Ability To Work Assessment

A referral for an Ability to Work Assessment is used to determine if an injured worker should receive vocational rehabilitation plan development services. Ideally, the referral for assessment services is not made until your permanent restrictions or limitations have been defined either by your attending medical provider, a physical capacity evaluation, or possibly a defense medical exam.

This assessment is the gateway to retraining services, and the door is just barely ajar. Because of what is commonly called the “employability standard”, very few injured workers are provided the full benefit of vocational plan development and retraining services. If a worker is able to obtain and perform reasonable continuous gainful employment, paying at least minimum wage, they are “employable” and not eligible for further vocational services or retraining. This is a very low threshold for employability. An injured worker will only be found eligible for further vocational services if, in the sole discretion of the Director, vocational rehabilitation is both necessary and likely to enable the injured worker to become employable at gainful employment.

The VRC will perform the assessment by gathering and evaluating a variety of information. This should include your work restrictions, pre-existing conditions and limitations, ability to work at the job of injury, assessment of transferable work skills, and ability to work at other jobs. The VRC may have vocational testing done to assist in this assessment.

The VRC will develop job analyses (JA), descriptions of your job at the time of injury, past employment, and employment you may have the ability to perform given transferable work skills and physical restrictions and limitations resulting from the industrial injury. These JA’s will be sent to medical providers, who will be asked whether you can perform the work as described, or with reasonable modifications. Any medical provider can be asked to review these JA’s, the attending physician, the therapist who performs a physical capacity evaluation or a defense medical examiner. When Job Analyses are received, you should carefully reviewed them, and discuss them with your attending medical provider prior to approval or disapproval, if at all possible.

If one or more JA’s are approved, the VRC will conduct a Labor Market Survey (LMS) to document the availability of the positions described in the general labor market. If there is a positive labor market, the VRC will conclude you are “employable” and a closing report will be forwarded to the Department. The Claims Manager will review the vocational report and if they agree, correspondence will be forwarded indicating further vocational services will not be provided, as you are employable. This correspondence comes with a short 15 day dispute window. If no JA’s are approved, you may be found eligible for plan development services. This discretionary vocational determination may also be disputed by either the worker or the employer.

It is possible for the VRC to conclude a worker is not currently employable based on transferable skills, and is not likely to benefit from further services, including plan development. VRCs are encouraged to thoroughly evaluate pre-existing conditions and limitations, aptitudes and learning abilities, and even conduct some initial investigation into possible training plans where it is possible a worker will be found eligible for vocational rehabilitation. You should expect and cooperate with any testing or evaluations requested by the VRC during this stage.

You have a right to be provided copies of any and all vocational reports, upon request. Generally, VRCs will report only to the Department or the self-insured employer unless a specific request for copies of all reports is made. You should also request copies of all Job Analyses as they are forwarded to medical providers, as well as the responses received. It may take continued follow up with the VRC to insure you are provided copies of all the documents.

It is important to remember what the VRC is NOT going to do during this assessment phase. The VRC is not gong to find you a job, help with job search, help with resume writing or interview techniques. It is not the VRC’s job at this stage to assist in actually returning to work. It is the VRC’s job to assess not to assist at this stage.

This does not mean there is nothing you can do. I advise those clients who are likely to be assessed as “employable” to be proactive. Time loss benefits are going to stop when the vocational assessment is done, if you are found employable. So take advantage of this assessment period. Be in charge of your own life and make decisions about what is next for you. While there may be steps an attorney can take following the assessment to challenge the results or seek additional benefits on your behalf, you need to be prepared. Look for work, if that’s your path, apply for Social Security Disability if it’s not. Too many workers are “surprised” when they are found “employable” and time loss benefits stop. The best advise is to be aware of what is coming, and prepare for it.

What if my employer is a Native American Tribe?

The number of workers in Washington State who work for a Tribe, or in a Tribal owned business, is growing every day. Just think of all the casinos and associated businesses you see opening in your area. If you are employed by a Tribe, and are injured at work, do you have a L&I claim?

There is not an easy answer to that question. But I do have an easy first step if you are injured – file a Washington State Labor and Industries claim AND file a claim with the particular Tribe as required by your employer.

Tribes are Sovereign Nations. As such, they are not bound by our State workers compensation law. By way of example, if you were injured working for an Australian employer in Australia, you would be entitled to whatever rights or benefits Australian Law outlined. The same is true if you work for a Native American Tribe on Tribal owned land. You are entitled to whatever rights and benefits are outlined by the Tribe. While some of those benefits may track what is provided by the State, the exact nature of the rights and the processes for filing a claim will be dictated by each individual tribe.

So, why file a State L&I claim? L&I will allow claims where the employer is a Tribe, but the business is not on Tribal Land, or where the business is on Tribal land, but is not owned by a Tribe. As an employee, you may have no way ascertaining who exactly owns a business, and whether the property is Tribal land or not. The Department will investigate and allow or reject the claim as appropriate.

There is another good reason to file a claim, even if you are fairly certain it will be rejected because the business is owned by a Tribe, and is clearly on Tribal land. The State has no way of gathering information about how many injuries are occurring in these situations. Tribes are not required to report on the job injuries to the State. As a result, the State has no way of tracking these injuries or documenting whether such injuries are increasing. If an L&I claim is filed, and rejected, the Department has been able to gather the information. With information on the number and types of injuries occurring in Tribal businesses, the State will be in a better position to understand how this growing sector of our economy is effecting workers injured on the job in our State.