What Happens if I Can’t Go Back to My Old Job?
Workers Compensation - August 12, 2016
Vocational rehabilitation and training
By Mark Weissburg
Many clients come to me with the question, “what happens if my injury prevents me from going back to my old job? How will I support my family? Am I going to lose everything?” Fortunately, we live in a state where the rights of workers are respected. Illinois has a great Workers’ Compensation Act that protects injured workers.
And what are those rights? Under section 8(a) of the Workers’ Compensation Act, it states in part:
The employer shall also pay for treatment, instruction and training necessary for the physical, mental and vocational rehabilitation of the employee, including all maintenance costs and expenses incidental thereto.
So wait a second, does this mean they have to pay for you to go to college if you can’t return to your job? Under the right set of circumstances, yes. If the accident caused a permanent restriction that prevents returning to your old job or any other job that pays the same wage, and there is a specific course that you could take, or a degree you could get that would substantially improve your ability to earn a better wage, the Workers’ Compensation carrier might have to pay for your course or degree. Believe me, they will not be jumping for joy, and you will have to carefully lay out your case to get this benefit. In most instances you’ll need a lawyer, who will in turn set you up with a vocational expert to support the need for education.
There is, however, a less expensive type of vocational rehabilitation that the Workers’ Compensation carrier is more likely to want to provide. If you can’t return to your old job or one with similar pay, you might be scheduled to meet with a vocational rehabilitation counselor who will help you with a job search. The purpose here is to find you as high paying a job as possible so that when it comes time to settle your case the wage differential is as low as possible. In other words, they don’t want to have to pay much for the loss in wages that results from your injury, so they have an incentive to find you a good paying job. In theory then, this is a relatively inexpensive way for the Workers’ Compensation carrier to reduce the settlement value of your claim. That’s why they like it. But be careful. Some vocational rehabilitation counselors will be looking for reasons to criticize your job search efforts, which then gives the Workers’ Compensation carrier an excuse to cut off your benefits. Imagine the following hypothetical scenario:
Josie, an injured worker, has reached Maximum Medical Improvement (MMI) and has permanent restrictions. She cannot walk more than a half hour at a time and cannot stand more than an hour at a time. She also can’t squat or kneel. She cannot return to her old job, where she was earning $900 per week, and worries that she’ll only be able to find a job paying minimum wage with her restrictions, if even that. The Workers’ Compensation adjuster cheerfully informs her that they’ve set up a meeting with Vick Voke, a vocational rehabilitation counselor, who will help her find a new job. At the first meeting Vick asks lots of questions and takes lots of notes. Over the next few weeks though, he seems to be sending Josie out to apply for jobs that have nothing to do with her past experience or her interests. In addition, some of the jobs have strange hours, or are in bad neighborhoods. Josie expresses her concerns to Vick, who writes in his report to the Workers’ Compensation adjuster, “Josie does not seem motivated to find a new job. She has turned down several offers of employment, and has been negative at several interviews, bringing up her disability and her unwillingness to work certain hours.” The adjuster terminates vocational rehabilitation, cuts off Josie’s benefits—which at this point are called “maintenance” and are paid at the Temporary Total Disability rate—and then gets on her broom and flies home.
Ok, that part about the broom was a little unfair. Sorry adjusters, you know I love you. Please don’t send your army of flying monkeys out to get me.
Anyway, this “voc” business can be a great opportunity to find a new job, but it’s also a minefield for the uninitiated. Vick Voke is taking notes, and you should be too. Make sure if you don’t follow up on a job lead you write down the reason why, and make sure it’s a good reason. “I didn’t like the shape of the building” is a bad reason. “I couldn’t quite make it through the hail of bullets to the front door of the building” is a good one.
If your maintenance benefits are cut off, you need to get an attorney. Vocational issues are complex, but can often be resolved with a pre-trial rather than a full trial. In either case, this entails appearing before the arbitrator, and making a legal argument based on the facts of your case. You want someone very familiar with all the nuances of Workers’ Compensation law making your argument for you.
This article is an excerpt from Chicago workers’ compensation attorney, Mark Weissburg’s “How to Win a Workers’ Compensation Claim in Illinois”, which is available online at Amazon.com. You can also pick up a free copy by making an appointment to see a qualified personal injury attorney at Horwitz, Horwitz & Associates. Call 800-985-1819 for a free consultation and book today.