One of the most common questions posed by our clients is whether the employer has to retrain an injured worker who can’t return to work. It certainly sounds logical that an employer should be responsible for reeducating its injured worker who can’t return to her regular, pre-injury job. Unfortunately, Pennsylvania’s Workers’ Compensation Act (Act) doesn’t provide for any such retraining. The legislature should consider building reeducation into its laws.
The Act is nearly silent when it comes to what an injured worker can do to reenter the workforce. It is by no means silent about what an employer can do to that worker. Namely, the Act allows the employer to hire a vocational counselor to conduct a mandatory interview of the claimant. Once that takes places, the counselor composes a Labor Market Survey, which a judge can use to reduce the claimant’s benefits based on an hypothetical earning capacity.
Obviously, the vocational counselor is not working in the best interests of the injured worker. Traditionally, the counselor concludes that the claimant can return to work as a security guard, hotel desk clerk, flagger, or telemarketer. None of these positions presents a true career opportunity. They are often jobs that present little to no opportunity for advancement.
What’s worse is that all a judge has to do is believe the counselor and the claimant’s benefits are reduced, whether the claimant could actually get the job or not.
We propose that the carriers become responsible for the costs of true vocational development. Once their disability has been established, claimants would have to undergo testing to determine the best form of reeducation, whether it be a six-week dental assistant course or four-year college. Naturally, the claimant would have to make a good faith effort toward retraining.
Such a plan would be a “win-win” for both employees and employers. Why? Because the injured worker would be provided the opportunity to return to the workforce. Obviously, that’s a “win”. The employer would also “win” because it pays less in benefits to the worker who has returned to work and earns wages.