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DWD 80.49 Vocational rehabilitation benefits.
(1) PURPOSE. The primary purpose of vocational rehabilitation
benefits is to provide a method to restore an injured worker as
nearly as possible to the worker's preinjury earning capacity and
(2) ELIGIBILITY. The determination of eligibility for vocational
rehabilitation training and whether a person is a suitable
subject for training is the responsibility of the division of vocational
rehabilitation. If the division of vocational rehabilitation
determines that an employee is eligible to receive services under
29 USC 701 to 797b, but that the division of vocational rehabilitation
cannot provide those services for the employee, the employee
may select a private rehabilitation specialist certified by the
department to determine whether the employee can return to suitable
employment without rehabilitative training and whether
rehabilitative training is necessary to develop a retraining program
to restore as nearly as possible the employee to his or her preinjury
earning capacity and potential.
(3) 80-WEEK RULE. Extension of vocational rehabilitation benefits
beyond 80 weeks may not be authorized pursuant to s. 102.61
(1) or (1m), Stats., if the primary purpose of further training is to
improve upon preinjury earning capacity rather than restoring it.
(4) DEFINITIONS. In subs. (4) to (11), all of the following definitions
(a) "IPE" means an individualized plan for employment developed
by a specialist which identifies the vocational goal of a
retraining program, the intermediate objectives to reach that goal
and the methods by which progress will be measured.
(b) "Retraining program" means a course of instruction on a
regular basis which provides an employee with marketable job
skills or enhances existing job skills to make them marketable.
(c) "Specialist" means a person certified by the department to
provide vocational rehabilitation services to injured employees
under s. 102.61 (1m), Stats.
(d) Except as provided in sub. (5), "suitable employment"
means a job within the employee's permanent work restrictions
for which the employee has the necessary physical capacity,
knowledge, transferable skills and ability and which pays at least
85 percent of the employee's preinjury average weekly wage.
(5) SUITABLE EMPLOYMENT EXCEPTIONS. (a) A job offer at or
above 85% of the average weekly wage shall not constitute suitable
1. An employee's education, training or employment experience
demonstrates a career or vocational path; the average weekly
wage on the date of injury does not reflect the earnings which the
employee could reasonably have expected in the demonstrated
career or vocational path; and the permanent work restrictions
caused by the injury impede the employee's ability to pursue the
demonstrated career or vocational path; or,
2. The employee's average weekly wage is calculated pursuant
to the part-time wage rules in s. 102.11 (1) (f), Stats., or s.
DWD 80.51 (4) and the employee's average weekly wage for
compensation purposes exceeds the gross average weekly wages
of the part-time employment.
(b) The average weekly wage for purposes of determining suitable
employment under par. (a) 1. shall be determined by expert
vocational evidence regarding the average weekly wage that the
employee may have reasonably expected in the demonstrated
career or vocational path.
(c) The average weekly wage for purposes of determining suitable
employment under par. (a) 2. shall be determined by expert
vocational evidence regarding the employee's age, educational
potential, past job experience, aptitude, proven abilities, and
ambitions on the date of injury.
(6) SPECIALIST CERTIFICATION. (a) A person may apply to the
department for certification as a specialist at any time. The department
may require applicants to submit, and certified specialists to
regularly report, information describing their services, including
the geographic areas served by the specialist and the nature, cost
and outcome of services provided to employees under this section.
(b) After evaluating the information submitted under par. (a),
the department shall certify a person as a specialist if the person
has a license or certificate which is current, valid and otherwise
in good standing as one of the following, or may certify the person
as provided in par. (c):
1. Certified professional counselor with specialty in vocational
rehabilitation from the department of safety and professional
2. Certified disability management specialist from the certification
of disability management specialist commission.
3. Certified rehabilitation counselor from the commission on
rehabilitation counselor certification.
4. Certified vocational evaluator from the commission on certification
of work adjustment and vocational evaluation specialists.
Note: The Commission on Rehabilitation Counselor Certification (CRCC) is
located at 1699 E. Woodfield Road, Suite 300, Schaumburg, Illinois 60173. The Certification
of Disability Management Specialist Commission (CDMS) is located at
8735 W. Higgins Road, Suite 300, Chicago, Illinois 60631. The Commission on Certification
of Work Adjustment and Vocational Evaluation Specialists is located at
7910 Woodmont Avenue, Suite 1430, Bethesda, Maryland 20814-3015.
(c) The department may certify a person as a specialist if the
person has state or national certification, licensing or accreditation
in vocational rehabilitation other than that required in par. (b)
which is acceptable to the department. The department may
require a specialist certified under this paragraph to serve a period
of probation up to 3 years as a condition of certification. The
department shall specify the conditions of the probationary certification.
The department may revoke the probationary certification
at any time without a hearing for conduct which violated the
conditions of probation established by the department or conduct
sufficient to decertify the specialist under par. (e).
(d) Unless certification is suspended or revoked under par. (e),
certification by the department under par. (b) is valid for 3 years.
If a specialist applies to the department to renew his or her certification
before the expiration of the certification period, the certification
shall remain in effect until the department renews or denies
the application to renew. A renewal is valid for three years.
(e) Only the department may initiate a proceeding to suspend
or revoke a specialist's certification under this section. The
department may suspend or revoke a specialist's certification,
after providing the specialist with a hearing, when the department
determines that the specialist did not maintain a current, valid certificate
or license specified in par. (b) or the specialist intentionally
1. Fails to comply with the provisions of ch. 102, Stats., or ch.
2. Fails to comply with the orders, rulings, reporting requirements
or other instructions of the department or its representatives;
3. Charges excessive fees compared to the value of the services
performed or ordered to be performed; or,
4. Misrepresents the employee's work history, age, education,
medical history or condition, diagnostic test results or other factors
significantly related to an employee's retraining program.
(f) The department shall maintain a current listing of all specialists
certified by the department, including the areas they serve,
and provide the list upon request.
(7) EMPLOYEE CHOICE. (a) At the end of the medical healing
period, the self-insured employer or insurance carrier shall notify
the employee, on a form provided by the department, of the
employee's potential eligibility to receive rehabilitation services.
(b) The department shall arrange with the division of vocational
rehabilitation to receive timely notice whenever the division
of vocational rehabilitation determines under s. 102.61 (1m),
Stats., that it cannot serve an eligible employee. When the division
of vocational rehabilitation notifies the department that it
cannot serve an eligible employee, the department shall mail to the
employee and the self-insured employer or insurance carrier a list
of certified specialists serving the area where the employee
(c) The employee may choose any certified specialist. The
employee may choose a second certified specialist only by mutual
agreement with the self-insured employer or insurance carrier or
with the permission of the department. Partners are deemed to be
(d) A specialist selected by an employee under par. (c) shall
notify the department and the self-insured employer or insurance
carrier within 7 days of that selection. The department may
develop a form for this purpose.
(e) The self-insured employer or insurance carrier is liable for
the reasonable and necessary cost of the specialist's services and
the reasonable cost of the training program recommended by the
specialist provided that the employee and the specialist substantially
comply with the requirements in subs. (8) to (11). Except
with the prior consent of the self-insured employer or insurance
carrier, the reasonable cost of any specialist's services to the
employee shall not exceed $1,000 for each date of injury as
defined in s. 102.01 (2) (g), Stats. Effective on the first day of January
each year after 1995, the department shall adjust the $1,000
limit by the same percentage change as the average annual percentage
change in the U.S. consumer price index for all urban consumers,
U.S. city average, as determined by the U.S. department
of labor, for the 12 months ending on September 30 of the prior
year. The department shall notify insurance carriers, self-insured
employers and specialists likely to be affected by the annual
change in the limit.
Note: To obtain a copy of all forms under this subsection, contact the Department
of Workforce Development, 201 East Washington Avenue, P.O. Box 7901, Madison,
Wisconsin, 53707-7901 or access forms online at http://www.dwd.wisconsin.gov.
(8) EMPLOYER'S DUTIES UPON RECEIPT OF PERMANENT RESTRICTIONS.
Upon receiving notice that the division of vocational rehabilitation
cannot serve the employee under s. 102.61 (1m), Stats.,
the employee or a person authorized to act on the employee's
behalf shall provide the employer with a written report from a physician,
podiatrist, psychologist or chiropractor stating the employee's
permanent work restrictions. Within 60 days of receiving the
practitioner's work restrictions, the employer shall provide to the
employee or the employee's authorized representative, in writing:
(a) An offer of suitable employment for the employee;
(b) A statement that the employer has no suitable employment
available for the employee; or,
(c) A medical report from a physician, podiatrist, psychologist
or chiropractor showing that the permanent work restrictions provided
by the employee's practitioner are in dispute, and medical
or vocational documentation that the difference in work restrictions
would materially affect either the employer's ability to provide
suitable employment or a specialist's ability to recommend
a retraining program. If after 30 days the employee and employer
cannot resolve the dispute, either party may request a hearing
before the department to determine the employee's work restrictions.
Within 30 days after the department determines the restrictions,
the employer shall provide the written notice required in par.
(a) or (b).
(9) 90-DAY PLACEMENT EFFORT. (a) If the employer fails to
respond as required in sub. (8), it shall be conclusively presumed
for the purposes of s. 102.61 (1m), Stats., that the employer has no
suitable employment available and the employee is entitled to
receive vocational rehabilitation services from a specialist.
(b) If the employer does not make a written offer of suitable
employment under sub. (8), the specialist shall determine whether
there is suitable employment available for the employee in the
general labor market without retraining. If suitable employment
is reasonably likely to be available, the specialist shall attempt to
place the employee in alternative suitable employment for at least
90 days prior to developing a retraining program. The employee
shall cooperate fully in the specialist's placement efforts and may
not refuse an offer of suitable employment made within the
90-day period. In determining whether the offer is suitable the
department shall consider age, education, training, previous work
experience, previous earnings, present occupation and earnings,
travel distance, goals of the employee, and the extent to which it
would restore the employee's preinjury earning capacity and
(c) If the employee is placed in or refuses to accept suitable
employment, the self-insured employer or insurance carrier is not
liable for any further costs of the specialist's services unless that
suitable employment ends within the statute of limitations in s.
102.17 (4), Stats.
(10) RETRAINING. (a) If, after reasonably diligent effort by the
employee and the specialist, the employee does not obtain suitable
employment, then there is a rebuttable presumption that the
employee needs retraining. The presumption is rebuttable by evidence
1. No retraining program can help restore as nearly as possible
the employee's wage earning capacity;
2. The employee or the specialist did not make a reasonably
diligent effort under sub. (9) (b) to obtain suitable employment for
the employee; or
3. The employee or specialist withheld or misrepresented
highly material facts.
(b) A retraining program of 80 weeks or less is presumed to be
reasonable and the employer shall pay the cost of the program,
mileage and maintenance benefits, and temporary total disability
(c) A retraining program more than 80 weeks may be reasonable,
but there is no presumption that training over 80 weeks is
required. Extension of vocational rehabilitation benefits beyond
80 weeks may not be authorized if the primary purpose of further
training is to improve upon preinjury earning capacity rather than
(d) If the retraining program developed by the specialist is for
more than 80 weeks, the self-insured employer or the insurance
carrier may offer an alternative retraining program which will
restore the employee's preinjury earning capacity in less time than
the retraining program developed by the specialist. An employee
may not refuse a self-insured employer's or insurance carrier's
timely, good-faith, written offer of an alternative retraining program
without reasonable cause.
(11) SPECIALIST'S SERVICES. (a) A specialist shall develop an
IPE for a retraining program for the employee, and may amend it
to achieve suitable employment.
(b) A specialist shall make periodic written reports at reasonable
intervals to the employee, employer and insurance carrier
describing vocational rehabilitation activities which have
occurred during that interval.
(c) Within a reasonable period of time after receiving a written
request from an employee, employer, worker's compensation
insurance carrier or department or their representatives, a specialist
shall provide that person with any information or written material
reasonably related to the specialist's services to the employee
undertaken as a result of any injury for which the employee claims
History: Cr. Register, September, 1982, No. 321, eff. 10-1-82; emerg. am. (2), r.
(3), renum. (4) to be (3), cr. (4) to (11), eff. 11-7-94, am. (2), r. (3), renum. (3) to be
(4) and am., cr. (4) to (11), Register, April, 1995, No. 472, eff. 5-1-95; corrections
in (2) and (5) (a) 2. made under s. 13.93 (2m) (b) 7., Stats., Register, July, 1996, No.
487; eff. 8-1-96; corrections made under s. 13.93 (2m) (b) 6., Stats., Register,
December, 1997, No. 504; CR 07-019: am. (2), (7) (b) and (8), Register October 2007
No. 622, eff. 11-1-07; correction in (6) (b) 1. made under s. 13.92 (4) (b) 6., Stats.,
Register February 2012 No. 674; CR 15-030: am. (4) (intro.), (a), (6) (b) 1. to 3.,
(f), (11) (a) Register October 2015 No. 718, eff. 11-1-15.