Workers' Comp Law

The Defense View

The Key Word Here is “Meaningful”:  The Department Denies PTD Claim for Injured Worker’s Failure to Engage in Meaningful Vocational Rehabilitation Efforts.

The injured worker in Jennifer Bartlett v. Trapp Family Lodge, Op. No. 02-18WC (January 31, 2018) suffered work-related Complex Regional Pain Syndrome for which the Employer’s medical expert assigned an 84% permanent impairment rating and assessed a limited work capacity of sedentary work for two hours per day, three days per week.   Although a VR referral had been made and a VR counselor assigned, claimant expressed an inability to actively engage in VR efforts, and her file was first suspended and eventually closed.  No Entitlement Assessment was ever completed.   Under the Odd Lot Doctrine, claimant had to prove her Permanent Total Disability case with a Functional Capacity Evaluation and a vocational opinion that she was not reasonably expected to return to regular, gainful work or she had to prove that the VR assessment was not necessary because her inability to return to regular, gainful employment was so obvious.  Due to some inconsistent reporting and credibility issues, Administrative Law Judge DiBernardi did not think it was so obvious that claimant could not find work within her capacity, and because claimant didn’t otherwise come to Hearing with a PTD case supported with the required vocational assessment, her claim was denied.  What we like about this decision is this comment from ALJ DiBernardi:  “In short, Claimant has not received any meaningful vocational rehabilitation services.”  This is not a new concept - the Department does not take the odd lot doctrine lightly, and has traditionally required evidence of real and sincere efforts (both on the part of the injured worker and the VR counselor)  to find appropriate work, if possible.    However, as PTD claims have become more prevalent, we are seeing more and more “vocational assessments”   that are conclusory in nature, with no evidence of a real and sincere effort to help the injured worker identify employment options.   The Bartlett Decision serves as a good reminder that “meaningful” has meaning, and those types of flawed VR expert opinions can and should be challenged accordingly.

Oliver Abbott