Under Minnesota Statutes 176.102, vocational rehabilitation is provided to injured workers who meet certain criteria. Rehabilitation is designed to:
restore the injured worker to a job related to his or her former employment, or
return the injured worker to a job in another work area that produces an economic status as close as possible to what he or she would have enjoyed without a disability.
The current statute gives employers the opportunity to bring injured employees back to work without formal rehabilitation. However, a rehabilitation consultation can be provided when requested at any time by any party, and it must be provided under circumstances explained below. The department uses the Disability Status Report to determine whether a consultation must be provided.
To ensure a rehabilitation consultation is provided when necessary, Minnesota Rules Part 5220.0100, Subp. 7, requires the insurer to send the employee a Disability Status Report (DSR) form and file a copy with the Department of Labor and Industry (DLI) when any of the following occur:
within 14 calendar-days of knowledge that the employee's temporary total disability (TTD) is likely to exceed 13 cumulative weeks,
within 90 calendar-days of the date of injury when the employee has not returned to work following a work injury or
within 14 calendar-days after receipt of a request for a rehabilitation consultation, whichever is earlier.
In addition, a DSR form must be filed within 14 calendar-days of expiration of an approved waiver of rehabilitation services.
An insurer that files a DSR form must refer the employee for a rehabilitation consultation or request a waiver of rehabilitation services. A rehabilitation waiver is granted when the employer documents that the otherwise qualified employee will return to suitable, gainful employment with the date-of-injury employer within 90 calendar-days after the request for the waiver is filed. The waiver shall not be effective more than 90 calendar-days after the waiver is granted. If the insurer is requesting a waiver, please note the Instructions to Insurer on the back of the DSR form. Documentation that the employee will return to suitable, gainful employment is satisfied by submitting a written offer of suitable, gainful employment, signed by the employer, that is within the treating doctor's restrictions and to which the employee will return within 90 calendar-days after the waiver is filed.
The department reviews all requests for waivers and notifies the insurer whether a waiver is granted or denied. If the department grants a waiver, it is only effective until 90 calendar-days after the waiver is granted. A waiver of consultation and rehabilitation services may not be renewed.
If a waiver is not granted, the insurer must provide a rehabilitation consultation. When referring an employee to a qualified rehabilitation consultant (QRC) for a consultation, the insurer must send a copy of the DSR form, the First Report of Injury (FROI) form and the treating physician's Report of Work Ability (RWA) form to the QRC prior to the consultation. If the insurer does not refer the employee for such a consultation, the department will order a consultation by its Vocational Rehabilitation unit or by the employee's choice of QRC.
For example: Tom broke his leg while working as a roofer. The treating physician said he would release Tom to work within 85 days of the date of injury and that Tom will be able to resume work within certain restrictions. Tom can return to his job for two hours a day for the first week, then four hours a day for the second week, then six hours a day for the third week and, finally, he can work eight hours a day the fourth week. The roofing company offered Tom his date-of-injury job as a roofer. The offer was in writing, effective whenever Tom is released to return to work. The insurer filed a DSR form requesting a waiver and documenting the medical information and job offer.
The department will grant the waiver because the roofing company has documented Tom will be able to return to suitable employment with the company, which is within the treating physician's restrictions and within 90 days of the date of injury.
Disputes about rehabilitation can happen at any point during a claim involving one or more of the following issues.
|Rehabilitation dispute issues|
|Eligibility for a rehabilitation consultation|
|Eligibility for rehabilitation services|
|The rehabilitation plan|
|Rehabilitation plan amendments|
|Change of qualified rehabilitation consultant|
|Rehabilitation plan closure|
|Qualified rehabilitation consultant fees|
According to Minnesota Rules Part 5220.0950, Subp. 1, where issues exist about an employee's entitlement to rehabilitation services, the appropriateness of a proposed plan or any other dispute about rehabilitation, a party may request assistance to resolve the dispute by filing a Rehabilitation Request form with the department. A Rehabilitation Response form is filed in response to this request and the department decides how best to handle the dispute. The department may issue a Decision and Order resolving a rehabilitation dispute based on the written submission of the parties.
Alternatively, the department may order all parties to attend an administrative conference. This is a meeting during which a department representative listens to all parties' perspectives regarding the dispute and attempts to assist them in reaching an agreement. If no agreement is reached, a Decision and Order will be issued. All rehabilitation administrative conferences are expedited according to the needs and availability of the parties. A party that disagrees with a decision of the department may request a formal hearing at the Office of Administrative Hearings.
Parties sometimes use an independent vocational evaluation (IVE) to clarify an employee's job duties in relation to any physical limitations imposed by the injury. Minnesota Rules Part 5220.1801, Subp. 5, permits an IVE to be performed by a registered rehabilitation provider other than the assigned QRC when litigation is pending at the Office of Administrative Hearings or when retraining has been recommended. In other rare circumstances, a request for an IVE is sent to the department by a party on a Rehabilitation Request form.
When requesting an IVE, the requesting party should be specific in the narrative portion of the form about the nature of the request, why the evaluation is necessary and how this relates to the rehabilitation plan.
The rehabilitation consultation is a meeting between the injured employee and a qualified rehabilitation consultant (QRC) to determine whether the employee is eligible for rehabilitation services. According to Minnesota Rules Part 5220.0100, Subp. 22, an employee is eligible if, because of the effects of an injury or disease, whether or not combined with the effects of a prior injury or disability, the employee:
is permanently precluded or is likely to be permanently precluded from engaging in the employee's usual and customary occupation or from engaging in the job the employee had at the time of injury;
cannot reasonably be expected to return to suitable, gainful employment with the date-of-injury employer; and
can reasonably be expected to return to suitable, gainful employment through the provision of rehabilitation services, considering the treating physician's opinion of the employee's work ability.
During the consultation, the QRC must disclose to the employee any affiliations the QRC has with the employer or insurer and must discuss the information on the Rehabilitation Rights and Responsibilities of the Injured Worker form.
To determine the employee's eligibility for rehabilitation services, the QRC talks not only with the employee, but also the employer and the treating doctor, when necessary. The QRC completes the Rehabilitation Consultation Report (RCR) form, which spells out the likelihood the employee will return to the pre-injury employer or pre-injury occupation and gives an assessment of whether the employee is qualified for rehabilitation services. This form must be filed with the Department of Labor and Industry within 14 days of the first in-person meeting with the employee. The QRC is required to provide copies of the RCR form, a signed Rehabilitation Rights and Responsibilities of the Injured Worker form and a narrative report explaining the basis for the determination to the employer, the employee, any attorney for the employee and the insurer (see Minnesota Rules Parts 5220.0130, Subp. 3C(4), and 5220.0100, Subp. 31).
When the employee is eligible for rehabilitation services, a rehabilitation plan will be written, agreed to, signed by all parties and filed with the department. The QRC will provide the services necessary to complete the plan. These services may consist of (but are not limited to) any of the following: vocational evaluation, counseling, job analysis, job modification, job development, job placement, labor-market survey, vocational testing, transferable skills analysis, work adjustment, job-seeking skills training, on-the-job training and retraining.
For example: As an educational assistant for K-4th graders, Ned was expected to serve meals to children at low tables and to lift children frequently. He sustained a low back injury and needed surgery. The treating physician said Ned will have lifting and bending restrictions after surgery, but was not able to specify what they will be. The school district does not have employment available to accommodate lifting and bending restrictions. A rehabilitation consultation is provided and the QRC determines Ned is qualified for rehabilitation services because he cannot be expected to return to his date-of-injury position or another job with the employer, within the projected restrictions of the treating physician.