Vocational rehabilitation in Florida workers' compensation cases: a comprehensive review of statutory and case law.

• Author: Gonzalez, Rafael

This article provides the reader with a historical andL comprehensive review of workers' compensation vocational rehabilitation statutory and case law in Florida.

Vocational rehabilitation in Florida workers' compensation cases is guided by provisions within F.S. Ch. 440 as well as the case law interpreting same. This article outlines the many amendments to F.S. [section] 440.49 since 1979 and further tracks the case law interpreting the ever-changing provisions of this law.

The Law Before August 1, 1979

Prior to the 1979 amendments to Ch. 440's vocational rehabilitation provisions, in order to be eligible for workers' compensation rehabilitation benefits in Florida, claimants had to establish that their disability probably would be permanent in nature. The benefits were limited to 40 weeks of additional temporary total disability while claimant was receiving training in the use of artificial members and appliances or receiving training or education under an appropriate rehabilitation program. The remaining expenses, such as books, tuition, and supplies, were the responsibility of the Division of Workers' Compensation, specifically the Workers' Compensation Administration Trust Fund. F.S. [subsection] 440.49 and 440.50 (1977).

The Law After August 1, 1979, But Before October 1, 1989

* Statutory Provisions

When an employee has suffered an injury covered by Ch. 440 and it appears that the injury will preclude the employee from earning wages equal to wages earned prior to the injury, the employee is entitled to rehabilitation services. The employer or carrier provides such injured employee with appropriate training and education for suitable gainful employment. "Suitable gainful employment" means employment or self-employment which is reasonably attainable in light of the individual's age, education, previous occupation, and injury and which offers an opportunity to restore the individual as soon as practical and as nearly as possible to his average weekly earnings at the time of injury. If such services are not voluntarily offered or accepted, the Division of Workers' Compensation of the Department of Labor and Employment Security, upon application of the employee, employer, or carrier, after affording the parties an opportunity to be heard, may refer the employee to a qualified physician or facility for the evaluation of the practicality of, the need for, and the kind of service, treatment, or training necessary and appropriate to restore the employee to suitable gainful employment. On receipt of such report, and after affording the parties an opportunity to be heard, the deputy commissioner may order that the service and treatment recommended in the report, or such other rehabilitation treatment or service deemed necessary, be provided at the expense of the employer or carrier. When it appears that rehabilitation is necessary and desirable to restore the injured employee to suitable gainful employment, the employee shall be entitled to reasonable and proper rehabilitation services for a period not to exceed 26 weeks, which period may be extended for an additional period not to exceed 26 additional weeks, if such extended period is determined to be necessary and proper by the deputy commissioner. F.S. [section] 440.49 (1979).

The Division of Workers' Compensation shall establish by rule the minimum qualifications, standards, and requirements that must be met in order to be listed in the directory of qualified rehabilitation service providers, facilities, and agencies. Such minimum qualifications, standards, and requirements shall be based on those generally accepted within the various specific fields of rehabilitation for which the provider, facility, or agency is to be approved. The division has the authority to monitor and evaluate qualified rehabilitation service providers, facilities, and agencies to ensure their continued compliance with the minimum qualifications, standards, and requirements. A rehabilitation service provider, facility, or agency may not be authorized by an employer or carrier to provide any rehabilitation services in this state to an injured worker unless such provider, facility, or agency is listed or has been approved for listing in the directory as being qualified to provide the specific service to be authorized. "Rehabilitation service providers, facilities, and agencies" means vocational rehabilitation counselors, and public and private agencies, companies, and corporations which provide to injured workers, vocational rehabilitation services including vocational retraining, testing, counseling, evaluation, and job placement services. F.S. [section] 440.49 (1983).

* Scope and Duration of Benefits Awardable

A substantial portion of the early litigation pertaining to rehabilitation under the 1979 law centered around the procedural requirements set forth in F.S. [section] 440.49(1). One procedural requirement was that the parties be afforded an opportunity to be heard before rehabilitation benefits were awarded. F.S. [section] 440.49(1)(a). In Butch's Concrete v. Henderson, 414 So. 2d 652 (Fla. 1st DCA 1982), the deputy commissioner awarded vocational rehabilitation even though the claimant had not requested such benefits. Because neither party was advised or on notice that rehabilitation benefits might be awarded, the court reversed the deputy commissioner's award but stated that the claimant was free to reapply for the benefits by complying with F.S. [section] 440.49(1).

Another procedural requirement was that the injured employee be evaluated by the Division of Workers' Compensation before rehabilitation services were awarded. F.S. [section] 440.49(1). A number of early cases, specifically Paradise Fruit Co. v. Floyd, 425 So. 2d 9 (Fla. 1st DCA 1982), and Baily v. Hawes Chrysler -Plymouth, 410 So. 2d 986 (Fla. 1st DCA 1982), held that an injured worker who had not applied to the Division of Workers' Compensation for a rehabilitation evaluation was not entitled to an award of rehabilitation services.

However, estoppel was sometimes used successfully against the employer/carrier. In Hurricane Fence Industries v. Bozeman, 413 So. 2d 822 (Fla. 1st DCA 1982), the carrier refused the claimant's requests for rehabilitation. The claimant contacted the Department of Health and Rehabilitative Services, Division of Vocational Rehabilitation, which helped him enroll in a meat-cutting school. The court held that the employer/carrier, having failed to avail itself of the services of the Division of Workers' Compensation, could not assert the claimant's failure to do so himself as a defense to his rehabilitation claim. The court warned that a "do nothing" approach on the part of the employer/ carrier with regard to rehabilitation services was not a "viable alternative" under the rehabilitation features of this law. (1)

The correct procedure to be followed by an injured employee seeking rehabilitation was set forth and explained in detail in Walker v. New Fern Restorium, 409 So. 2d 1201 (Fla. 1st DCA 1982). As set forth in Walker, ordinarily, rehabilitation should be provided voluntarily by the employer or carrier when the injured employee is no longer able to earn pre-injury wages. When, as in this case, the employer/carrier refuses to voluntarily accept responsibility for rehabilitation, the Division of Workers' Compensation must be notified by either the employer, the carrier, or the claimant. Once notified of the claimant's application for rehabilitation, the division takes over the responsibility for evaluating whether or what type of rehabilitation should be received. After giving the parties an opportunity to be heard, the division should refer the claimant to a qualified physician or facility for the purpose of determining "the practicality of, the need for, and the kind service, treatment, or training necessary and appropriate to restore the employee to suitable gainful employment." A report setting forth the findings and recommendations of the evaluating physicians or facilities must be prepared by the division and sent to the deputy commissioner. On...