Vocational retraining benefits continued:
Employees who sustain permanent disability resulting in permanent restrictions, from a scheduled or non-scheduled injury, 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 a private vocational counselor
If DVR cannot provide services due to OOS, eligibility for additional worker’s compensation benefits for retraining is governed by Wis. Stats. Sec. 102.61(1m) and by Wisconsin Administrative Code subsections DWD 80.49(1)-(11).
There are several differences with the private counselor approach compared to the DVR method. If approved by DWD, the employer or the carrier bears the cost of the private rehabilitation counselor’s services, subject to certain limitations. See Wis. Stat. Sec. 102.61(1m)(c) and Wis. Admin. Code DWD 80.49(7)(e). If the employer does not have suitable employment, then the employee works with a private counselor to develop an employment plan. Wis. Stat. § 102.61(1m)(a). Suitable employment is defined for the private program in Administrative Code section DWD 80.49(5) with an 85% threshold rather than the 90% threshold used under section 102.61(1g)(a). Also, under the private-counselor program, the specialist must determine if suitable employment is reasonably likely to be available in the general labor market without retraining. If it is, the employee is required to spend at least 90 days looking for alternative suitable employment. Wis. Admin. Code § DWD 80.49(9). Since the private counselor’s determinations are not given the same Mass Bonding presumption, this is an area of attack for the respondents.
The presumption of the need for retraining may be rebutted by evidence that the employee or specialist did not make a diligent search for suitable employment, no retraining can restore as nearly as possible the pre-injury earning capacity, or the employee or specialist withheld or misrepresented highly material facts. Wis. Admin. Code § DWD 80.49(10)(a).
McCormick Law Office in Milwaukee, Wisconsin attorneys fight for vocational retraining and loss of earning capacity benefits.
