Our North Carolina workers' compensation lawyers in Raleigh, Fayetteville, and Dunn advise that the point in a North Carolina workers’ compensation case at which a vocational rehabilitation counselor gets involved is the most dangerous time in the claims process. It is during this time that facts occur which form the basis for the termination of benefits. Here are a few tips to keep in mind when working with these counselors:
1. Always have your lawyer present during your first meeting with the rehabilitation counselor.
The Industrial Commissions regulations, which apply to vocational rehabilitation counselors, provide that, if requested, the first meeting of the worker with the rehabilitation professional shall take place in the office of the worker’s attorney. This meeting is extremely important and should always be requested. At this meeting, the injured worker’s lawyer will let the vocational rehabilitation professional know that the lawyer is familiar with the rules applicable to vocational rehabilitation counselors and will insist that those rules be followed. These rules, some of which will be discussed below, are an important protection for the injured worker. One of the chief weapons that vocational rehabilitation counselors use to wear down the worker and harass the worker to the extent that they become willing to settle the claim too cheaply is to create a lot of busy work for the injured employee. The vocational rehabilitation counselor will, for instance, send the worker in search of jobs that they know the worker is not qualified to perform. This first meeting with the lawyer helps discourage this activity by the vocational rehabilitation worker and makes the life of the injured employee easier.
2. Don’t make careless statements to the rehabilitation counselor.
Often times an injured worker will make statements to a vocational rehabilitation counselor to the effect that: “I am not going to look for any job that doesn’t pay at least $15.00 per hour,” or “I can’t work any job so I am not going to even apply.” Vocational rehabilitation counselors love to hear this kind of language from the injured worker. They report these statements to the insurance company and make it appear as if the worker is refusing to cooperate with vocational rehabilitation efforts. If the Industrial Commission believes that the worker is refusing to cooperate with vocational rehabilitation efforts, the worker’s benefits will stop. The law allows the Industrial Commission to “suspend” benefits only so long as the refusal to co-operate with rehabilitative procedures continues. As a practical matter, it is most difficult to get workers’ compensation benefits reinstated once they have been suspended for failure to comply with efforts to rehabilitate the worker. The worker should convey to the rehabilitation counselor that they appreciate the effort by the counselor to rehabilitate them and they are willing to cooperate fully and completely with any and all reasonable efforts at rehabilitation.
3. Return to work as soon as possible.
At our Raleigh workers' comp law firm, we always encourage injured workers to return to work as quickly as possible. Injured workers earn more income and have a more positive image of themselves when they are working. Work is good for the financial and mental health of the entire family. Most injured workers had much rather be at work earning an income than staying at home and becoming a burden to their family. This does not mean, however, that you should jeopardize your health or go back to work before your doctor says that you are ready.
4. Don’t make overly optimistic statements to the rehabilitation counselor.
This is a caution against statements opposite to the ones described above. Many times rehabilitation counselors strive to coax a worker into saying that they are capable of doing just about anything, even when the worker knows they can’t. They will take these statements, blow them out of proportion and use them against the worker in a termination hearing. They will ask the workers such things as whether they can climb a ladder, if they can use hand tools, if they do their own dishes or mow the lawn. If the worker says, “No, I can’t climb a ladder or use hand tools,” the counselor may ask, “Are you sure? I think you probably could. Would you be willing to try?” There is a great temptation to respond: “Yes, I will try, I think I may be able to.” Again such statements will be blown out of proportion and used against the worker. The injured worker should always tell the vocational counselor, and everyone else, the absolute truth. However, they should not be unfairly lead into making statements that overstate their true physical capacity.
5. Get a copy of the rules.
The rules require that the vocational rehabilitation counselor provide the injured worker a copy of the rules for rehabilitation professionals. Be sure to ask for these rules and read them. It is important for injured workers to know the rules so they will be aware when the vocational counselor steps out of line (and the worker will step out of line in almost every case). If the vocational counselor fails to give you the rules, report that fact to your workers' comp attorney who will supply you a copy of the rules.
6. Don’t let the vocational rehabilitation counselor talk you into going into business.
Most people have an idea in the back of their mind that someday they would like to go into business for themselves. This is not the proper time for such an endeavor by an injured worker. The vast majority of small businesses fail within the first year or two. It is unrealistic to count on income from a small business. We once had a vocational counselor who argued that our client was no longer disabled because he could go into the tattoo parlor business. This worker had never been in business for himself and had no experience in operating a business. He just had a general vague notion that he would like to be in the tattoo parlor business. The Industrial Commission would never use such a business plan to terminate the benefits of the worker. However, many times workers are lulled into settling their case for less than it is worth by a vocational rehabilitation counselor who convinces the worker that they could succeed in business with the money they received from settling their worker’s compensation claim. This is very dangerous.
7. Beware of “make work” jobs.
Insurance companies sometimes convince employers to offer the injured worker a position which bears absolutely no resemblance to a real job that they would hire someone else to perform. Such a job is considered “make work”. That is, it is not a real job, but it is a job created simply for the purpose of giving this worker something to do. The illusion is that if the worker goes back to work at this “make work” position created he is no longer disabled. An example would be a disabled yard and the maintenance worker who is illiterate and is given a “job” of sitting in a room and reviewing manuals, catalogs and equipment maintenance books. Even if this unfortunate worker could read, that would not be a job that the employer would pay someone else to do. Such a make-work job may be appealing to the worker since it does not involve heavy lifting, or outside of work and they will receive a paycheck. However, what the worker doesn’t understand is that once worker’s compensation is out of the picture and they are no longer considered disabled, this job will certainly disappear along with the worker’s paycheck. It is always important, however, to consult with your workers' comp attorney before you turn down any job.
8. Stay in close contact with your workers' compensation attorney.
Keep in close contact with your workers' comp lawyer and tell him or her every detail of what is happening between you and the vocational rehabilitation counselor. Consult with your workers' comp attorney each time a job is offered to you, each time a new rehabilitation program or course is offered to you, and at each time anything occurs with the rehabilitation counselor that causes you to feel uneasy. If you win your claim, your lawyer will be paid. Make him or her go to work for you. Call often. That is what we get paid for; to advise you at each stage of this complicated process.
9. Do not let them into your house.
There is no reason for the rehabilitation counselor to come to your home. You should never meet them in your home, but instead meet them in a neutral place such as a library or restaurant. As mentioned above, the first conference should be in your lawyer’s office with your NC workers' comp lawyer present. The danger of having any meetings with the vocational rehabilitation counselor in your home is that it gives the counselor unfair access to your private life and information about you and your family which could be turned against you. Along these same lines, your personal life is no business of the rehabilitation counselor and you should not share your information about your personal life.
10. Insist on a vocational assessment and plan.
The Industrial Commission rules require that before job placement activities begin, the vocational rehabilitation counselor must complete a vocational assessment and must prepare a formulation of an individualized plan for vocational services which specifies its goals and the priority for return-to-work options in each case. This assessment and individualized plan could be of great value to the injured employee and may help him or her return to the job market. While all vocational rehabilitation counselors are required to prepare these documents, it is very rarely done; at least it is rare for it to be done properly. Notice that the rules provide for an “individualized plan”. That is, the plan must be specifically tailored for the individual injured worker. This is almost never done. You should insist that the vocational counselor do their job by providing you with these very important documents.
11. Insist on "suitable employment."
The rules require that before an injured worker may be sent out to apply for a job and sit for an interview for that job, the vocational rehabilitation counselor, by use of the vocational assessment and by the formulation of an individual plan for vocational services, must determine that the job is suitable for the employee. Over the years of our NC workers' comp practice, it has been the norm and not the exception for vocational counselors to attempt to send our clients to interviews for jobs that were obviously unsuitable for them. For instance, a roofer who was unable to read and write was sent to apply for jobs requiring computer skills. Or, a worker with a 10-pound lifting restriction was sent to interview for a job in which he would be required to lift 30 pounds on a regular basis. Many times the vocational rehabilitation counselor would instruct the worker to go to the want ads and to apply for every job in the want ads. Other times, the vocational rehabilitation counselor would get a list of potential jobs from the Employment and Security Commission and ask the employee to spend their time, money and effort to travel around a radius of 20 or 30 miles seeking jobs without any prior determination as to whether those jobs were suitable for the worker. The rules define “suitable employment” to mean:
“Employment in the local labor market or self-employment which is reasonably obtainable and which offers an opportunity to restore the worker as soon as possible and as nearly as practicable to pre-injury wage, while giving due consideration to the worker’s qualifications (age, education, work experience, physical and mental capacities), impairment, vocational interest and aptitudes.”
There are several important phrases in the above definition. For instance, “local labor market” means that jobs that require driving a long distance away from the worker’s home would not be suitable. The "as nearly as practicable to pre-injury wage" means that a highly paid construction worker should not be required to apply for minimum wage jobs.
12. Insist on vocational training.
The rules require that the vocational rehabilitation counselor consider formal vocational training to prepare the worker for a job with the current or new employer as a return-to-work option. Insurance companies almost always oppose such vocational training. Insist on this training if you feel that it will help you get back into the work force.
13. Always go to job interviews.
This rule may seem inconsistent with the statements made above. However, the old adage "two wrongs don't make a right" has great application here. Even though vocational rehabilitation counselors frequently violate the rules of the North Carolina Industrial Commission, you should be absolutely pristine in your conduct. Therefore, you must go to all interviews even if there has been no vocational assessment or individualized plan. This is true even though the job for which you are asked to apply is clearly not suitable for you.
There are several reasons for this caution. The primary one is that you do not want to give the insurance company any reason to terminate your benefits. If you fail to attend a scheduled job interview, the insurance company could ask the Industrial Commission to terminate your benefits because you are not cooperating with their efforts to rehabilitate you. While you may think that you should not be required to attend a particular job interview, you can never predict how the Industrial Commission would rule. Why put yourself in that position? This is a battle you do not need to fight. Let your North Carolina Workers' Compensation lawyer fight that battle for you. Another reason is that if there is ever a hearing, you want to show the Industrial Commission that you have done absolutely everything possible to rehabilitate yourself and to get back to work. The way to insist on proper performance by the vocational rehabilitation counselor is to have your lawyer petition the Industrial Commissioner to have that counselor removed. Even though it is a hassle to go to useless and unproductive job interviews, by doing so you are helping to ensure that you will continue to get workers' compensation benefits. Your weekly workers' compensation benefits are fairly good pay for doing all that is required by even the most abusive vocational rehabilitation professional.
14. Fully know and understand your job description.
The vocational rehabilitation professional may show the doctor a written or videotaped job description. The doctor will be asked to render an opinion as to whether you can do that job based upon the job description submitted by the vocational counselor. Rules require that this job description must be submitted to the injured employee prior to its submission to the doctor. It is important to examine that job description to be sure if it is accurate. If the job description submitted by the vocational counselor is not accurate, you must make objections or amendments to this job description. This is a job for your lawyer and he or she will take care of that responsibility for you. However, it is important for you to have a good understanding of your job description and discuss this with your lawyer. Your lawyer has not worked in your job and will have to rely upon you in large part to help determine the accuracy of the job description submitted by the vocational rehabilitation counselor.
15. When going for a job interview, have the person who interviews you sign a statement indicating that you were present for the interview.
It adds credibility to your testimony concerning your job search efforts to have signed acknowledgments to help prove that you actually went for job interviews. It will help to have a pre-typed form for the potential employer to sign on the spot. Do not rely upon their promise to send something later. Get the signature before you leave.
16. Keep accurate notes about each job interview and about each conference with the vocational rehabilitation counselor.
After each conference or interview with the vocational rehabilitation counselor, write down as closely as you can remember everything that was said. These notes may be very useful later on.
17. Get rid of that rascal.
The Industrial Commission rules provide that a rehabilitation professional may be removed from a case upon motion by either party for good cause shown. Good cause would be the failure of the rehabilitation counselor to follow the rules applicable to rehabilitation professionals. An example of the most flagrant violation of the rules is when a vocational rehabilitation worker continuously sends a worker for interviews on jobs that he or she is obviously not suited to perform. The rules provide in three separate places that a vocational counselor should not initiate or continue placement activities which do not appear likely to result in the placement of the injured worker in suitable employment. Report these violations to your attorney and ask your attorney to remove this rehabilitation counselor. Even if the motion to remove is denied, the fact you attempted to remove them may help enforce the rules. From that point on the vocational rehabilitation counselor may think twice before they continue to flagrantly violate the rules.