How Best to Deal with a Vocational Rehabilitation Counselor in Workers’ Compensation Cases

When you’ve been injured at work, you should have a Virginia workers compensation attorney on your side to help guide you through the process. For many injured employees, there will come a point when the doctor says you’re able to return to work, whether in full capacity or on light/modified duty. At that time, the insurance company may begin vocation rehabilitation.

What Is the Purpose of Vocational Rehabilitation?

The goal of vocational rehabilitation is to get you to return to work as soon as possible. While this is an admirable goal, the insurance company usually has its best interests, not those of the injured worker, in mind.  They want to save themselves the money of having an injured worker on compensation. While this is understandable, it can have negative impact on the worker. It may be better for a worker to find his or her own employment because it’s more likely to suit the workers needs, interests and physical abilities.

This person’s sole job is finding you employment as soon as possible to save the insurance company money by cutting off your workers’ compensation benefits. Their goal is not to boost your career, encourage knowledge fulfillment, self-improvement, or any type of job satisfaction. There is much litigation in this area due to the antagonistic situation injured workers are put into.

If You’re in This Situation, Here’s What to Do

Always have your lawyer present at your first interview with the vocational rehabilitation specialist.

One of the main purposes of vocational rehabilitation counselors is to wear down the worker and harass the worker to the extent that he or she becomes willing to settle the workers’ compensation claim cheaply. They create a lot of busy work for the injured employee. Vocational rehabilitation counselors will, for instance, send workers in search of jobs that they know the workers are not qualified to perform. They will send them letters saying “I’ve attempted to contact you by phone several times” and, in fact, have not actually contacted you at all by phone. Hopefully, this first meeting with the lawyer will help discourage the vocation rehabilitation worker from unprofessional activities and make the vocational rehabilitation a little bit easier for the injured employee.

Don’t make conversation with the rehabilitation counselor.

He or she is not your best friend or buddy. As stated elsewhere in this book, one of the defenses in a workers’ compensation case is that the employee refused to cooperate with the vocational rehabilitation counselor. Therefore, it’s very important never to say “I’m not going to be looking for any job that doesn’t pay at least $8.00 an hour,” or, “I can’t do any work so I’m not even going to look.” Vocational rehabilitation counselors love this because they can twist it to make it appear that the worker is refusing to cooperate.

The insurance company will file an application to cut off workers’ compensation benefits when these types of statements are made, alleging that the worker refused to cooperate with vocation rehabilitation efforts. The law allows them to suspend the benefits as long as the refusal to cooperate continues. As a practical matter, it is difficult to get benefits reinstated once they’ve been suspended for failure to comply and, at a minimum, you’d be without a check for several months until a decision by the Virginia Workers’ Compensation Commission is made (assuming that the other side does not appeal). All of your actions and words should convey to the counselor that you are willing to cooperate fully and completely with any and all reasonable efforts at vocational rehabilitation.

Return to work as soon as possible.

At our law firm, we always encourage injured workers to return to work as quickly as possible. You would be earning more income and you would have a more positive image of yourself when working. It helps the financial and mental health of the entire family. Also, if you choose your work, you are choosing your own destiny and making your own choices, as opposed to the vocational rehabilitation counselor forcing you into a job that he or she finds for you. This does not mean, however, that you should just jeopardize your health and go back to work before your doctor says that you are ready to do so. It’s important to make sure that the job has been approved by your treating physician.

Don’t allow the vocational rehabilitation counselor to talk you into inappropriate situations.

Many rehabilitation counselors try to coax a worker into saying that he is capable of doing almost any type of work, even when the worker knows he can’t. The counselor will take these statements, blow them out of proportion, and use the statements against the worker in a termination hearing. They will ask the worker such things as whether he climbs a ladder or if he can use hand tools and whether he does his own dishes or mows his own lawn. If the worker says, “No, I can’t climb a ladder or use the tools,” the counselor will say, “Are you sure? Aren’t you willing to try?” Again, such statements will be blown out of proportion and used against you.

Another thing that the vocational rehabilitation counselor may try to do is convince someone to go into business for himself. Many times, workers are lulled into settling their case for less by vocational rehabilitation counselors who convince them that they could start their own business with money that they receive from settling their workers’ compensation claim. This is a very dangerous proposal and needs to be considered carefully. Remember that the vocation rehabilitation counselor is not your friend. They are being paid by the insurance carrier and her agenda is to try save the insurance company money by getting your benefits terminated—whether by finding you work, by settling your claim for little to nothing, or by terminating your benefits because you refused to cooperate with them.

Do not let the vocational rehabilitation counselor into your house.

There’s no reason for a rehabilitation counselor to come into your home. Always meet him or her in a public place such as a restaurant or a library. The danger of having them in your home is that it gives them access to your personal life and they will gain information about you and your family that can be turned against you. Your personal life is none of their business and you should not share your personal life with them.

Here is an example: While you’ve not been working you do not have your children in day care and they have been at home for obvious convenience and financial reasons. If the vocational rehabilitation counselor comes to the house and sees the children in the home, he or she may try to set you up and say that you were not cooperating because you do not want to put your children back in day care. The less the insurance company, the nurse case manager, and the vocational rehabilitation counselor know about your personal life, the better off you are.

Insist on “suitable” employment.

The rules require that the job must be suitable for the employee. I’ve seen many times where the vocational rehabilitation counselor would instruct the worker to go to the want ads and apply for every job in the want ads. Other times, they would get a list of potential jobs from the Virginia Employment Commission and ask the employee to spend his time and money to travel around this 30 mile radius seeking jobs without any prior determination as to whether the jobs were suitable for the worker.

Always go to job interviews.

This may seem inconsistent with the statement above about insisting on suitable employment; however, two wrongs don’t make a right. Even though the vocational rehabilitation counselor may frequently violate the Virginia Workers’ Compensation Commission’s rules, you should keep your hands squeaky clean. Therefore, go to all interviews even though you believe that it is clear that the job is not suitable for you.

There are several reasons to do this. First, you do not want to give the insurance company any reason to terminate your benefits. Even if you fail to attend a job interview that was not suitable employment for you, the insurance company may request termination of your benefits due to your lack of cooperation with their efforts.

It is best not to put yourself in this position because it may mean months of waiting for a hearing without receiving a workers’ compensation check. Another reason is that, if there ever is a hearing, you have done everything possible in your hands necessary to do what you are supposed to do. Therefore, you’ve given the defense attorney no ammunition whatsoever, to be able to suggest that you should not get your workers’ compensation benefits.

Document, document, document.

In the appendix, I have a copy of a job search log. As stated before, if your claim is denied, it may be many months before you ever get to a hearing and you will not be able to remember where you’ve looked for jobs, what activities you’ve done, and so forth. It is best to document everything that you do so that you will be able to refresh your memory and testify accurately. Put a date and time on all documents.

Also, if the vocational rehabilitation counselor notes that you were documenting everything, they will know that you are prepared to contest any allegation that you might not be cooperating with her. Remember to document job searching as well as job interviews. If you look for a job, you need to document that just as much as if you fill out an application. This ensures all your efforts are documented. MAKE A COPY OF EVERYTHING!

Stay in close contact with your attorney.

Usually, once a vocational rehabilitation counselor has been assigned to your case, it is the time that the insurance adjuster is most desperate in trying to cut off your benefits. The insurance company does not care if they are cut off by finding you employment or due to the appearance of a failure to cooperate on your part. You need to let your attorney know each and every time a job is offered, each time that they suggest any type of vocational training, and anything that occurs that makes you feel uneasy. This way, the lawyer can stay on top of whether it is suitable employment and whether it’s a legitimate job that you would interview for. Make sure you have your attorney advise you at each stage of this complicated process.

Guidelines for Vocational Rehabilitation

Below are some guidelines the Virginia Workers Compensation Commission has laid out as the guidelines for vocational rehabilitation.

A) 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.

B) The provider should not ask the employee to engage in a job search or vocational rehabilitation 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 resumes and to schedule other appropriate actions, such as attending job preparation training, in anticipation of employment.

C) 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 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.

D) It is the rehabilitation providers responsibility to assess employment opportunities by direct contact with potential employers, and to determine whether a suitable position is presently available that is within the employee’s restrictions and for which the employee is qualified. Until such prescreening contacts have been made to purge inappropriate leads, the provider should not ask the employee to attend interviews, but the provider may ask the employee to complete resumes and to attend job preparation training. The provider may ask the employee to attend interviews for present employment opportunities Where it is anticipated that the employee will be released to such work within a reasonably brief period.

E) Telemarketing and commission sales positions are not appropriate job placement, unless 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 also inappropriate, if they do not provide the potential for legitimate rehabilitation, such as learning work skills or restoring the employee to a productive place in the labor market.

F) Requiring employees to look in newspapers contact a specific number of potential employers per week, check listings at the VEC, or register with temporary services does not constitute appropriate “vocational rehabilitation.” However, an employee may volunteer to do these activities. It would also be inappropriate for the rehabilitation provider to impose a blanket requirement on the employee to submit all job applications within twenty-four hours. It is not unreasonable for the provider to request written confirmation of the employee’s job interviews or applications, where possible.

G) 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.

H) 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, has a valid driver’s license, or has been convicted of a felony, and to provide his/her previous employment history.

WATCH OUT!!!! These guidelines are about to change and, unfortunately, for the benefit of the workers compensation insurance companies. I will update you when there are changes and they go into effect.