Disputing vocational decisions in L&I workers’ compensation claims
The role of the vocational counselor has been discussed in other articles. This write-up focuses on disputing vocation decisions and the Vocations Dispute Resolution (VDRO).
While vocational retraining can be a tremendous benefit under the right circumstances, I don’t believe enough emphasis is placed on a holistic analysis of the injured worker’s ultimate ability to become employed. While theoretically designed to make injured workers employable, retraining plans become unrealistic in three common scenarios:
(1) When academic aptitudes are so low that successful completion of the retraining plan is dependent on completion of significant adult basic education or repeating courses;
(2) When job modifications or ergonomic needs far exceed what is typically seen in the job market; and
(3) When an injured worker’s genuine personality characteristics are ill suited for the retraining goal selected.
In Washington State, the law is very clear that when assessing the extent of disability the injured worker must be considered as a whole person. This means that the evaluation must consider factors such as age, educational background, and inherent strengths and weaknesses. Other factors also include training, experience, injury or loss of bodily functions, and any other factors that may be relevant to determining whether an injured worker is capable of working in employment generally available in the labor market (see Fochtman v. Department of Labor and Industries, 7 Wn.App. 286, 499 P.2d 255 (1972) for details). Furthermore, while vocational services under a claim provide minimal assistance in obtaining work, the Courts have made it clear that in order for an injured worker to be considered employable, the injured worker must be capable of obtaining work (see Leeper v. Department of Labor and Industries, 123 Wn. 2d 803, 817 P.2d 507 (1994)).
It is important to note that if an unrealistic retraining plan is approved by the Department of Labor and Industries (L&I), the injured worker has only 15 days to submit and dispute a vocational decision to the Office of Vocational Dispute Resolution (VDRO). The submission must outline deficiencies in the vocational plan. L&I has created a vocational dispute form, which can be downloaded from the Department’s website. The form identifies dispute issues including “skills/aptitudes”, “medical (physical/mental)”, “labor market”, and “other”.
As a courtesy, when submitting disputes I try to use the Department’s form and to provide arguments relevant to the suggested categories. However, more often than not, I find that the majority of my argument falls into the “other” category because it is based on a holistic view of the injured worker’s likelihood of success, which must necessarily include skills, aptitudes, and physical and mental abilities. They also include the labor market in addition to other relevant factors such as personality traits and the ultimate ability to obtain employment.
Additional vocational counselor related resources
There are several other articles on our website that provide information relating to vocational counselors and vocational counseling for your L&I claim or self-insured employer workers’ compensation claim: