If Your Work Injury Prevents You From Returning To Your Job, You May Be Eligible For Retraining
If your work injury prevents you from being able to return to your job, you may be eligible for vocational rehabilitation benefits. Eligibility is determined after a written assessment is completed by a vocational rehabilitation counselor. The written assessment must evaluate the injured employee’s ability or potential to return to the position the employee held at the time that he or she was injured or any other gainful employment. The counselor must identify the injured employee’s educational background, work experience, and career interests and determine whether the injured employee has any existing marketable skills. In addition, the counselor must contact the injured employee’s treating provider and determine whether the employee has any physical limitations due to the industrial injury. Based upon the assessment, the counselor provides a professional opinion as to whether the injured worker has “existing marketable skills” that will allow the injured worker to find employment within the industrial physical restrictions. Note, however, that if the injured worker lives outside of the state of Nevada and resides more than 50 miles from the border, the injured worker is not eligible for vocational rehabilitation services. The only benefit available is a limited lump-sum buyout.
If the injured worker is deemed eligible for vocational rehabilitation benefits, a sixty-day plan development period commences. During that time, the counselor and the injured worker meet and develop a plan for re-training which consists of a program that trains or educates the injured employee and provides job placement assistance. There is also an option of on-the-job training, if the training is available and within the injured worker’s physical restrictions.
Under Nevada law, the length of the plan is determined by the percentage of impairment resulting from the permanent partial disability evaluation. If the injured employee has incurred a no 0 percent rating, the plan cannot exceed 9 months. If the injured employee has incurred a permanent physical impairment of 1 percent or more but less than 6 percent, the plan cannot exceed 12 months. If the injured employee has incurred a permanent physical impairment of 6 percent or more, the plan cannot exceed 24 months. The percentage of the injured employee’s permanent physical impairment must be determined pursuant to NRS 616C.490. Under certain circumstances, a plan can be extended under NRS 616C.560.
A vocational rehabilitation plan must “assist the employee in finding a job or train or educate the employee and assist the employee in finding a job that is a part of an employer’s regular business operations and from which the employee will gain skills that would generally be transferable to a job with another employer.” NRS 616C.555
In addition, the plan cannot start before the treating provider determines that the injured employee is capable of safely participating in the program. Once the treating provider approves the plan, the plan must then be signed by a certified vocational rehabilitation counselor.
So what happens if the plan is not successful? The injured employee may submit a written request for the development of a second program of vocational rehabilitation that relates to the same injury. An insurer shall authorize a second program for an injured employee upon good cause shown. If a second program is unsuccessful, an injured employee may submit a written request for the development of a third program which relates to the same injury. The insurer, with the approval of the employer who was the injured employee’s employer at the time of his or her injury, may authorize a third program for the injured employee. If such an employer has terminated operations, the employer’s approval is not required for authorization of a third program. Remember that you have to show good cause. The injured worker will be required to show that there was a good faith effort to successfully complete the plan.
During the plan development and plan itself, the injured worker continues to receive the biweekly payment, previously called TTD, but now designated as vocational rehabilitation maintenance benefits.
There are many rules and limitations to vocational rehabilitation benefits. It is strongly advised that prior to the process you obtain legal counsel to walk you through the many statutes and regulations applicable to these and all other industrial benefits. To set up an appointment with me, please call me at 775-323-5200.
Herb Santos, Jr., Esq.
Herb is a NJA Board Certified Workers’ Compensation Specialist. He is recognized by the National Workers’ Injury Law & Advocacy Group as one of America’s leading attorneys representing injured workers. Herb was also selected as the 2018 Trial Lawyer of the Year in Nevada and the 2020 AITL Workers’ Compensation Litigator of the Year.