How to Handle Vocational Rehabilitation in Louisiana Workers Compensation

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How Vocational Rehabilitation Works Against Injured Employees in Louisiana Workers Compensation

Typically, the vocational rehabilitation process begins after the injured employee's treating physician releases the employee to return to work with restrictions. 

Once the employee's treating physician releases the employee to return to work with restrictions, the workers compensation insurance company will typically appoint a vocational rehabilitation counselor to handle the vocational rehabilitation process.

The process may include conducting a Labor Market Survey to determine post-injury wage earning capacity.

Often, the vocational rehabilitation 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.

The Purpose of Vocational Rehabilitation is to Terminate the Employee's Lost Wage Benefits

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.

However, 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.  

What is guaranteed, however, is that if the doctor signs off on just the employee's ability to potentially do that job, then the workers compensation insurer will reduce or terminate the employee's indemnity (or lost wages) benefits, by whatever amount that new job pays.  

Unfortunately, it does not matter if the employee receives the new recommended job, or if the job recommended is not very reliable, or if the job recommended requires more experience than the employee has, or if the job recommended requires physical demands that are too hard on the employee.

So vocational rehabilitation is a trap, because its real purpose is not to find the injured employee a new job, or to provide re-training, but instead merely to give the insurance company the ability to terminate the employee's indemnity (or lost wages) benefits. 

Vocational Rehabilitation Counselors 

In Louisiana, the workers compensation insurance company will typically appoint a vocational rehabilitation counselor to handle the vocational rehabilitation process.

The goal of a vocational rehabilitation counselor should be to help injured workers return to gainful employment as soon as possible.

However, in reality, the vocational rehabilitation counselor is simply used by the insurance company to reduce or eliminate lost wage benefits, by:

    1. Testifying as an expert witness regarding an employee's ability to return to employment; and
    2. Testifying as an expert witness regarding the availability of suitable employment.

Basically, the simple purpose of the vocational rehabilitation counselor is provide reasons to the Office of Workers Compensation Judge as to why the employee's lost wage benefits should be reduced or eliminated.

After all, the vocational rehabilitation counselor is chosen by the insurance company, and paid for by the insurance company, and therefore can be expected to tell the insurance company exactly what the insurance company wants to hear.

Nevertheless, an injured employee's interactions with the vocational rehabilitation counselor are extremely important the outcome of the employee's workers compensation claim.

If handled poorly, the injured employee's lost wage benefits can be reduced or terminated, even if the employee is unable to return to work. 

How to Fight Back Against the Reduction or Elimination of Lost Wage Benefits in Vocational Rehabilitation in Louisiana Workers Compensation

To avoid the vocational rehabilitation trap, an injured employee should hire an experienced Louisiana workers compensation attorney to handle his or her entire workers compensation claim.

A skilled Louisiana workers compensation attorney can help in defeating the insurance company's efforts to reduce or terminate the employee's lost wage benefits, and can prevent the employee from accepting a premature or low-ball settlement as a result of the vocational rehabilitation trap.

The earlier a workers compensation attorney can begin handling an injured employee's claim, the better.

However, an experienced workers compensation attorney's skills can be most effective during the vocational rehabilitation process, and especially effective in refuting the insurance company's Labor Market Survey,

At any rate, an experienced Louisiana workers compensation attorney can fight back against the insurance company, while assisting the injured employee, by:

    1. Ensuring that the employee's lost wage benefits are being paid in full and on time;
    2. Preparing the employee for the employee's meetings with the vocational rehabilitation counselor;
    3. Accompanying the employee to his or her first meeting with the vocational rehabilitation counselor;
    4. Being present for any interview conducted with the employee by the vocational rehabilitation counselor or the insurance company representative;
    5. Supervising the vocational rehabilitation process to make sure the vocational rehabilitation counselor and the insurance company are complying with the law;
    6. 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;
    7. Instructing the employee on how to properly handle a Functional Capacity Evaluation (FCE);
    8. Challenging the validity of a Labor Market Survey through research and evidence;
    9. Investigating all positions identified by the vocational rehabilitation counselor in a Labor Market Survey;
    10. Refuting the availability and wage rates of jobs listed on a Labor Market Survey;
    11. Challenging whether jobs listed in a Labor Market Survey actually fall within the treating physician's work restrictions;
    12. Challenging whether jobs listed in a Labor Market Survey contain a true and proper description for the treating physician to review;
    13. Investigating whether the treating physician actually signed off on each job listed in a Labor Market Survey, without additional limitations;
    14. Investigating whether each job listed in a Labor Market Survey actually falls inside of the employee's education, training and skills;
    15. 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
    16. 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 re-training, but instead merely to give the insurance company the ability to terminate the employee's indemnity (or lost wages) benefits. 

So an injured employee must aggressively and actively 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 a skilled experienced Louisiana workers compensation attorney.

How Functional Capacity Evaluations Work Against Injured Employees in Louisiana Workers Compensation

Oftentimes, 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.

A Functional Capacity Evaluation (FCE) typically consists of a series of physical exercises administered over several hours. Usually, the FCE includes standing, climbing, lifting weights, carrying boxes, squeezing calipers, and other similar activities.

The Functional Capacity Evaluation therapist then uses the measurements from these activities to produce an FCE report that identifies the type and duration of physical labor that the injured employee can perform.

The workers compensation insurance company will then use this Functional Capacity Evaluation (FCE) report to claim that the employee can return to employment, and thus does not deserve lost wage benefits.

So unfortunately, the bottom line is that, like most of the actions taken by the workers compensation insurance companies, the purpose of a Functional Capacity Evaluation (FCE) is to give the insurance company the ability to terminate the employee's indemnity (or lost wages) benefits. 

Injured Workers Must Protect Themselves Against Functional Capacity Evaluations

Unfortunately, the bottom line with Functional Capacity Evaluations is that the workers compensation insurance companies are attempting to use an unfair, biased and flawed evaluation system to challenge the statements of the injured employee and the conclusions on the employee's doctors.

The very purpose of these Functional Capacity Evaluations is so that the workers compensation insurance companies can reduce or eliminate the employee's lost wage benefits.

And the workers compensation insurance companies use Functional Capacity Evaluations to try to wear down employees so they will accept a low-ball settlement figure. 

But even aside from the fact that the purpose of Functional Capacity Evaluations is to eliminate an employee's indemnity (or lost wages) benefits, Functional Capacity Evaluations have major problems, including:

    1. Functional Capacity Evaluations unfairly use Validity Tests against employees;
    2. Functional Capacity Evaluations are not reliable in their results; and
    3. Functional Capacity Evaluations can easily be manipulated against employees.

Functional Capacity Evaluations cannot be trusted, whether because of issues with the FCE itself, the employee's misunderstanding of FCE instructions, deficiencies on the part of the FCE evaluators, manipulations by the FCE evaluators, or other elements. 

Validity Tests in Functional Capacity Evaluations

Built into all Functional Capacity Evaluations are exercises and tests that are specifically included for the purpose of measuring whether the injured employee is giving a sincere effort, otherwise known as Validity Testing.

One example of a common validity test performed in Functional Capacity Evaluations is grip testing. Functional Capacity Evaluations Reports often claim that the "data" in the Functional Capacity Evaluation showed that the employee gave inconsistent, subpar or invalid efforts during grip testing.

Another example of a common validity test trap is when the FCE examiner tells the injured worker to perform exercises or tests that are completely unrelated to both the worker's job position and the worker's medical condition. The FCE examiner will then unfairly claim that the injured worker gave "inconsistent effort" or "unexpected responses" to those exercises and tests and again that the injured worker "did not give full effort" and "showed self-limiting behavior."

Functional Capacity Evaluation results can impact an injured employee's workers compensation claim if the Functional Capacity Evaluation therapist claims that the employee cannot believed - and thus is not credible - because of the employee's efforts in the Functional Capacity Evaluation process.

Such assertions by Functional Capacity Evaluation therapists - that the employee acted in bad faith - are common, and can affect not only the employee's credibility as far as the Functional Capacity Evaluation, but can also call into question the employee's credibility as to other aspects of the injured employee's workers compensation claim.

Questionable Results in Functional Capacity Evaluations

Functional Capacity Evaluations produce results that are questionable at best, because Functional Capacity Evaluations have never been proven to be reliable or valid.

In fact, very few studies of the reliability or validity of Functional Capacity Evaluations have been published in peer-reviewed journals, even though most other assessment tools - whether in the medical fields or the legal world - have been published in peer-reviewed journals, which is the most common method of scrutiny in most the legal and medical forums.

For example, there have not been any studies to prove that Functional Capacity Evaluations are reliable, meaning whether a Functional Capacity Evaluation should produce consistent results.

In other words, it has not been show through any studies that the Functional Capacity Evaluation results be the same if an injured worker undergoes a Functional Capacity Evaluation twice - which is extremely unfair to the injured worker!

This makes complete sense, since a Functional Capacity Evaluation only takes a few hours on a random day to complete, which makes it very difficult to produce an accurate representation of the employee's functional capacity in a job that requires 8 hours a day, 40 hours a week, and 50 weeks a year.

Manipulated Results in Functional Capacity Evaluations

Unfortunately, it is not uncommon for Functional Capacity Examiners to manipulate the results of a Functional Capacity Evaluation in order to favor the workers compensation insurance company in an attempt to reduce or eliminate an employee's lost wage benefits.

One example of manipulation in a Functional Capacity Evaluation is when a Functional Capacity Examiner consistently instructs an injured worker to stop the test and take a rest break, but then turns around and reports that the injured worker did not give full effort on the Functional Capacity Evaluation because of the observed repeated breaks taken during the evaluation.

How to Prepare for A Functional Capacity Evaluation in Louisiana Workers Compensation

It is extremely important for any injured employee in Louisiana to throughly prepare for a workers compensation Functional Capacity Evaluation, ideally with the help of the employee's attorney.

First, an experienced Louisiana workers compensation attorney will want to determine if the employee should even be having a Functional Capacity Evaluation, by asking:

    • Is there a valid basis for a Functional Capacity Evaluation?
    • Is there a valid basis under which to file an objection to the Functional Capacity Evaluation?
    • What are the repercussions if the workers compensation Judge agrees that a Functional Capacity Evaluation is unnecessary?

If the employee is going to submit to a Functional Capacity Evaluation, the employee should take the following steps to prepare for the examination: 

    • The employee should make sure that he or she is extremely familiar with his or her complete medical history. The Functional Capacity Examiner will likely be well aware of the employee's complete medical history, and may ask the employee about all of this medical history, including even minor injuries. So the injured employee needs to be prepared to discuss the entire medical history - including injuries and illnesses big and small, recent and from long ago - and especially any medical history related to the body part injured in the workers compensation accident. Ideally, the employee would have an experienced workers compensation attorney to assist with this.
    • The employee should make sure that he or she is extremely familiar with the employee's complete course of treatment. Again, the Functional Capacity Examiner will likely be well aware of the employee's complete medical history, and may ask the employee about all of this medical history, including even minor injuries. So the injured employee needs to be prepared to discuss the employee's complete course of treatment. The employee should review the employee's complete medical records and notes, including all tests, surgeries, procedures and other treatment that the employee has received. 
    • The employee should review his or her current symptoms. The injured employee needs to be prepared to inform the Functional Capacity Examiner of all the employee's current symptoms in detail. The employee should try not to forget any symptoms or limitations, even if that means the employee should bring in personal notes to the examination to refresh the employee's memory.
    • The employee should review exactly how the accident happened. The injured employee needs to be prepared to inform the Functional Capacity Examiner in detail about exactly how the injury happened. The employee should try not to forget any details, and make sure there are no inconsistencies in the events, again even if that means the employee should bring in personal notes to the examination to refresh the employee's memory. The employee should also discuss these events with his or her attorney ahead of the Functional Capacity Evaluation.
    • The employee should find out what the workers compensation insurance company has told to and asked of the Functional Capacity Examiner. The injured employee should make sure that he or she is fully aware of any information that the workers compensation insurance company has submitted to the Functional Capacity Examiner, especially any information besides the medical records. Ideally, the employee would have an experienced workers compensation attorney to handle this. But often the insurance company will send a letter to the Functional Capacity Examiner that unfairly describes the employee's injury or medical situation in a light that is unfair to the employee. The employee needs to know what that letter says, so that the employee can refute any unfair or prejudicial information in that letter. 
    • The employee should review exactly what the employee is going to tell the Functional Capacity Examiner about the employee's medical history, medical conditions, and accident history. The injured employee should make sure that he or she is fully prepared and knows exactly what he or she will say when the Functional Capacity Examiner asks "what is your medical history" or "tell me about the accident" or "how are you feeling today." Ideally, the employee would have an experienced workers compensation attorney to assist with this.
    • The employee should try to get a good night's rest the night before the Functional Capacity Evaluation.
    • The employee should dress appropriately for the Functional Capacity Evaluation. The injured employee should act in a manner that is consistent with the employee's injury. That means that the employee should wear or bring any devices needed because of the employee's injury, such as a brace, crutches, or a sling. Also, the injured employee should remember that he or she will need to take part in physical activity, so the employee should dress accordingly and wear appropriate clothing that allows a full range of motion.
    • The employee should arrange transportation to and from the Functional Capacity Evaluation. Often the injured employee may be too tired after the evaluation to drive home. Also, the injured employee should not have to stress out about having to find a parking spot or walking from parking to the evaluation location.
    • The employee should plan to arrive early for the Functional Capacity Evaluation. It is never a good idea to be late for a Functional Capacity Evaluation, and missing an appointment time can result in a suspension of workers compensation benefits.
    • The injured employee should bring any documentation that he or she is asked to bring. Generally, the employee will be asked to bring ID and perhaps medical or insurance documentation.
    • The employee should plan to bring a friend or relative to the Functional Capacity Evaluation. A trusted friend or relative can act as an observer in the Functional Capacity Evaluation, by taking notes, providing emotional support, and acting as a witness.
    • The employee should discuss with the employee's attorney the possibility of the employee's attorney actually attending the Functional Capacity Evaluation. The employee's attorney can also act as an observer in the Functional Capacity Evaluation, by taking notes, providing emotional support, and acting as a witness. The employee's attorney can also assist the employee should improper or irregular events occur. 
    • The employee should refrain from taking pain medication or anti-inflammatory medication prior to the examination, if allowed by the employee's treating physician. Refraining from taking pain medication or anti-inflammatory medication prior to the examination will allow the Functional Capacity Examiner to objectively view the employee's symptoms and medical issues. 

How to Handle the Actual Functional Capacity Evaluation Itself in Louisiana Workers Compensation

Generally speaking, the most important points for the injured employee in a Functional Capacity Evaluation are for the employee to be detailed, thorough and truthful in communicating with the Functional Capacity Examiner, and to give his or her best effort throughout the evaluation, but not to exaggerate any injuries.

Also, the injured employee should not take any pain medication before or during the test unless the employee's treating physician requires him or her to do so, because taking medication before a Functional Capacity Evaluation can give false-positive results.  

It is also very important for an injured worker never to overexert himself or herself and risk injury. And the employee should never force himself or herself to complete an exercise if the employee cannot do so. 

The injured worker should also try to bring a witness to the Functional Capacity Evaluation, in order to record and take notes during the examination. This witness can help the employee produce evidence to demonstrate that the Functional Capacity Evaluation was incomplete or flawed or inconsistent with the Functional Capacity Evaluation report.  

Communication is extremely important in a Functional Capacity Evaluation, so the injured worker should:

    • Explain in detail all of the physical requirements of the employee's job position to the Functional Capacity Examiner so that the examiner uses the correct exercises and tests; and
    • Be honest with the Functional Capacity Examiner, and clearly and verbally communicate to the examiner at all times about the employee's pain and inability to physically perform any exercise or test.

Last, though the employee may not be able to physically perform every exercise or test at the Functional Capacity Evaluation, the employee should never exaggerate the pain or weakness that the employee might feel, because the Functional Capacity Examiner will include tests that are designed to evaluate the employee's effort and honesty.

For example, some Functional Capacity Examiners ask the employee to lift two objects that are made to appear as different weights, but actually weigh the same amount. If the Functional Capacity Examiner perceives in such a test that the employee is not using full effort - or is "faking it" - the examiner will note this in the Functional Capacity Evaluation, and use this allegation to attempt to eliminate the employee's workers compensation benefits.

Specific Actions the Employee Should Take at a Functional Capacity Evaluation

An injured employee at a Functional Capacity Examination (FCE) should:

    • Be honest in all aspects;
    • Give the employee's best effort in all tests and exercises;
    • Be polite and respectful;
    • Be specific and detailed in describing injuries and symptoms;
    • Include all injuries and symptoms that are related to the accident;
    • Be truthful about the employee's physical limitations;
    • Explain why the employee's previous injuries are different from the employee's work-accident injuries;
    • Stay calm, and let the Functional Capacity Examiner know right away if the examiner actually hurts the employee;
    • Be aware of the fact that the Functional Capacity Examiner is neither the employee's advocate nor the employee's medical doctor;
    • Be mindful that the employee may be surveilled by an insurance investigator, by wearing braces and using canes; and
    • Limit activities on the day before, the day of and the day after the FCE, due to possible surveillance.

Specific Actions the Employee Should Avoid at a Functional Capacity Evaluation

As for a list of things that an injured employee at a Functional Capacity Evaluation should NOT do:

    • Do not exaggerate or fake injuries, because Functional Capacity Examiners will note exaggeration in the IME report;
    • Do not downplay pain or symptoms;
    • Do not try to be a hero and over-perform;
    • Do not attempt to over-react when touched or prodded;
    • Do not be offended by the doctor's questions;
    • Do not ask medical questions about your treatment;
    • Do not answer questions that are not asked;
    • Do not contribute information beyond the scope of the examination;
    • Do not make small talk;
    • Do not overly compliment the Functional Capacity Examiner;
    • Do not discuss the specifics of the legal case; 
    • Do not discuss any conversations with the employee's lawyer.  

Communication with the Functional Capacity Examiner

During a Functional Capacity Evaluation, communication with the Functional Capacity Examiner is extremely important.

The injured worker must clearly and verbally communicate with the Functional Capacity Examiner at all times during the Functional Capacity Evaluation.

For example, if the employee is in pain, the employee must tell the examiner in detail about the pain; the employee cannot just trust that the examiner knows (from facial expressions or grunts) that the employee is in pain.

The employee must continuously describe the pain in detail:

    • When does the pain occur?
    • Where does the pain occur?
    • How intense is the pain?
    • How long does the pain last?
    • What does the pain feel like?
    • Is the pain a sharp pain or a dull pain?
    • What specific action seems to be causing the pain?

The employee must continue to tell the examiner in detail about the pain as long as the pain continues to last - the employee cannot just mention the pain once!

Also, if the employee is unable to physically perform any exercise or test during the Functional Capacity Evaluation, the employee must repeatedly and verbally communicate to the examiner after or before each exercise:

    • That the employee is unable to physically perform any exercise or test; and
    • The reason that the employee is unable to physically perform any exercise or test.

Otherwise, there is no way way that the examiner can tell why an employee cannot proceed with the test or exercise.

Last, the employee must tell the Functional Capacity Examiner in detail about any medications or problems which prevent the employee from giving a maximum effort. These medications or problems should also be listed and described - in detail and as accurately as possible - in any of the forms that the Functional Capacity Examiner requests that the employee to complete.

Doctor Visits Following a Functional Capacity Evaluation in Louisiana Workers Compensation

An injured employee should attempt to schedule an appointment with his or her treating physician as soon as possible after the employee's Functional Capacity Evaluation.

At this doctor visit following the the employee's Functional Capacity Evaluation, the treating physician can:

    1. Document the medical records in order to reaffirm the employee's disabling conditions (and work restrictions and limitations) present at the time of the Functional Capacity Evaluation;
    2. Document any of the employee's physical setbacks or injuries that were caused by the actual Functional Capacity Evaluation; and 
    3. Perform the same tests as were performed in the Functional Capacity Evaluation, in order to make sure that no mistakes were made and that the conclusions are the same.  

Of course, the injured worker must explain the situation to the treating physician following the Functional Capacity Evaluation.

This is because a Functional Capacity Evaluation is generally very different from a medical examination.

Functional Capacity Evaluations are designed to test physical limits, and require repetitive physical activities - such as pushing, pulling, lifting, carrying, squatting, and bending - that can be very strenuous and performed for extended periods of time.  

So Functional Capacity Evaluations very often can lead to an exacerbation of symptoms during the days after the Functional Capacity Evaluations.  

So, ideally, the injured worker should meet with and explain the situation to his or her treating physician following the Functional Capacity Evaluation, and hopefully document the issues at hand and perform similar tests.

Because the bottom line is that if the injured worker does not visit his or her treating physician following the Functional Capacity Evaluation, then the only medical evidence produced related to the Functional Capacity Evaluation is that of the the Functional Capacity Examiner, who is hired by and actively working for the workers compensation insurance company in order to eliminate the employee's lost wage benefits. 

How Labor Market Surveys Work Against Injured Employees in Louisiana Workers Compensation

The workers compensation insurance company may also instruct its chosen vocational rehabilitation counselor to conduct a Labor Market Survey, in order to determine post-injury wage earning capacity and thereby reduce or terminate the employee's indemnity (or lost wages) benefits. 

In Louisiana workers compensation, a Labor Market Survey is a report or letter prepared by vocational rehabilitation counselor (who is chosen by and paid for by the workers compensation insurance company), in order to determine post-injury wage earning capacity and thereby reduce or terminate the employee's indemnity (or lost wages) benefits. 

A Labor Market Survey is based on the results of a Functional Capacity Evaluation, and will contain a list of actual jobs that the vocational rehabilitation counselor claims are with the employee's physical limitations, education history, and present work skills. 

The Labor Market Survey Process

The Labor Market Survey process begins with the insurance company's vocational rehabilitation counselor scheduling a meeting with the injured employee, in which the vocational rehabilitation counselor will assist with preparing a resumé and applying for jobs online.

Then, the insurance company's vocational rehabilitation counselor will meet alone with the employee's doctor, in order to try to convince the doctor to sign off on the employee's ability to potentially do some of those jobs.

Afterwards, the vocational rehabilitation counselor will produce by certified mail a Labor Market Survey, which is simply the written list of jobs, including the names and addresses of prospective employers. 

The workers compensation insurance company will then use this Labor Market Survey to claim that the employee can return to employment, and thereby reduce or terminate the employee's indemnity (or lost wages) benefits.  

Job Placement and Availability in Labor Market Surveys

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.

The workers compensation insurance company will accomplish this by having its vocational rehabilitation counselor use the employee's treating physician's written restrictions, and a Functional Capacity Evaluation, to locate and identify actual jobs within the employee's geographical area (usually 30 miles) which fall within the employee's work restrictions.

Actual job placement is not required for lost wage benefits eliminated; the workers compensation insurance company merely needs to establish the employee's wage-earning capacity.

So basically, the workers compensation insurance company can prove that jobs are available (for the purpose of reducing or terminating the employee's lost wage benefits), by establishing:

    1. The existence of a suitable job within the employee's physical capabilities and within the employee's reasonable geographic region;
    2. The amount of wages that an employee with the employee's experience and training can expect to earn in that job; and
    3. An actual position available for that particular job at the time that the employee received notification of the job's existence.  

And again, all of this can be proven without the cooperation or participation of the employee.

The Purpose of a Labor Market Surveys

Sadly, the workers compensation insurance companies use Labor Market Surveys for only one purpose - to reduce or eliminate the injured employee's lost wage benefits.

However, the real problem with Labor Market Surveys is that a Labor Market Survey is a merely theoretical analysis and does not usually reflect the reality of an injured employee's situation.

In other words, a Labor Market Survey merely asks the question "What job could the injured worker possibly get to replace the worker's lost wages?"

Instead, a Labor Market Survey should ask the question "What new job does the injured worker actually now have to replace the worker's lost wages?"

If a Labor Market Survey did in fact answer the question "What new job does the injured worker actually now have to replace the worker's lost wages" then the purpose of a Labor Market Survey - and vocational rehabilitation in general - would be to find a new job for the injured worker in order to actually replace the worker's lost wages in reality.

But unfortunately, this is not the case.

Instead, a Labor Market Survey only answers the question "What job could the injured worker possibly get to replace the worker's lost wages," and therefore the real purpose of a Labor Market Survey - and vocational rehabilitation in general - is simply to reduce or eliminate the injured employee's lost wage benefits. 

How to Actually Fight Back Against Labor Market Surveys in Louisiana Workers Compensation

Really, the only way for an injured employee to fight against a Labor Market Survey is for the injured employee to hire an experienced Louisiana workers compensation attorney to handle his or her entire workers compensation claim.

A skilled Louisiana workers compensation attorney can help in defeating the insurance company's efforts to reduce or terminate the employee's lost wage benefits, and can prevent the employee from accepting a premature or low-ball settlement as a result of the vocational rehabilitation trap.

The earlier a workers compensation attorney can begin handling an injured employee's claim, the better.

However, an experienced workers compensation attorney's skills can be most effective during the vocational rehabilitation process, and especially effective in refuting the insurance company's Labor Market Survey.

Prior to receiving a Labor Market Survey, an experienced Louisiana workers compensation attorney can fight back against the insurance company by:

    1. Ensuring that the employee's lost wage benefits are being paid in full and on time;
    2. Preparing the employee for the employee's meetings with the vocational rehabilitation counselor;
    3. Accompanying the employee to his or her first meeting with the vocational rehabilitation counselor;
    4. Being present for any interview conducted with the employee by the vocational rehabilitation counselor or the insurance company representative;
    5. Supervising the vocational rehabilitation process to make sure the vocational rehabilitation counselor and the insurance company are complying with the law;
    6. 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; and
    7. Instructing the employee on how to properly handle a Functional Capacity Evaluation (FCE).

After receiving a Labor Market Survey, an experienced Louisiana workers compensation attorney can fight back against the insurance company by:

    1. Challenging the validity of a Labor Market Survey through research and evidence;
    2. Investigating all positions identified by the vocational rehabilitation counselor in the Labor Market Survey;
    3. Refuting the availability and wage rates of the jobs listed on a Labor Market Survey;
    4. Challenging whether the jobs listed in a Labor Market Survey actually fall within the treating physician's work restrictions;
    5. Challenging whether the jobs listed in a Labor Market Survey contain a true and proper descriptions for the treating physician to review;
    6. Investigating whether the treating physician actually signed off on each job listed in a Labor Market Survey, without additional limitations;
    7. Investigating whether each job listed in a Labor Market Survey actually falls inside of the employee's education, training and skills;
    8. 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
    9. Determining whether each job listed in a Labor Market Survey actually is located where it is described, and within 30 miles of the employee.

Certainly, investigation into all the positions listed in a Labor Market Survey is very important when trying to challenge a Labor Market Survey. 

A full and thorough investigation into the positions listed in a Labor Market Survey should include:

    • Researching all Labor Market Survey positions online as thoroughly as possible;
    • Printing and saving as many actual online job descriptions and related online documents about the jobs as possible;
    • Assembling and saving the names and contact information of people knowledgable about the job positions;
    • Calling all the potential employers to discuss the jobs, show interest in the jobs, and gather information about the jobs;
    • Applying for the job positions and keeping copies and/or photographs of all such applications;
    • Gathering and saving as much information as possible about the physical, educational and work qualifications requirements of each job;
    • Gathering and saving as much information as possible about the pay rates and available work hours of each job;
    • Gathering and saving as much information as possible about the available work location of each job; and
    • Creating and maintaining a job-search journal, which should include (1) the name and position of each person spoken with about a job, (2) the date, time, and place wherein that conversation was held, (3) what exactly was said about the job position, and (4) what, of anything, was said about the job position that was different from the job description listed in the vocational rehabilitation counselor's Labor Market Survey.

Perhaps most important is this idea of gathering and saving information about the job position that is different from the job description listed in the vocational rehabilitation counselor's Labor Market Survey.

This is because an inaccurate description of some or all of the proposed jobs in a Labor Market Survey can invalidate the Labor Market Survey.

And it is not uncommon for the vocational rehabilitation counselor to prepare the Labor Market Survey with job descriptions tailored to meet the insurance company's goal of being sufficient enough to reduce or eliminate lost wage benefits.

So sometimes the vocational rehabilitation counselor will just "fudge" the job description in the expectation that no-one will ever check.

Important Investigation Questions to Ask About All Labor Market Survey Job Positions

As noted above, it is extremely important for the injured worker - or preferably the injured worker's attorney - to investigate all Labor Market Survey job positions.

Generally speaking, important questions regarding Labor Market Survey job positions fall into the five following categories:

    1. Actual Wages Paid;
    2. Actual Job Location;
    3. Actual Job Existence on the Date of Physician Approval;
    4. Physical Work Restrictions Assigned by the Treating Physician; and
    5. Education, Training and Work Skills.

Concerning the Actual Wages Paid, the injured employee - or the injured employee's attorney - must investigate:

    • Does the proposed Labor Market Survey job position actually really pay the wages that the Labor Market Survey says it pays?
    • Is the proposed job position a full time job or a part-time job?
    • How exactly is the proposed job position's wage rate calculated (salary, hourly, piecework, commission or other)?
    • Does the proposed job position's wage rate include a hypothetical commission presented as an hourly wage rate?

Concerning the Actual Job Location, the injured employee - or the injured employee's attorney - must investigate:

    • Where exactly is the actual proposed Labor Market Survey job position located?
    • Is the actual proposed Labor Market Survey job position located more than 30 miles away from where the injured worker lives?
    • Does the employee's treating physician approve of the actual commute length for the proposed Labor Market Survey job position?
    • Does the employee have the required transportation to commute to the proposed Labor Market Survey job position?

Concerning the Actual Job Existence on the Date of Physician Approval, the injured employee - or the injured employee's attorney - must investigate:

    • Did the proposed Labor Market Survey job position actually exist on the exact date that the treating physician actually approved it?
    • Did the proposed Labor Market Survey job position actually exist on the exact date that the injured worker was made aware of it?
    • If the proposed Labor Market Survey job position did actually exist on the exact date that the treating physician actually approved it, or on the exact date that the injured worker was made aware of it, then when was this proposed Labor Market Survey job position actually filled?
    • If the proposed Labor Market Survey job position did actually exist on the exact date that the treating physician actually approved it, or on the exact date that the injured worker was made aware of it, then why is this proposed Labor Market Survey job position no longer actually available?

Concerning the Physical Work Restrictions Assigned by the Treating Physician, the injured employee - or the injured employee's attorney - must investigate:

    • Did the employee's treating physician approve of the proposed Labor Market Survey job position by actually signing the job description on the Labor Market Survey?
    • Did all of the employee's treating physicians approve of the proposed Labor Market Survey job positions by actually signing the job description on the Labor Market Survey?
    • If the employee's treating physician did approve of the proposed Labor Market Survey job position by actually signing the job description on the Labor Market Survey, did the employee's treating physician add or include any additional physical limitations to the Labor Market Survey job description?
    • Did the employee's treating physician disapprove of any proposed Labor Market Survey job positions, and why?
    • Do any or all of the proposed Labor Market Survey job positions fall within the physical work restrictions assigned by the employee's treating physician?
    • Does the proposed Labor Market Survey job position include an accurate description of the physical work requirements needed for the job position?
    • Did any investigation of the proposed Labor Market Survey job position provide a description of the job position that is different from the description provided in the Labor Market Survey?
    • If any investigation of the proposed Labor Market Survey job position provided a description of the job position that is different from the description provided in the Labor Market Survey, would the employee's treating physician have signed off on this different job position description?

Concerning the Education, Training and Work Skills, the injured employee - or the injured employee's attorney - must investigate: 

    • Do any of the proposed Labor Market Survey job positions fall outside of the injured employee's education?
    • Do any of the proposed Labor Market Survey job positions fall outside of the injured employee's training?
    • Do any of the proposed Labor Market Survey job positions fall outside of the injured employee's work skills?
    • Does the injured worker possess all of the required education, training and work skills identified in the Labor Market Survey job positions?
    • Did any investigation of the proposed Labor Market Survey job position provide a description of the required education, training and work skills for that job position, that is different from the required education, training and work skills identified in the Labor Market Survey?
    • If any investigation of the proposed Labor Market Survey job position provided a description of the required education, training and work skills for that job position that is different from the required education, training and work skills for that job position provided in the Labor Market Survey, would or should the vocational rehabilitation counselor have included the position had its required education, training and work skills been accurately listed?

The bottom line is that an injured employee must actively and aggressively fight against the insurance company's efforts to reduce or terminate the employee's lost wage benefits - both before and after a Labor Market Survey - and the best way to do that is to have a skilled experienced Louisiana workers compensation attorney perform a thorough investigation of the Labor Market Survey by asking the right questions at the right time.

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).

(g)  Self-employment.

(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.

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