Vocational Rehabilitation in Michigan Workers’ Compensation:

1. Vocational Rehabilitation in Michigan Workers’ Compensation: From “Soup” (for the Soul) to “Nuts” (and bolts) David Campbell, MA, CRC Vocational Rehabilitation Consultant Michigan Workers’ Compensation Agency MiARP Conference, Oct. 1, 2004

2. So much has changed, yet much remains the same… “Although the concept of total rehabilitation has been proven by experience to be good business, policies and attitudes among employers, the employees (themselves), insurance companies, unions, hospitals, doctors, attorneys (plaintiffs and defendants alike) and the general public – these policies and attitudes tend to discourage rehabilitation. “Getting the injured employee back to work should be the number one objective of the workmen’s compensation system.”–Workmen’s Compensation Dept. Director, William R. Hart, 1962

3. Workers’ Compensation Agency Mission Statement “To efficiently administer the Workers’ Disability Compensation Act of Michigan, which includes carrier and employer compliance, timely benefit payments, and the prompt and fair adjudication of claims involving Michigan’s injured workers.”

4. Workers’ Compensation Agency Vision “Provide prompt, courteous and impartial service to all customers with timely and objective administration of their rights and responsibilities under the Workers’ Disability Compensation Act.”

5. Agency News • Hearing Site Consolidations (10-1-04) • Ann Arbor site moves to Detroit • Battle Creek site moves to Kalamazoo • Muskegon site consolidated with Grand Rapids • Lansing hearing site moved • From Okemos to Downtown Lansing, Ottawa State Offices • WCAC relocated to Ottawa State Office

6. State Average Weekly Wage Minimum & Maximum

7. Customer Service & Contested Case Section • Bureau’s Hotline – 1(888)396-5041 • - Follow-up on constituent inquiries • Attempt to resolve problems prior to any litigation • Health Care Service Rule facilitations - 104B hearings • Vocational Rehabilitation • David Campbell, Vocational Rehabilitation Consultant • Process all Applications for Mediation or Hearing – approximately 30,000 in fy 03. • Serve all magistrate/mediator decisions

8. REQUEST FOR REHAB UPDATE (BWC-110)

9. The Mediation Process • Alternative Dispute Resolution (ADR) • Client may or may not have attorney • May involve both attorneys, claimant, adjuster, and family members • Informal process, not on the record • Facts are presented by parties; mediator listens, asks questions, provides some input • Ultimate goal: Agreement by all parties, not necessarily an “order”

10. Claims Assigned to Mediation • In response to a decrease in the number of mediators (Nov. ’02), only the following claims are assigned to mediation: • Unrepresented parties • Closed period claims • Medical-only claims • Penalty-only applications • Rate Issues • Vocational Rehabilitation/First Level Hearings

11. Resolution of Workers’ Compensation Claims • Withdrawal/Dismissal (23%) • Voluntary Payment (12%) • Redemption/Lump Sum Settlement (59%) • Opinion/Order (6%)

12. Vocational Rehab Defined • “The coordinated and systematic process of professional services to enable and sustain the employment of an injured worker. The basic components of vocational rehabilitation services are vocational assessment, goal-setting, service planning, case management, service delivery, job placement, and follow-up.” –Task Force on Vocational Rehabilitation in Workers’ Compensation, 2000

13. VR Division Responsibilities • Ensuring that employers provide rehabilitation services according to the provisions of the Act, and that the injured employees accept such services. • Housed within the Customer Service/ Contested Cases Division • Handling customer service calls/concerns daily (VR letters, vendor issues, etc.) • Approving VR facilities, and monitoring practices of those currently approved • Mailing “Right to Vocational Rehabilitation” letters to claimants • Holding VR hearings across the state to determine compliance with Section 319

14. 3-Step Approach to VR • RTW with same employer, same or different job, within ee’s capabilities • Direct job placement to appropriate alternative employment in community, or short-term retraining up to 52 weeks (with possibility of add’l 52 weeks) • Self-employment ventures (last resort in most cases)

15. New Processes • New “Med Management Do’s & Don’ts letter • VR Letter now goes out in 120 Days • Why? Early Intervention is THE KEY to effective management of disability • New Reporting Procedures: • Monthly provider closure codes • Monthly provider report format • Provider Visits • Review Practices/Compliance with Bureau and professional obligations • Maintain open lines of communication and support • VR 2nd Level Hearing “Pre-Conferences”

16. RIGHT TO VOC REHAB LETTER

17. Current Stats • VR case closures for fiscal year 2004 (incomplete)

18. AGENCY APPROVED PROVIDERS REPORTING FYO4

19. PERCENTAGE REPORTING FY04

20. Relevant Cases • Nessel v. Schenck Pegasus • Defendants wanted Mr. Nessel to meet with their VR expert as part of pretrial discovery in order to determine extent of disability based on Sington case. • WCAC reversed magistrate’s denial of discovery, saying that the burden of proof under Sington makes it critical to determine claimant’s qualifications/training, and how this effects claimant’s ability to work and earn wages. • Significant because rules of discovery per Michigan court rules don’t apply in WC—however, WCAC now says it is under the proper circumstances. Michigan Workers’ Comp Reporter, Vol. 13, #11, Jan. 2004

21. Relevant Cases • Suliman v. Ann Arbor Ceiling & Partition (2004) • Fell from scaffolding, injured left arm • Benefits terminated when he refused the services of a medical case manager. • Defendants also argued he wasn’t VR candidate, as he had not reached MMI, nor were they happy with the fact that plaintiff had chosen the VR provider. • Magistrate denied these positions; WCAC affirmed. • The Act does not allow for the termination of benefits on the basis of “non-cooperation with a case manager”. • MMI does not have to be reached before beginning a rehab program

22. Relevant Cases • Charles Sington v. Chrysler Corporation (July ’02) • General background: • Worked as floater for 15 yrs.; picked up parts 30lbs.; injured L shoulder. Later injured R shoulder in non-work injury. • Each time, employer able to accommodate; same wages; Then had a non-work stroke and never returned to work. • Basis: Sington said that he was still disabled from his work-related shoulder, and that work he was doing at the time was “favored work.” Therefore, under 301(5), he had lost his job for “whatever reason” and should be paid benefits. However, Supreme Court remanded case and benefits were not awarded.

23. Specific Sington Determinations: • Has plaintiff established the universe of jobs for which he is qualified and trained, as well as how much the jobs pay? • Has plaintiff established a work-related physical or mental impairment which prevents him from performing jobs within his qualifications and training and which is causing him to lose wages? • Has plaintiff established that he was either unable to perform the jobs within his qualifications and training or that he was unable to obtain such jobs because they were not reasonably available?

24. Sington and the WC Act • Is a “Sington Eval” voc rehab, as defined in Sec. 319? • Not in our opinion. • Purpose under Sington is not to rehabilitate per se, but to provide evidence and information regarding the broadest array of jobs within qualifications and training (I.e., Labor Market Survey) • If not, what do we call it? • We might call it Forensic Evaluation, in that it is used to produce objective findings which may or may not include examination of the individual with a disability (from CRCC Code of Ethics) • VR counselors could be used to provide expert vocational testimony as to the employability and placeability of the client given his/her qualifications and training. • Many times, your eval may be used to open a formal VR case.

25. Ideas on Approaching Sington: • Determine the scope of your interaction with Sington-related work • Will you, or won’t you do the evals • What will your eval encompass • When asked to do a Sington Eval, and it is not within your scope, your options might be: • Turn down the referral • Tell the referral source that you’ll do it, but only within your scope of practice

26. EMPLOYEE MOST FAQ & CONCERNS • “My adjuster won’t call me back” • “My check is late!” • “How far do I have to drive to look for work?” • “What if I find a job that pays less?” • “How can I get retrained for another occupation?” • “I have been in VR job placement for 2 years now, and haven’t found a job. Is this a long time?” • Want to go back to work, but employer won’t let them until 100% • My nurse case manager says I have to let them attend my doc appointments.

27. VR COUNSELOR MOST FREQUENT ISSUES • “Is there a defined radius of travel for clients?” • “The plaintiff attorney is asking for a copy of my records. Do I have to give them?” • “Plaintiff attorney won’t let me meet with client.”

28. Specific Concerns Today: • Adjusters cutting benefits for “non-cooperation with VR” • Benefits cut for marginal reasons (i.e., didn’t “make weight”) • Job Placement for 2 years or more continuously • Keeping VR files open just because the “account” says so, even when it’s of no help to client. • Counselor making recommendation to adjuster to “file for hearing” • Getting involved in settlement discussions • No apparent client input into written rehab plan

29. The Soap Box… • Vocational Rehabilitation Counseling is a noble profession, but often thankless. • It requires tactfulness, patience, compassion, loads of energy, empathy, and courage. • As a counselor, you subscribe to a professional process, with defined steps, services, and goals. But you’re dealing with people, so the process must stay flexible in order to stay on track.

30. The Soap Box… • There are multiple players = external pressures trying to direct flow • Difficult at times to remember that there is only one true “Client” • Above all, you listen. Sometimes it’s happy stuff. Most of the time it is a concern, a problem, or a crisis in your client’s life. This is the key to your job though, it’s what sets you apart…You’re a COUNSELOR!

31. It’s Rehabilitation COUNSELING, not Rehabilitation Placement! • The fact that you are a counselor makes you different from other “specialists” • We are forced to decide at times (by these external pressures) whether we should compromise the process and our ethics • As long as there are those in our field who will shortcut the process, there will be those looking for their services. Don’t be one of them, and change the system. • Don’t get caught up in the “NASCAR Mentality”

32. A few years ago, at the Seattle Special Olympics, nine contestants, all physically or mentally disabled, assembled at the starting line for the 100 yard dash. At the gun, they all started out, not exactly in a dash, but with a relish to run the race to the finish and win. All, that is, except one little boy who stumbled on the asphalt, tumbled over a couple of times, and began to cry. The other eight heard the boy cry. They slowed down and looked back. Then they all turned around and went back. Every one of them. One girl with Down’s Syndrome bent down and kissed him and said: “This will make it better. Then all nine linked arms and walked together to the finish line. Everyone in the stadium stood, and the cheering went on for several minutes. People who were there are still telling the story. Why? Because deep down we know this one thing: What matters in life is more than winning for ourselves. What matters in this life is helping others win, even if it means slowing down and changing our course.

33. How Do YOU Provide Voc Rehab? Tool weapon VS.