What Is Vocational Rehabilitation in Louisiana Workers Compensation?
An employee injured on the job in Louisiana is entitled to vocational rehabilitation services.
Vocational rehabilitation services (also known as “vocational rehab,” or simply “voc rehab”) refer to workers compensation benefits that assist an injured worker in finding a new job or occupation if he or she cannot return to his or her previous occupation due to the work-related injury.
The idea that the workers compensation insurance company will offer retraining services to help an injured employee find a new job seems appealing to an injured employee. In reality, however, vocational rehab is typically used to the detriment of the employee, not the benefit of the employee.
That is, instead of the workers compensation insurance company providing retraining, the insurer instead uses vocational rehab as a mean to reduce or eliminate an employee’s indemnity (or lost wages) benefits.
Essentially, if the employee’s doctor releases the employee to work with restrictions (such as light-duty), the workers compensation insurance company will appoint a vocational rehabilitation counselor (or “vocational rehabilitation specialist”) to conduct a Labor Market Survey, and in some cases a Functional Capacity Evaluation, to identify jobs within the geographical area that are actually available and that are a match with the employee’s skills and present physical ability (as per the doctor’s written work restrictions).
HOW VOCATIONAL REHABILITATION WORKS 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.
This 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.
THE REAL PURPOSE OF VOCATIONAL REHABILITATION TO ELIMINATE THE WORKER’S LOST WAGE BENEFITS
So, the workers compensation insurance company will tell the injured employee that the purpose of the vocational rehabilitation 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 retraining, but instead merely to give the insurance company the ability to terminate the employee’s indemnity (or lost wages) benefits.
FUNCTIONAL CAPACITY EVALUATIONS
Often, 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 FCE 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 lost wage (indemnity) benefits.
LABOR MARKET SURVEYS
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.
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 within the employee’s physical limitations, education history, and present work skills.
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.
After meeting with the injured employee, 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.
Afterward, 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.
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.
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 pre-mature 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,
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 a 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 job 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 lost wages (indemnity) benefits.
So an injured employee should aggressively 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.
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.
