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L&I provides vocational services to injured workers who are not employable. Employability is a legal decision, based on facts and opinion. When considering whether they will provide vocational services, L&I makes vocational decisions. L&I often makes incorrect decisions. If you don’t agree with a vocational decision then challenge it. Your dispute, protest, or appeal is the proper way to disagree with a vocational decision and ask for a better decision.
Pay attention to this: if you don’t like L&I decisions then don’t ignore them. An ignored decision becomes a final order. There are three different ways to challenge a wrong vocational decision: Dispute, Protest, or Appeal. You may choose to do a dispute or reconsideration yourself, or you can talk with a lawyer. If you want to appeal, you should talk with an L&I lawyer. The Law of Vocational Dispute is at RCW 51.32.095(6) and WAC 296-19A-410 to 460. The Law of Protest and Appeal can be reviewed at How to Disagree with an L&I Decision.
An employability determination is a discretionary vocational decision made by L&I. L&I decides if vocational rehabilitation is or is not, necessary and likely, to enable the injured worker to become employable at gainful employment, RCW51.32.095. L&I makes this employability determination. If you don’t like the employability determination, then you can dispute, reconsider or appeal it.
Discretionary decision refers to the standard of review used to examine the correctness of the L&I director’s decision. This means that if the director does not abuse his discretion, then his vocational decisions will be upheld after a vocational challenge. Simply stated, winning a vocational challenge is challenging. However the director abuses his discretion on a regular basis. These cases can be won.
Keep in mind that under the discretionary standard, the reviewing agency will not make a decision about the merits of your vocational situation, rather their decision is limited to whether the director has been arbitrary or capacious in the use of his discretion when he denied your vocational services. See what to dispute, or reconsider, or appeal above.
VDRO is the Vocational Dispute Resolution Office. They evaluate disputes and make recommendations to the L&I Director/Supervisor. The Director/Supervisor makes the L&I final decision.
Many L&I actions are just plain wrong and they are an abuse of discretion. These decisions can be successfully challenged. To protect your rigts and to prevail, you must show the trier of fact that L&I has abused its discretion. Here are some examples of an abuse of discretion.
Payment of time loss during vocational disputes is discretionary. That means L&I does not have to pay. They should pay if your facts fit within the following guidelines:
• When the VDRO cannot advise the Director of any decision without requiring the vocational counselor to obtain more information and submit a new report, time loss will be reinstated
• When the VDRO cannot uphold a finding of employability, retroactive time loss will be paid from the date time loss was ended.
L&I will not pay time loss:
VDRO evaluates L&I disputes. Their first decision is to either accept or reject the vocational dispute.WAC 296-19A-470. Accepted review of a dispute is not a win, rather it is only a notice that L&I will review your paperwork. Once a dispute is accepted for review, VDRO makes recommendations for dispute resolution to the Director, who either upholds or overturns the vocational decision. A rejected dispute has been lost. An upheld vocational determination has been lost. An overturned vocational determination has been won. The Director makes his decision using the “discretionary standard”. Unfavorable dispute outcomes can be further challenged with a protest or appeal.
An injured worker can protest or appeal an unfavorable vocational decision. This can be done either instead of disputing or after a failed dispute. A protest is made in writing to L&I. An appeal is made in writing to the Board of Industrial Insurance Appeals (BIIA). There are time deadlines. Don’t miss them. See also: How to Disagree with an L&I decision.
It is possible to DIY and disagree with a vocational decision. Whether or not you should DIY depends on your situation.
These legal matters are complex. They can be easy or they can be hard. The facts matter. The opinions of the experts matter. The law is consistent, however it is the application of your facts and expert opinion to the law, and how it is presented that determines if you will be successful.
The reason vocational challenges may seem complex is because they are complex. When you are deciding what to do about an unfavorable decision consider giving us a call. We are L&I lawyers. We are happy to answer our questions and give you a free strategy session. You can still DIY after you talk with me.
Disclaimer The information here and throughout this website is made available to you as a public service to help with access to justice. I present it here because I believe you have a right to know important legal information. This legal information is not a substitute for legal advice. Legal advice is what lawyers do when they apply your facts to the law. I recommend you consult with a lawyer about your case and get legal advice. Do not miss your time deadlines.
Telephone – Call for information or a free strategy session – 206-343-1988