Wis. Admin. Code Department of Workforce Development 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) or (5) 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.
Note: The Commission on Rehabilitation Counselor Certification (CRCC) is located at 1699 E. Woodfield Road, Suite 300, Schaumburg, Illinois 60173. The Certification of Disability Management Specialist Commission (CDMS) is located at 8735 W. Higgins Road, Suite 300, Chicago, Illinois 60631. The Commission on Certification of Work Adjustment and Vocational Evaluation Specialists is located at 7910 Woodmont Avenue, Suite 1430, Bethesda, Maryland 20814-3015.
(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 division of hearings and appeals to
determine the employee's work restrictions. Within 30 days after the division
of hearings and appeals 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.
(10) RETRAINING.
(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.
Notes
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