Arbitrator Sends Strong Message on Questionable Voc-Rehab Concept
Thursday, May 8, 2014 | 0
In a ruling we consider important for our readers to be aware of, if you are going to offer an injured worker alternative vocational-rehabilitation services, such services better be conducted by a certified vocational counselor and provide legitimate outside placement. If not, a seven-figure permanent total disability award may be staring you in the face. Recently, an Illinois arbitrator was asked to address the validity of a relatively new job placement service involving placement for at-home phone survey/questionnaire work. We found this detailed analysis of such services worthy of comment and share our thoughts below.
In the recent case of Dan Perkins v. Turner Industries Group 09 WC 44791, the arbitrator assigned considered whether the provision of job placement for home-based phone survey/data collection work was a valid employment position for petitioner. After hearing testimony from two vocational counselors as well as testimony from the alternative placement company who located the phone/telecom position, the Arbitrator found the job was “not found in a competitive job market” and was not “real employment.” An award for permanent total disability followed. While we expect further appeals of this decision, we have to say that the evidence for petitioner, and relative lack of effective rebuttal evidence for respondent, may make any further appeal an uphill battle. Our defense team is strongly questioning the value of this new and unusual voc-rehab approach for all system participants—our firm isn’t going to use it.
The facts of the case are relatively undisputed. Petitioner was a 49-year-old union carpenter who injured his shoulder, requiring surgery. Undisputed permanent restrictions were in place after a valid functional capacity exam, finding a medium-level work restriction for lifting up to 53 lbs. Since rough carpentry requires heavy physical demands, vocational placement ensued. Vocational services for job placement were performed from April 2011 to January 2013–almost two years. It was reported over 1,000 jobs were applied for. At that point, the insurance adjuster switched gears (no doubt due to the lack of success) and brought in a company called Catalyst, who offered placement at an operation called AllFacilities for petitioner to perform home-based phone call work, mostly data collection and verification services. Petitioner was trained to do this work but after a relatively short time, petitioner was deemed non-cooperative and was terminated. He was found by AllFacilities to have not made all his calls properly and had not achieved the proper amount of success with data gathering with his call contacts.
At first glance, veteran defense observers may question why this job was not considered valid. After all, we have all been bothered by telecom/phone survey calls during dinner or while watching the Hawk’s game, so certainly, such jobs do exist, right?
Well, yes and no. As usual, the devil is in the details. In this case, counsel for petitioner dug a bit deeper and found some interesting facts about how job placement actually worked in this case. Testimony was solicited from representatives of both Catalyst and AllFacilities. It was learned that job placement at AllFacilities was subsidized by the insurance carrier for up to 20 weeks of employment. An initial fee of $4,740 was charged to the carrier as well. Part of the marketing pitch by Catalyst asserts that they will reduce the value of a workers’ comp claim through their placement. 90% of Catalyst placement is for phone survey work and statistically, only one half of one percent of workers continue their work after the insurance subsidized period. This was a particular point of concern for the Arbitrator. In our view, the whole Catalyst/AllFacilities issue created an unnecessary side-show. The employer would have been better suited to use a more traditional voc-rehab approach.
It is important to note also the only two certified vocational counselors in the case both testified no stable job market existed for Petitioner. They also testified the services of Catalyst were not certified job placement services and the work at AllFacilities was not valid employment. Other than Catalyst, respondent had no other certified vocational counselor to offer rebuttal that petitioner was otherwise employable in a stable market. Therefore, once the arbitrator found the placement at AllFacilities to be an invalid job placement, Respondent was left with no argument to rebut the conclusions for permanent total disability rendered by the certified vocational counselors. An award for permanent-total disability to the tune of $1,243.00 per week or $64,636.00/year followed accordingly. Just imagine, a healthy 53-year-old man may very well live 30 more years. That’s a payout of almost $2 million!
As staunch defense advocates, we find it very difficult to believe a now 53-year-old man with a 50 lb. lifting ability cannot find work in the greater Chicagoland area. If he isn’t finding work, it is because he is being coached on how to avoid work. There are hundreds of suitable positions out there. We remain suspicious of the conclusion from the certified counselors in this case accordingly. Despite a lack of transferable skills, there is work at hardware stores, retail, coffee shops, gas stations, car lots, etc. and we find there to be something wrong with a system that can find such an individual truly unemployable. We find such designation should be reserved for those truly disabled where no conceivable job could be secured due to a serious and catastrophic injury.
That said, we all have to be mindful of the threat of such a finding where an unsuccessful job search continues for up to two years. We recommend employing your own certified vocational counselor to audit the work and opinions of those selected by the petitioner’s bar as well and challenge any assertion of total disability. If you need recommendations on better voc-rehab counselors, please send a reply.
John Campbell is a partner with Keefe, Campbell, Biery & Associates, a Chicago workers' compensation defense law firm. This column was reprinted with permission from the firm's client newsletter.
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