In connection with the last two weeks of the Boyce Work Comp and Employment Blog Insight, it is my turn to explain the second prong of the five-part rehabilitation test. I am sure that you have been waiting with baited breath to learn more about retraining benefits, so here it goes:
The second prong of the five-part test provides: Rehabilitation must be necessary to restore the claimant to suitable, substantial and gainful employment. What exactly does that mean, you ask?
SDCL 62-4-55 addresses the definition for “suitable, substantial, and gainful employment”, and states that employment is considered to fit this definition if it: (1) Returns the employee to no less than eighty-five percent of the employee’s prior wage earning capacity; or (2) It returns the employee to employment which equals or exceeds the average prevailing wage for the given job classification for the job held by the employee at the time of injury as determined by the Department of Labor.
An analysis of this second prong entails figuring out the employee’s prior wage earning capacity, and then determining what eighty-five percent (85%) of that wage would be. Our Courts have said that, “Before the burden of establishing the existence of suitable employment shifts to the employer, the employee must make a prima facie showing that he is unable to find suitable employment.” Kurtenbach v. Frito-Lay, 1997 SD 66, ¶ 17, 563 N.W.2d 869, 874. “In order to meet this second element of the test, Claimant must show that he is unable to “obtain employment following [his] injury.” Cozine v. Midwest Coast Transport, Inc., 454 N.W.2d 548, 554 (S.D. 1990).
Once a claimant has made such a showing, the burden shifts to the employer to show that the claimant would be capable of finding such employment without the need for rehabilitation. South Dakota case law has established that a claimant cannot insist upon rehabilitation benefits if other suitable employment opportunities exist which do not require training. In other words, a claimant cannot simply seek retraining benefits because they no longer believe they can perform their prior job. The use of a vocational expert in retraining cases can be key because the expert may be able to provide a list of positions available to the injured worker that would not require retraining. Keep in mind that failure to make a reasonable search for employment calls into question whether or not the claimant has shown that they are unable to obtain employment, and, without such showing, the claimant has not met the burden of proof sufficient to shift the burden to the Employer and Insurer under the second prong.
Stay tuned, for more riveting information next week, when you will get to hear from TJ Von Wald and his thoughts on the third prong of the five-part rehabilitation test. As always, call us with any questions.