Should You Settle Vocational Rehabilitation?

Saturday, April 12, 2003 | 0

Injured workers received a bonus in recently passed California legislation with the amendment of Labor Code section 4646 and CCR section 10131.2 that provide that prospective VR benefits and services for a represented injured employee with a date of injury on/after 1/1/03 can be settled for any amount up to $10,000. Previously vocational rehabilitation services were not technically 'settleable', but there were techniques that professionals used which in essence accomplished the same thing without the $10,000 cap (though the overall limitation on vocational rehabilitation expenses found in Labor Code section 139.5 may apply).

Much of the discussion in the articles on this site since the new laws has centered on professional obligations - attorneys and carriers and the issues created by the new settlement law. But the question remains for the injured worker: "Should I give up my rights to vocational rehabilitation?" As we will see, the answer to the question is highly personal in nature. Let's explore some of the issues that you, as an injured worker, must contemplate before agreeing to settle your VR rights. Remember, as with any specific legal issue, though, you should first consult an attorney or other competent professional regarding the unique facts of your case before relying on any information or advise from a general source such as this article.

First, understand what vocational rehabilitation services are available to you. VR can be different things for different people. It is a flexible benefit that is by nature unique to each person for whom it is available. You need to take a self-assessment (most VR services start off with just such an inventory) to determine if you will actually benefit from VR services.

Do you have a set of transferable skills that can be used in a different job than the one you were doing at the time of injury (e.g. computing skills, math or literary skills, etc.) or is an alternative or modified job available (or likely to be available) from the employer. The guidance followed in vocational rehabilitation is to first try and place the injured worker into a position with the employer, or into a new job that uses transferable skills. The logic is that not only is that more efficient for VR purposes , but the injured worker will also be happier and adapt more easily than having to learn all new skills.

This issue is significant, because essentially VR then becomes job placement assistance - if you do not need retraining, and only need help finding a job, is that worth $10,000? Most placement services through a head-hunter or similar service are employer paid on a contingency basis. Perhaps it would be just as easy for you to get a job using the services of a temporary agency, or other placement professional that won't cost you money.

While engaged in VR, you are entitled to "VRMA", vocational rehabilitation maintenance allowance, at the maximum rate of $246 per week, though it can be supplemented with advances from your permanent disability indemnity award, if you are entitled to any. This money is supposed to be assistance while you look for a job, though from a practical standpoint, such a sum will barely pay a week's expenses for a single person exclusive of housing.

In addition, you will not get the entire $16,000 that is the maximum expenditure on VR through legislative mandate (Labor Code section 139.5). That maximum amount is used up by the VR counselor's fees, your VRMA, school fees, mileage you may write up against VR, attorney fees, and an assortment of other expenses that may not directly benefit you.

So should you settle if you have the opportunity?

Are you likely to use VR services? Approximately one third of all eligible injured workers never use the benefit - the employee has decided to retire, doesn't perceive him/herself as ready to start rehab and fails to request services before the statute runs, etc. If you never intend on utilizing the benefit, then what is the value of settlement? From a pure negotiating standpoint, you should always be willing to avail yourself of VR services, and be prepared to commit to such services if pressed. If you are not willing to do so, then the potential $10,000 available won't be on the table from the carrier because they will perceive the potential for settlement as an easy issue and offer less.

Are you even eligible for VR? VR is only available to a Qualified Injured Worker (QIW) - one that has met the definitional requirements of Labor Code section 4635. For the most part this is a determination made by your treating physician based on your physical status and the physical or mental requirements of your job. There may be situations where such a determination has not yet been made and the carrier/employer is not anxious to find out. CCR section 10131.2 allows settlement of potential liability even where medical eligibility has yet to be determined. There may be value related to avoiding the issue, and the question then becomes what is that worth?

What if you have already begun vocational rehabilitation? Theoretically you could still settle VR for the full amount available under the law, but are you getting value out of the service? Are you learning a new set of skills? Are your prospects for returning to the job market greater with the services you are receiving?

In the final analysis, settlement of VR is a very personal decision that rests upon a solid introspection of your skills, motivation, and the value of services you are receiving, or may receive, relative to returning to work. Vocational rehabilitation services are not for everybody, but neither is settlement of that benefit either. What may help you make an appropriate decision is to take inventory. Make a list of what you would expect to receive from vocational rehabilitation. Evaluate that list - can you get a job on $10,000 (or whatever amount may be offered by the defense in settlement of VR)? If you have analyzed things properly, you should be able to answer that question.