IF I CAN’T DO MY OLD JOB, DOES THE EMPLOYER HAVE TO RETRAIN ME?
Section 319 of the Act states that “When as a result of [a work-related] injury, [a worker] 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 him or her to useful employment.” If such services are not voluntarily offered and accepted, the Director of the Workers’ Compensation Agency may refer the employee to a vocational rehabilitation firm for evaluation of the need for, and kind of service, treatment or training necessary and appropriate to render the employee “fit for a remunerative occupation.” Upon receipt of such report, the director may order that the training, services, or treatment recommended in the report be provided at the expense of the employer. Vocational rehabilitation shall not extend more than 52 weeks except by special order of the Bureau. If an employee chooses a course of rehabilitation that removes him or her self from the job market for an extended period of time, the employer might not be responsible for that aspect of the plaintiff’s diminished earning capacity.
Many employers, insurance companies and their vocational rehabilitation services attempt to fulfill their responsibilities to provide vocational rehabilitation by just ordering workers to apply for dead-end minimum wage jobs. This is not adequate compliance with the Act’s requirements. Even the pro-Big Business Engler-appointed Appellate Commission stated that it is not appropriate to dump the injured workers of the middle class into entry level or minimum wage jobs. “The fundamental goal,” is instead “to return the employee to a “remunerative occupation.” Stocki, WCAC, #01-0002.
Those providing vocational rehabilitation to workers must provide on each referral, regardless of the source of the referral, an unbiased, comprehensive evaluation of rehabilitation need, even though the referral may be made for a limited specific service. Vocational rehabilitation programs should first explore the possibility of returning an employee to work with his or her employer, either to the same job or a modified job which is within the employee’s capabilities to perform. If this cannot be done, the program should explore direct job-placement to appropriate alternative employment in the community and/or short-term retraining up to 52 weeks. If at any time during the course of the rehabilitation program, it becomes apparent that there are no reasonably attainable jobs for which the injured worker is qualified, short-term retraining should be considered. If job placement services are unsuccessful after 60 to 90 days, they have long been considered highly questionable by the Agency and the possibility of retraining should be reconsidered.
Rehabilitation counselors are furthermore forbidden from interfering with due process between the employer and employee, from giving legal advice to clients, from negotiating or recommending workers’ compensation settlements for clients, from “pushing” clients beyond their capabilities and from engaging in claims investigative or adversarial activities.
It is unfortunately common for rehabilitation counselors to tell workers that they must lie about their disabilities during job interviews. It is illegal for rehabilitation counselors to do this. We encourage you to report any such illegal conduct to state licensing boards. Workers cannot of course sabotage job interviews, but it is our position that workers should be free to candidly (and non-sarcastically) discuss their abilities and limitations with prospective employers. Some lawyers think that the Michigan Supreme Court may eventually say that workers who talk openly about their disabilities are sabotaging job interviews, but we have a hard time believing that even conservative pro-business Supreme Court Justices would ever punish workers for being honest and truthful by cutting off their benefits.
Because the vocational rehab rules right now are being routinely violated by worker’s compensation insurers, you really need to contact us so we can give you individualized advice as to how to deal with vocational rehabilitation counselors who may be harassing you or breaking the law. Under the 2011 Amendment to the Act passed by the Republican Legislature and Republican Governor Snyder, partially disabled workers injured after December 19, 2011 must usually look for work they can do, otherwise their weekly benefits can be reduced by their “wage earning capacity.” Such workers should still be able to pursue vocational rehabilitation.