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.
7 thoughts on “Ability To Work Assessment”
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If I can’t go back to my previous job and work regular duty, and my employer does not offer light duty then I will lose my current job. If I am deemed employable and my time loss benefits stop, can I apply for unemployment benefits until I find a job? I’m concerned about being out of work in this economy looking for a job. My employer will not let me come back unless I improve 100% and can perform my previous job.
Thanks for your help.
In a nutshell – yes. If your time loss benefits stop, you may apply for unemployment. You should contact Employment Security (ESD) and open a claim to preserve your highest entitlement to benefits. Take a copy of your most recent TL Order in with you and tell ESD to NOT pay benefits yet, because you are receiving TL. You should also write on your Worker Verification Form for L&I that you have opened an account with ESD, but no benefits are being paid since you are unable to work. If your TL benefits are terminated, you can then notify ESD and collect your unemployment. Remember, you can not collect both TL and unemployment at the same time.
I live in another state where the employment outlook is completely different from where I was injured. Does the VRC take into consideration where I’m living for employability or where I lived when injured?
You do not say what State you were in when you were injured. I’ve pasted below the general rule and exceptions for Washington. If your claim originates in another State the rule may be different.
(4) What is an injured worker’s labor market? Generally, the worker’s relevant labor market is the geographic area where the worker was last gainfully employed. The labor market must be within a reasonable commuting distance and be consistent with the industrially injured or ill worker’s physical and mental capacities. The exceptions to this rule are listed in the table below:
When a worker:
• Relocates to a labor market other than at the time of injury and
• Returns to work and
• Suffers an aggravation of the work-related condition.
Then the department:
Uses the labor market where the industrially injured or ill worker worked at the time of the aggravation. This applies whether the department closed and reopened the claim or whether the claim remained open during the period of aggravation.
When a worker:
• Relocates after the industrial injury/illness or aggravation and
• Now lives in a labor market with more employment opportunities than where the industrially injured or ill worker worked at the time of injury.
Then the department:
Uses the industrially injured or ill worker’s current labor market. For example, an industrially injured or ill worker was injured in Forks but after the injury, moves to Tacoma. Provider would use Tacoma as the industrially injured or ill worker’s labor market.
When a worker:
• Relocates to a labor market other than at the time of injury or onset of illness and
• The move was proximately caused by the medical condition arising from the occupational injury or disease.
Then the department:
Uses the injured or ill worker’s current labor market. For example, an industrially injured or ill worker moves to a drier climate due to an accepted asthma condition. Provider would use the labor market in the drier climate.
I am agree with the concern raised by Terri.Most of the employees can’t get the proper benefits. 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.
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