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.
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.
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. Here are some examples of what you need to win.
Since payment of time loss during vocational disputes is discretionary, the following guidelines shall be followed:
• If the vocational determination finds the injured worker employable, time loss
compensation will not be paid while a dispute is being reviewed by the VDRO.
• When the VDRO cannot uphold a finding of employability, retroactive time loss will be
paid from the date time loss was ended.
• 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
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.
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.
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.