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.

We are about a year and a half into the 5 year pilot Vocational Improvement Project (VIP) at the Department of Labor & Industries. The Vocational Subcommittee (which I am on) continues to meet regularly. This first year has been busy with issues surrounding how to implement the changes to the vocational system, and the Department has done a good job with an overwhelming number of changes, both anticipated and not anticipated.

 The VIP has a feature which was not present in our former vocational system, for shorthand we call it “Option 2”.  Because it is new, workers have a lot of questions. Let me explain what it is, and then try to walk through some of the considerations.

 If a worker is found eligible for vocational retraining (that is, further vocational assistance is both necessary and likely to assist the worker in returning to reasonable continuous gainful employment) he or she works with a vocational rehabilitation counselor (VRC) to develop a comprehensive retraining program. This program can cost up to $12,240.00 (as of 7/1/08) and take up to two years. The vocational plan is submitted to the Department for approval. Once approved the worker has 15 days to choose one of two ‘options’.  You will receive information about these options as you progress in the plan development process, so the 15 day window should not be a surprise. You can not elect an option until your retraining program has been developed an approved. In theory, this insures you have had an opportunity to fully explore the retraining possibilities open to you, and have an exact plan developed so you are aware of exactly what the consequences of the ‘option’ choice will be.

 Option 1 – the worker participates in the plan as outlined and approved. This is the easy one, you know exactly what you are committing to.

 Option 2 – the worker declines participation in the retraining program. Time loss benefits stop. The worker is entitled to the equivalent of an additional 6 months of benefits, at the same time loss rate. The claim is closed with the appropriate permanent partial disability award.  Any time within the next 5 years the worker may use the reserved vocational retraining costs (the $12,000 plus) to pay for training or classes at any accredited or approved school or program.

 Most of the questions I field about Option 2 are whether to take it or not. I will leave for another day the questions surrounding how, and for what, the reserved vocational funds are used.  I will admit to being surprised at the number of workers who have chosen Option 2, it’s running pretty steady at around 25%. When the Subcommittee discussed including a way to ‘opt out’ of vocational retraining in this new pilot, I had in mind those workers who were at or near retirement age, were already receiving Social Security either disability or retirement, had a work history in a single occupation and who were clearly not returning to the workforce.  This was my picture of who would choose Option 2. 

 Well, I was quite wrong. The stories behind who and why workers are choosing to opt-out of the vocational process have been interesting and varied.  One very young worker wanted to retrain in a occupation which just very slightly exceeded her physical limitations. Although she believed she could do the job, the Department would not approve the retraining plan. The alternative plan, which was approved, was not exactly what she wanted to do.  She choose Option 2, got a student loan to replace the lost stream of time loss, and immediately accessed the reserved training funds to enroll in her chosen program.  Who would have thought? Several workers have chosen option 2 because their time loss rate is not enough to pay the bills. They believed their families would be better off if they found a job immediately, rather than scraping by for two years in a retraining program. Several workers talk of taking their Option 2 payout and their PPD award and starting their own business. In the end, it will be interesting to see the results of the study which will track outcomes for workers in this new VIP, including those who have chosen Option 2.

 The lesson I have learned is there is no one answer or test which will help a worker decide whether to choose Option 2 or participate in their retraining program. Every situation is different, in ways I had not anticipated.  However, there are some basic considerations which will be common to all workers. First, I ask my clients if they have a way to pay the bills when the 6 months of Option 2 payments and the PPD award are paid out. If not, then participating in retraining will keep the flow of time loss coming for the duration of the program, will provide return to work skills, and will buy some time to decide ‘what’s next’.  To those clients who say they will just go look for work, we have a frank conversation about the state of the economy and the unemployment rate in the state of Washington. If you do not have a job absolutely positively lined up, taking a pass on retraining might not be the best choice.

 You should consider your age, and whether you want to, and are able to, retire.  If you honestly have no desire or need to work, and are financially secure, then participating in a retraining program might not suit you.  On the other hand, if a you are relatively young, with years of work life remaining, this may be a golden opportunity to receive additional occupational training or education opening an entirely new chapter in your career. Choosing Option 2 and passing up this opportunity might be a mistake.

 One of the hurdles for workers at this stage of their claims is actually picturing themselves back in the work force, in any capacity. This is not a swift moving system. By the time a worker is found eligible for vocational assistance in the form of retraining they are years into their claim. Their lives have been a revolving door of physicians, surgery, therapy, testing, medical evaluations and endless appointments. Being disconnected from the workforce for such an extended period of time makes imagining a return very overwhelming. For those workers struggling with this reality, I urge you to pass up Option 2 and give your retraining program your best effort.  Just like education and training after High School can bridge the divide into the real world, this opportunity for retraining during your adulthood can bridge the gap between injury and returning to enjoyable employment.  Maybe you will get to the conclusion of your program and decide to retire. But maybe, and I believe more likely, you will get to the end of your program enthused, re-energized and optimistic about your future, with a new skill set as an added bonus.