If you’ve suffered an on-the-job injury and not able to return to any work you’ve done in the last 15 years, you may be entitled to vocational rehabilitation benefits. If you are determined to be in need of vocational retraining, a vocational counselor will be assigned to you to assist you in choosing a retraining plan. Once a plan is identified and approved, you will then be given a choice of whether to proceed with the retraining plan, or select the funding for something you’d prefer to pursue on your own. This is an oversimplification of how the vocational process works but it is an overview. These two options are called Option 1, the identified vocational retraining plan; and Option 2, the money set aside for you to pursue a different course of study.
If you select Option 2, you will be given the equivalent of six months of time loss and a lump sum of money is set aside in an account for you to access within five years to pursue your own educational wishes with Department of Labor and Industries (Department) approved providers for your retraining. Once you select Option 2, your claim will close and if you entitled to an award of permanent partial disability, or PPD, that will be paid.
The question then arises whether, after selecting Option 2, you will be entitled to an award of pension benefits under your claim when the claim is closed?
There is one published decision from the Board of Industrial Insurance Appeals (Board). This is the case entitled “In re: Bill Ackley, BIIA Dec., 09 11392”. The Board has not published any other decisions on this question, so this case stands as an affirmative statement on the question of whether an injured worker can receive pension benefits when their claim is closed they selected Option 2.
The Board noted that when the Washington State Legislature created the statute authorization Option 2, “We are doubtful that it was the Legislature’s intention to have workers elect Option 2 and then be placed on a pension for permanent total disability.” In re: Bill Ackley, BIIA Dec., 09 11392, p. 6. But the Board also ruled that there was nothing in the statute that indicates that by selecting Option 2, an injured worker is giving up his or her right to claim they are permanently totally disabled.
Moreover, when one reads the information on the form provided by the Department for selecting between Option 1 and Option 2, there is no language indicating that by selecting Option 2, an injured worker is giving up a legal right to claim they are permanently and totally disabled. In fact, the Board wrote that “if the statute were intended to operate as a form of compromise and release, the paperwork provided by the Department should have completely and clearly informed the worker of the consequences, as well as the benefits, of Option 2.” In re: Bill Ackley, BIIA Dec., 09 11392, p. 6.
But the Board cautioned that in many cases, the election by the injured worker of Option 2, “a worker would not receive pension benefits after selecting Option 2.” In re: Bill Ackley, BIIA Dec., 09 11392, p. 7. The underlying problem that the Board found in this case is that there was no realistic retraining program for Mr. Ackley. That is, neither Option 1 nor Option 2 could overcome his specific set of physical restrictions due to his industrial injury. The Board ruled that under this set of specific facts that Option 2 did not preclude pension benefits, but clearly stated that in many other cases, Option 2 would prevent an injured worker from a finding of permanent, total disability at the closure of the claim.
So what do you do? The only thing to say is caveat emptor, or buyer beware! Before selecting either Option 1 or Option 2, you would be very well advised to obtain the guidance of an attorney highly experienced in worker’s compensation law. This is an important decision, too important to not obtain professional legal advice. The risk of losing the right to claim pension benefits is too great. I’ve seen it happen to a number of injured workers who elected Option 2. Don’t be the next victim. For some people, Option 2 is a great option. But for others, choosing Option 2 may slam the door on their financial security. Remember, your vocational counselor and your claims manager are not your attorneys. They do not give legal advice and you are not their client. Get someone on your side who will educate you and advocate for you, before you make this important vocational decision.