Our workers’ compensation system was intended to help restore injured workers — to truly restore injured workers instead of shuffling them through the system. Yet, it has evolved into something far different. Many injured employees and their families suffer as a result. One area of failure is “vocational rehabilitation.”
What does “vocational rehabilitation” even mean in Alabama? The phrase is never fully defined by our workers’ compensation statute. Most lawyers and courts don’t really understand its meaning. And, Courts have limited its practical effect to the point it is rarely helpful to the worker. But, to give some background, this is how one Alabama judge defined the phrase —
The purpose of vocational rehabilitation is not to improve the injured employee’s station in life, but to restore the employee to suitable employment providing an income comparable to that earned prior to the injury.
Why don’t insurance carriers offer real vocational rehabilitation to injured workers? True vocational rehabilitation would provide a great benefit to the worker, his or her family and the community. We all benefit when injured workers are rehabilitated back to productive, gainful work. So, why is it not offered? The answer is cost. The insurance carrier wants to save immediate short-term costs even if the rest of us pay higher long-term costs in lost productivity.
The insurance carrier knows it can avoid its short-term costs of rehabilitation while passing long-term costs to us. How? For vocational rehabilitation to be a valid option, physicians or vocational experts must believe it will help the actual worker in a specific way. But, the insurance carrier controls the choice of physician in Alabama. The carrier picks your authorized treating physician. Although the hand-picked physician is “legally” allowed to provide necessary care for the injury, the insurance carrier still exercises practical control. The carrier still exercises true control by:
- Maintaining the power to authorize the same physician for future injury cases – greatly affecting the doctor’s continued income
- Using case nurses to meet with physicians and influence the course of medical care
- Denying requested treatment which forces the doctor to engage in the administrative “utilization review” process for approval – a process requiring more time and resources than available to the doctor
By using the ability to effectively control treatment, insurance carriers in Alabama have insured that only the minimally required level of care will be provided.
How do insurance carriers often use “vocational rehabilitation” in Alabama? This much is true – most insurance carriers don’t use vocational rehabilitation to help injured workers. Yet, insurance carriers do use the statute for their own cost-saving benefit. The carriers often use the phrase vocational rehabilitation in an effort to avoid paying real disability benefits to injured workers. Here are a few examples:
- Offering “vocational rehabilitation” on the eve of trial to avoid paying real disability benefits. This is a delay tactic I’ve seen many times. The worst example concerns a case I tried in Birmingham several years ago. The worker suffered terrible head and shoulder injuries. In the three years after his injury he underwent four separate major surgeries. He was left unable to lift anything. During those years of surgeries, the insurance carrier offered no “vocational rehabilitation” and no help putting him back to real work. Literally, on the eve of trial, the carrier’s attorney offered “vocational rehabilitation.” It was a blank offer – no plan, no idea, no details. It was a nothing offer which we refused. However, the defense lawyer convinced the Judge to postpone trial for several months while his insurance carrier attempted to rehabilitate the worker before eventually paying real disability.
- Offering “fake jobs” and calling it “vocational rehabilitation.” Yes, this really did happen. No, it is not vocational rehabilitation. I represented a worker in Huntsville with severe orthopedic and internal organ injuries. His doctors agreed he was disabled. Yet, a few months before trial, my office started receiving forms indicating job interviews had been scheduled and these employers would provide accommodations. I knew these were not real interviews or real jobs. But, if we did nothing, the insurance lawyers would argue they tried and my client did not. So, I conducted my own interviews of every employer listed on the forms. Every listed business was real. While the listed companies were real, none of them had agreed to employ or accommodate my disabled client. None of them knew anything about the claimed interviews. Apparently, the insurance carrier hired someone who simply used the phonebook to list area businesses.
- Offering vocational testimony at trial based on rehabilitation never provided. This is the most frequent bad use of the phrase vocational rehabilitation. The insurance carrier has the treating doctor testify as to the expected condition of the worker with a little help from rehabilitation. That’s the level we all hope the worker can reach. Then, the insurance carrier does not provide the rehabilitation to achieve that goal. Instead, at trial the insurance carrier’s vocational expert simply provides the testimony based on the hoped-for level of function. It’s a game. And, it’s a game the insurance carrier hopes the worker’s lawyer does not understand. Unfortunately, many plaintiff attorneys do not understand vocational issues.
Vocational rehabilitation could be a powerful tool to help workers suffering an injury. Vocational rehabilitation should be a valuable part of our system. Yet, in practice it is usually not.