How Voc Rehab Helps Injured Workers Recover on the Job Front

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Transcript

Workers Comp Matters

How Voc Rehab Helps Injured Workers Recover on the Job Front

03/31/2021

 

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Intro: This is Workers Comp Matters, hosted by attorney Alan S. Pierce, the only Legal Talk Network program that focuses entirely on the people and the law in workers’ compensation cases. Nationally recognized trial attorney, expert, and author Alan S. Pierce is a leader committed to making a difference when workers comp matters.

 

Judson Pierce: Hello and welcome to another edition of Legal Talk Network and Workers Comp Matters. My name is Judson Pierce and I’m an attorney at Pierce, Pierce & Napolitano in Salem, Massachusetts and today we’re bringing you another edition of Workers Comp Matters with special guest Rhonda Jellenik.

 

We are very pleased to have her on. We’ve been trying to get her on our show for a long time now. I’ve known Rhonda really since elementary school, although we – I don’t think we knew each other then, we certainly know each other in our work practice now.

 

Just briefly by way of background, Rhonda’s expertise is in vocational consulting and providing training and job assistance, not only for employees and injured workers but she’s also been retained by companies and insurers to use her services on workers’ comp claims in Massachusetts; although, you have expertise in other states as well, which we can maybe get into briefly today Rhonda.

 

She is a graduate of UMass Amherst and also received a master’s in rehabilitation counseling at the University of Maryland and she has had her own practice, The Rhonda Jellenik Case Management practice since January of 2005, is that right?

 

Rhonda Jellenik: That’s right. Thank you for having me on the show.

 

Judson Pierce: Yeah welcome.

 

Rhonda Jellenik: Thanks.

 

Judson Pierce: Can you tell us a little bit about yourself Rhonda, what brings you to this practice of vocational consulting?

 

Rhonda Jellenik: Sure I’ve been in the field of vocational rehabilitation counseling since essentially 1994. I started out working in Virginia, DC and Maryland for a national vocational consulting firm and moved to Massachusetts in 1999 and since that time, I have been practicing in Massachusetts, Rhode Island, and some in New Hampshire. So 90% of my business is workers’ compensation claims. I do do some work in long-term disability and have been an expert in civil cases as well.

 

But at this point, I would say 90% of my work is in Massachusetts in workers’ compensation; starting out working for another large firm and since 2005, have been on my own.

 

Judson Pierce: Wow, that’s fantastic. What do you like about the practice? What attracted you to it?

 

Rhonda Jellenik: I started out my master’s degree program as most master’s degree programs in this field are oriented, it was really oriented towards non-profit work, working with perhaps individuals with developmental disabilities or psychiatric disabilities and I really started out doing work with individuals with psychiatric disabilities in a non-profit sector doing my training in graduate school.

 

I really decided that I wanted to get into private vocational rehabilitation because I loved the variety of profiles I was seeing and the variety of clients I was able to work with as far as individuals who have sustained various injuries on the job as well as working with people who have had trauma on the job, have post-traumatic stress disorder and cognitive issues, head injuries.

 

So I got to experience working with individuals who have a wide range of injuries and disabilities and I just loved the private sector so I stuck with it, aside from a short time that I worked for county government, where I was doing more workshops and resume development, interviewing skills development with the general public. I primarily stayed in the private sector.

 

I again love it because of the variety of clients that I get to work with.

 

Judson Pierce: Yeah that’s precisely why I think we enjoy doing what we do in representing actual folks and people who really need our assistance in a tough time in their lives, it provides us a lot of comfort and joy to know that we’re helping folks. So that’s great that you have that experience as well.

 

Have you noticed any major differences between the Maryland, DC, Virginia area and up north here in New England in terms of how vocational consulting is used?

 

Rhonda Jellenik: Absolutely as you know, workers’ comp rules and systems vary from state to state and the provision of vocational rehabilitation services and the use of experts, vocational experts differs from state to state.

 

(00:05:02)

 

So when I was working in Maryland, I found that vocational rehabilitation was not used in the same way as it is in Massachusetts. There was less training that was provided in general, it was more focused on job search, direct job search rather than providing guidance towards training and then job search assistance, less comprehensive than it is in Massachusetts I would say.

 

In Massachusetts, I think it’s actually the vocational rehabilitation process is actually very comprehensive because it gives us the opportunity to do vocational interviewing, vocational testing, plan development and seeing the injured worker through from beginning to end as far as starting with somebody who has no idea how they’re going to re-enter the workforce and carrying them through until the end, until there’s job placement and follow-up.

 

As far as expert witness work, it also obviously differs from state to state depending on the rules and laws and how an expert can be utilized in the workers’ compensation system.

 

Judson Pierce: In Massachusetts, what stage of a case do lawyers typically reach out for your services?

 

Rhonda Jellenik: So it depends on what side of the case I’m working on, I actually do a fair amount of both plaintiff side and defense side work as an expert, usually for a plaintiff side, the attorney will reach out to me when they have a conference or a hearing coming up in a case, when they’re trying to help establish either an earning capacity loss, an earning loss or if they believe they have a case for total disability, they’ll want to get my opinion on an individual’s ability to work after an injury.

 

So a lot of times I do see that come up during the times of litigation. Same with the defense side, usually they will ask for a transferable skills analysis in the labor market survey to help establish an earning capacity if the individual can’t return to work doing what they were doing. The question then becomes is there an earning capacity and something that fits within the physical restrictions that are outlined, that’s different from vocational rehabilitation.

 

The vocational rehabilitation process is different than the expert work. Vocational rehabilitation in Massachusetts can start relatively soon after an injury if it’s determined that an individual will not be able to go back to their usual job or occupation or it could be years after an injury that vocational rehabilitation services are initiated.

 

So it really depends on what type of service I’m providing in the case, whether it’s through vocational rehabilitation or as a vocational expert.

 

Judson Pierce: Right. So how long would the process take from once you’re engaged with an attorney’s office whether it’s insurer or injured worker from beginning to the actual processing of a report that could be used in litigation how long would that take for you?

 

Rhonda Jellenik: That depends on the complexity of the case. It depends on how extensive the medical records are that the attorney wants me to look at. I have had cases referred with as little as one medical report that’s 5 pages long to 2,000 pages of medical records to go through, so that can be quite time consuming to do that.

 

And then once I interview the injured worker and go through the medical records, it could — you take as little as two-week turnaround to as much as six to eight week turnaround.

 

Judson Pierce: Have you noticed an ability to do this more remotely since we’ve been in this sort of new normal, since the pandemic began, have you been able to meet with injured workers and attorneys via Zoom or Webex or things like that.

 

Rhonda Jellenik: Yeah so I have, I upgraded my Zoom account at the beginning of the pandemic to a premium account and have been using it throughout the day. It’s been an interesting experience because a lot of the injured workers that I work with have no experience using technology whatsoever; especially my injured workers that I work with who have been in the trades or construction where they’ve never had to use a computer on the job before and they often shy away from technology at home as well.

 

So it’s been a challenge, I have done some pre-meeting run-throughs with people to make sure that they’re up and running on Zoom and a lot of times they’ll get help from their children or their spouse to use Zoom but that is primarily how I have been doing my vocational interviews with people.

 

(00:10:10)

 

Judson Pierce: Yeah I would think that as an advocate for injured workers and you’re trying to establish that someone has very limited computer skills and then on a cross-examination, an attorney could get up and say well how did you meet with that vocational expert, who interviewed you again, oh, by Zoom and that could really put a dent or a hole in that theory that the injured worker really can’t access the computer.

 

But what we found at least in our work is that yeah you know, maybe you can open up the email or you can do a search on Google but in terms of a job that requires a lot of computer skills, that’s a very different ball of wax. Is that not what you find too?

 

Rhonda Jellenik: Absolutely. I think that’s a really interesting outcome of COVID and in my reports, I actually document how the person accessed the computer. So if the person needed a lot of support to get on the computer, I write that in my report. They were assisted by their son, they were assisted by their wife or that we had to do a trial run and they needed a lot of instruction.

 

I have also documented that the person was unable to access the Zoom link and could not because of a lack of technology or a lack of technical skill. So it definitely adds a layer of computer skill analysis to the picture. Also during COVID, I’ve been using video to do video depositions. So this is — COVID has really changed the way we provide our services.

 

Judson Pierce: Yeah I mean one of the questions we often ask is have you met with our client? When it’s a labor market survey that the insurer is producing and the person’s just basically read off a whole bunch of jobs she found but she’s not really ever met with our client. It serves as a useful question for us to determine, yeah, maybe her report isn’t as exact and detailed and specific as it could be.

 

You like to actually sit down and at least talk with them over the phone or meet with them in person or by Zoom, right?

 

Rhonda Jellenik: Yes, I mean its standard in the industry that if you can communicate with the injured worker and get first-hand information from the injured worker on their vocational profile, what makes up their vocational profile that is clearly the best case to get that information instead of making assumptions.

 

What happens when you — if you’re a vocational expert for the defense and you do a labor market survey that is based on assumptions because you have been unable to meet with the individual, a lot of times those assumptions are inaccurate or you’ve received inaccurate information, and then when you go on the stand to defend your opinion, it becomes a problem for the vocational expert obviously.

 

Judson Pierce: Do you find that plaintiff lawyers allow you to meet or is it 50/50, is there any sort of percentage rule of thumb that you are finding lawyers allowing you to meet with their client?

 

Rhonda Jellenik: In my experience, the vast majority do not allow you to meet with the injured worker. It is a rare thing if they do.

 

Judson Pierce: And in Massachusetts, we have the Vocational Rehabilitation Department through our Department of Industrial Accidents, do you work alongside them in cases and what is your experience in other states, do they have a similar type of department?

 

Rhonda Jellenik: In Massachusetts, we do have the Office of Education and Vocational Rehabilitation, we call it OEVR for short, it is within the Department of Industrial Accidents and you have to be in order to provide vocational rehabilitation services to an injured worker, you have to be certified with the Office of Education and Vocational Rehabilitation, there’s an application process and you have to maintain that every year.

 

You have to maintain your certifications and your credentials and I do work alongside them, I think that’s important as a vocational expert to have actual hands-on experience providing vocational counseling and job placement assistance to injured workers. I use it hand-in-hand with my expert work. I use that as a basis for my opinions, my actual experience that I have working with injured workers placing them in jobs, help doing vocational testing and training coordination.

 

So it’s an important part of being a vocational expert.

 

(00:14:54)

 

Other states have different versions of vocational rehabilitation, not all do, not all states in the US provide vocational rehabilitation services to injured workers, some states will refer injured workers out to state rehab instead of workers’ comp oriented voc rehab, like Mass Rehab Commission and that type of agency in other states and some states provide very minimal. They don’t orient the program to rehabilitation as much as they do in Massachusetts.

 

They are more focused on job placement or providing resources. But certainly there are other states in the country that provide a system for vocational rehabilitation and training.

 

Judson Pierce: Before we move on, we’re going to take a quick break for a message from our sponsor.

 

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Judson Pierce: And we’re back with special guest Rhonda Jellenik. Before the break, we left off with the Mass Rehab Commission, the Office of Education and Vocational Rehabilitation which is the department affiliated with the Department of Industrial Accidents here.

 

Do you find it difficult in this current economic environment, right, affected by the pandemic, affected by various job losses and closures of employers to actually have people who have been injured in the past get back into the workplace?

 

Rhonda Jellenik: Oh it’s certainly been very difficult during COVID to do job placement with people, very, very difficult and it also has been difficult to help people get into training programs. I have several injured workers I’m working with right now in the rehab system who have been unable to get training because they can’t access a class online or it’s not being offered online. They don’t have the technology to access it or the skill to access it.

 

So until that in-person component returns, I think vocational rehabilitation is at a big slow down or standstill even we’re still trying to move forward but it’s certainly been hampered by it significantly.

 

Judson Pierce: Right and what is the new economy, the gig economy or the artificial intelligence or robotics done to the typical jobs that maybe you started studying in your master’s program and early in your career, how has that changed in terms of where we are currently in society?

 

Rhonda Jellenik: Oh it hasn’t changed much on the entry level jobs that I see but it has changed significantly obviously in the higher level jobs, in the things that I would train my injured workers that I work with possibly to get into as far as obviously a reduction in manufacturing industry, a reduction in opportunity and manufacturing, more skill, more technology and skill needed and a higher skill level needed to enter certain fields.

 

But if you’re talking about entry-level type jobs, there have been some impact but obviously not as much as the higher skilled positions. For instance, when I first started doing vocational rehabilitation, you would often see on labor market surveys, oh possibly this person could be a parking lot cashier because there were no automated machines to do parking lot cashiering. Now, you rarely see a cashier sitting at a parking lot, a parking garage.

 

Judson Pierce: Right.

 

Rhonda Jellenik: It’s all automated. So those cashiering jobs have really become more skilled, more computerized. The parking lot cashier jobs, those were the low skilled or unskilled jobs, now the retail cashiers or the cashiers that sit in an office perhaps at like a hospital or a medical office, those are more integrated with office technology.

 

So those types of jobs have become more skilled and more difficult to obtain without any experience.

 

Judson Pierce: So in Massachusetts, one of the great things about our program is that when an injured worker has reached an end result medically and has been released by a physician to work, perhaps not what they used to do, but something else, sometimes an insurer will have to pay for that help and that assistance, right.

 

(00:20:08)

 

And sometimes the workers’ comp insurer may even have to pay for classes for that person, certifications, licensing, do you find that that is necessary in most cases now that that injured workers not only have the job placement services but they actually have some skills and building and education to go along with it?

 

Rhonda Jellenik: Absolutely. I think that well in Massachusetts, as you know, we really look at the pre-injury wage that the injured worker was earning in terms of vocational rehabilitation. So the rehabilitation part of it is that we’re trying to get this person back to work in a physically suitable position that is within the pre-injury wage or as close as possible to the pre-injury wage.

 

So it becomes a challenge when you’re working with an individual who perhaps was a union construction worker who is making very high wages and they have perhaps a back injury that results in an inability to do lifting over 10 or 20 pounds and difficulty doing a lot of standing and walking and bending. So somebody like that who was making such a high wage through the vocational rehabilitation system obviously, they would need some kind of retraining or skills enhancement to be able to re-enter their workforce at a higher wage and some of that could be substantial.

 

Before that, we would have to do some vocational testing and assessment to make sure that they had the aptitude to do some kind of training whether it be even short-term or long-term. So there are a lot of steps that go into that analysis but certainly that would be my first thought is that let’s test this individual and see where their aptitudes are and if they’re capable of learning a new skill or a new trade or going to get a certificate or perhaps even a two-year degree from a community college to re-enter the workforce.

 

There’s also an emphasis on cost effectiveness. So the rehabilitation program has to be cost effective. In other words, if the person only intends — if they’re perhaps in their late 50s or early 60s and they don’t plan on working for a long time, is it cost effective to put $30,000-40,000 into a training program, how much will they earn at the at the end of it.

 

So the vocational research comes into play there as well, let’s research the proposed goal, job goal and see if this program will be cost effective and will result in a higher earning capacity at the end.

 

Judson Pierce: So there’s an element of return on investment that the people paying for this retraining have to go through to determine whether it’s feasible to go through it, right?

 

Rhonda Jellenik: Correct yes.

 

Judson Pierce: So someone can’t say oh, I was a journeyman ironworker but I’ve really always wanted to be a paralegal or something where they’d have to take years and years of study, an attorney, a radiologist tech at a hospital something like incredibly education binding that you don’t see right, where someone trades fields so drastically correct because there’s just no way to do that.

 

Rhonda Jellenik: Correct. So in Massachusetts, we have a two-year limit on the length of training that can be suggested or recommended; essentially a person could start an associate degree program through vocational rehabilitation and finish it within the scope of vocational rehabilitation.

 

I will tell you that does not happen very often for many reasons; one, because if the individual has been out of a school environment for a long time, they typically need to have some basic prerequisite classes first to get them up to speed to take a college level class, that’s very common. I see that more often than not.

 

So it ends up being longer than two years for a lot of people so what you often see is an individual getting a shorter term skills enhancement through a career school or maybe perhaps a certificate in a community college setting.

 

Judson Pierce: What are some tests that you use to determine what might be appropriate for someone or resources?

 

(00:24:52)

 

Rhonda Jellenik: Yeah I do vocational testing with my clients who are trying to get retrained to do some other type of work especially if it requires formal training in a school environment.

 

But I start with interest testing. So a lot of people have no idea what they want to do when they’re injured and they need to look at something totally outside of what they’ve done. So I start with interest testing. I like to use the career occupational preference survey and then there’s an aptitude part that goes along with that the career ability placement survey and I even have moved to an online version of that during COVID that is really very good and very well respected in the industry.

 

So I do vocational testing in that realm and a big part of it is the vocational interview and the vocational counseling process that is done over a period of several months from start to finish as far as in the vocational rehab world in Massachusetts, we get 90 days to develop a vocational goal with an individual. So that gives us time to do the vocational intake, testing, counseling, research, guiding the person towards an appropriate goal based on what the physician says there they can do.

 

Judson Pierce: I think the takeaway uh for me at least today is that one should really look at and evaluate their case to determine if work capacity is going to be an issue and oftentimes in our line of work, it does become an issue where causality is established, the disability has been established and the only essence or question before the administrative judge or hearing officer is what is this employee’s work capacity that is when an attorney on the insurer side, on the employee side should reach out to you, someone like you, and ask for your help, ask for your guidance about what you can do to prepare a report or actually assist in getting this person some training, right.

 

Rhonda Jellenik: Yes, work capacity, as you know, is there can be a wide variety of opinion from physicians on someone’s work capacity so that is always vital to have that documented what the person can and cannot do physically. But if there’s a question of earning capacity, a vocational expert can certainly help with that and to determine if what you have on paper from a doctor would be feasible in a labor market and a vocational expert can certainly give information on how that work capacity combined with that person’s vocational profile would play out in the labor market, what kind of earning that person can expect to have.

 

Judson Pierce: Right absolutely. And the judge needs to have some meet to put in his or her hearing decision right, they need to say okay if this person has a $300-400 a week earning capacity, they need to attach it to some evidence something that you testify to, or that you found in the literature to make that hearing decision really stand up.

 

Rhonda Jellenik: Right the judge uses the vocational expert hopefully adopts the vocational expert’s opinion on the person’s earning capacity and how their whole vocational profile will play out in the labor market. So in the vocational profile is really someone’s age, education, work experience, the skills and abilities they have from their work experience and how their documented physical limitations impact their skills, that’s really as to see how those skills would transfer to a lighter job in the labor market.

 

So those are all issues that the vocational expert can help the judge decide.

 

Judson Pierce: And then it becomes an interesting match if you’ve got dueling vocational experts, sometimes we have dueling doctors and now we’ve been seeing in comp cases, dueling vocational experts. So it’s probably a small network of experts right that you associate with, are you in good terms with all of them to get along outside of the courtroom?

 

Rhonda Jellenik: We all get along, it is a very small group of us that actually provide vocational expert services in Massachusetts, especially. We all know each other, we all talk and about the industry and what’s happening and try to keep up on industry news, so it is interesting when you’ve worked previously with the vocational expert on the other side and then you’re going up against them at a hearing.

 

(00:30:05)

 

This has happened to me many, many times but I think we all know that we have to separate, take ourselves out of the situation and separate it outside of the courtroom.

 

Judson Pierce: Last question for me Rhonda, where can listeners reach you, what is your contact that you’d like to give out for folks who may need to get some advice or engage your services?

 

Rhonda Jellenik: Sure, thanks. I have a website. My website is rjcasemanagement.com, my email is [email protected]. So you can find my information on the website.

 

Judson Pierce: And I think we brought up before having kids maybe an injured worker with a family or whatever, we both have children and I can’t imagine how blessed and how lucky your kids are to have you as their mom because the college applications, the resume for a first-time job seekers, they must rely on you heavily now, don’t they?

 

Rhonda Jellenik: Oh they do. They and my friends and my friends’ children, I’ve been writing resumes for people a lot lately, a lot, a lot of my friends whose children are graduating college and yeah there’s a big need out there.

 

Judson Pierce: Well I had the pleasure of reading through your CV in preparation for today and to actually — folks to actually see someone who does this for a living and how they write their CV and resume, it really makes you wonder how you ever got a job in the first place with your own one.

 

Yours is awesome Rhonda and it’s been a pleasure to have you today on our program. We’ll be talking again I’m sure very soon in a case or two.

 

Rhonda Jellenik: Thank you Jud.

 

Judson Pierce: Thank you. And for those of you listening, please tune in to our next show, a little hint, it’s going to feature a really, really popular movie and a very interesting true story that arose out of this country’s early workers’ compensation history that’ll be next month.

 

For all of us here at Workers Comp Matters for the team at Legal Talk Network, my father Alan Pierce and I wish you a very, very good today and make it a day that matters.

 

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Outro: Thanks for listening to Workers Comp Matters today on the Legal Talk Network, hosted by attorney Alan S. Pierce, where we try to make a difference in workers’ comp legal cases for people injured at work. Be sure to listen to other Workers Comp Matters shows on the Legal Talk Network, your only choice for legal talk.

 

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