Employee Goals in Vocational Rehabilitation in Louisiana Workers Compensation
The Employee’s First Goal in Vocational Rehabilitation Should Be to Return to The Employee’s Original Job Position
Louisiana law specifically states that the goal of vocational rehabilitation is to return a disabled worker to work, with a minimum of retraining, as soon as possible after an injury occurs.
Also, under Louisiana law, the first possible option among the following must be chosen for the injured worker:
- Return to the same position (which the employee previously held);
- Return to a modified position (the same position which the employee previously held, but with some modifications and/or accommodations);
- Return to a related occupation (in the same field) suited to the claimant’s education and marketable skills;
- On-the-job training;
- A short-term job retraining program (that lasts less than 26 weeks);
- A long-term job retraining program (that lasts more than 26 weeks but not more than one year); and
So, the priority and the goal for the injured employee, if possible, should be to return to his or her original job, either with or without modifications and/or accommodations.
Under Louisiana law, this type of return to work must be to the same position which the injured employee held at the time of injury.
Also, if the injured worker can return to work in his or her same position, then there is no further need for vocational rehabilitation services.
However, if the injured worker can return to work in his or her same position, but there is a difference in pay, such that the worker does not earn 100% of their prior average weekly wage, then vocational rehabilitation services may be necessary.
Vocational rehabilitation services may also be necessary if the injured worker returns to work with the employer in a different job with different pay.
MODIFICATIONS AND ACCOMMODATIONS TO THE EMPLOYEE’S ORIGINAL JOB POSITION
If the injured employee cannot return to work at his or her original position without modifications and/or accommodations, then the employee’s next goal should be to return to work at his or her original position with modifications and/or accommodations.
This means in the same job with modifications, such as accommodations for physical or mental restrictions. In fact, such accommodations can come in many forms, with some being more complex than others.
A determination would have to be made regarding the impact of the accommodations on the job and on the other employees of the company, since it would not be reasonable to return a worker to work if it caused the employer or other employees a hardship.
BUT WHAT IF THE EMPLOYEE CANNOT RETURN TO HIS OR HER OLD JOB?
But not every employee is fortunate enough to be able to return to his or her position (either with or without modifications/accommodations), due to the nature of the employee’s injuries.
If the employee cannot return to his or her position (either with or without modifications/accommodations), then the employee’s options under the above-listed hierarchy are:
- Finding a new job;
- On-the-job training;
- Retraining; and
So in such a scenario, the workers compensation insurance company will start working to determine if there is a job or jobs that the employee is capable of handling, usually by hiring a vocational rehabilitation counselor.
The process may include conducting a Labor Market Survey to determine post-injury wage-earning capacity.
Often, the vocational rehab counselor typically will use the treating physician’s written work restrictions to locate actual jobs within 30 miles of the employee’s geographical area that are actually available and fit within the doctor’s work restrictions.
And sometimes, the workers compensation insurance company will have the employee undergo a Functional Capacity Evaluation (FCE), which is basically an examination by a physical therapist in order to determine the employee’s physical ability to perform specific physical functions.
JOB PLACEMENT IS NOT NECESSARY
So, the workers compensation insurance company will tell the injured employee that the purpose of the vocational rehab process is to find a new job for the employee.
But these jobs do not have to be jobs that the employee likes or prefers or accepts, though it must be in the employee’s geographical location.
The employee does not need to actually be offered that job or to receive the job. In fact, there are absolutely no guarantees that the employee will be able to get that new job.
In fact, the workers compensation insurance company at this point does not care if the employee actually applies for or receives the new job because job placement is not necessary for the insurance company to reduce or eliminate the employee’s lost wage benefits.
All that is needed for the insurance company to reduce or eliminate the employee’s lost wage benefits is for the doctor to sign off on just the employee’s ability to potentially do a job that the vocational rehabilitation counselor has found. Then the workers compensation insurer will reduce or terminate the employee’s indemnity (or lost wages) benefits by whatever amount that new job pays.
So, in reality, the workers compensation insurance company is simply using vocational rehabilitation as a means to reduce or terminate the employee’s indemnity (or lost wages) benefits.
The real purpose is not to find the injured employee a new job, or to provide retraining, but instead merely to give the insurance company the ability to terminate the employee’s indemnity (or lost wages) benefits.
THE EMPLOYEE’S SECOND GOAL IN VOCATIONAL REHABILITATION SHOULD BE TO FIGHT THE REDUCTION OR ELIMINATION OF LOST WAGE BENEFITS
Since the workers compensation insurance company is simply using vocational rehabilitation as a means to reduce or terminate the employee’s lost wage benefits (which can be done regardless of whether the employee get a new job), the second goal of the injured employee should be to fight against the insurance company’s efforts to reduce or terminate the employee’s lost wage benefits.
Really, the only way for an injured employee to fight against the insurance company’s efforts to reduce or terminate the employee’s lost wage benefits is to retain an experienced Louisiana workers compensation attorney to push back against and refute the insurance company’s efforts to reduce or terminate the employee’s lost wage benefits.
An experienced Louisiana workers compensation attorney can fight back against the insurance company, while assisting the injured employee, by:
- Ensuring that the employee’s lost wage benefits are being paid in full and on time;
- Preparing the employee for the employee’s meetings with the vocational rehabilitation counselor;
- Accompanying the employee to his or her first meeting with the vocational rehabilitation counselor;
- Being present for any interview conducted with the employee by the vocational rehabilitation counselor or the insurance company representative;
- Supervising the vocational rehabilitation process to make sure the vocational rehabilitation counselor and the insurance company are complying with the law;
- Supervising the vocational rehabilitation process to make sure the vocational rehabilitation counselor and the insurance company are not coercing the employee into giving up benefits;
- Instructing the employee on how to properly handle a Functional Capacity Evaluation (FCE);
- Challenging the validity of a Labor Market Survey through research and evidence;
- Investigating all positions identified by the vocational rehabilitation counselor in the Labor Market Survey;
- Refuting the availability and wage rates of jobs listed on a Labor Market Survey;
- Challenging whether jobs listed in a Labor Market Survey actually fall within the treating physician’s work restrictions;
- Challenging whether jobs listed in a Labor Market Survey contain a true and proper description for the treating physician to review;
- Investigating whether the treating physician actually signed off on each job listed in a Labor Market Survey, without additional limitations;
- Investigating whether each job listed in a Labor Market Survey actually falls inside of the employee’s education, training, and skills;
- Determining whether each job listed in a Labor Market Survey actually existed on the date on which the employee was made aware of it; and
- Determining whether each job listed in a Labor Market Survey actually is located where it is described, and within 30 miles of the employee.
The bottom line is that vocational rehabilitation is a trap because its real purpose is not to find the injured employee a new job or to provide retraining, but instead merely to give the insurance company the ability to terminate the employee’s indemnity (or lost wages) benefits.
So an extremely important goal of the injured employee should be to fight against the insurance company’s efforts to reduce or terminate the employee’s lost wage benefits, and the best way to do that is with the help of an experienced Louisiana workers compensation attorney.
THE EMPLOYEE’S THIRD GOAL IN VOCATIONAL REHABILITATION SHOULD BE JOB RE-TRAINING
If the injured employee is unable to return to his or her position (either with or without modifications/accommodations) and can prevent the workers compensation insurance company from eliminating his or her lost wage benefits, then the employee’s next option under the above-listed hierarchy is to seek job re-training.
Importantly, an injured employee is entitled to temporary total disability benefits for any period during which the employee is receiving re-training or education.
But again, the purpose of vocational rehabilitation from the viewpoint of the insurance company is simply to minimize or terminate the employee’s indemnity (or lost wages) benefits.
Thus, the real purpose of vocational rehabilitation is not to find the injured employee a new job or to provide job re-training. And for this reason, very little job re-training ever actually occurs in workers compensation claims.
ON-THE-JOB TRAINING IN VOCATIONAL REHABILITATION
On-the-job training is by far the most often used vocational training program for most injured workers to obtain actual work.
On-the-job training is typically conducted with employers who are seeking employees to train to perform their specific jobs and can be beneficial for both the insurance company and the injured employee.
Typically, on-the-job training lasts a short duration, including a brief orientation, through up to three or more months of training in the job.
Also, before entering an on-the-job training program, it is important that all parties – the injured employee, the employer, and the workers compensation insurance company – determine through the evaluation process whether the injured employee has the requisite skills, abilities, aptitudes, and temperaments to learn the job through the on-the-job training process.
And the parties should also assess the reasonableness of the injured employee succeeding in such a job before actual placement into an on-the-job training program.
SHORT-TERM AND LONG-TERM RE-TRAINING PROGRAMS
The purpose of the short-term and long-term re-training programs, as well as an on-the-job training program, is for the injured employee to obtain skills that they do not have prior to the training program, that they can utilize to get and perform a job.
Typically, the on-the-job training program results in placement with the employer providing the training; while short-term and long-term re-training programs are more educational, developing skills and preparing an injured worker to return to work in the labor market, through the job placement process.
A short-term re-training program, which is defined by Louisiana law as less than 26 weeks, can be found in vocational and technical schools, as well as specialty schools for specific industries. This undertaking typically removes the worker from the workforce while in training.
Typically, there is a cost associated with a short-term re-training program, which would include tuition, books, and supplies, as well as costs for transportation, parking, and other ancillary expenses incurred when in training. There is a shortage of short-term re-training programs in Louisiana that are offered by schools, including vocational and technical schools.
A long-term re-training program, which is defined by Louisiana law as more than 26 weeks, but not more than one year, is more readily available in the State of Louisiana. A long-term re-training program would also include the expenses mentioned above and removes the injured worker from the workforce while undergoing such training.
BUT JOB RE-TRAINING RARELY EVER EVEN OCCURS
So job re-training is only even a possibility when the employee is injured so badly that it impossible to return to his or her previous job, and there are no other jobs available in the area that match the employee’s education and skill level.
But even then, workers compensation insurance companies very rarely provide for re-training programs – either short-term or long-term – due to the cost of such programs and the time needed for such programs.
The costs of a re-training program would include the reasonable costs of board, lodging, and necessary travel, if there are no re-training programs close to the injured employee.
Also, in the very rare cases where job re-training actually occurs, a request for vocational retraining must be filed within two years from the end date of temporary total disability as determined by the treating physician.
And the few injured workers who actually are determined to be eligible for vocational rehabilitation job re-training can typically receive lost wage benefits for up to 26 weeks, with an additional 26-week extension possible in special situations.
THE EMPLOYEE’S LAST GOAL IN VOCATIONAL REHABILITATION SHOULD BE SELF-EMPLOYMENT
If the injured employee is unable to return to his or her position (either with or without modifications/accommodations), and can prevent the workers compensation insurance company from eliminating his or her lost wage benefits, and is unable to receive job re-training, then the employee’s last option under the above-listed hierarchy is to seek self-employment.
However, self-employment can be very difficult for most injured workers to achieve successfully because many injured workers are not equipped with the skills and abilities necessary to enter self-employment and succeed.
In fact, most startup businesses fail, so placing an injured worker into self-employment can be very risky.
Since most injured workers who have never been self-employed do not understand how very demanding self-employment can be, the placement of an injured worker into a self-employed situation should only occur under a very special set of circumstances.
Last, another consideration is that it is extremely difficult to determine the expected wages of a self-employed worker, because there are many expense variables that affect the net income, which is generally considered the self-employed worker’s earnings.
So, for purposes of vocational rehabilitation, self-employment should only be a last resort, and the injured worker should rarely if ever, consider self-employment.
It is much more likely than it would be much more advantageous for the injured worker to settle his workers compensation claim first and then attempt to seek self-employment options after his or her workers compensation claim is settled and closed.
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