I often get phone calls from potential clients who are trying to understand what the Department of Labor and Industries, or the assigned vocational counselor, is doing when a plan for vocational retraining is being proposed.
Their rights and responsibilities and their options, specifically a right to “opt out” of vocational services is truly a pressured and confusing moment in their lives.
Once an injured worker becomes well enough to consider a return to work, yet unable to return to their previous types of employment, a vocational expert is often assigned to determine whether or not they might benefit from retraining.
The Department of Labor and industries will only provide retraining if the vocational counselor determines that they are unable to return to their previous occupation, unable to return to their previous occupation even with modifications, unable to part return to any of their prior occupations, unable to return to any of their prior occupations in with modifications, unable to return to any other form of reasonably continuous gainful employment without retraining.
Once the injured worker makes it through this hurdle the vocational counselor will try to develop a retraining plan.
If the claims manager approves the proposed retraining plan the injured worker is then given a choice of” opting out” of the proposed retraining plan.
The injured worker only has 15 days to make this election. If the injured worker decides to “opt out” he or she receives the equivalent of six months of their time loss benefit, and then we’ll have available to them a fund of money equal to the cost of the proposed vocational retraining plan which the injured worker can use in retraining themselves. The money can be spent on books, fees, tuition, and supplies. The money cannot be used for job modifications or travel, or housing.
If the worker “opts out” of vocational services, the claim proceeds to closure with a calculation of any permanent partial disability to which the injured worker may be entitled.
It is been my experience that very few workers have enough education, insight, or experience to be able to predict their ability to succeed at other methods of retraining. Many choose forms of self-employment that may require some training. I have certainly seen many of these situations where the injured worker did not anticipate just how difficult it is to start your own business or to be self-employed.
I believe that it is essential, when an injured worker is dealing with this time sensitive decision to “opt out” that they need to speak with an attorney immediately.
The injured worker needs to be informed as to the challenges that there may exist in trying to reopen their claim in the future should their effort at retraining themselves fail. Once a claim has closed, if an injured worker wants to reopen it, they have to prove objective evidence that their industrial and related conditions have worsened. This can sometimes be a difficult burden to overcome.
They have to consider the possibility that they may never be able to reopen their claim in the future to access further assistance from the Department of Labor and industries.