Court Reaffirms When VRTD Commences

• Posted By: Harvey Brown
• July 1, 1998

An appellate court has revisited what has previously been ruled on.  The question of when vocational rehabilitation benefits begins has been the subject of many court rulings. It is somewhat surprising that the issue keeps presenting itself.  Obviously, some individuals or entities wish to continue to test this opinion.

The facts in this opinion do not seem to be explained by the dates given in the opinion adequately. Many appellate opinions only give brief summaries of the facts and it is assumed that this opinion did not give all the factual background of this case. This injury was a 1989 injury. Therefore, the law was interpreted for the pre-reform legislation. The applicant entered into a stipulation to 46 ¼ percent permanent disability.

Thereafter, the applicant apparently filed a timely petition to reopen. There was a new finding of 66 percent permanent disability. The opinion does not inform us if this was a finding by the worker’s compensation judge or a stipulation between the parties. We are informed mat the Petition to Reopen was a valid request for vocational rehabilitation temporary disability (VRTD) benefits. However, we are not informed whether the petition to reopen specifically requested vocational rehabilitation. It would seem this would be an important fact to know. The opinion does not inform us if the petition has to specifically request rehabilitation.

The opinion then revisited old cases. In the original application of adjudication of claim the applicant checked off the box requesting vocational rehabilitation. The Board and the appellate court determined this constituted a timely request for vocational rehabilitation. The issue then became when VRTD was to commence and this is what was litigated. The defendant argued that there was no prima facie evidence of the applicant’s entitlement to VRTD benefits. Although the opinion is convoluted as to the facts it would appear many of the doctors did not even comment on the applicant’s qualified injured worker (QIW) status.  The defendant also argued that because of the extent of the applicant’s disability there was a question as to the applicant’s feasibility to participate in rehabilitation. They appear to be arguing that because the applicant is not feasible VRTD benefits are not owed during this determination period.

The appellate court found against the defendant and again reiterated that VRTD is to be paid during the determination period.

Case: Johnson V. W.C.A.B.

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