Rule 42: Vocational Rehabilitation — Choice of Counselor

A. If entitlement to vocational rehabilitation services is claimed by the employee, or a loss of earning power evaluation is desired by any party, the selection requirements of section 48-162.01(3) shall apply. The parties shall make a good faith attempt to agree on the choice of a vocational rehabilitation counselor from the directory of vocational rehabilitation counselors.

1. Any party may propose the selection of a vocational rehabilitation counselor from the directory.

2. The proposed vocational rehabilitation counselor shall obtain written agreement of his or her selection from each of the parties. The vocational rehabilitation counselor may contact the parties directly for this purpose. If agreement of all parties is obtained, the vocational rehabilitation counselor shall notify the court of his or her selection within five working days, using a form developed by the court.

Before agreement is obtained from the employee, the vocational rehabilitation counselor must provide written notice to the employee of his or her rights regarding the selection of the vocational rehabilitation counselor. The written notice shall include:

a. The employee’s right to agree to the proposed vocational rehabilitation counselor to provide vocational rehabilitation services and/or perform a loss of earning power evaluation;

b. The employee’s right not to agree to the proposed vocational rehabilitation counselor;

c. The employee’s right to propose a vocational rehabilitation counselor of his or her own choosing from the directory of vocational rehabilitation counselors;

d. The employee’s right to request the court to appoint a vocational rehabilitation counselor at no cost to the employee, if the parties are unable to agree on a vocational rehabilitation counselor.

A form developed by the court may be used to provide the required notice to the employee.

3. If, after a good faith attempt, the parties are unable to agree on the selection of a vocational rehabilitation counselor, a party shall request that the court appoint a vocational rehabilitation counselor from the directory. This request shall be made using a form developed by the court with the requestor providing copies to all other parties. An appointment will not be made if the request is submitted within 60 days before trial unless the trial is continued.

4. Within seven business days following receipt of a form requesting appointment of a vocational rehabilitation counselor, the court will review the request and notify the parties if the request has been approved or denied. If the request is approved, the court shall appoint a vocational rehabilitation counselor from the directory and notify the parties of the name of the court appointed vocational rehabilitation counselor.

B. When appointing a vocational rehabilitation counselor, a rehabilitation specialist of the court shall contact the individual whose name appears at the top or first position of the directory to ascertain if that vocational rehabilitation counselor agrees to accept the appointment, taking into consideration, but not limited to, such factors as geographic location of the employee and counselor, availability of the counselor to provide the requested services, ability of the counselor to provide timely services, and whether the counselor or another counselor associated with the same firm has provided or will provide medical case management services in the same claim.

1. If the vocational rehabilitation counselor accepts the appointment, his or her name shall be placed at the end of the directory. The next vocational rehabilitation counselor’s name on the directory shall then be moved to the top of the directory.

2. In the event that the vocational rehabilitation counselor does not accept the appointment, the vocational rehabilitation counselor whose name appears next on the directory shall be contacted to determine if he or she will accept the appointment. This process shall continue until the appointment is finally accepted.

3. Refusal without good cause to accept an appointment shall result in the vocational rehabilitation counselor’s name being placed at the end of the directory.

C. All contact between the vocational rehabilitation counselor and the parties, other than the employee, shall be in writing with copies provided to all other parties, with an additional copy sent directly to the employee, except that the vocational rehabilitation counselor may have direct contact:

1. As provided in Rule 42,A,2;

2. With the employer to assess the likelihood of the employee being able to return to the previous job with the same employer, or being able to return to the previous job with modifications, or to obtain a new job with the same employer. For purposes of this paragraph “employer” shall not include attorneys, claims representatives, risk management personnel, or similar representatives of the employer, but shall only include the person or persons required to explain what the applicable job entails, and what may be necessary to modify the job;

3. With all parties when they agree to jointly meet or to conduct a jointly held conference call with the vocational rehabilitation counselor to discuss the case;

4. For the purpose of taking a deposition;

5. With the employer or its insurer or risk management pool to assist the employee in obtaining special or adaptive equipment necessary for the employee to accomplish an approved vocational rehabilitation plan, or necessary for the employee to return to a job with the same employer as described in Rule 42,C,2;

6. With the employer or its insurer or risk management pool to assist the employee in determining the status of temporary disability benefit payments while undergoing an approved vocational rehabilitation plan;

7. With the employer or its insurer or risk management pool to assist the employee in arranging for necessary specialized or acute medical care while the employee is participating in an approved vocational rehabilitation plan.

D. The vocational rehabilitation counselor agreed to or appointed pursuant to this rule shall be the sole vocational rehabilitation counselor to provide vocational rehabilitation services at any one time.

E. The parties, other than the employee, shall not attempt to influence or to control the meeting place, the outcome of the evaluation, or the recommendations of the vocational rehabilitation counselor. The meetings shall be held at a neutral site, except as provided in Rule 42,C.