Vocational rehabilitation is a program designed to return an injured person to work within their capabilities.
The Illinois Workers’ Compensation Act provides:
The employer shall also pay for treatment, instruction and training necessary for the physical, mental and vocational rehabilitation of the employee, including all maintenance costs and expenses incidental thereto.
The goal of vocational rehabilitation is to limit any loss of earning capacity and “may include, but is not limited to, counseling for job searches, supervising a job search program, and vocational retraining including education at an accredited learning institution.” 820 ILCS 305/8(a) Illinois General Assembly | IWCC PDF.
The National Tea Factors
Injured workers in Illinois are generally entitled to vocational rehabilitation where they sustain a work-related injury that causes a reduction in earning capacity and there is evidence that rehabilitation will increase their earning capacity.
Other factors to also be considered in this determination include:
- potential loss of job security
- likelihood of obtaining employment upon completion of training
- whether the claimant unsuccessfully underwent a similar program in the past
- whether the claimant is not trainable due to age, education, training and occupation
- whether the claimant has sufficient skills to obtain employment without further training or education
- the relative costs and benefits to be derived from the program
- the claimant’s work-life expectancy
- the claimant’s ability and motivation to undertake the program
National Tea Company v. Industrial Commission, 97 Ill. 2d 4242 (1983) Google Scholar.
Maintenance benefits are paid to injured workers undergoing vocational rehabilitation. The Act provides:
The maintenance benefit shall not be less than the temporary total disability rate determined for the employee. In addition, maintenance shall include costs and expenses incidental to the vocational rehabilitation program.
In a typical case, vocational rehabilitation is only provided when the injured worker has reached maximum medical improvement but cannot return to their old job because of permanent work restrictions prescribed by a doctor (sometimes based on a functional capacity evaluation or FCE).
Unfortunately, disputes frequently arise over the permanent work restrictions and whether the worker can safely return to their old job. Disputes also arise between competing rehabilitation counselors who are employed to provide vocational rehabilitation assessments and offer opinions based on the medical evidence and job descriptions.
Injured workers not represented by an attorney should consider seeking an immediate legal consultation if their employer or insurance company directs them to undergo a functional capacity evaluation (FCE) or vocational rehabilitation assessment.
IWCC Amended Rules
In late 2016 the Illinois Workers’ Compensation Commission amended its administrative rules concerning vocational rehabilitation. For many years these were codified at 50 Ill. Adm. Code 7110 and many court decisions refer to Rule 7110. Now, these rules can be found at 50 Ill. Adm. Code 9110 Illinois General Assembly | IWCC PDF and will be referred to as Rule 9110.
Rule 9110.10 requires the employer’s vocational rehabilitation counselor to prepare a vocational rehabilitation assessment, in consultation with the injured worker and their attorney, “when it can be reasonably determined that the injured worker will, as a result of the injury, be unable to resume the regular duties in which he or she was engaged at the time of injury.”
This assessment is automatically required after the worker has been totally incapacitated for 365 days and must be reconsidered every four months. However, employers often do not comply with this rule.
Self-Directed Job Search
If an injured worker is unable to return to their previous job because of permanent work restrictions, in addition to demanding vocational rehabilitation and maintenance benefits, they should immediately begin and fully document a job search for a position within their restrictions.
In Roper Contracting v. Industrial Commission, 349 Ill. App. 3d 500 (2004) Google Scholar | Illinois Courts, the Illinois Appellate Court found that a self-created and self-directed job search can constitute a valid vocational rehabilitation program under the Illinois Workers’ Compensation Act. Accordingly, workers undergoing a self-directed job search can also receive maintenance benefits.
Sham Job Offer
Sometimes when an injured worker is undergoing vocational rehabilitation or a self-directed job search, an employer will make an offer for a new job. If the offer is bona fide and made in good faith, the employer will have a basis to discontinue vocational rehabilitation and maintenance benefits if the worker declines. At this stage, workers should be weary of sham job offers, which may be a position specifically created for the worker or one that pays far more than economically justified.
Sham job offers are also used to counter claims of lost earning capacity for wage differential awards or entitlement to permanent total disability awards. As the Illinois Appellate Court has recognized, “[s]uch practice must be strongly discouraged and even condemned.” Reliance Elevator Company v. Industrial Commission, 309 Ill. App. 3d 987 (1999) Google Scholar | Illinois Courts.