Simply because claimant is disabled does not necessarily establish a need for rehabilitation. See Lopez v. Smith's Management Corp. (vocational rehabilitation is inappropriate when there is little possibility of claimant ever resuming any remunerative employment); Nichols v. Teledyne Economic Dev. Co., 103 N.M. 393, 707 P.2d 1203 (Ct.App. 1985) (workers are not entitled to benefits merely because of an inability to return to their former job). Further, even assuming that claimant is entitled to rehabilitation benefits, no evidence was presented regarding the extent of vocational rehabilitation necessary.
The worker is not entitled to benefits merely because she cannot return to her former job. Nichols v. Teledyne Economic Dev. Co., 103 N.M. 393, 707 P.2d 1203 (Ct.App. 1985). In this case, it is undisputed that claimant cannot return to her former job as a chemist, since chemicals trigger her symptoms.
To establish entitlement to such benefits, worker had to prove he was unable to return to his prior employment and that rehabilitation services were necessary to restore him to suitable employment. See Nichols v. Teledyne Economic Dev. Co., 103 N.M. 393, 707 P.2d 1203 (Ct.App. 1985). Worker also had to show he was a proper candidate for vocational rehabilitation, in that there was a likelihood the rehabilitation would restore him to suitable employment.
Proof of need for vocational rehabilitation services requires evidence that (1) as a result of a compensable injury, the worker is unable to return to his or her former employment, or is permanently unable to some percentage extent to perform work for which he or she has previous training or experience; and (2) that the worker is a proper candidate for and in need of vocational rehabilitation. See Sanchez v. Homestake Mining Co.; Nichols v. Teledyne Economic Dev. Co., 103 N.M. 393, 707 P.2d 1203 (Ct.App. 1985); see also Garcia v. Albuquerque Pub. Schools. To qualify for vocational rehabilitation benefits a worker must show that there is a likelihood that such rehabilitation will enable him to return to suitable employment.
While this section is mandatory in nature, Gutierrez had the burden of presenting sufficient evidence so as to establish a need for rehabilitation benefits. See Lopez v. Smith's Mgmt. Corp.; Nichols v. Teledyne Economic Dev. Co., 103 N.M. 393, 707 P.2d 1203 (Ct.App. 1985). The trial court found:
In light of the testimony that plaintiff could return to his former job, the trial court did not err in refusing to award vocational rehabilitation benefits. See Nichols v. Teledyne Economic Development Co., 103 N.M. 393, 707 P.2d 1203 (Ct.App. 1985). Entitlement to attorney fees is dependent upon a recovery of compensation through the services of the attorney.