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Higginbotham v. WSI – Disputing Conclusions of Vocational Rehabilitation Report

On Behalf of | Aug 1, 2014 | Georgia Workers' Compensation |

In Georgia work accidents, employees who have suffered injures that are not considered catastrophic may be entitled to vocational rehabilitation. This is a service offered when a worker is no longer able to perform his or her previous job, but may still be able to do some type of work after some additional help to enter that field.The employer may have to pay for this service if the workers’ compensation board or court orders it. Workers don’t necessarily have to participate, but should know they risk a reduction or elimination of benefits if they don’t, under O.C.G.A. 34-9-200.1.

Workers should know too that reports from vocational consultants can potentially impact their ability to collect benefits if it is determined they are able to perform other types of jobs, even if they can no longer do the work they previously did. Having an experienced Atlanta workers’ compensation lawyer to help dispute the conclusions of these reports in some cases can help preserve your entitlement to benefits.

The recent case of Higginbotham v. WSI illustrates how these reports can be harmful to a beneficiary.

Here, the North Dakota Supreme Court was tasked with determining whether lower courts had erred in approving a vocational plan that required him to seek a job in another field, which would result in discontinuation of his previously-awarded benefits. The court affirmed the validity of the plan.

According to court records, the 70-year-old claimant, who had a high school education and retired U.S. Army sergeant, worked for three decades as a welder and pipe fitter. In the spring of 2010, he injured his left rotator cuff. The court found, based on medical records, the injury had arisen out of and in the course of his employment.

Prior to that injury, he earned $35 hourly, though he worked only part time. His job required him to travel long distances. Following the injury, he was no longer able to make such trips without frequent stops, and he could no longer do pipe fitting or welding anyway.

Following surgery on his shoulder, the state workers’ compensation board referred him to vocational rehabilitation. The consultant then submitted a report indicating the appropriate rehabilitation plan for this worker was to return to a job suited to his marketable skills, experience and education. Based on a statewide pool of potential occupations, she listed jobs including greeter, gaming dealer, phone sales representative and cashier.

The worker asked for reconsideration, but the plan was upheld. Upon appeal, the worker argued the state board hadn’t met its burden of proof for identifying an appropriate plan.

The court first noted a vocational rehabilitation plan is considered appropriate if it offers the injured employee a reasonable opportunity to secure gainful employment. The burden of proof is on the state to show the plan was appropriate under the circumstances. The court stated the legislature intended for workers to be offered a realistic chance to return to work, not just a theoretical rehabilitation plan on paper. In order for the plan to be considered reasonable, it has to take into account all the worker’s functional limitations, skills, education and experience.

The worker argued the state had not presented an expert witness to support its claim, and that there was no evidence presented showing the plan was affordable or practical. He additionally asserted the state failed to take into account the fact that if he were forced to relocate for work, his wife would lose her job and the wages she contributed. He further indicated no evidence was presented he could learn the necessary skills, and that preexisting conditions prevented him from doing the jobs listed. Finally, he argued he could not relocate or commute.

While the court noted there are instances where case law would support a finding that an injured worker could decline work under circumstances that would make it prudent to do so (i.e., cost of relocation, inability to commute) there was no evidence at the time of hearing that the claimant had looked for work, much less been offered a job. So the argument that accepting an offer would be too costly was premature, the court ruled.

Further, the court noted preexisting conditions (including degenerative disc and joint diseases, coronary artery disease, post-traumatic stress disorder and remnants of shrapnel in his body) were taken into consideration when his Functional Capacity Evaluation was performed. The results of this evaluation were taken into consideration when the vocational rehabilitation report was prepared.

The court lastly indicated the worker failed to cite any sources to support the remainder of his claims. As such, the court found the findings of the board and lower courts were supported by the facts.

For information on Atlanta work injury compensation, contact J. Franklin Burns, P.C., at 1-404-920-4708 .