Inadequate vocational rehab allows worker to keep benefits

In Virginia, if an employer offers reasonable vocational rehabilitation services to an employee who is under a workers' compensation award, the employee cannot refuse to cooperate with the employer unless her refusal is justified.

Case name: Big Lots Stores, Inc. v. Browning, No. 0095-10-2 (Va. Ct. App. 11/09/10, unpublished).

Ruling: In an unpublished decision, the Virginia Court of Appeals held that a store's vocational rehabilitation services were inadequate, so the store was not entitled to a suspension of the worker's award.

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What it means: In Virginia, if an employer offers reasonable vocational rehabilitation services to an employee who is under a workers' compensation award, the employee cannot refuse to cooperate with the employer unless her refusal is justified.

Summary: A worker was injured in a compensable accident while she was attempting to help a customer in the store where she worked. The store terminated her because she could not perform her duties on her light-duty restrictions. The store provided vocational rehabilitation services to her, but the efforts to find her a job were unsuccessful. The worker decided to move to a remote town in Alaska where her family could assist her. The store contacted a vocational rehabilitation provider to assist her in finding a job. The provider sent her 13 job listings, 11 of which were located 80 miles away. The positions also required more standing or bending than her restrictions would allow, or she did not have the proper training or experience for the jobs. The store sought to suspend her benefits for failing to cooperate with the rehabilitation efforts. The Virginia Court of Appeals held that the store was not entitled to suspend the benefits.

The court stated that the worker provided her information to the provider, but it failed to adequately screen the job openings it sent to her. The worker's failure to follow through on the job listings, for which she was either not qualified or not physically capable of, was not comparable to unjustified refusal.

The store argued that the worker's decision to move to a small town in rural Alaska was proof that she failed to cooperate with rehabilitation services. The court explained that the store did not make this argument before the Workers' Compensation Commission, so it could not consider it.

Read more at the WorkersComp Forum homepage.

January 24, 2011

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