Personnel Law and Regulation

Personnel Law and Regulation

Workers Compensation Rehabilitation

For nearly 100 years, the system of Worker's Compensation has been used in the United States. Worker's Compensation is legislated and administered at the state level. Accordingly, each state has passed their own laws and developed their own system to administer Worker's Compensation within their jurisdiction. Despite the differences of each state's benefits, the overall concept of Worker's Compensation is used in each state.

The model of Worker's Compensation is simple. Employees loose their right to sue their employer for negligence, and employers are required to provide Worker's Compensation to their employees. Specific benefits vary from state to state. All state systems provide some form of protection for employees who are hurt while working.

Prior to the adoption of Worker's Compensation, the previous system required an employee to file a lawsuit against their employer. This proved to be ineffective and problematic. For example, an employee was injured on the job and needed hospitalization and surgery. There would be a loss of income during the recovery period. The employee often had no means to pay for the necessary medical treatment. The only option available was to sue the employer. This is not an ideal situation to maintain a good relationship between the two parties. Bad feelings could easily result. Negligence by the employer was often difficult if not impossible to prove. Employers could defend themselves by claiming an assumption of risk on the part of the employee. (Hood;Hard;Lewis).

The legal process was time consuming and expensive, with no benefits paid to injured workers during the process. Necessary medical treatment was not available to the injured worker. If the worker was successful with the lawsuit, the employer could lose the business and still not be able to provide protection or benefits to their injured worker. (Hood;Hard;Lewis).

The system was unworkable, and this is why the States passed various worker's compensation laws. It provided a statutory solution to the problem. Workers' compensation was a new kind of insurance, which all employers were required to obtain to protect their employees. Insurance was provided by state established and maintained funds, or by private insurers. (Hood;Hard;Lewis).

For example, typical legal language states that in order for an injury to be covered, the harm suffered by the employee must have been caused by an "accidental personal injury arising out of and in the course of employment." Those few words, in this example from the Maryland Worker's Compensation law, are the subject of many court decisions and interpretations. Not all injuries are covered by a Workers' Compensation Law even if the injury happened "on the job." Just because a person is hurt "while working," "on the job" or "at work" may not be enough for the insurance to apply. (North Carolina).

It should also be noted that the compensation laws have evolved during the past century. In addition to traumatic injuries, occupational diseases have become covered under laws and benefits available to the diseased worker. (Hood;Hard;Lewis).

In determining if an injury falls under the coverage of workers' compensation, the first thing to understand is that the law protects only employees. Workers' Compensation statutes provide legal guidance on who are a covered employee and employer. A genuine employer-employee relationship must exist. Once again, the courts have had to decide when someone is or is not an employee. (South Dakota).

Some businesses are established in such a way that some persons do not actually work for the business but work rather as independent contractors. Real estate agents are often considered to be independent contractors, but this area has become fuzzy or blurred because they are "captured" by their broker and not permitted to work for others. (Washington).

Some businesses do not have any employees because they are a sole-proprietorship or partnership. Because of the benefits available to persons in these categories, many states make provisions for them to purchase or obtain workers' compensation insurance. There is often a statutory procedure for electing coverage for those that may not qualify as an employee. (Washington).

Once it is clear that there is an employer-employee relationship between the worker and their company, the next factor considered is if the injury was accidental. An accident is when a sudden, unusual, or extraordinary event causes an unexpected result. The unexpected result is a bodily injury to the employee. The injury had to be caused by an unexpected or unusual event. (Washington).

As stated before, there is an exception to the accident requirement. The exception is occupational diseases. These are illnesses caused by the nature or the circumstances surrounding the worker's job. (Washington).

For example, asbestosis is a disease that could have been caused by a worker doing his job of removing asbestos from older buildings. Some forms of skin, eye, or lung disease may have been caused by a long-term, ongoing exposure to chemical solvents or other solutions used on the job. Conditions such as these could result in the employee's being granted workers' compensation benefits even though there was no specific date of an "accident." They are covered as occupational diseases. (Washington).

In order to receive Worker's Compensation benefits for a compensable accidental injury claim, the injury must "arise out of the employment" of the employee. If the condition under which the work is required to be performed by the employee's employer causes the injury, it is said to "arise out of" the employment. The focus of this aspect is on the exposure of the employee to risk or danger because of the job requirements. For example, if a person must work in an environment that is generally slippery and wet -- such as a car wash facility or a water amusement ride at an entertainment park -- then a slip-and-fall injury experienced by that worker could be said to arise out of the person's employment. (Hood;Hard;Lewis).

The employee's injury must also "be in the course of employment." This is an important phrase. "In the course of employment" is a slightly different factor. The injury must center on the time, place and circumstances of the injury. If the employee's injury occurs during a period of time when an employee was at work, the employer's place of business, or such other location as may have been designated by the employer, and while the employee was performing their job duties or something related to them when the injury took place, the injury is said to have arisen in the course of that person's employment. (Hood;Hard;Lewis).

If all of these factors are satisfied, a worker's injury will generally be covered by workers' compensation insurance. It is not always easy to determine if all of these factors are apparent when an injury is initially reported. Frequently, an investigation of the worker's compensation claim is necessary. If a claim is denied, the states have established procedures for appeals and final adjudication. The procedures vary from state to state. (Hood;Hard;Lewis).

The legislature of each State determines the type and amount of benefits which are payable under workers' compensation. Generally speaking, workers' compensation payments are not taxable to the employee as income. Based upon the laws enacted in each State, insurance companies that provide worker's compensation insurance coverage determine the probabilities of injury for different occupational categories and establish their premium rates. This is the amount charged to employers for their workers' compensation insurance. (Pennsylvania).

While each state is different, generally all the various Worker's Compensation systems offer the following types of benefits:

Temporary Total Disability Benefits: This is the period of time frequently referred to as the "healing period." The amount to be paid is set by the legislature of the state.

Temporary Partial Disability Benefits: These are benefits to which an injured employee may be entitled during the process of recovery when the worker during a temporary period is NOT totally disabled. The amount to be paid is set by the legislature of the state.

Permanent Total Disability Benefits: Some injuries are so serious that a worker is permanently, totally disabled. The amount to be paid is set by the legislature of the state.

Permanent Partial Disability Benefits: Injuries that are not so serious as to leave a worker permanently, totally disabled may nonetheless result in some permanent impairment. This is called permanent partial disability. The amount to be paid is set by the legislature of the state.

Medical/Hospitalization Benefits: In addition to the various types of disability benefits to which an injured worker may be entitled, if a covered employee has suffered an accidental injury, compensable hernia or occupational disease, the employer or its insurer promptly shall provide to the covered employee, as the Commission may require

Medical, surgical or other attendance or treatment:

Hospital and Nursing Services

Medicine

Crutches and other apparatus

Artificial arms, feet, hands, legs and other prosthetic appliances

Wage Reimbursement Benefits: Some states provide Wage Reimbursement Benefits as part of their Worker's Compensation system.

Vocational Rehabilitation Benefits: When a covered employee is disabled from performing work for which they were previously qualified as the result of an accidental injury or an occupational disease, the covered employee is entitled to vocational rehabilitation services. Training and other services may include:

Coordination of medical services

Vocational assessment

Vocational evaluation

Vocational counseling

Vocational rehabilitation plan development

Vocational rehabilitation plan monitoring

Vocational rehabilitation training

Job development

Job placement (Wisconsin).

The purpose of the Rehabilitation benefit is to assist the injured employee to return to a productive place in society. The goal is to return them to a work environment where they can earn an income. This would be beneficial to all parties. It is obviously good for the injured employee, and for the employer to have the employee being able to regain meaningful employment. The insurer also benefits by not having to continue to pay lifelong disability benefits. Trying to achieve all of these goals is the purpose of Worker's Compensation Rehabilitation. It is not always an easy goal or an uncomplicated process. (Wisconsin).

Part of the problem is that no two cases are exactly the same. Many factors compose each case. Obviously, the current condition of the injured worker is reviewed and evaluated. Each individual seeking assistance from a worker's compensation rehabilitation service comes with different background, abilities, education, skill, and knowledge. (Wisconsin).

The first step is to assign a case to a counselor. Throughout the states, various people can be a worker's compensation rehabilitation counselor. Some are employees of a specific state agency, while others are hired by private firms whose services are approved by the state. (Washington).

The counselor reviews the case in detail. The ultimate question is: "Is the disability an obstacle to getting or keeping a job?" If the answer is yes, rehabilitation services could provide the answer to return the person to meaningful employment. (Texas).

There is often an initial interview. During that first meeting, the counselor asks for medical and personal information. A work history is developed. The counselor also attemps to determine the nature of the worker's disability. In most cases, there are two elements that must be present for the case to proceed:

The injured worker must have a physical, mental or visual disability which results in a substantial barrier to employment;

The worker requires vocational rehabilitation and services to prepare for, find and keep employment.

Some injuries are so severe that vocational rehabilitation services are not appropriate. For example, a worker that was injured and lost sight, now blind, is likely not to receive vocation rehabilitation services. However, each state is different, and established regulations would determine if a blind worker would receive this benefit. (Texas).

Following the intitial interview, the counselor may gather additional medical records, doctors reports, and other information that could help determine the probability of a successful rehabiliation program. The counselor then reviews all the existing medical, vocational, and personal data. (Texas).

If the counselor believes that vocational rehabilitation is in order, a determination is made to make certain the injured worker is eligible for this worker's compensation benefit. Assuming the benefit is available, the counselor may ask for some evaluative testing. These tests might be used to determine the nature or severity of a disability, or if further evaluations or testing might be arranged in the case. (Texas).

During the process, the counselor makes a determination if the injured worker should receive vocational rehabiliation. If the counselor believes the case is not eligible, a denial of services is provided to the applicant, and an appeal process is usually available. (Texas).

If the worker is found to be eligible, additional evaluations or testing could be scheduled to determine an appropriate vocational goal. Once these tests and evaluations are completed, the counselor and the injured worker develop a Vocational Rehabilitation Plan. In most states, this plan is:

jointly developed, agreed upon and signed by the worker and the vocational rehabilitation counselor.

A designed to achieve the employment objectives, both long and short-term, consistent with your unique strengths, resources, priorities, concerns, abilities and capabilities.

A include an assessment of career interests.

A include a statement by the worker describing how you were informed about and involved in choosing among alternative goals, objectives, services, entities providing such services and methods used to provide or procure such services.

A include information about the worker's rights and responsibilities as a vocational rehabilitation client. (Pennsylvania).

Other factors are often included in the plan. A timeline of the projected dates of completion, duration of each service, technology services, on-the-job and related personal assistance services, post employment services assessment and evaluation procedures are usually included. (Pennsylvania).

There are many different types of services available to an injured worker participating in a vocational rehabilitation program. It is important to remember the social aspect of the worker's compensation system. The idea is to provide a "no-fault" benefit or insurance plan to the injured worker. The goal remains to get the injured worker back to work. In reality, many cannot return to manual labor or jobs similar to the one they had prior to their injury. For example, a dock worker may have loaded and unloaded trucks when a slip-and-fall accident occurred. Surgery was required, and an othopedic surgeon indicates that the repair prevents any physical manual labor. The worker could work, but not doing manual labor as was being performed. The goal of the vocational rehabilitation would be to retrain the worker and develop skills to make him employable in a different field. (Pennsylvania).

In most states, vocational rehabilitation services include any goods and services necessary to render the injured worker with a disability employable, including but not limited to the following:

College, vocational or technical education.

Counseling and guidance services.

Continuing support services such as transportation, interpreters, or job coaches after the injured worker begins a job (if necessary to keep the job).

Evaluation to determine the appropriate vocational or training program, or vocational objective.

Assistance in finding a job.

Independent life skills training.

Note takers or interpreters.

Readers, tutors, therapists, child care and other support services if necessary to participate in a training program.

Rehabilitation engineering and adaptive technology.

Services to the injured worker's family in order to facilitate the rehabilitation.

Limited subsistence living expenses such as food, shelter and clothing when necessary in order to participate in training.

Telecommunications and technological aids.

Coordinating and, if necessary, funding transportation to and from a training program or other services.

Tools, equipment and supplies necessary for the injured worker to participate in a training program or to begin a job.

Any other goods or services which can be reasonably expected to increase the employability potential are generally also available.

From this long list, it is easily understood how worker's compensation rehabilitation services attempt to return the injured worker to employment. It is also easily discerned as to why each case must be carefully managed, not only to prevent fraud or mishandling, but also to provide services that could be worthwhile to the injured employee. (Bloch; Prins).

Labor Unions, as might be expected, are concerned about workers being injured on the job. The AFL-CIO tells its members, that "It shouldn't hurt to go to work. But in 1998, nearly 6 million U.S. workers were injured at work or became sick because of their jobs."

The AFL-CIO acts as a federation of America's unions. The AFL-CIO includes more than 13 million of America's workers in 65 member unions working in virtually every part of the economy.

The large labor union advises their members to notify your supervisor, your personnel department, and your union steward when injured. The Union tells its member to get whatever medical treatment is needed. Members are advised that they may be required to see a doctor selected by the employer. The unions members are also informed that is if they are injured on the job, the employer's insurance company is obligated to pay for reasonable and necessary medical treatment.

The union goes further by informing its members to get a copy of any report written by an employer, including any "incident report." They advise the union steward to obtain the names of workers who witnessed the injury or assisted the employee afterward, as that information maybe needed later if the member seeks workers' compensation benefits.

As part of its mission to assist its members, the AFL-CIO informs its members that if a claim for benefits is filed and it is rejected, the worker has the right to appeal the ruling, even to the courts. They advise their members to seek legal advice whenever necessary.

The union also directs its members to websites and other information that provides information on how the union member should handle the relationship with the employer, if injured. For example, on Saturday, March 29, 2003, the AFL-CIO website at http://www.aflcio.org, provided a direct link to a page at http://www.about.comthat explains "how to handle injuries on the job."