Introduction

Section 8(a) of the Illinois Workers' Compensation Act provides that, in addition to medical treatment, the employer "shall also pay for treatment, instruction and training necessary for the physical, mental and vocational rehabilitation of the employee, including all maintenance costs and expenses incidental thereto." Pursuant to that section, the Illinois Workers' Compensation Commission has promulgated Rule 7110.10 setting forth the requirements of vocational rehabilitation. Ill. Admin. Code, Title 50, ch. II, § 7110.10. This section states that a vocational rehabilitation plan must be prepared if the claimant is unable to resume regular work duties he or she engaged in at the time of the injury, or when the period of total incapacity for work exceeds 120 continuous days, whichever first occurs. Id. The Commission has held that Rule 7110.10 is not merely a suggestion, but a mandate. Belice v. Mayfield Transfer Co., 07 I.W.C.C. 0169 (2007); Roy v. Florstar Sales, Inc., 10 I.W.C.C. 0906 (2010).

Guidelines for Implementation of Vocational Rehabilitation

Unlike many states with workers' compensation statutes that specifically set forth the circumstances in which vocational rehabilitation is awarded, Illinois' section 8(a) states only that an employer "shall also pay" for rehabilitative efforts when "necessary."

The burden is on the claimant to prove he is entitled to rehabilitation. See, e.g., Borak v. Associated Glaziers, 13 I.W.C.C. 0998 (2013). The seminal Illinois case on vocational rehabilitation is National Tea Co. v. Industrial Comm'n, 97 Ill. 2d 424b (1983). In National Tea, the court held, generally, that a claimant is entitled to rehabilitation where he sustained an injury that caused a reduction in earning power and where there is evidence that rehabilitation will increase his earning capacity.

National Tea set forth the following criteria for determining whether a vocational rehabilitation award is appropriate:

• relative costs and benefits to be derived from the program;

• employee's work life expectancy;

• ability and motivation of employee to undertake program;

• whether employee's injury has reduced his earning capacity;

• evidence that rehabilitation will increase the employee's earning power;

• likelihood of obtaining employment upon completion of the program;

• unsuccessful previous rehabilitation programs undertaken by the employee;

• employee's existing skills which might enable him to obtain employment without more training or education.

National Tea Co., 97 Ill. 2d at 432-433, see also Hunter Corp. v. Industrial Comm'n, 86 Ill. 2d 489 (1981).

The appellate court has since interpreted National Tea to include an additional consideration of whether the employee is likely to lose job security due to his injury. Connell v. Industrial Comm'n, 170 Ill. App. 3d 49 (1st Dist. 1988). Where the claimant is likely to lose job security due to the work-related injury at issue, vocational rehabilitation is favored.

In National Tea, the court emphasized that these factors should be applied flexibly, and that a claimant's entitlement to vocational rehabilitation depends on the particular circumstances of the case. The appellate court has stated, "[i]t is the Commission's province to weigh all the factors regarding a rehabilitation program and to make its decision accordingly." Howlett's Tree Service v. Industrial Comm'n, 160 Ill. App. 3d 190, 195 (3d Dist. 1987). Thus, even where an employee fails to show there would be jobs available in his field of endeavor upon completion of his education, he may still be entitled to a vocational rehabilitation award where he has produced significant favorable evidence relating to other factors set forth in National Tea.

The Commission has declined to award rehabilitation where the rehabilitation plan did not address theNational Tea factors. For example, it has held that it is not sufficient to merely offer deposition testimony of a vocational expert which establishes no plan, or a list of job placement services with no further information. Jones v. Perrier Group of America, 07 I.W.C.C. 0372 (2007). Rehabilitation has also been deemed inappropriate where a claimant has sufficient skills to obtain employment without further training or education. See, e.g., Borak, 13 I.W.C.C. 0998.

On the other hand, the Commission has awarded vocational rehabilitation based on a medical opinion that the claimant can no longer be employed in a physically taxing trade and the fact that he is young and has a good personality, indicating he would successfully increase his earning ability after completing a vocational program. See, e.g., Larsen v. Great Lakes Plumbing & Heating, 13 I.W.C.C. 0999 (2013).

It is important to understand the National Tea factors and to weigh them appropriately in deciding whether vocational rehabilitation is appropriate in your case. The Commission and courts may explore any and all of these factors on review.

Critical Considerations Regarding Vocational Rehabilitation

Choices in Disputing Vocational Rehabilitation

An employer must gather all pertinent information in order to weigh its options in deciding whether to dispute a rehabilitation claim. If the employee has not, or cannot, return to work due to restrictions, the first inquiry should be whether the employee is working elsewhere. If so, the likelihood of a rehabilitation/maintenance award is considerably reduced. If the claimant is not otherwise employed, a decision must be made as to whether rehabilitation will be offered to the claimant. Given today's difficult economic times, it may be prudent for an employer to offer a limited rehabilitation plan in order to avoid a wage differential award or permanent total disability award. See, e.g., Aladesaiye v. State of Illinois – Howe Developmental Ctr., 13 I.W.C.C. 0982 (2013) (awarding permanent and total disability where the employer's lack of participation in rehabilitation plan yielded no job alternatives for injured claimant).        

Where rehabilitation is disputed, the employer has a few options. The first option is for the employer to present the employee with a bona fide job offer within his or her restrictions. The offer must be in writing and be within the prescribed medical restrictions. Such offers must be made in good faith and must not be a sham. For example, where an employer made a job offer shortly after a rehabilitation award, and the employee was offered union wages of $33 per hour more than the position normally paid, and the employee was not previously offered a similar open position five to six months prior to the hearing, the appellate court affirmed the Commission's finding of a sham job offer. Reliance Elevator Co. v. Industrial Comm'n, 309 Ill. App. 3d 987 (1st Dist. 1999).

Second, the employer can present evidence negating rehabilitation based upon the National Teafactors set forth above. For example, the employer can show that the vocational efforts are not designed to increase the employee's earning power. However, once an employee establishes the unavailability of employment to a person in his circumstances, the burden shifts to the employer to prove "that the [claimant] is capable of engaging in some type of regular and continuous employment" and that "such employment is reasonably available." E.R. Moore Co. v. Industrial Comm'n, 71 Ill. 2d 353, 362 (1978). Proving as much usually requires some form of vocational assessment. Whether the employee has shown the unavailability of employment and whether the employer has shown that the employee is capable of engaging in some type of regular, continuous employment and that such work is reasonably available, are questions of fact for the Commission. Id.

The third option is to assist the employee in finding alternative work. While this assistance need not be formal, it should be well documented. One means is to hire a certified vocational counselor to perform skills and aptitude testing. The employer can also simply forward job postings to the employee.

A fourth option is to fund limited retraining for the employee, with the goal of preparing him for new work.

Employers should be mindful that they may be responsible for paying not only temporary total disability ("TTD") but also maintenance for the time period during which they are disputing the need for vocational rehabilitation pursuant to section 8(a). 820 ILCS 305/8(a).

Maintenance is a component of vocational rehabilitation and is usually not awarded until after the claimant has established an entitlement to vocational rehabilitation.  The two most common maintenance scenarios are where an employee's condition has stabilized but he is still undergoing a vocational rehabilitation program or when the claimant has completed a rehabilitation program but has yet to be placed in the labor market.  In the former situation, the maintenance benefits are the equivalent to TTD benefits.

In addition, it is also important to recall that the claimant need not request vocational rehabilitation before maintenance may be awarded. Thus, the employer may be responsible for paying maintenance to the employee while the employer is either disputing the need for vocational rehabilitation or determining whether an alternative option is viable, even if maintenance has not yet been requested.Roper Contracting v. Industrial Comm'n, 349 Ill. App. 3d 500, 506 (5th Dist. 2004).

Early Determinations are Important

Early determination of the appropriateness of vocational rehabilitation is crucial. In addition to the 120 day deadline discussed above, early implementation of a rehabilitation program can reduce the amount of maintenance costs paid in cases where the program begins during the period of TTD. In other words, the claimant can undergo the rehabilitation process while recovering from his injury when he is already receiving TTD benefits. Often some of the testing and training that is part of most rehabilitation programs can take place during this time.

Averting Wage Differential Claims

The most typical reason to begin a vocational rehabilitation program is that the employee's injury has reduced his earning capacity because he is unable to return to his former employment. In this regard, there is some overlap between a rehabilitation claim and one seeking a wage differential or permanent total disability. An employee may be awarded a wage-differential benefit pursuant to section 8(d)(1) of the Act¹ if he establishes that (1) a partial incapacity prevents him from pursuing his usual and customary line of employment; and (2) his earnings are impaired. Albrecht v. Industrial Comm'n, 271 Ill. App. 3d 756, 759 (1st Dist. 1995). As vocational rehabilitation is designed to restore an employee to his pre-injury earnings, vocational rehab may help avoid a wage differential award. In most cases, wage differential awards will be much higher than the cost of vocational rehabilitation programs.

Parties' Rights in Regard to Vocational Rehabilitation

Assuming vocational rehabilitation is deemed appropriate by the parties, or by an Arbitrator or the Commission, both parties have rights during the process.

The Claimant's Rights

Claimants have the following rights in connection with vocational rehabilitation:

• The right to vocational rehabilitation as interpreted by National Tea at the employer's expense.

• The right to choose his own rehabilitation counselor. However, claimants seldom choose their own counselor.

• Claimants are arguably not restricted to the limitations on the chain of referrals in the selection of a vocational rehabilitation counselor. Section 8(a)(3), which limits medical treatment to that which is within the chain of referrals, states, in part, "[t]his paragraph shall not affect the duty to pay for rehabilitation referred to above." Most employers, however, take the position, that the limitations do apply.

• The right to TTD compensation during the rehabilitation program.

• The right to receive a copy of his rehabilitation reports prepared by the claimant's rehabilitation counselor.

• The right to avail himself of the extraordinary procedures and remedies set forth in sections 19(b) and 19(b-1), and penalties under section 19(k)(1), as well as attorneys fees under section 16 for failure to provide a vocational rehabilitation plan.

Contrary to what one might suspect, the burden to request vocational rehabilitation is not on the employee. Rather, section 6(d) requires that the employer advise the claimant of his right to rehabilitation services and advise him of the locations of available public rehabilitation centers and any other such services of which the employer has knowledge. The duty of the rehabilitation vendor is to the employee, not the employer.

The Employer's Rights

Employers have the following rights with regards to vocational rehabilitation:

• The right to nominate the initial vocational rehabilitation consultant pursuant to sections 8(a) and 6(d).

• The right to suspend TTD benefits or maintenance if the claimant does not cooperate with rehabilitation efforts. Section 19(d) may provide an additional basis for the suspension of TTD for non-compliance.

• The right to terminate maintenance payments upon claimant's completion of the rehabilitation program.

Conclusion

In today's difficult economic times, vocational rehabilitation is more important than ever. Many employers have fewer alternative positions to offer injured workers. It is important for employers to know both their rights and responsibilities in order to comply with the laws regarding vocational rehabilitation; indeed the failure to provide such benefits can lead to the imposition of penalties under sections 19(l) and (k), as well as attorneys' fees under Section 16. Waldschmidt v. Industrial Comm'n, 186 Ill. App. 3d 477 (3d Dist. 1989).

Employers must be mindful at all times of the potential for vocational rehabilitation by monitoring the claimant's restrictions, return to work and employment (including with other employers). After carefully considering the claim for rehabilitation and maintenance, employers should aggressively defend the claim where appropriate. Where vocational rehabilitation is required, employers must consider their rights, as well as the claimant's rights, and ensure that the program is tailored in such a manner that it will be successful. In some cases, vocational rehabilitation is the best option for all parties involved.