If you are unable to return to your pre-injury occupation due to your work injury, but are physically capable of performing other light or sedentary work, your employer has the legal obligation of providing suitable alternative employment before your workers’ compensation benefits can be reduced. In order to satisfy this burden, the workers’ compensation insurance carrier has the obligation of proving that you are physically capable of performing the jobs that they refer to you. They must also show that you have the vocational skills to perform the alternative employment, that the job is within your geographical reach, and that it is within any physical restrictions that existed before your work injury.
The first step in this procedure is usually for your employer or its workers’ compensation carrier to hire a vocational consultant to meet with you to gather information in order to conduct a job search. We recommend that this interview be done at our law offices in the presence of one of our attorneys. Prior to this meeting, we would explain to you your obligation to follow through on the job referrals, “in good faith,” and the various other procedures involved in the job search.
After this initial vocational meeting, you will start to receive job referrals in the mail. You should apply to all the jobs! If you apply to a job and are not hired, your benefits must continue and this job cannot be used to establish job availability in their attempts to reduce your compensation benefits. Even if you are given a job offer but the job exceeds your physical limitations, then the job is not suitable alternative employment and your benefits will continue.
Often the physical requirements of the referred jobs are much more strenuous than the vocational consultant claims them to be. Thus, you should bring with you to all interviews the job referral letter and ask questions of the interviewer about the physical requirements of the job and write these requirements down on the back of the job referral letter. If you can, get the interviewer to sign and date the job description you prepared during the interview. This can then be used to prove you went to the interview and to prove the real requirements of the job. Make sure you do not lose these job referral letters. When you receive a job notice in the mail, you should follow the following procedures:
- Write down the day you received the notice in the mail.
- Within one or two days, call the establishment and see if the job is still available. Write down the date that you called, the person, and the information they gave you.
- Even if they inform you that the job is no longer available, go to the establishment in person, and fill out a job application. Again, write down the date, who you saw, and what happened when you applied.
- When you interview for the job, you are permitted to explain that you are on workers’ compensation, the nature of your injury, and your restrictions. However, do not give the impression that you are not interested in the job. Never state that you will not accept the job on any basis, even on the basis of wage, benefits, etc.
- The most important thing is that you apply for each job. It is also very important that you write down everything including the physical requirements of the job. Also, write down the vocational requirements such as, typing, working with computers, etc.
The rehabilitation representative should not contact you to discuss your case. They would have been instructed by me not to contact you directly.
Prior to the first vocational interview, I will discuss in much more detail with you the procedures and obligations involved in applying for these jobs. If you are interested in retraining or attending school, let me know and we can discuss this possibility.