§386-25  Vocational rehabilitation. (a)  The purposes of vocational rehabilitation are to restore an injuredworker's earnings capacity as nearly as possible to that level that the workerwas earning at the time of injury and to return the injured worker to suitablegainful employment in the active labor force as quickly as possible in acost-effective manner.

(b)  The director may refer employees who mayhave or have suffered permanent disability as a result of work injuries andwho, in the director's opinion, can be vocationally rehabilitated to thedepartment of human services or to private providers of rehabilitation servicesfor vocational rehabilitation services that are feasible.  A referral shall bemade upon recommendation of the rehabilitation unit established under section386-71.5 and after the employee has been deemed physically able to participatein rehabilitation by the employee's attending physician.  The unit shallinclude appropriate professional staff and shall have the following duties andresponsibilities:

(1)  To review and approve rehabilitation plansdeveloped by certified providers of rehabilitation services, whether they beprivate or public;

(2)  To adopt rules consistent with this section thatshall expedite and facilitate the identification, notification, and referral ofindustrially injured employees to rehabilitation services, and establishminimum standards for providers providing rehabilitation services under thissection;

(3)  To certify private and public providers of rehabilitationservices meeting the minimum standards established under paragraph (2); and

(4)  To enforce the implementation of rehabilitationplans.

(c)  Enrollment in a rehabilitation plan orprogram shall not be mandatory and the approval of a proposed rehabilitationplan or program by the injured employee shall be required.  The injuredemployee may select a certified provider of rehabilitation services.  Both thecertified provider and the injured employee, within a reasonable time afterinitiating rehabilitation services, shall give proper notice of selection tothe employer.

(d)  A provider shall submit an initialevaluation report of the employee to the employer and the director withinforty-five days of the date of referral or selection.  The evaluation shalldetermine whether the employee requires vocational rehabilitation services toreturn to suitable gainful employment, identify the necessary services, andstate whether the provider can provide these services.  The initial evaluationreport shall contain:

(1)  An assessment of the employee's:

(A)  Current medical status;

(B)  Primary disability;

(C)  Secondary disability;

(D)  Disabilities that are not related to thework injury; and

(E)  Physical or psychological limitations orboth.

If this information is not provided by thetreating physician within a reasonable amount of time, information from anotherphysician shall be accepted;

(2)  A job analysis addressing the demands of theemployee's employment;

(3)  A statement from the provider identifying theemployee's vocational handicaps in relation to the employee's ability to:

(A)  Return to usual and customary employment;and

(B)  Participate in and benefit from avocational rehabilitation program;

(4)  A statement from the provider determining thefeasibility of vocational rehabilitation services, including:

(A)  The provider's ability to assist theemployee in the employee's efforts to return to suitable gainful employment;

(B)  An outline of specific vocationalrehabilitation services to be provided, justification for the necessity ofservices, and how the effectiveness of these services is measured; and

(C)  How the vocational rehabilitation servicesdirectly relate to the employee obtaining suitable gainful employment; and

(5)  The enrollment form and the statement of worker'srights and responsibilities form obtained from the department.

(e)  A provider shall file the employee's planwith the approval of the employee.  Upon receipt of the plan from the provider,an employee shall have ten days to review and sign the plan.  The plan shall besubmitted to the employer and the employee and be filed with the directorwithin two days from the date of the employee's signature.  A plan shallinclude a statement of the feasibility of the vocational goal, using theprocess of:

(1)  First determining if the employee's usual andcustomary employment represents suitable gainful employment, and, should itnot;

(2)  Next determining if modified work or other workwith a different employer represents suitable gainful employment, and, shouldit not;

(3)  Next determining if modified or other employmentwith a different employer represents suitable gainful employment, and finally,should it not;

(4)  Then providing training to obtain employment inanother occupational field.

(f)  A plan may be approved by the director;provided the plan includes:

(1)  A physician's assessment of the employee'sphysical limitations, psychological limitations, and ability to return towork.  If this information is not provided by the treating physician within areasonable amount of time, information from another physician shall beaccepted;

(2)  A labor market survey indicating there arereasonable assurances that the proposed occupation for which the employee is tobe placed or trained is readily available in the community when placementbegins, or there are assurances of reemployment by the employer;

(3)  A job analysis of the proposed occupation,setting forth its duties, responsibilities, physical demands, environmentalworking conditions, specific qualifications needed for entry-level employment,reasonable accommodations, expected estimated earnings, and other relevantinformation;

(4)  The nature and extent of the vocationalrehabilitation services to be provided, including:

(A)  Specific services to be provided;

(B)  Justification for the necessity of theservices;

(C)  Estimated time frames for delivery ofservices;

(D)  The manner in which the effectiveness ofthese services is to be measured;

(E)  Criteria for determining successfulcompletion of the vocational rehabilitation plan; and

(F)  The employee's responsibilities;

(5)  A report of tests and copies thereof that havebeen administered to the employee, including a statement regarding the need forand use of the tests to identify a vocational goal;

(6)  If retraining, including on-the-job training, isfound to be necessary, the estimated cost of retraining, a description ofspecific skills to be learned or knowledge acquired with specific time periodsand clearly defined measurements of success, and the nature, amount, andduration of living expenses;

(7)  The total cost of the plan; and

(8)  The employee's approval of the plan.

(g)  The employer shall have ten calendar daysfrom the postmark date on which the plan was mailed to submit in writing to thedirector any objections to the plan.

(h)  The director may approve a plan that doesnot include all of the requirements outlined in subsection (f); provided thatthe director finds the plan:

(1)  Is in the best interest of the employee;

(2)  Contains reasonable assurances that the employeewill be placed in suitable gainful employment; and

(3)  Has been approved by the employee.

(i)  If the plan requires the purchase of anytools, supplies, or equipment, the purchase deadline shall be included in theplan.  Tools, supplies, and equipment shall be considered to be the property ofthe employer until the plan is determined by the director to be successfullycompleted, after which it shall become the property of the employee.  If theplan requires the purchase, etc., the employer shall purchase the items priorto the purchase deadline in the plan.

(j)  An employee with an approved plan who isdetermined as able to return to usual and customary employment may choose tocomplete the plan or request a new plan of which the goal may be the employee'susual and customary employment.

(k)  An injured employee's enrollment in arehabilitation plan or program shall not affect the employee's entitlement totemporary total disability compensation if the employee earns no wages duringthe period of enrollment.  If the employee receives wages for work performedunder the plan or program, the employee shall be entitled to temporary totaldisability compensation in an amount equal to the difference between theemployee's average weekly wages at the time of injury and the wages receivedunder the plan or program, subject to the limitations on weekly benefit ratesprescribed in section 386-31(a).  The employee shall not be entitled totemporary total disability compensation for any week during this period wherethe wages equal or exceed the average weekly wages at the time of injury.

(l)  The director shall adopt rules foradditional living expenses necessitated by the rehabilitation program, togetherwith all reasonable and necessary vocational training.

(m)  If the rehabilitation unit determines thatvocational rehabilitation is not possible or feasible, it shall certify thedetermination to the director.

(n)  Except as otherwise provided,determinations of the rehabilitation unit shall be final unless a writtenrequest for reconsideration is filed with the rehabilitation unit within tencalendar days of the date of the determination.

The rehabilitation unit shall issue a reconsiderationdetermination to affirm, reverse, or modify the determination or refer therequest for reconsideration for hearing.

(o)  A reconsideration determination shall befinal unless a written request for hearing is filed within ten calendar daysfrom the date of the reconsideration determination.  All hearings shall be heldbefore a hearings officer designated by the director.  A written decision shallbe issued in the name of the director.

(p)  The eligibility of any injured employee toreceive other benefits under this chapter shall in no way be affected by theemployee's entrance upon a course of vocational rehabilitation as hereinprovided.

(q)  Vocational rehabilitation services for thepurpose of developing a vocational rehabilitation plan may be approved by thedirector and the director may periodically review progress in each case. [L1963, c 116, pt of §1; Supp, §97-24; HRS §386-25; am L 1970, c 105, §5; am L1980, c 224, §2; am L 1985, c 296, §2; gen ch 1985; am L 1987, c 339, §4; am L1998, c 256, §1; am L Sp 2005, c 11, §4]

 

Case Notes

 

  Board properly found claimant not interested or motivated inpursuing vocational rehabilitation or returning to suitable work where claimantmoved to remote mainland village, declared claimant was "fully retired",and made unreasonable demands upon employer as conditions for returning towork.  80 H. 239, 909 P.2d 567.

  Board properly terminated claimant's vocationalrehabilitation services where it found claimant not interested or motivated inpursuing vocational rehabilitation.  80 H. 239, 909 P.2d 567.

  Where this section did not provide--expressly orimpliedly--that the director has the power to waive an employee's right tovocational rehabilitation (VR) services or that once a permanent partial disability(PPD) award was issued, the right to VR services was extinguished, the directorexceeded the bounds of the director's rule-making authority in promulgatingHawaii administrative rule §12-14-36, which created a total bar to VR serviceswhen an employee received a PPD award.  117 H. 439, 184 P.3d 191.