Workers’ Compensation Edited by P. Matthew Darby
P. Matthew Darby is a partner in the firm of Albertini & Darby, LLP, of Baltimore and received his J.D. from the University of Maryland School of Law. Mr. Darby is a member of MTLA’s President’s Club as a Founder and serves as a member of the Membership Committee. His practice concentrates in the representation of injured workers in Maryland’s Workers’ Compensation Claims, Longshore and Harbor Workers’ Claims, Federal Employers’ Liability Act Claims and general liability claims before various state and federal courts.
The Mysteries of Vocational Rehabilitation in Workers’ Compensation by Mitchell A. Greenberg
Mitchell A. Greenberg, of the Greenberg Law Office in Baltimore, received his J.D. from the University of Baltimore School of Law. He is a member of MTLA’s Board of Governors and serves as Vice-Chair of MTLA’s Trial Reporter Committee. Mr. Greenberg is a member of MTLA’s Membership Committee and serves as MTLA’s delegate to the Task Force for the Rehabilitation of Injured Workers. He is a member of the Maryland State, Baltimore City, and American Bar Associations and also a member of ATLA. His practice concentrates in workers’ compensation, criminal defense, and serious personal injury.
The primary goal of Maryland’s workers’ compensation system is to return injured workers to gainful employment. In exchange for forfeiting the employee’s right to sue a negligent employer in tort, the workers’ com- pensation statute entitles the injured worker to immediate subsistence-level wage-replace- ment benefits and unlimited necessary medical care. Because tort litigation inher- ently involves a significant delay between the injury and the payment of compensation as a settlement, the workers’ compensation system established requirements of timely assistance to prevent injured workers from extended periods without the ability to perform their jobs. Vocational Rehabilitation (VR) is an in-
tegral part of the workers’ compensation system. The VR process is defined as profes- sional services reasonably necessary to enable a disabled covered employee, as soon as pos- sible, to secure suitable gainful employment. In its broadest definition, all benefits and ser- vices intended to assist the injured worker in regaining his health and employability are part of the VR process. Other than the travesties known as Insurer
Medical Exams, the VR process might be the most dangerous part of a workers’ compen- sation claim. Because VR has never been a hot topic for trial lawyer education, we often have no choice but to rely on the fairness and competence of the VR counselor. A greater understanding of the risks, benefits and op- portunities inherent in VR will result in happier clients and claims which resolve more quickly. During my initial interview with every
workers’ compensation client, I begin to as- sess the potential for VR involvement.
As
the claim progresses and it appears the claim- ant will not recover sufficiently to enable his return to the same type of work, we focus on answering the following five “W’s”: Why do I want my client to have VR? Would he benefit from and be able to co- operate with VR services?
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When should the services begin? Where should the efforts take place? Who would be the best VR provider (based on the answers to the previous ques- tions)?
Attorneys must understand that VR can-
not be forced on a claimant and, even where it might be reasonably necessary, it may not be appropriate. I have always subscribed to the notion that simply having the ability to do something is not a sufficient reason for doing it. Once your client regains the physi- cal and mental capacity to return to some form of employment, you must help him decide if vocational rehabilitation is in his overall best interests. Attorneys should con- sider some of the following factors when deciding whether to demand VR. Since VR is only available to claimants with significant, permanent disabilities, your client has already been through months or years of pain, unhappiness and intense, inva- sive medical attention. Can he really handle additional physical, mental, skill and aptitude testing? Plus, does he want searching for work to become his full-time job and to have his efforts closely monitored by the VR counse- lor? Unless we ask our clients these questions, we’ll never know the answers. I had a client who hurt her shoulder pretty
badly and required surgery. According to the treating surgeon, because she had lost some sensation and strength in her hand, return to work on an assembly line was impossible. Since the Insurer’s doctor, without knowing what kind of work she did, said she was abso- lutely able to perform it without restriction, I was gearing up for a contentious hearing. Before filing Issues, however, I met with my client and explained that I was about to fight to get her help finding a new job. To my surprise, she explained that her husband re- cently got a promotion and she’d rather go back to being a stay-at-home mom. Rather than learning this either in the middle of a hearing or from the vocational counselor’s report from her first meeting with
Trial Reporter
my client, I was able to settle the claim with the still-likely cost of VR benefits and services figured into the Insurer’s offer. By not de- manding VR services, we were able to avoid the claimant being caught in a position of rebutting the presumption that, as someone previously employed and hard-working, she intended to return to work. Another issue arises when the Insurer re-
fuses to provide VR services. As attorneys, we are faced with the choice of filing Issues and waiting months for a hearing or simply proceeding to a determination of claimant’s entitlement to permanent disability benefits. To decide which is best for the individual claimant, some considerations are: 1) Claimant will be without funds dur- ing the wait for a hearing;
2) Some commissioners will not award VR benefits unless an active VR plan is in effect. This policy clearly rewards the Insurer for refusing to provide timely VR and provides no disincen- tive for using such a denial as a tool to force a low settlement;
3) In further differentiating VR benefits from temporary total disability ben- efits, some commissioners do not believe an attorney who gains VR ben- efits at a hearing is entitled to any fee. It seems that those commissioners do not want VR issues litigated and be- lieve in punishing attorneys who do so.
4) Since the Claimant will have specific, detailed obligations, an unscrupulous adjuster or VR counselor can rather easily try to create, foster and gather evidence to show the Claimant’s lack of compliance and cooperation. Such evidence will not only be used to im- mediately terminate the program and benefits, but will also reflect poorly on the Claimant’s credibility for any de- termination of PPD.
Once the parties have decided to en- gage in VR, it is vital for the claimant’s
Summer 2000
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