employee’s average weekly wage. Suitable work also meets the client’s physical capacity, qualifications, and the work that exists in the local labor market. Initially, the counselor focuses on clarifying the individual’s physical capacity (cognitive capacity if injury impacts brain), aptitudes, and interests, and explores the labor market to assist the individual in developing a suitable vocational goal.

Not all workers receive retraining, as VR counselors follow a hierarchy of services, and there are nine levels, per LAB 509.2. A VR counselor is required to develop an Individual Written Rehabilitation Plan (IWRP) for an injured worker (per LAB 509.4) within 120 days of case referral. Per the hierarchy of services, the three lowest levels of service are associated with return to work with the employer (insured) to the same job, or same job with accommodations, or a different job. These levels are often addressed by a medical case manager. Services in the IWRP include clarification of the physical capacity.

Levels 4-6

VR often originates with levels 4, 5 and 6 in the hierarchy, where an IWRP is developed utilizing an individual’s work history, skills, education, and transferable skills. The services provided include career counseling and job placement.

Level 4 is a return to the same job, different employer. An example of Level 4: A truck driver required to load his truck, sustains a back injury with lifting limitations and returns to work as a “no touch” truck driver.

style="font-weight:bold; font-size:11pt; text-align:center;" is similar to Level 4, in that the worker returns to the same job, modified, with a different employer. An example of Level 5 is when an individual uses an accommodation that is not an option with the insured, such as a flexible work schedule, voice-activated software, sit/stand work station etc. to return to suitable (same occupation) work.

style="font-weight:bold; font-size:11pt; text-align:center;" involves a worker returning to a different job, different employer, and requires the counselor to assess a client’s transferable skills and education when developing an IWRP. An example of Level 6, is an auto parts sales clerk who has a back injury and can no longer lift the parts, who secures employment as a scheduler for auto repair. The services provided in job placement consist of instruction in online applications, developing a resume, cover letter, interviewing, following up with employers, identifying suitable openings, etc.

An IWRP is the only document required on cases where no funds are spent outside of VR services. On most cases, there are a series of amended IWRP documents, until the employee returns to work.

Levels 7-9

The last three levels of the hierarchy focus on providing new skills or retraining to an injured worker.

style="font-weight:bold; font-size:11pt; text-align:center;" addresses on-the-job training (OJT). This type of training is difficult to secure when unemployment rates are high, but when unemployment rates are low, new employers may consider this option. The insurance carrier reimburses a new employer to train an individual. In addition to the IWRP, a Training Agreement and a contract for the new employer must be completed. Like the IWRP, Training Agreements are developed and signed by client, carrier, rehabilitation counselor and the NH Department of Labor. In an OJT, an additional contract is developed with the new employer. Very few OJTs are developed, but the new employer is required to complete periodic reviews of client’s progress and the agreement includes skills required of the occupation.

Formal retraining is included in Level 8 with New Skill Training or Retraining focused on providing the shortest, most cost-effective training to enable an injured worker to return to suitable employment. This training includes short-term training, such as CDL licensing (truck drivers) and heavy equipment certifications, but can also include longer programs, such as various computer certifications, medical coding, etc. These training programs focus on skills and often combine classroom training with internships or hands-on training. This level of service also requires an IWRP, along with a Training Agreement.

Level 9, “Other Academic or Educational Program,” includes all training programs focused on associate’s degrees and other academic degree programs. It should be noted that training is usually completed in less than one year per state law. As a result, academic programs are rarely utilized. An example might be an LPN nurse (one-year training) with lifting restrictions. If he or she secured the second year of training (RN), he or she could perform more administrative work. This level also requires both an IWRP and Training Agreement.

The Training Agreement outlines a benefit provision. If the training is skill-focused, such as keyboarding or computer skills, the benefit provision may state benefits will continue with no changes. With agreement of all parties, benefits can be reduced. Temporary total benefits can be reduced to the Diminished Earning Capacity rate or ended, but can only be reduced if an individual has at least a full-time light duty work capacity.

VR services provide a path for an injured worker to return to suitable work. Services vary depending on the individual.

Fran Plaisted is a certified rehabilitation counselor in New Hampshire and Vermont and serves on the Vocational Rehabilitation Advisory Board to the NH Department of Labor. She provides forensic vocational rehabilitation opinions, independent vocational evaluations and earning capacity assessments.

Supreme Court Rule 42(9) requires all NH admitted attorneys to notify the Bar Association of any address change, home or office.

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