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Vocational Rehabilitation in Virginia

September 27, 2016

Under Virginia law an employer who has three or more regular employees in the same business is required to furnish workers’ compensation coverage at no cost to their employees. This includes vocational rehabilitation benefits. When an employee is injured on the job and is unable to resume usual job duties but still is able to work, an employer is required to furnish reasonable and necessary vocational rehabilitation services to an injured employee. 

Vocational rehabilitation services may include vocational evaluation, counseling, job coaching, job development, job placement, on the job training, education, and retraining.

The stated goal is returning an injured worker to the workforce.  A Functional Capacity Examination is a tool where a medical professional does an evaluation of an injured worker to determine the injured worker’s capacity to work, although there may be sufficient restrictions that would prevent the injured worker from returning to his or her prior employment.  Utilizing a Functional Capacity Evaluation allows a Vocational Rehabilitation counselor to assist the employee in finding employment within that employee’s residual work capacity. 

They key is to embrace the obligation.  In the long run, returning an employee to the work force can  save the employer considerable expense and help an injured employee  be productive. The following are some of the guidelines  provided by Virginia’s Workers’ Compensation Commission that  clearly constitute permissible vocational tools.

  1. Vocational rehabilitation services, including vocational evaluation, counseling, job coaching, job development, job placement, on-the-job training, education, and retraining, shall take into account the employee’s pre-injury job and wage classification; age, aptitude and level of education; the likelihood of success in the new vocation; and the relative costs and benefits of such services. Retraining should be considered if job placement efforts are not successful, or the employee’s transferable skills are not readily marketable.

  2. The provider should not ask the employee to engage in job development, job placement or on-the-job training until he/she is medically released for work. However, the provider may require the employee to meet in order to assess the employee’s potential for work, and to prepare résumés and to schedule other appropriate actions, such as attending job preparation training, in anticipation of employment.

  3. The two goals of vocational rehabilitation are to restore the employee to gainful employment, and to relieve the employer’s burden of future compensation. Rehabilitation providers should attempt to find employment within the employee’s medical restrictions consistent with the employee’s pre-injury position and salary level, and the provider should take into account such factors as distance, transportation costs, and actual anticipated earnings from the potential job, when considering such alternative employment.

  4. It is the rehabilitation provider’s responsibility to assess employment opportunities by direct contact with potential employers when possible or through research in the labor market as to how the job is commonly performed in the local economy. The assessment should determine whether a suitable position is presently available that is within the employee’s restrictions and for which the employee is qualified. The provider shall not send the employee to apply or interview for positions not suitable for the employee with or without reasonable accommodation, but the provider may ask the employee to develop résumés and to attend job preparation training as well as job fairs. The provider may ask the employee to attend interviews for present employment opportunities where the treating physician anticipates that the employee will be released to such work within a reasonably brief period.

  5. Telemarketing and commission sales positions are only appropriate job placement, when the employee has demonstrated aptitude or ability in this line of work. Interviews with sheltered workshops and selective employers who are subsidized by employers/carriers are inappropriate, if they do not provide the potential for legitimate rehabilitation, such as Vocational Rehabilitation Guidelines learning work skills or restoring the employee to a productive place in the labor market.

  6. It is the responsibility of the provider to assist the employee in all aspects of the vocational rehabilitation process such as appropriate presentation, interviewing skills, discussion of limitations with employers, and other employability factors.

  7. Rehabilitation providers may not advise the employee to withhold information about his/her injury or job capabilities during job interviews or on applications. However the employee may not discuss them in such a way as to sabotage the interview or application process. Any discussion should be limited to the question of whether the employee can perform the job(s) at issue with or without reasonable accommodation.

  8. Employees are not required to give rehabilitation providers personal or financial information, such as number of children, spouse’s employment, or credit history, unless such information relates to a bona fide occupational qualification for employment. An employee is required to disclose whether he/she is legally eligible for employment, including their Social Security number, has a valid driver’s license, or has been convicted of a felony or a misdemeanor, and to provide his/her previous employment history.

MEETINGS BETWEEN EMPLOYEES AND PROVIDERS

  1. Meetings should be held at reasonable times and places for both the employee and provider. Employees are not required to invite rehabilitation providers onto their property or into their homes. Also, just as the employee must cooperate with reasonable demands of the rehabilitation provider that are likely to return him/her to gainful employment, the provider must make reasonable accommodation for the employee’s personal life, such as medical conditions and transportation problems.

  2. Routine telephone contact should be made between 9:00 a.m. and 6:00 p.m. No calls should be made before 7:00 a.m. or after 10:00 p.m. except in cases of emergency.

  3. The provider should give the employee advance notice, in writing or by phone, of meetings between the rehabilitation provider and employee, and of employment interviews. A minimum of two calendar days’ notice of any meeting or employment interview is suggested, except for exceptional situations.

  4. Prior to being released to selective employment, the employee does not have to seek employment. However, the employee must meet with the provider for the purpose of a vocational assessment.

MEDICAL ASSISTANCE

  1. As the vocational rehabilitation provider’s role is limited to providing vocational rehabilitation, the provider is prohibited from medically managing the employee’s treatment in any way, even if requested by the physician.

  2. Monitoring treatment is not medical management. Determining return to work status is part of the rehabilitation process intended to enhance communication between all parties involved in the rehabilitation process. With the consent of the physician, the provider may meet with the doctor outside of the employee’s presence. The employee is not required to sign a consent granting the provider access to the physicians. If the physician does not wish to communicate with the provider, information will have to be obtained by other means provided or permitted by law.

  3. The employee has the right to a private examination by and consultation with the medical provider without the presence of any certified rehabilitation provider and/or nurse or case manager.

  4. In order to determine the work capacity of the employee, the provider may require the employee to submit to a functional evaluation, if approved and authorized by the employee’s treating physician or an independent medical examiner.

Pender & Coward shareholder Bob Samuel focuses his practice on workers’ compensation and personal injury litigation.  Please contact Bob with questions at (757) 502-7338 or rsamuel@pendercoward.com.