For many the unfortunate consequence of a work related injury is that they will not be able to return to their former employment. The Massachusetts Workers Compensation Act provides limited vocational rehabilitation rights.
Do not be misled by the term Vocational Rehabilitation. The most common reaction that injured workers have to this term is that they are going to be retrained. This could not be further from reality.
The rights to vocational rehabilitation under the Massachusetts Workers’ Compensation Act are extremely limited. The Office of Education and Vocational Rehabilitation (OEVR) administers these provisions of the Act. Members of ORVR initially screen injured workers seeking these benefits to determine if they are suitable for vocational rehabilitation. The basic rule of thumb is that an injured worker is suitable if he or she can return to the work force in a job which pays the same average wage as earned before he or she was injured. An Individual Written Rehabilitation Plan (IWPR) must be approved and completed within two years.
The first steps of the approach taken in the formulation of an IWPR are to conduct a job search which begins with a return to work in the same job in which the injured employee was engaged when injured. If the injured worker is unable to resume that type of work, either with the employer or a different employer, then the focus is to determine if the employer has other suitable work at a comparable wage. If not, then the job search turns to open labor market. It is only when this fourth step is not expected to be fruitful, that retraining is explored.
Retraining is, however, not guaranteed. The Injured work must be capable of completing the retraining program within two years. The program must lead to employment with comparable wages. If these requirements cannot be met, then retraining is not likely to be an option. Another problem arises if the injured worker lacks sufficient educational perquisites or has difficulty with English; this could make it impossible for a retraining program to be completed within the requisite two years. Under these circumstances an injured worker may be well advised to consider options outside workers’ compensation, such as the Massachusetts Rehabilitation Commission.
If an injured worker is found to be suitable, the insurer is required to pay for a vocational counselor who can develop the IWRP. An injured worker must cooperate with these efforts, or face the loss of 15 percent of his or her compensation, so long as he or she does not cooperate. To encourage worker participation in IWRPs, the Reviewing Board has held that an injured employee cannot have benefits reduced or modified while engaged in an IWPR so long as those benefits are otherwise payable.
These benefits are available only if the injured employee’s accident is compensable under the Workers’ Compensation Act. Once the injury is found to be compensable an injured worker can request OEVR to provide these benefits. If the insurer refuses to participate, then the Department of Industrial Accidents will provide them if the employee is found suitable for rehabilitation, and later assess the insurer with double the cost of the plan.
Lastly, the right to vocational rehabilitation continues after an injured worker settles his or her compensable claim. The right to vocational rehabilitation, however, ends if the injured worker has not sought this benefit within 2 years form the time when his or her lump sum settlement is approved.
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