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



(b)  The director may refer employees who may
have or have suffered permanent disability as a result of work injuries and
who, in the director's opinion, can be vocationally rehabilitated to the
department of human services or to private providers of rehabilitation services
for vocational rehabilitation services that are feasible.  A referral shall be
made upon recommendation of the rehabilitation unit established under section
386-71.5 and after the employee has been deemed physically able to participate
in rehabilitation by the employee's attending physician.  The unit shall
include appropriate professional staff and shall have the following duties and
responsibilities:



(1)  To review and approve rehabilitation plans
developed by certified providers of rehabilitation services, whether they be
private or public;



(2)  To adopt rules consistent with this section that
shall expedite and facilitate the identification, notification, and referral of
industrially injured employees to rehabilitation services, and establish
minimum standards for providers providing rehabilitation services under this
section;



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



(4)  To enforce the implementation of rehabilitation
plans.



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



(d)  A provider shall submit an initial
evaluation report of the employee to the employer and the director within
forty-five days of the date of referral or selection.  The evaluation shall
determine whether the employee requires vocational rehabilitation services to
return to suitable gainful employment, identify the necessary services, and
state whether the provider can provide these services.  The initial evaluation
report 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 the
work injury; and



(E)  Physical or psychological limitations or
both.



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



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



(3)  A statement from the provider identifying the
employee'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 a
vocational rehabilitation program;



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



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



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



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



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



(e)  A provider shall file the employee's plan
with 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 be
submitted to the employer and the employee and be filed with the director
within two days from the date of the employee's signature.  A plan shall
include a statement of the feasibility of the vocational goal, using the
process of:



(1)  First determining if the employee's usual and
customary employment represents suitable gainful employment, and, should it
not;



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



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



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



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



(1)  A physician's assessment of the employee's
physical limitations, psychological limitations, and ability to return to
work.  If this information is not provided by the treating physician within a
reasonable amount of time, information from another physician shall be
accepted;



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



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



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



(A)  Specific services to be provided;



(B)  Justification for the necessity of the
services;



(C)  Estimated time frames for delivery of
services;



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



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



(F)  The employee's responsibilities;



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



(6)  If retraining, including on-the-job training, is
found to be necessary, the estimated cost of retraining, a description of
specific skills to be learned or knowledge acquired with specific time periods
and clearly defined measurements of success, and the nature, amount, and
duration 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 days
from the postmark date on which the plan was mailed to submit in writing to the
director any objections to the plan.



(h)  The director may approve a plan that does
not include all of the requirements outlined in subsection (f); provided that
the director finds the plan:



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



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



(3)  Has been approved by the employee.



(i)  If the plan requires the purchase of any
tools, supplies, or equipment, the purchase deadline shall be included in the
plan.  Tools, supplies, and equipment shall be considered to be the property of
the employer until the plan is determined by the director to be successfully
completed, after which it shall become the property of the employee.  If the
plan requires the purchase, etc., the employer shall purchase the items prior
to the purchase deadline in the plan.



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



(k)  An injured employee's enrollment in a
rehabilitation plan or program shall not affect the employee's entitlement to
temporary total disability compensation if the employee earns no wages during
the period of enrollment.  If the employee receives wages for work performed
under the plan or program, the employee shall be entitled to temporary total
disability compensation in an amount equal to the difference between the
employee's average weekly wages at the time of injury and the wages received
under the plan or program, subject to the limitations on weekly benefit rates
prescribed in section 386-31(a).  The employee shall not be entitled to
temporary total disability compensation for any week during this period where
the wages equal or exceed the average weekly wages at the time of injury.



(l)  The director shall adopt rules for
additional living expenses necessitated by the rehabilitation program, together
with all reasonable and necessary vocational training.



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



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



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



(o)  A reconsideration determination shall be
final unless a written request for hearing is filed within ten calendar days
from the date of the reconsideration determination.  All hearings shall be held
before a hearings officer designated by the director.  A written decision shall
be issued in the name of the director.



(p)  The eligibility of any injured employee to
receive other benefits under this chapter shall in no way be affected by the
employee's entrance upon a course of vocational rehabilitation as herein
provided.



(q)  Vocational rehabilitation services for the
purpose of developing a vocational rehabilitation plan may be approved by the
director and the director may periodically review progress in each case. [L
1963, c 116, pt of §1; Supp, §97-24; HRS §386-25; am L 1970, c 105, §5; am L
1980, c 224, §2; am L 1985, c 296, §2; gen ch 1985; am L 1987, c 339, §4; am L
1998, c 256, §1; am L Sp 2005, c 11, §4]



 



Case Notes



 



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



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



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