Wisconsin employees may get vocational retraining if sustaining a permanent disability resulting in permanent restrictions, from a scheduled or non-scheduled injury, and may be eligible for additional temporary disability benefits, as well as reimbursement of certain expenses, when they participate in a qualifying program of vocational retraining. In addition to medical bills, the primary purpose of workers’ compensation is to restore an injured worker’s earning capacity and vocational retraining is given a high priority. Retraining can now be ordered prospectively. Wis. Stats. Sec. 102.18(1)(b)2.
Retraining through DVR
If permanent restrictions are given at the end of healing, the employee must provide the employer with the written restrictions. The employer has up to 60 days to indicate whether it has “suitable employment” for the employee. Wis. Stat. § 102.61(1g). If the employer does not have suitable employment, then the employee works with DVR to develop a plan for employment, which usually means some retraining.
Suitable employment is defined as a job the returning employee can do within his or her restrictions, paying at least 90% of the employee’s “preinjury average weekly wage.” A 90% wage offer is not suitable if (1) the employee was on a “career or vocational path” that would have led to a higher wage, but for the work injury; or (2) the employee was a part-time worker and the (expanded) “average weekly wage” exceeds the “gross average weekly wage for the part-time employment.” Wis. Stat. Sec. 102.61(1g)(a).
Going through the Wisconsin Division of Vocational Rehabilitation (DVR) an employee’s eligibility assessment is made and the employee is ranked in a process known as order of selection (OOS). If ranked in a category for which funding is available, the employee must proceed with the public provisions for retraining with the DVR. If the employee is ranked in a closed category, the employee can use a private rehabilitation counselors. Through DVR eligibility for additional worker’s compensation benefits for retraining is governed by Wis. Stats. Sec. 102.61 and Wisconsin Administrative Code DWD 80.49.
If DVR approves an academic Individualized Plan for Employment (IPE), assuming the disability is due to a work-related injury, the DWD has only a limited ability to review DVR determinations of employee eligibility for vocational rehabilitation services. Massachusetts Bonding & Ins. Co. v. Industrial Comm’n, 275 Wis. 505, 82 N.W.2d 191 (1957). This amounts to a strong presumption in favor of retraining benefits being awarded.
If the DVR plan calls for retraining, the employer/insurer is responsible for at least the first 80 weeks of retraining including weekly TTD, necessary expenses for travel, lodging, and meals, and tuition, fees and books. Wis. Stat. § 102.61(1). The TTD benefit-rate escalator in section 102.43(7) applies to retraining benefits if the employee begins his or her schooling more than two years after the date of injury.
The social security disability offset does not apply to retraining TTD benefits but the offset does apply to normal TTD benefits. 102.44(5)(g). After the end of healing, TTD is not payable until the retraining actually begins. GTC Auto Parts v. LIRC, 184 Wis. 2d 450, 516 N.W. 2d 393 (1994). Retraining benefits are not paid for the time a worker starts school but before a DVR IPE is approved. Flynn v. Allen Roofing, WC Claim No. 87048518 (LIRC April 30, 1992). Administrative Law Judges can now issue prospective orders for retraining benefits under Wis. Stat. Section 102.18(2) as part of an interlocutory order. An employee with a Wisconsin worker’s compensation claim who moves out of state may still be eligible for retraining benefits if under a similar DVR agency in another state.
Defenses to a DVR vocational retraining claim are limited but include alleging the DVR determination was based on misrepresented facts or a clear abuse of discretion. Massachusetts Bonding & Ins. Co. v. Indus. Comm., 275 Wis. 505, 82 N.W. 2d 191 (1957). Note the Mass Bonding presumption only applies to the first 80 weeks of retraining; additional weeks would require proof they are necessary to restore, not improve, earning capacity. That there may be other jobs, not at the time of injury employer, within the injured workers restrictions is not a defense to a DVR approved plan. Tweedt v. Pygmalion Trucking, WC Claim No. 1997-051628 (LIRC June 29, 2000). Under this reading, unless the DVR counselor required a job search before making an academic IPE, no job search is necessary. Not so with a private counselor approach. There is no liability for retraining benefits if the employee refuses suitable employment or quits the date of injury employer. The employee must start the retraining within 60 days of having sufficiently recovered from the injury or as soon thereafter as DVR provides the opportunity. Wis. Stats. Sec. 102.61 (1r)(a). The retraining improves rather than restores the earning capacity. This is a questionable defense with a younger worker because we are talking about pre-injury earning capacity, not necessarily actual earnings. See Vandekolk v. QuadGraphics, WC Claim 1999-019801 (LIRC July 25, 2001). The injured worker must follow through with the program, including reasonable attendance. Wis. Stats. Sec. 102.61(1r)(b).
McCormick Law Office in Milwaukee, Wisconsin.
