What Are the Employee’s Options in Vocational Rehabilitation in Louisiana Workers Compensation?
Louisiana law sets forth a specific schedule of options for the injured employee in vocational rehabilitation, as follows:
- Return to a modified position;
- Return to a related occupation suited to the employee’s education and marketable skills;
- On-the-job training;
- Short term job retraining;
- Long term job retraining; and
Who Chooses and Pays for The Vocational Rehabilitation Counselor?
The workers compensation insurance company is responsible for the selection of a vocational rehabilitation counselor, as well as payment for the vocational rehabilitation counselor.
Unfortunately, because the insurance company both chooses and pays for the vocational rehabilitation counselor directly, the vocational rehabilitation counselor is often greatly biased in favor of the insurance company.
If the workers compensation insurance company fails or refuses to select a vocational counselor, then the employee may file a claim with the Office of Workers Compensation court.
In fact, if the workers compensation insurance company fails or refuses to provide vocational rehabilitation services promptly, then the employee may be awarded penalties and attorneys’ fees by the Office of Workers Compensation court.
WHEN ARE VOCATIONAL REHABILITATION SERVICES DUE?
Vocational rehabilitation services are due whenever the injured employee is unable to return to work at a wage rate equal to his or her prior Average Weekly Wage with his or her current capabilities and restrictions.
So if an employee is unable to return to work at 100 percent of his or her pre-accident wages with his or her current capabilities and restrictions, then the workers compensation insurance company must offer retraining and not just job placement services and job retraining services, if requested by the employee.
However, if the employer of the injured worker offers this worker an alternative or modified position within the doctor’s restrictions at the employer’s business, then the workers compensation insurance company does not have to offer vocational rehabilitation services.
IS VOCATIONAL REHABILITATION REQUIRED?
An injured employee is required to participate in vocational rehabilitation in Louisiana workers compensation if the insurance company requires it.
In fact, if an injured employee fails to cooperate with the vocational rehab counselor, then the workers compensation insurance company may reduce the employee’s lost wage benefits by 50% during the time in which the employee fails to cooperate.
WHAT EXACTS CONSTITUTES VOCATIONAL REHABILITATION?
Vocational rehabilitation services in Louisiana workers compensation must be more than just a Labor Market Survey.
Also, simply providing specialized job placement, such as modifying the prior job or creating a new job, is not necessarily considered vocational rehabilitation.
Proper vocational rehabilitation requires testing, evaluation of medical and history of the injured worker, applying these factors to a job search, locating potential employers, meeting with potential employers to ensure they would hire, and then offering to assist the employee in applying for the jobs involved.
So proper vocational rehabilitation services mean more than just a Labor Market Survey.
In fact, simply performing a Labor Market Survey, without any testing, physician approval, or analysis of real job availability, is inadequate.
WHAT MUST BE INCLUDED IN VOCATIONAL REHAB?
Louisiana courts generally find that vocational rehabilitation involves the following requirements and proper procedures:
- The vocational rehabilitation counselor must consult medical records, treating physicians, and the injured worker as to the worker’s current medical condition and restrictions.
- The vocational rehabilitation counselor should have a face-to-face with the physician, but this must occur with the knowledge and consent of the injured worker who does have a right to be present.
- The employee’s full medical history must be considered, not just disabilities or restrictions from the work accident.
- A face-to-face vocational rehabilitation consultation with the employee is required.
- The vocational rehabilitation counselor must consider the employee’s social, educational, and vocational histories in order to establish the employee’s expertise, capabilities, and ability to adapt.
- Vocational and skills testing must be performed to determine basic reading, writing, mathematical, and communication skills, as well as the employee’s interests.
- A job survey or Labor Market Survey that takes all of the above factors into account and provides accurate job descriptions should be conducted.
- Close communication throughout the process is required between the vocational rehabilitation counselor and the employee, as opposed to merely the continued reports to the insurance company.
- A second face-to-face information session between the vocational rehabilitation counselor and the employee is needed to provide the employee information and review the work performed.
- The vocational rehabilitation counselor and the employee should maintain a mutual understanding of the means and purpose of the rehabilitation process.
- Once jobs are identified, the vocational rehabilitation counselor must remain available to help with interviews, resumes, and further training as needed, instead of simply informing the employee of the jobs and instructing the employee to apply.
So vocational rehabilitation services in Louisiana must include, at a minimum, a full vocational rehabilitation evaluation, with a review of medical records, testing of the employee for skills and educational level, along with a complete social, educational and work history to establish any transferable skills.
Also, the vocational rehabilitation counselor must conduct an information session with the injured employee in order to develop a mutually agreed vocational rehabilitation plan, and provide any interview skills, resume drafting, or further training.
HOW DOES AN INSURANCE COMPANY PROVE JOB AVAILABILITY?
If the workers compensation insurance company can show that the employee can return to employment at actual jobs that are actually available, the insurance company can legally reduce or terminate the employee’s indemnity (or lost wages) benefits.
Again, the employee does not need to actually be offered that job, or receive the job, or even apply for the job. Vocational rehabilitation can be accomplished – and lost wage benefits eliminated – just by producing a Labor Market Survey to establish the injured employee’s wage-earning capacity.
So how does the workers compensation insurance company prove job availability (and thus reduce or eliminate the employee’s lost wage benefits)?
The Louisiana Supreme Court has specifically ruled that, in order to discharge its burden of job availability, the workers compensation insurance company must establish at a minimum:
- The existence of a suitable job within the claimant’s physical capabilities and within claimant’s or the employer’s community or reasonable geographic area;
- The amount of wages that an employee with claimant’s experience and training can be expected to earn in that job; and
- An actual position available for that particular job at the time that the claimant received notice of the job’s existence.
And unfortunately, Louisiana courts have rejected the premise that applying for jobs and not being hired shows the jobs were not available.
WHAT IS “SHAM” VOCATIONAL REHABILITATION?
“Sham” vocational rehabilitation is basically “fake” vocational rehabilitation made in bad faith, where the clear goal is to use vocational rehabilitation to terminate the employee’s benefits, not to rehabilitate the worker.
For example, one typical case of sham vocational rehabilitation occurred where an insurance company waited four years to start vocational rehabilitation, then told the vocational rehabilitation counselor to wait until surveillance was completed, and then placed severe limits on the amount of work the counselor can do.
Other examples of sham vocational rehabilitation are actually cases where:
- Two Labor Market Surveys relied upon by the insurance company were never submitted to the physician for approval;
- Despite the treating physician’s disapproval of one of the potential jobs, the position was listed as a potential job in the letters to the claimant; and
- Of the nine physician-approved jobs, only two would pay at or near the injured worker’s pre-accident average weekly wage.
Unfortunately, sham vocational rehabilitation happens all the time, because the typical goal of the insurance company is to use vocational rehabilitation to terminate the employee’s benefits, not to rehabilitate the worker.
The only real way for the employee to properly fight against sham vocational rehabilitation is to retain an experienced Louisiana workers compensation attorney to push back against and refute the sham vocational rehabilitation.
DOES THE VOCATIONAL REHABILITATION COUNSELOR MEET WITH THE EMPLOYEE’S DOCTOR?
In Louisiana workers compensation, the vocational rehabilitation counselor will typically meet with the employee’s physician.
In fact, Louisiana law specifically allows the vocational rehabilitation counselor to make personal contact with the treating physician, without the necessity of a signed medical authorization from the employee.
However, the injured employee or the employee’s attorney must be given 15 days advance notice of the meeting between the vocational rehabilitation counselor and the employee’s physician, and the employee or the employee’s attorney must be given the opportunity to be present at the meeting.
Also, within five working days after the meeting, the vocational rehabilitation counselor must send a letter by certified mail to all parties, including the employee or the employee’s attorney, summarizing the meeting.
IS TRAVEL MILEAGE TO AND FROM VOCATIONAL REHABILITATION REIMBURSED?
In Louisiana workers compensation, an injured employee is entitled to be compensated for the cost of traveling to and from any vocational rehabilitation appointments or meetings.
In other words, the cost of travel mileage accrued in the course of vocational rehabilitation is compensable just the same as the mileage for doctor and pharmacy visits.
As of 2019, this mileage reimbursement rate is $0.54 (or 54 cents) per mile. Thus, if an injured worker traveled a total of 100 miles in a month to and from medical providers and pharmacies, then this worker would be entitled to $54.00 in mileage reimbursement for that month.
In order to be reimbursed for mileage expenses, the injured employee must submit a mileage reimbursement form monthly.
The employee should be reimbursed for mileage expenses within 60 days of the insurance company’s receipt of the mileage form.
Also, the mileage expenses must be “reasonably and necessarily incurred for obtaining services, medicines, and prosthetic devices,” so the employee is expected to take a direct travel route to the workers compensation-related destination.
THE LOUISIANA STATUTE FOR VOCATIONAL REHABILITATION IN LOUISIANA WORKERS COMPENSATION
The primary Louisiana statute for vocational rehabilitation is La. R.S. 23:1226, which reads as follows:
§1226. Rehabilitation of injured employees
A. When an employee has suffered an injury covered by this Chapter which precludes the employee from earning wages equal to wages earned prior to the injury, the employee shall be entitled to prompt rehabilitation services. Vocational rehabilitation services shall be provided by a licensed professional vocational rehabilitation counselor, and all such services provided shall be compliant with the Code of Professional Ethics for Licensed Rehabilitation Counselors as established by R.S. 37:3441 et seq.
B.(1) The goal of rehabilitation services is to return a worker with a disability to work, with a minimum of retraining, as soon as possible after an injury occurs. The first appropriate option among the following must be chosen for the worker:
(a) Return to the same position.
(b) Return to a modified position.
(c) Return to a related occupation suited to the claimant’s education and marketable skills.
(d) On-the-job training.
(e) Short-term retraining program (less than twenty-six weeks).
(f) Long-term retraining program (more than twenty-six weeks but not more than one year).
(2) Whenever possible, employment in a worker’s local job pool must be considered and selected prior to consideration of employment in a worker’s statewide job pool.
(3) (a) The employer shall be responsible for the selection of a licensed professional vocational rehabilitation counselor to evaluate and assist the employee in his job placement or vocational training. Should the employer refuse to provide these services, or a dispute arises concerning the work of the vocational counselor, the employee may file a claim with the office to review the need for such services or the quality of services being provided. The employee shall have a right to an expedited summary proceeding pursuant to R.S. 23:1201.1(K)(8). The workers compensation judge shall set a hearing date within three days of receiving the motion. The hearing shall be held not less than ten, nor more than thirty days, after the employer or payor receives notice, delivered by certified or registered mail, of the employee’s motion. The workers compensation judge shall provide notice of the hearing date to the employer and payor at the same time and in the same manner that notice of the hearing date is provided to the employee or his attorney. For the purposes of this Section, an employee shall not be required to submit the dispute on the issue of vocational services to mediation or go through a pretrial conference before obtaining a hearing. The hearing shall be conducted as a rule to show cause.
(b) An employee shall have no right of action against a vocational counselor for tort damages related to the performance of vocational services unless and until he has exhausted the administrative remedy provided for in Subparagraph (a) of this Paragraph. The running of prescription shall be suspended during the pendency of the administrative proceedings provided for in this Paragraph.
(c) Upon refusal by the employee, the employer or payor may reduce weekly compensation, including supplemental earnings benefits pursuant to R.S. 23:1221(3), by fifty percent for each week of the period of refusal. Reduction of benefits by the employer or payor shall be made in accordance with the provisions of R.S. 23:1201.1(A) through (E).
C.(1) Rehabilitation services required for workers with disabilities may be initiated by:
(a) An insurer or self-insured employer by designating a rehabilitation provider and notifying the office.
(b) The office by requiring the insurer or self-insured employer to designate a rehabilitation provider.
(c) The employee, through a request to the office. The office shall then require the insurer to designate a rehabilitation provider.
(2) Rehabilitation services provided under this Part must be delivered through a rehabilitation counselor approved by the office.
D. Prior to the workers compensation judge adjudicating an injured employee to be permanently and totally disabled, the workers compensation judge shall determine whether there is reasonable probability that, with appropriate training or education, the injured employee may be rehabilitated to the extent that such employee can achieve suitable gainful employment and whether it is in the best interest of such individual to undertake such training or education.
E. When it appears that a retraining program is necessary and desirable to restore the injured employee to suitable gainful employment, the employee shall be entitled to a reasonable and proper retraining program for a period not to exceed twenty-six weeks, which period may be extended for an additional period not to exceed twenty-six additional weeks if such extended period is determined to be necessary and proper by the workers compensation judge. However, no employer or insurer shall be precluded from continuing such retraining beyond such period on a voluntary basis. An injured employee must request and begin retraining within two years from the date of the termination of temporary total disability as determined by the treating physician. If a retraining program requires residence at or near the facility or institution and away from the employee’s customary residence, reasonable cost of board, lodging, or travel shall be borne by the employer or insurer. A retraining program shall be performed at facilities within the state when such facilities are available.
F. Temporary disability benefits paid pursuant to R.S. 23:1221(1) shall include such period as may be reasonably required for training in the use of artificial members and appliances and shall include such period as the employee may be receiving training or education under a retraining program pursuant to this Section.
G. The permanency of the employee’s total disability under R.S. 23:1221(2) cannot be established, determined, or adjudicated while the employee is employed pursuant to an on-the-job training or a retraining program as provided in Subsections B and E of this Section.
Acts 1983, 1st Ex. Sess., No. 1, §1, eff. July 1, 1983; Acts 1988, No. 938, §1, eff. July 1, 1989; Acts 1989, No. 23, §1, eff. June 15, 1989; Acts 1989, No. 260, §1, eff. Jan. 1, 1990; Acts 1989, No. 454, §6, eff. Jan. 1, 1990; Acts 1997, No. 88, §1, eff. June 11, 1997; Acts 2003, No. 980, §1; Acts 2004, No. 341, §1, eff. June 18, 2004; Acts 2005, No. 257, §1; Acts 2013, No. 337, §1; Acts 2014, No. 811, §12, eff. June 23, 2014.