Claimant Wins Vocational Rehabilitation Despite Employer’s Claim Of Noncompliance

Case name: Kirth v. Food Stuffs, 15 ILWCLB 260 (Ill. W.C.Comm 2007)

Ruling: The Commission held that the employer failed to show a lack of compliance with vocational rehabilitation that would justify termination of the claimant’s benefits. Furthermore, the claimant was entitled to vocational retraining in accordance with her proposed plan to obtain certification as a dietician.

What it means: Evidence that a claimant has more than 20 years of work-life expectancy, an ability and motivation to engage in re-training, prior steady employment and earnings history, and an unsuccessful diligent job search constitutes strong support for a vocational re-training program.

Summary: In a Section 19(b) hearing, the arbitrator found that the claimant sustained a work-related leg injury while working as an assistant manager at the defendant’s grocery store. The arbitrator awarded temporary total disability and medical benefits. The claimant attempted to return to restricted work with the employer, but her symptoms increased and she could not continue. The employer initiated vocational rehabilitation but subsequently filed a motion to terminate benefits, alleging that the claimant was non-compliant. However, the arbitrator disagreed, finding substantial compliance, effort and initiative on the claimant’s part. The services of the employer’s vocational counselor consisted mainly of supervising and reporting on the claimant’s independent job search efforts. The claimant targeted jobs and followed up on applications independently. The employer issued no formal assessments of the claimant’s skills and aptitudes. Also, the employer rejected the claimant’s well-researched proposal for college based retraining to become a registered dietician, and no alternate proposal for education or training was offered. Accordingly, the arbitrator ordered the defendant to continue paying maintenance benefits pending adoption of a plan for ongoing vocational rehabilitation and completion of such plan.

Next, the arbitrator found that pursuant to the standards set forth by the Illinois Supreme Court inNational Tea v. Industrial Commission, the claimant was clearly entitled to vocational rehabilitation services. Her work life expectancy of well over 20 years indicated retraining was reasonable. Also her ability and motivation to engage in re-training was amply shown by her successful completion of college coursework in the past and her independent efforts to identify and begin retraining. Furthermore, the claimant’s prior steady employment and earnings history, along with the failure of a diligent job search, demonstrated that her injury had led to a loss of earning power and job security. A report from the claimant’s vocational expert contained substantial evidence that enrollment in a university certificate program in dietetics would result in improved employment and earning prospects. Based on this evidence, the arbitrator found that the claimant’s re-training proposal was reasonable and offered a greater chance of suitable re-employment than the job search program offered by defendant.

Upon review, the Commission affirmed and adopted the decision of the arbitrator.

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