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Disputing, Reconsidering, or Appealing a Vocational Decision

Vocational Decisions

L&I provides vocational services to injured workers who are not employable. 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, request for reconsideration or appeal is the proper way to disagree and get a better decision.

Pay attention to this, if you don’t L&i decisions become final. There are three different ways to challenge a wrong vocational decision: Dispute, Reconsideration, 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 Reconsideration can be reviewed at reconsideration. The Law of Appeal can be reviewed at appeal.

Elements of a Vocational Determination

What can be Challenged?

  • Challenge with a dispute: Employability determinations, eligibility for plan development, approved retraining plans, and plan modification are the only issues which can be the subject of an L&I dispute. Disputes are made to VDRO per WAC 296-19A-440.
  • Reconsideration or Appeal: Anything just mentioned above which can be disputed, together with unfavorable dispute decisions can also be reconsidered or appealed

What is an employablity determination?

An employability determination is a discretionary vocational decision made by L&I, that vocational rehabilitation is or is not both necessary and likely to enable the injured worker to become employable at gainful employment, RCW51.32.095. If you don’t like the employability determination, then you can dispute, reconsider or appeal it.

What is a discretionary decision?

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.

How to Dispute a Vocational Determination

Vocational disputes must:

  • Be in writing
  • Sent to the director at: Department of Labor and Industries, Vocational Dispute Resolution Office P.O. Box 44880, Olympia, WA 98504-4880
  • Sent within 15 calendar days of receipt of a notification letter. The 15 day deadline may be extended by VDRO if good cause is shown. It’s best to dispute on time. If you  miss this deadline, consider reconsideration or appeal which have 60 day deadlines.

Who is VDRO?

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.

What to dispute or reconsider or appeal.

Many L&I actions are just plain wrong and they are an abuse of discretion. These decisions can be successfully challenged. Here are some examples of what you need to win.

  • Show L&I did not follow their own rules
  • Show L&I or their vocational counselors considered the wrong medical in the job analysis or the labor market survey
  • Show a worsening of a related medical condition after the vocational determination

Time loss during the dispute period

Time loss during the vocational dispute period is discretionary. L&I has adopted  time loss guidelines for payment of time loss during the dispute time period.

Dispute Results

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 getting L&I to 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”.  Dispute outcomes can be further challenged.

Reconsideration or Appeal

An injured worker can request reconsideration or appeal of an unfavorable vocational decision.  A request for reconsideration 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.

The Law is Complicated

Consult with an L&I lawyer if you have questions. The reason vocational challenges may seem complex is because they are complex.  Contact us. Don’t miss your time deadlines.

Whats Next:

L&I Pension
Permanent Partial Disability
Appeal
Vocational Rehabilitation

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