After weeks, if not months, of job search, John Doe has finally received a job offer. The Rehabilitation Professional advises John Doe’s attorney a job offer has been made on a pre-qualified job lead that had been provided to John Doe by the Rehabilitation Professional and, plaintiff counsel will then ask a job description be prepared in collaboration with the employer. Typically, the Rehabilitation Professional will acquiesce to the request of plaintiff counsel, but is that a requirement as outlined in the Rules?
RULE. 0109 sections (g) and (h), VOCATIONAL REHABILITATION AND RETURN TO WORK SERVICES as set forth in the Rules for the Use of Rehabilitation Professionals in Workers’ Compensation Claims states the following:
(g) If the rehabilitation professional intends to utilize written or videotaped job descriptions in the return-to-work process, the rehabilitation professional shall provide a copy of the description to all parties for review before the job description is provided to the doctor. The employee or the employee's attorney shall have seven business days from the mailing of the job description to notify the rehabilitation professional, all parties, and the physician of any objections or amendments thereto. The job description and the objections or amendments, if any, shall be submitted to the physician simultaneously. This process shall be expedited when job availability is critical. This waiting period does not apply if the employee or the employee's attorney has given prior approval to the job description.
(h) In preparing written job descriptions, the rehabilitation professional shall utilize standards including, but not limited to, the Dictionary of Occupational Titles and the Handbook for Analyzing Jobs published by the United States Department of Labor. These standards can be accessed at no cost at http://www.oalj.dol.gov/LIBDOT.HTM and www.wopsr.net/etc/dot/RHAJ.pdf, respectively. The Handbook for Analyzing Jobs may also be purchased from major online booksellers for approximately eighty-five dollars ($85.00).
For the Rehabilitation Professional when determining if a job description is necessary the key phrase to be considered is: “If the rehabilitation professional intends to utilize written or videotaped job description in the return to work process.” Nothing in this section of the Rules places the determination for the need of a job description to the discretion of plaintiff counsel. Rather, according to section (f) of the same Rule:
The rehabilitation professional shall refer the worker only to opportunities for suitable employment, as defined by Rule .0103(5) of this Subchapter or by applicable statute.
For claims arising before June 24, 2011, "suitable employment" means employment in the labor market or self-employment that is reasonably attainable and that offers an opportunity to restore the worker as soon as possible and as nearly as practicable to pre-injury wage, while giving due consideration to the worker's qualifications (age, education, work experience, physical and mental capacities), impairment, vocational interests, and aptitudes. No one factor shall be considered solely in determining suitable employment. For claims arising on or after June 24, 2011, the statutory definition of "suitable employment," G.S. 97-2(22), applies.
Nothing in the Rules states that, when a job offer is made, a prepared job description approved by the treating physician is a requirement in the RETURN TO WORK process. Rather, the burden for determining the appropriateness of a job opportunity is the responsibility of the Rehabilitation Professional. More specifically, it is the obligation of the Rehabilitation Professional to pre-qualify all job opportunities and provide only those leads that the Rehabilitation Professional has opined in his/her professional opinion are deemed appropriate.
What is pre-qualifying a job opportunity? Pre-qualifying means identifying an available job opportunity and then discussing thoroughly with the employer the injured worker’s residual physical and educational abilities. For example, in consultation with the injured worker and the injured worker’s counsel, a list of questions delineating the physician issued restrictions as well as any educational limitations would be posed to each potential employer for the position in question. If the employer acknowledges the associated duties either fall within the provided limitations, or that accommodations can be made, the job lead would then be deemed appropriate.
Take the following as a case study: John Doe was employed as a woodworking machine operator who received a rotator cuff injury to his left shoulder. Following surgery and a regimen of physical therapy, Mr. Doe was released to work with the permanent restrictions in the MEDIUM strength category as defined by the United States Department of Labor to include the avoidance of overhead work. Compounding the problem, John Doe could not read over an elementary school level (must consider all limitations, physical and/or educational) and, the FCE indicated could no work over an eight (8) hour day (in dispute).
The questions posed to each employer:
- Does the position require lifting over 50 lbs.?
- Does the position require overhead work?
- Does the position require reading over an elementary school level?
- Does the position require working over an eight (8) hour day?
- Can accommodations be made and, if so, what?
In this case study, if the employer answers no to the first four (4) questions and yes to the fifth (5th), the job should then be deemed appropriate.
Since the Rules do not require a job description be prepared when a job offer is tendered, as long as the Rehabilitation Professional has pre-qualified the job opportunity as described above, there should be no need to prepare a job description for presentation to the injured worker’s attorney and then to the treating physician for approval. Remember, job offers are time sensitive, so presenting a job description to the plaintiff attorney for a seven (7) business day review and then forwarding to the treating physician for approval (which could take days, if not weeks) is time consuming and ultimately will lead to the job offer being withdrawn.
In closing, a claims handling hint, when assigning a file for job placement make sure the Rehabilitation Professional establishes with the injured worker and the injured worker’s attorney questions with reference to physical restrictions and educational limitations that will be posed to potential employers prior to providing a qualified job opportunity. If an employer confirms the duties associated with the inquired position fall within the questions asked, or accommodations can be made, if an employment offer is made, a job description should not be necessary.