Sec. DWD 80.49 - Vocational rehabilitation benefits
§ DWD 80.49. Vocational rehabilitation benefits
(1) PURPOSE. The primary purpose of vocational rehabilitation benefits is to provide a method to restore an injured worker as nearly as possible to the worker's preinjury earning capacity and potential.
(2) ELIGIBILITY. The determination of eligibility for vocational rehabilitation training and whether a person is a suitable subject for training is the responsibility of the division of vocational rehabilitation. If the division of vocational rehabilitation determines that an employee is eligible to receive services under 29 USC 701 to 797b, but that the division of vocational rehabilitation cannot provide those services for the employee, the employee may select a private rehabilitation specialist certified by the department to determine whether the employee can return to suitable employment without rehabilitative training and whether rehabilitative training is necessary to develop a retraining program to restore as nearly as possible the employee to his or her preinjury earning capacity and potential.
(3) 80-WEEK RULE. Extension of vocational rehabilitation benefits beyond 80 weeks may not be authorized pursuant to s. 102.61(1) or (1m), Stats., if the primary purpose of further training is to improve upon preinjury earning capacity rather than restoring it.
(4) DEFINITIONS. In subs. (4) to (11), all of the following definitions apply:
(a) "IPE" means an individualized plan for employment developed by a specialist which identifies the vocational goal of a retraining program, the intermediate objectives to reach that goal and the methods by which progress will be measured.
(b) "Retraining program" means a course of instruction on a regular basis which provides an employee with marketable job skills or enhances existing job skills to make them marketable.
(c) "Specialist" means a person certified by the department to provide vocational rehabilitation services to injured employees under s. 102.61(1m), Stats.
(d) Except as provided in sub. (5), "suitable employment" means a job within the employee's permanent work restrictions for which the employee has the necessary physical capacity, knowledge, transferable skills and ability and which pays at least 85 percent of the employee's preinjury average weekly wage.
(5) SUITABLE EMPLOYMENT EXCEPTIONS.
(a) A job offer at or above 85% of the average weekly wage shall not constitute suitable employment if:
1. An employee's education, training or employment experience demonstrates a career or vocational path; the average weekly wage on the date of injury does not reflect the earnings which the employee could reasonably have expected in the demonstrated career or vocational path; and the permanent work restrictions caused by the injury impede the employee's ability to pursue the demonstrated career or vocational path; or,
2. The employee's average weekly wage is calculated pursuant to the part-time wage rules in s. 102.11(1) (f), Stats., or s. DWD 80.51(4) and the employee's average weekly wage for compensation purposes exceeds the gross average weekly wages of the part-time employment.
(b) The average weekly wage for purposes of determining suitable employment under par. (a) 1. shall be determined by expert vocational evidence regarding the average weekly wage that the employee may have reasonably expected in the demonstrated career or vocational path.
(c) The average weekly wage for purposes of determining suitable employment under par. (a) 2. shall be determined by expert vocational evidence regarding the employee's age, educational potential, past job experience, aptitude, proven abilities, and ambitions on the date of injury.
(6) SPECIALIST CERTIFICATION.
(a) A person may apply to the department for certification as a specialist at any time. The department may require applicants to submit, and certified specialists to regularly report, information describing their services, including the geographic areas served by the specialist and the nature, cost and outcome of services provided to employees under this section.
(b) After evaluating the information submitted under par. (a), the department shall certify a person as a specialist if the person has a license or certificate which is current, valid and otherwise in good standing as one of the following, or may certify the person as provided in par. (c):
1. Certified professional counselor with specialty in vocational rehabilitation from the department of safety and professional services.
2. Certified disability management specialist from the certification of disability management specialist commission.
3. Certified rehabilitation counselor from the commission on rehabilitation counselor certification.
4. Certified vocational evaluator from the commission on certification of work adjustment and vocational evaluation specialists.
(c) The department may certify a person as a specialist if the person has state or national certification, licensing or accreditation in vocational rehabilitation other than that required in par. (b) which is acceptable to the department. The department may require a specialist certified under this paragraph to serve a period of probation up to 3 years as a condition of certification. The department shall specify the conditions of the probationary certification. The department may revoke the probationary certification at any time without a hearing for conduct which violated the conditions of probation established by the department or conduct sufficient to decertify the specialist under par. (e).
(d) Unless certification is suspended or revoked under par. (e), certification by the department under par. (b) is valid for 3 years. If a specialist applies to the department to renew his or her certification before the expiration of the certification period, the certification shall remain in effect until the department renews or denies the application to renew. A renewal is valid for three years.
(e) Only the department may initiate a proceeding to suspend or revoke a specialist's certification under this section. The department may suspend or revoke a specialist's certification, after providing the specialist with a hearing, when the department determines that the specialist did not maintain a current, valid certificate or license specified in par. (b) or the specialist intentionally or repeatedly:
1. Fails to comply with the provisions of ch. 102, Stats., or ch. DWD 80;
2. Fails to comply with the orders, rulings, reporting requirements or other instructions of the department or its representatives;
3. Charges excessive fees compared to the value of the services performed or ordered to be performed; or,
4. Misrepresents the employee's work history, age, education, medical history or condition, diagnostic test results or other factors significantly related to an employee's retraining program.
(f) The department shall maintain a current listing of all specialists certified by the department, including the areas they serve, and provide the list upon request.
(7) EMPLOYEE CHOICE.
(a) At the end of the medical healing period, the self-insured employer or insurance carrier shall notify the employee, on a form provided by the department, of the employee's potential eligibility to receive rehabilitation services.
(b) The department shall arrange with the division of vocational rehabilitation to receive timely notice whenever the division of vocational rehabilitation determines under s. 102.61(1m), Stats., that it cannot serve an eligible employee. When the division of vocational rehabilitation notifies the department that it cannot serve an eligible employee, the department shall mail to the employee and the self-insured employer or insurance carrier a list of certified specialists serving the area where the employee resides.
(c) The employee may choose any certified specialist. The employee may choose a second certified specialist only by mutual agreement with the self-insured employer or insurance carrier or with the permission of the department. Partners are deemed to be one specialist.
(d) A specialist selected by an employee under par. (c) shall notify the department and the self-insured employer or insurance carrier within 7 days of that selection. The department may develop a form for this purpose.
(e) The self-insured employer or insurance carrier is liable for the reasonable and necessary cost of the specialist's services and the reasonable cost of the training program recommended by the specialist provided that the employee and the specialist substantially comply with the requirements in subs. (8) to (11). Except with the prior consent of the self-insured employer or insurance carrier, the reasonable cost of any specialist's services to the employee shall not exceed $1,000 for each date of injury as defined in s. 102.01(2) (g), Stats. Effective on the first day of January each year after 1995, the department shall adjust the $1,000 limit by the same percentage change as the average annual percentage change in the U.S. consumer price index for all urban consumers, U.S. city average, as determined by the U.S. department of labor, for the 12 months ending on September 30 of the prior year. The department shall notify insurance carriers, self-insured employers and specialists likely to be affected by the annual change in the limit.
Note: To obtain a copy of all forms under this subsection, contact the Department of Workforce Development, 201 East Washington Avenue, P.O. Box 7901, Madison, Wisconsin, 53707-7901 or access forms online at http://www.dwd.wisconsin.gov.
(8) EMPLOYER'S DUTIES UPON RECEIPT OF PERMANENT RESTRICTIONS. Upon receiving notice that the division of vocational rehabilitation cannot serve the employee under s. 102.61(1m), Stats., the employee or a person authorized to act on the employee's behalf shall provide the employer with a written report from a physician, podiatrist, psychologist or chiropractor stating the employee's permanent work restrictions. Within 60 days of receiving the practitioner's work restrictions, the employer shall provide to the employee or the employee's authorized representative, in writing:
(a) An offer of suitable employment for the employee;
(b) A statement that the employer has no suitable employment available for the employee; or,
(c) A medical report from a physician, podiatrist, psychologist or chiropractor showing that the permanent work restrictions provided by the employee's practitioner are in dispute, and medical or vocational documentation that the difference in work restrictions would materially affect either the employer's ability to provide suitable employment or a specialist's ability to recommend a retraining program. If after 30 days the employee and employer cannot resolve the dispute, either party may request a hearing before the department to determine the employee's work restrictions. Within 30 days after the department determines the restrictions, the employer shall provide the written notice required in par. (a) or (b).
(9) 90-DAY PLACEMENT EFFORT.
(a) If the employer fails to respond as required in sub. (8), it shall be conclusively presumed for the purposes of s. 102.61(1m), Stats., that the employer has no suitable employment available and the employee is entitled to receive vocational rehabilitation services from a specialist.
(b) If the employer does not make a written offer of suitable employment under sub. (8), the specialist shall determine whether there is suitable employment available for the employee in the general labor market without retraining. If suitable employment is reasonably likely to be available, the specialist shall attempt to place the employee in alternative suitable employment for at least 90 days prior to developing a retraining program. The employee shall cooperate fully in the specialist's placement efforts and may not refuse an offer of suitable employment made within the 90-day period. In determining whether the offer is suitable the department shall consider age, education, training, previous work experience, previous earnings, present occupation and earnings, travel distance, goals of the employee, and the extent to which it would restore the employee's preinjury earning capacity and potential.
(c) If the employee is placed in or refuses to accept suitable employment, the self-insured employer or insurance carrier is not liable for any further costs of the specialist's services unless that suitable employment ends within the statute of limitations in s. 102.17(4), Stats.
(a) If, after reasonably diligent effort by the employee and the specialist, the employee does not obtain suitable employment, then there is a rebuttable presumption that the employee needs retraining. The presumption is rebuttable by evidence that:
1. No retraining program can help restore as nearly as possible the employee's wage earning capacity;
2. The employee or the specialist did not make a reasonably diligent effort under sub. (9) (b) to obtain suitable employment for the employee; or
3. The employee or specialist withheld or misrepresented highly material facts.
(b) A retraining program of 80 weeks or less is presumed to be reasonable and the employer shall pay the cost of the program, mileage and maintenance benefits, and temporary total disability benefits.
(c) A retraining program more than 80 weeks may be reasonable, but there is no presumption that training over 80 weeks is required. Extension of vocational rehabilitation benefits beyond 80 weeks may not be authorized if the primary purpose of further training is to improve upon preinjury earning capacity rather than restoring it.
(d) If the retraining program developed by the specialist is for more than 80 weeks, the self-insured employer or the insurance carrier may offer an alternative retraining program which will restore the employee's preinjury earning capacity in less time than the retraining program developed by the specialist. An employee may not refuse a self-insured employer's or insurance carrier's timely, good-faith, written offer of an alternative retraining program without reasonable cause.
(11) SPECIALIST'S SERVICES.
(a) A specialist shall develop an IPE for a retraining program for the employee, and may amend it to achieve suitable employment.
(b) A specialist shall make periodic written reports at reasonable intervals to the employee, employer and insurance carrier describing vocational rehabilitation activities which have occurred during that interval.
(c) Within a reasonable period of time after receiving a written request from an employee, employer, worker's compensation insurance carrier or department or their representatives, a specialist shall provide that person with any information or written material reasonably related to the specialist's services to the employee undertaken as a result of any injury for which the employee claims compensation.(Cr. Register, September, 1982, No. 321, eff. 10-1-82; emerg. am. (2), r. (3), renum. (4) to be (3), cr. (4) to (11), eff. 11-7-94, am. (2), r. (3), renum. (3) to be (4) and am., cr. (4) to (11), Register, April, 1995, No. 472, eff. 5-1-95; corrections in (2) and (5) (a) 2. made under s. 13.93(2m) (b) 7, Stats., Register, July, 1996, No. 487; eff. 8-1-96; corrections made under s. 13.93(2m) (b) 6, Stats., Register, December, 1997, No. 504; CR 07-019: am. (2), (7) (b) and (8), Register October 2007 No. 622, eff. 11-1-07; correction in (6) (b) 1. made under s. 13.92(4) (b) 6, Stats., Register February 2012 No. 674. Amended by, CR 15-030: am. (4) (intro.), (a), (6) (b) 1. to 3., (f), (11) (a) Register October 2015 No. 718, eff. 11/1/2015)
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