Tag Archives: Vocational Rehabilitation

The hidden variable of employer perception of disability in workers’ compensation

Posted on July 25, 2022 by Jon Rehm

If you believe your typical insurance adjuster, the only way an employee can get paid money benefits is if a doctor has assigned permanent impairment and/or restrictions for a work injury.

At least in Nebraska, a competent workers’ compensation lawyer would tell you that a judge can take a workers’ testimony about their injury and ability to work when deciding to pay money benefits for either temporary or permanent disability.

But what often goes unmentioned in this discussion, is how employer’s perception of their injured workers’ ability to work factors into decisions to pay money benefits to injured workers.

So how does what an employer thinks about an employee’s injury factor into how money benefits get paid in Nebraska workers’ compensation cases?

Temporary disability

Employees are paid temporary disability while they are under doctors’ treatment, recovering from an injury and unable to work because of a work injury. Conventional wisdom holds that temporary disability ends when a medical doctor states an employee is at maximum medical improvement or MMI.

But who really decides whether an employee can work or not? The employer. In practice, nurse case managers will coordinate with an insurer/claims administrator and employers to sync the MMI date with when the employer thinks they have a job for an employee.

“Personal conditions” and temporary disability

Often times an employee will be unable to do their job after the mythical MMI date. (MMI is something decided by a judge anyway) Sometimes employers/insurers will argue that an employee is unable to work because of personal condition. In reality an employer may have pushed an employee to return to work too quickly and/or pushed for inaccurate work restrictions.

But regardless of whether an employer believes an employee can’t work because of a work injury or a non-work related injury, they still believe that the injured employee is unable to work for them. Ultimately, it’s up to a workers’ compensation court judge to decide whether the condition preventing an employee from working is related to work or not. However, the decision to pay temporary benefits turns in a substantial part about the court’s view of how the employer views the employee’s ability to work.

Permanent disability

Per Neb. Rev. Stat. 48-121(3), back injuries, head injuries, mental injuries, burns and multiple body part injuries are paid on how the injury effects a persons ability to earn wages. An employer admission that an employee can’t work for them anymore can often be evidence of what is more formally called loss of earning capacity. Even an admission that an employee who is still employed at the same or higher wage is working a lighter job can be evidence of loss of earning power.

Vocational rehabilitation benefits

Employees can receive money benefits if they are participating in a vocational rehabilitation program. Again the decision about whether an employee gets vocational rehabilitation benefits often hinges on whether an employer can or is willing to accommodate the permanent effects of an employees injury. (Employees can also get vocational rehabilitation for so-called single member injuries like shoulders, knees and feet)

Why employer perception of employee work ability sometimes gets overlooked in workers’ compensation cases.

I have had five workers’ compensation trials this year. Employer representatives only testified in two of those hearings. In two of my trials, my client was the only live witness. I think this is typical of how trials usually go. Employee testimony is usually used to help the court understand the basis for the medical reports that are introduced into evidence before testimony and to judge the credibility of the injured workers.

Sometimes employers are almost irrelevant to the issues the court needs to decide. But sometimes, I think defendants keep the employer off the stage in order to focus attention on what they perceive as a flawed plaintiff and to keep the focus off potentially questionable conduct by the employer.

Employers often start their attack on a plaintiff’s credibility with a deposition. Depositions are expensive, but most defendants are insurance companies or self-insureds with deep pockets. Plaintiffs in workers’ compensation claim don’t have deep pockets, so a different cost-benefit analysis applies when deciding whether the depose an employer witness.

But a plaintiff may be able to subpoena that witness to testify at trial for far less cost and should be able to use written discovery like interrogatories, requests for production and requests for admission to conduct an adverse or hostile examination to prove up a clients case for workers’ compensation benefits with admissions from employers.

Appellate courts uphold red-tape cutting function of Nebraska Workers Compensation Court

Posted on April 19, 2021 by Jon Rehm

Workers’ compensation doesn’t just mandate that employers provide medical care, disability benefits and retraining benefits for injured workers. Workers’ compensation laws also mandate how employers provide these benefits.

A few recent decisions by Nebraska courts re-affirm the power the Judges of the workers’ compensation court have in dictating the details of workers compensation benefits – at least when it comes to medical care and vocational rehabilitation benefits.

Medical Care – Rogers v. Jack’s Supper Club

In Rogers v. Jack’s Supper Club, the Nebraska Supreme Court affirmed a trial court’s order that an employee injured in Nebraska who first treated in Nebraska who moved to Florida could treat with a doctor in Florida.

Jack’s Supper Club was originally decided by the Nebraska Supreme Court in late 2019. In that version of the case, the court held that it appeared that the employee had not properly changed doctors for the purposes of Nebraska law, but asked the trial court to clarify its order. I wrote last year that the original Jack’s decision was too harsh in my view because Judges can order doctor changes at their discretion under Neb. Rev. Stat. 48-120(6).

My reading of the second case is that the trial court expressly exercised its ability to change doctors and the Nebraska Supreme Court said it was fine.

Vocational Rehabilitation – Font v. JBS

In Font v. JBS, the Nebraska Court of Appeals affirmed a trial court decision that an employer must pay for a vocational rehabilitation program for a shoulder injury involving permanent impairment but not permanent restrictions. In that case, both the court-appointed vocational rehabilitation specialist and the court’s workers compensation section opposed developing a plan involving an injury without formal restrictions.

The court overruled these requests stating that physical restrictions were just one of many factors in determining eligibility for vocational services and that the purpose of VR is prompt rehabilitation. Again the Nebraska Court of Appeals, agreed with the trial court. Specifically, the court agreed with the trial court’s reading of 48-162.01(7) in awarding vocational rehabilitation benefits.

Cutting through red tape

In both Font and Rogers, the practical effect of the decisions was to help workers cut bureaucratic red tape imposed by employers, service providers and a government agency. While some regulation can be beneficial in a system like workers compensation, a lot of bureaucracy just makes it more difficult and expensive for workers to recover from work injuries.

But the Nebraska Workers Compensation Act gives Judges broad powers to cut through red tape – and at least in Jack’s Supper Club and Font v. JBS appellate courts seem to agree.

Why do so few workers get voc. rehab. in Nebraska?

Posted on September 19, 2019 by Jon Rehm

Injured workers in Nebraska can be eligible for retraining or vocational rehabilitation (VR) benefits. Policy makers and business leaders in Nebraska bemoan a shortage of skilled workers, yet only 85 injured workers in Nebraska had a VR plan approved last year according to the latest report. This is a small percent of overall claims.

What explains this small number? I believe that for an injured worker in Nebraska to get vocational rehabilitation almost everything has to go favorably in their case. Even if their case goes favorably, they may not be a good candidate for vocational rehabilitation. Assuming they can meet the first and second hurdles, there are some procedural roadblocks in place.

Here are at least six reasons why I think relatively few vocational rehabilitation plans get approved by the Nebraska Workers’ Compensation Court.

1) Injured workers would rather just settle case or have good reason to settle — In order to receive VR, an employee needs to show they cannot perform suitable employment which they were qualified for before the injury. This usually means the employee has a serious injury which often involves a surgery and lengthy medical treatment. Many employees just want to be done their case and are willing to forgo vocational rehabilitation. In many cases there are questions about whether an injury is covered by workers’ compensation or whether the injury was caused by work. In those cases an employee may have tens of thousands dollars in medical bills that the employee could be responsible for if the case goes to trial and the worker receives an unfavorable decision.

2) Not every severely injured worker is a good candidate for vocational rehabilitation— In order to receive vocational rehabilitation a worker must show that they could benefit from retraining. A worker who is at or near retirement age wouldn’t reasonably expect to complete a four-year retaining program to start a new career. Some employees may not have the ability to retrain.

3) Employers are going to contest VR — Workers are paid temporary total disability benefits by their during their training program. Workers eligible for retaining programs also tend to be higher wage employees. An employee in a retraining program can cost an employer tens and thousands of dollars, so employers have incentive to fight long retraining programs.

4) Termination of the employee leads employer to dispute entitlement to VR — Under the law the ability to get a VR plan requires that employee is not able work at a job at their employer. If an employee who is working at the employer where they were injured post-injury gets fired, the employer usually disputes VR because they will argue they were accommodating the injury until the employee was fired for cause or quit without cause. This puts the workers’ compensation court in a tough spot because the court lacks the jurisdiction to decide a wrongful termination case. There isn’t clear case law on what standards to apply in a case where a termination or quit justifies denial of VR.

If there some evidence of an unlawful motivation in a termination, some employers are eager to settle the workers’ comp. and employment law case on a global basis. A good settlement offer that accounts for the questionable termination often gives employees a reason to forgo VR.

5) Not enough medical evidence — Sometimes an employee is hurt worse than medical records indicate. Sometimes this is because of the influence of outside nurse case managers who work for insurance companies. Self-insured employers often employ in-house case managers who are particularly aggressive in managing medical care to the advantage of employers.

In some circumstances, an employee can testify to the extent of their injuries. But this requires that an employee takes their case to trial. This doesn’t happen if an employee accepts a settlement. But even though an employee can testify about their disability, a judge doesn’t have to accept that testimony.

6. Procedural hurdles — In order for an employee to get VR, that plan must be approved by the vocational rehabilitation section of the court. In VR plans involving schooling, since the state is paying tuition, the state is allowed to contest the approval of plans.

Other hurdles include some customs that don’t have much support in case law, statue or court rule. There is the custom that a VR plan can’t be developed until a worker reaches MMI. There is also a custom that the the results of an FCE test need to be endorsed by a doctor before they can be used by a vocational counselor. Both of these customs can delay the implementation of a plan by months. This delay can be particularly painful if employees are in the gap between when their temporary benefits ceased and their permanent disability benefits are waiting to be determined.

Not all doom and gloom on VR

Some clients do successfully complete VR. I know of some of my clients who have used settlement proceeds to pay for schooling. Changes in the law have allowed some workers to get a lot of the income replacement parts of their VR benefits through settlements. The state of Nebraska also offers vocational rehabilitation through the Department of Education. I have also had clients who been retrained through Trade Adjustment Assistance.

Who is going to hire me with restrictions?

Posted on April 11, 2019 by Jon Rehm

Injured workers who are looking to return to work with work restrictions after an extended time of healing from an injury face some problems in returning to work. In many cases the injured worker has been off work well beyond any time covered by the Family Medical Leave Act, the Americans with Disabilities Act and or any leave of absence policy, so they are unable to return to their old job assuming they could do their old job.

Workers in this situation often ask “Who is going to hire me with restrictions?” It’s a legitimate question. Here a few do’s and don’ts from my experience as a lawyer representing injured workers.

Do: Work with vocational rehabilitation

Nebraska offers vocational rehabilitation, VR for short, as part of our workers’ compensation act. Sometimes vocational rehabilitation can mean an injured worker gets paid their so-called temporary total disability rate while they go to school. More often this means a vocational counselor helps an injured worker look for work while they are receiving those benefits. VR is the Rodney Dangerfield of workers’ compensation benefits – it often gets no respect – but it can be very helpful for injured workers. It’s also not a benefit that an insurance company will often voluntarily offer to an injured worker like medical benefits or temporary disability pay.

Nebraska also offers vocational rehabilitation through our state department of education. That fact confuses a lot of my clients when I talk about VR through workers’ compensation. But if an injured worker has settled their workers’ compensation case or is fighting their workers’ compensation case, they can use VR through the state department of education to help return to work

Don’t: Assume no one will hire you

Disability discrimination is real. That’s why there is the Americans with Disabilities Act and parallel state laws. Under the ADA, it is illegal for an employer to discriminate against a qualified employee with a disability who can do a job with or without reasonable accommodations.

What that does that last sentence mean?. In plain terms, this means that so long as you meet most of the qualifications of the job, an employer or perspective employer should work with you to make minor tweaks to a job. Sometimes this means using a stool to avoid standing. Sometimes this means using a cart to avoid heavy carrying or lifting.

In practical terms, Nebraska employers claim there is a shortage of workers. I think business interests overstate this concern for political reasons, but as the job market has improved employers seems more willing to take chances on employees.

Don’t: Fail to disclose your restrictions or injury if asked by a new employer post-hire

In order for an employee to accommodate restrictions from an old injury, they need to know about the restrictions. While an employer can’t ask you about a disability pre-hire, they can ask about a disability post-hire so long if it is job related. The “Who is going to hire me with restrictions” line can get a worker into trouble if they don’t disclose they have some restrictions to certain body parts. Again, an employer needs to work with you to some extent on accommodating an old injury,

Failing to disclose an old injury can also make it more difficult to make a workers’ compensation claim if an injury with a new employer worsens an old injury. It can also be grounds to deny a workers’ compensation claim entirely. Failing to disclose an old injury can potentially be grounds for termination for dishonesty on employment application.

Don’t: Tell anyone who isn’t your lawyer or a family member that “No one is going to hire me with restrictions.”

Going back to the “Who’s going to hire me with restrictions?” It’s a legitimate question. But if an injured worker is still fighting a workers’ compensation claim, that statement said to the wrong person can hurt a claim.

Who is the wrong person? Anyone who isn’t a family member or your lawyer.

When a vocational rehabilitation counselor, doctor, insurance company lawyer, insurance adjuster or mediator hears “Who is going to hire me with restrictions?” they tend to think. “This person doesn’t want to work” and or “This person isn’t hurt as bad as they think they are.”

Why do they think that way? If you work on the insurance-side of workers’ compensation for an extended length of time, I think you tend to perceive cases from that perspective. Lawyers and doctors and other professionals look at work differently. Many professionals tend to live to work rather than work to live. I believe that professional class people glamorize blue collar labor and tend to get nostalgic about blue collar or service jobs they did when they were younger. Professional class people also tend to consume media geared towards professional class people that tends to cover the workplace from the perspective of business.

But regardless of why professionals involved in workers’ compensation case think this way, those professionals have a lot of influence over the value of an injured workers’ compensation claim. Injured workers need to be careful about how they communicate with these professionals.

What is a Functional Capacity Evaluation and what does it mean for a workers’ compensation claim?

Posted on July 2, 2018 by Jon Rehm

A functional capacity evaluation, or FCE for short, is a test that is usually conducted by a physical therapist that tests your physical abilities. They are common in workers’ compensation claims that involve surgeries or extended courses of treatment. So why are injured workers asked to perform functional capacity evaluations:

Injured worker is done treating and medically stable: Usually a doctor will order a functional capacity when the injured worker is medically stable. Sometimes the term “maximum medical improvement” or MMI is used in conjunction with an order for an FCE. MMI is as much a legal determination as it a medical determination. But when an injured worker is at the point of an FCE, the insurer likely believes or would like to believe the claim is close to finished.

Determining restrictions for return to work, permanent disability and vocational rehabilitation. FCE results are given almost total deference by workers’ comp bureaucrats like adjusters and case managers. HR managers also rely on them to place injured workers back in employment. But the FCE is only an estimate. By law an employee can testify to the extent of their own restrictions and an employer has some reasonable obligation to work with those restrictions. A Judge can also rely on testimony from a worker about the extent of their own restrictions. The problems is that an employee may have to wait months before they can testify to their own restrictions and go without benefits and pay until then.

Restrictions from an FCE can also be used to determine permanent disability or vocational rehabilitation benefits. This should mean that at some point a vocational rehabilitation counselor should be involved in your case. Even if you have returned to work for the same employer, in many cases a counselor should be still he helping to determine your disability. Also even if you haven’t gone back to work and might have applied for or be receiving social security disability a counselor should be performing a loss of earning power evaluation in many cases. Often times an insurance company will attempt to close a case after an FCE.

Employers/Insurers may be trying to the validity of your work restrictions. FCEs are designed to see if an employee is giving full effort on the test. In many cases an FCE that is set up by employer/insurer harkens back to the old concept of “trial by ordeal” or “trial by battle” where success in a physical feat could prove guilt or innocence. In the case of a workers’ compensation claim success or failure in an FCE can go a long way towards determining the ultimate outcome of a workers’ compensation case.

Regardless of why an injured worker is being sent to an FCE, it is probably good idea for an injured worker to check-in with an experienced workers’ compensation attorney for a free consultation if they are scheduled for an FCE. The attorneys at our firm can help injured employees navigate the trial by battle that an employer-scheduled FCE can be. We can also let you know what to expect after an FCE and help you overcome the consequences of a bad FCE.

Workers’ Compensation Basics: What is Vocational Rehabilitation?

Posted on September 24, 2015 by Brody Ockander

Along with payment of medical bills, time off of work, and permanent injury benefits, Nebraska laws include a unique workers’ compensation benefit: vocational rehabilitation.

To understand how the vocational rehabilitation benefit works in Nebraska, one must understand that the primary purpose of workers’ compensation is to restore an injured worker to gainful employment.

In order to accomplish that purpose, the workers’ compensation laws provide guidance of the following priorities:

Return to the previous job with the same employer;
Modification of the previous job with the same employer;
A new job with the same employer;
A job with a new employer; or
A period of formal training that is designed to lead to employment in another career field.

The goal of “gainful employment” is to get the employee back to making equal or similar wages to what he or she was making at the time of the injury. As a result, sometimes an injured worker’s permanent restrictions (resulting from the work injury) are such that he or she cannot return to work in the previous job. Further, the employer may not be able to modify or give him or her a new job within those restrictions.

Thus, if the goal of “gainful employment” cannot be accomplished by numbers one through three above, a vocational-rehabilitation specialist may be appointed in order to provide vocational-rehabilitation services such as job placement, training, or even further education. The expenses of the aforementioned are covered by the state’s Workers’ Compensation Trust Fund. During the time the injured worker is undergoing job placement, training, or education, he or she is entitled to temporary-disability benefits from the employer. This is a wonderful benefit, and some of our clients have even been able to go to college for a two-year or even four-year degree in order to return to the workforce and make similar or more money than they were making at the time of the accident and injury.

Today’s blog post is a part of a continuing series that explores the basics of workers’ compensation. Please read the previous blog posts in the series by clicking on these links, and be sure to consult an experienced workers’ compensation lawyer with questions:

Workers' Compensation Watch

Published by Rehm, Bennett, Moore & Rehm

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Tag Archives: Vocational Rehabilitation

The hidden variable of employer perception of disability in workers’ compensation

Appellate courts uphold red-tape cutting function of Nebraska Workers Compensation Court

Why do so few workers get voc. rehab. in Nebraska?

Who is going to hire me with restrictions?

What is a Functional Capacity Evaluation and what does it mean for a workers’ compensation claim?

Workers’ Compensation Basics: What is Vocational Rehabilitation?

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