Vocational rehabilitation is a workers’ compensation benefit that offers an injured worker education and/or training so that he or she can move to a new type of work after a work injury. A Nevada injured worker can receive vocational rehabilitation when:
- he or she is physically able to return to work
- a doctor has given the injured worker work restrictions
- the employer does not have work within the restrictions; and
- the injured worker has not found other work within the restrictions
The insurance company and injured worker should agree on a vocational rehabilitation counselor to come up with a training plan.
An insurance company can request that the counselor prepare a report if an injured worker has missed 90 days from work.
A vocational rehabilitation counselor will assess an employee’s:
- educational background
- work experience
- career interests
The counselor will determine if an injured worker has any existing marketable skills and only needs job placement assistance, or if he or she needs or wants training in a completely new field.
Depending on the injured worker’s situation a vocational rehabilitation plan can last from six to eighteen months. It can also be extended for up to two and a half years.
If a program fails, an injured worker can have up to two additional vocational rehabilitation programs.
An injured worker can receive cash payments, which are referred to as a vocational rehabilitation maintenance allowance, while completing a plan. This helps to pay for living expenses.
An injured worker can also settle a vocational rehabilitation plan for a lump sum cash payment.
In this article, our Las Vegas Nevada workers’ comp attorneys will explain:
- 1. When is vocational rehabilitation provided?
- 2. The insurance company’s duty to an injured worker
- 3. Selection of a vocational rehabilitation counselor
- 4. Vocational rehabilitation services
- 5. Vocational rehabilitation services
- 6. Vocational rehabilitation maintenance allowance
- 7. Settlement of vocational rehabilitation claim
- 8. A vocational rehabilitation plan is an important decision for an injured worker
Vocational rehabilitation is a workers’ compensation benefit that offers an injured worker education and/or training so that he or she can move to a new type of work after a work injury.
1. When is vocational rehabilitation provided?
An employee is eligible for vocational rehabilitation when:
- he or she can return to work, but a doctor has given him or her restrictions that prevent returning to prior employment.1
- the employer has not offered alternate or modified work that pays at least 80% of the injured worker’s prior wage
- the injured worker has not found other work that pays at least 80% of his or her prior wage
Example: Erin injures her hip at work. She can go back to work, but her doctor has restricted her from walking. Her job requires walking, and her employer doesn’t have other work to offer her. She hasn’t found work with another employer either.
Erin is eligible for vocational rehabilitation.
Vocational rehabilitation benefits apply to police officers workers comp claims and firefighter workers comp claims. But to undocumented workers may not be eligible.
2. The insurance company’s duty to an injured worker
A Nevada insurance company should make every effort to ensure that an injured employee is able to return to the same position he or she had before the injury.2
If that is not possible, the insurance company should find the worker a job within his or her restrictions or a job that uses the employee’s existing skills.3
Absent that an insurance company should provide training and education, referred to as vocational rehabilitation, to help the injured worker find a new type of work.4
3. Selection of a vocational rehabilitation counselor
The insurance company and injured worker should agree on the selection of a vocational rehabilitation counselor.5
If the parties cannot reach an agreement:
- the insurance company will provide a list of three counselors
- the injured worker has seven days to select a counselor from the list
- the counselor shall provide all vocational rehabilitation services unless both sides agree to change counselors6
Example: Davis does not like the counselor the insurance company wants to use, so the insurance company gives Davis a list of three counselors to choose from.
Davis looks up the counselors online and selects one. The insurance company must agree to use that counselor.
3.1. Counselor requirements
The primary duty of the vocational rehabilitation counselor is to the injured worker, not the insurance company.7
If the vocational rehabilitation counselor works for the insurance company, it must disclose this to the injured worker. The injured worker can instead switch to a counselor who is not affiliated with the insurance company.8
A vocational rehabilitation counselor cannot provide legal advice or make an offer to pay a lump sum to the employee without notifying the injured worker that he or she has a right to an attorney.9
Each vocational rehabilitation counselor should have knowledge of the labor market in the geographic area where the injured worker lives.10
If an employee does not return to work for 28 consecutive days, the insurance company must ask the treating doctor if the injured worker has any physical work restrictions.
4. Vocational rehabilitation services
4.1. Timing
If an employee does not return to work for 28 consecutive days, the insurance company must ask the treating doctor if the injured worker has any physical work restrictions and if so, whether they are temporary or permanent.11
Example: Angela has missed thirty days of work due to an injury. The insurance company asks her doctor if Angela has any work restrictions.
The doctor says Angela does have work restrictions, but they are temporary. It is unlikely she will have permanent work restrictions or need vocational rehabilitation.
If an employee is temporarily totally disabled for more than 90 days, the insurance company can request a vocational rehabilitation counselor provide a written assessment as to whether the employee can:
- return to his or her prior position, or
- be trained so that he or she can switch to any other gainful employment12
4.2. Vocational assessment
In preparing the assessment, the counselor shall contact the injured worker and:
- identify the injured worker’s:
- educational background
- work experience
- career interests
- determine whether the injured employee has any “existing marketable skills”13
Example: Wendy worked in hotel management before her injury. She cannot return to this work but her experience and interest in business and human resource management help her find new work.
4.3. Employee skills
“Existing marketable skills” include completion of a:
- program at a trade school;
- program which results in an associate degree; or
- course of study for certification14
It can also be:
- completion of a 2-year or 4-year program at a college or university which results in a degree
- completion of any portion of a program for a graduate degree at a college or university
- skills acquired in previous employment, including those acquired during an apprenticeship or a program for on-the-job training15
An injured worker’s training or education must have been acquired within the preceding 7 years and be compatible with the physical limitations of the injured employee to be considered existing marketable skills.
4.4. Determination of employee limitations
The counselor shall also contact the injured employee’s treating physician or chiropractor and determine:
-
- whether the employee has any temporary or permanent physical limitations
- the estimated duration of the limitations
- whether there is a plan for continued medical treatment; and
- when the employee may return to the position that the employee held at the time of his or her injury or to any other position16
The counselor shall prepare a report within 30 days as to whether the employee is entitled to vocational rehabilitation. If so, a vocational rehabilitation plan must be completed.17
If a report is not practical at 90 days, the insurance company should note this and review the claim every 60 days.18
Example: Joey has been on temporary total disability for 90 days. He is going to have back surgery. He is not ready for vocational rehabilitation. His final condition is unclear.
The insurance company notes this, and Joey’s status is re-evaluated every sixty days.
The counselor develops a plan that fits with the employee’s age, gender, and physical condition.
4.5. Vocational rehabilitation plan
The counselor develops a plan that fits with the employee’s age, gender, and physical condition.19 The plan can include on-the-job training.20 The plan cannot be completed out of state.21
Employee skill level
If the employee does have marketable skills, the goal is to help him or her find a job that pays at least 80% of the employee’s prior wage.22 The counselor should provide job placement assistance for six months.
Example: Edgar was a machinist before his injury. He can no longer do that type of work but knows how to design and program machinery.
The counselor helps Edgar with six months of placement assistance to find less physical work in the same field.
If the injured employee does not have marketable skills and needs to acquire them, the job plan must provide training or education to gain those marketable skills and offer placement assistance. The length of the plan depends on the employee’s percentage permanent disability.
- less than 6% = 9 months
- between 6% – 11% = 1 year
- more than 11% = 18 months23
Example: Terry was a delivery driver. He can no longer do heavy lifting. Terry’s injury is rated as 9% permanent disability.
The counselor comes up with a one-year plan for Terry to learn basic accounting skills to find new work.
A doctor must certify that the injured employee can safely participate in the program.24
4.6. Program extension
The vocational rehabilitation program can be extended by either the insurance company or the employee. However, he or she must submit a request within 30 days of the end of the program that there are exceptional circumstances and that the vocational rehabilitation plan has not been successful.25
The length of the extension depends on the amount of permanent disability. For permanent disability of:
- less than 11% = extension of up to 2 years
- more than 11% = extension of up to 2.5 years26
Example: Bobby is going through vocational rehabilitation after a back injury. During the program, he develops cancer and goes through nine months of treatment.
Bobby requests and receives a nine-month extension of his vocational rehabilitation due to his cancer treatment.
4.7. Additional programs
If a vocational program is unsuccessful, an injured worker can request a second and then third vocational rehabilitation program.27
Example: Yolanda went through a vocational rehabilitation program to be a truck driver. But she found she could not drive all day due to her prior injury.
She is going to go through a new vocational rehabilitation program to learn computer skills.
5. Vocational rehabilitation services
5.1. Prohibited services
Vocational rehabilitation services should not include:
- the purchase of a motor vehicle
- repairs to an injured employee’s motor vehicle
- tools and equipment normally provided to the injured employee by his or her employer during his or her employment
- care for the injured employee’s children28
6. Vocational rehabilitation maintenance allowance
An injured worker can be paid money while he or she is engaged in a vocational rehabilitation program.29 This is to help with living expenses while training for a new career.
This is different than temporary disability benefits, which are offered to make up for lost time from work, and permanent disability, which is for permanent effects of the injury.
7. Settlement of vocational rehabilitation claim
An employee can settle his or her vocational rehabilitation and receive a lump sum payment instead of moving forward with a plan.30
8. A vocational rehabilitation plan is an important decision for an injured worker
A vocational rehabilitation plan must not only end in finding work within a worker’s restrictions, but also should be work that interests the injured worker.
The reason for the plan is to train a worker for a new career. Every injured worker should make sure the work he or she is training for is something he or she wants to do.
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If you or someone you care about is a police officer injured in the line of work, our legal team can help to file a Nevada workers’ compensation claim.
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Legal References:
- Nev. Rev. Stat. § 616C.590
- Nev. Rev. Stat. § 616C.530(1)
- Nev. Rev. Stat. § 616C.530(2) & (3)
- Nev. Rev. Stat. § 616C.530(4) & (5)
- Nev. Rev. Stat. § 616C.541(1)
- Nev. Rev. Stat. § 616C.541(2)-(5)
- Nev. Rev. Stat. § 616C.547
- Nev. Rev. Stat. § 616C.542
- Nev. Rev. Stat. § 616C.543
- Nev. Rev. Stat. § 616C.540
- Nev. Rev. Stat. § 616C.545
- Nev. Rev. Stat. § 616C.550(1)
- Nev. Rev. Stat. § 616C.550(2)(a)
- Nev. Rev. Stat. § 616C.550(7)(a)
- Nev. Rev. Stat. § 616C.550(7)(b)
- Nev. Rev. Stat. § 616C.550(2)(b)
- Nev. Rev. Stat. § 616C.550(3)
- Nev. Rev. Stat. § 616C.550(5)
- Nev. Rev. Stat. § 616C.555(1)
- Nev. Rev. Stat. § 616C.570
- Nev. Rev. Stat. § 616C.580(1)
- Nev. Rev. Stat. § 616C.555(2)
- Nev. Rev. Stat. § 616C.555(3)
- Nev. Rev. Stat. § 616C.555(6)
- Nev. Rev. Stat. § 616C.560(1)
- Nev. Rev. Stat. § 616C.560(2)-(3)
- Nev. Rev. Stat. § 616C.555(9)-(10)
- Nev. Rev. Stat. § 616C.585
- Nev. Rev. Stat. § 616C.575
- Nev. Rev. Stat. § 616C.595 & § 616C.597