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How the Legislature Threw a Bone to the Insurance Companies’ Favorite Pitbulls

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We have written a lot about rehabilitation professionals, particularly vocational rehabilitation professionals. Insurance companies have traditionally used vocational rehab professionals to set you up for a Form 24. (That’s the Industrial Commission form they use to cut off your benefits.) All the voc rehab professional had to do was to send you out on a variety of ridiculous job leads for which you were either completely unqualified, paid next to nothing, were part-time, or were a couple of hours from your house. When you reasonably decline to go through with those interviews, the rehab professional would document that you were non-compliant and insta-presto the Industrial Commission would cut off your weekly checks. For those of you with workers’ comp claims arising before June 24, 2011, you still get to deal with this.

Several quick examples:

An RP referred an injured worker to sell wooden outbuildings from the back of a pickup truck on the side of the highway in the mountains of Ashe County. On commission.

An RP referred a client of ours to a job as an interior decorator for mobile homes which were sitting on the sales lot. When our client went early for the interview, he observed the RP dropping off a local private investigator from her car. The “interview” took place as a breakfast joint at a table next to where the investigator was sitting. And the “interview” was with another American Rehab RP who was pretending to be an employer.

An RP referred a client to a “work from home and earn $1000s per week” advertisement in the local paper. All the client had to do was scrape up $500 for the information kit – and the insurance company wasn’t going to pay for it. The client’s refusal to pay the $500 was documented as non-compliance.

An RP recently wrote a report to be attached to a Form 24 stating that he had referred our client to over 100 jobs but had not received any independent confirmation that he had put in a single job application. When questioned about this, the RP admitted that he had only asked two of the “over 100” employers if the client had put in an application. And both of them said that because they were not hiring at the time, they didn’t keep any applications at all and thus could not say one way or the other if the client had applied. The RP was outraged that we suggested his statement “I haven’t received independent confirmation” was misleading just because he had made essentially no effort to obtain that independent confirmation.

So, those of you with claims under the old law still are vulnerable to these types of games. But those of you with new claims . . . with the definition of suitable employment changed to permit part-time minimum wage jobs, even if you had been making $100,000 annually, there really isn’t much a vocational rehabilitation professional has to do. As long as you can be a Wal-Mart greeter or a parking lot attendant or a security guard, your benefits may be short-lived.

Given that the voc rehab professional no longer has to find “suitable employment” for you (technically she still looks for suitable employment, but all employment is now suitable) then what will she have to do? And with nothing to do, why pay her to do anything? An entire division of the insurance companies was basically facing the elimination of their jobs. And this was a division which had served the interests of the insurance companies with great devotion over the years.The solution was to create a situation where vocational rehabilitation is still relevant even after you have returned to work. Under the new law, if you return to work making less than 75% of your old previous wages, then the injured worker has the right to request vocational rehabilitation including education and training at any North Carolina community college or public university at defendants’ expense. The only catch is that it must be likely that completion of the retraining will result in a substantial increase in your earning potential.

The question which only time will answer is whether the vocational rehabilitation professionals will continue to serve the insurance companies by saying that future voc rehab is unnecessary (and therefore they are unnecessary) or whether they will be forced to assist injured workers in obtaining further services which the carriers oppose.

At Oxner + Permar we have met with a couple of independent vocational rehabilitation professionals who have already demonstrated they would buck the system and do the right thing for injured workers. We are putting standards and guidelines in place to make it nearly impossible for the carrier to prevent you from getting the education you may need to completely return to your old standard of living.

This article was written by Chip Permar