The Employee’s Rights Under Vocational Rehabilitation in Louisiana Workers’ Compensation
Under Louisiana law, an injured employee is entitled to prompt vocational rehabilitation when he or she suffers an injury which precludes him or her from earning wages equal to those earned before the injury and, prior to the workers compensation judge adjudicating the employee to be permanently and totally disabled, the workers compensation judge determines that there is reasonable probability, with appropriate training or education, that the employee may be rehabilitated to the extent that such employee can achieve suitable gainful employment and that it is in the best interest of such individual to undertake such training or education.
Additionally, the Louisiana Workforce Commission for the Department of Labor has identified the following worker’s rights in the vocational rehabilitation process:
- The right to apply for Vocational Rehabilitation Services.
- The right to be treated with respect.
- The right to be evaluated fairly and completely to have your eligibility determined.
- The right to receive a determination of eligibility for vocational rehabilitation services within 60 days of application or agree to extend this period of time.
- The right to know why the employee is considered ineligible for services.
- The right to be referred to other agencies and facilities as appropriate.
- The right to appeal any decision or denial of vocational rehabilitation service through either an administrative review and/or a fair hearing.
- The right to receive an explanation of the help available through the Client Assistance Program (CAP).
- The right to receive an assessment of the employee’s need for post-employment services.
Additionally, under Louisiana law, an injured employee is also entitled to confidentiality during the vocational rehabilitation process.
Confidentially is extremely important during the vocational rehabilitation process, because the injured employee will be expected to provide extensive detailed personal information to the vocational rehabilitation counselor in order to evaluate the employee’s disability, determine the employee’s eligibility, and plan the employee’s vocational rehabilitation program.
Therefore, a consent to release the information must be signed by the employee before any of this important detailed confidential information can be shared with any other individuals, agencies, or companies.
The Insurance Company’s Responsibilities in Vocational Rehabilitation
The workers compensation insurance company is required under Louisiana law to provide vocational rehabilitation services.
However, vocational rehabilitation is almost always used to the detriment of the employee, not the benefit of the employee, because vocational rehabilitation is used as a means to reduce or eliminate an employee’s indemnity (or lost wages) benefits.
Specifically, Louisiana law has determined that a workers compensation insurance company can reduce or eliminate an employee’s lost wage benefits, while meeting its responsibilities, simply by establishing the existence of a job within the claimant’s physical capabilities and within the claimant’s or the employer’s community or reasonable geographic region, the amount of wages that an employee with the claimant’s experience and training can expect to earn in that job, and an actual position available for that particular job at the time that the claimant received notice of the job’s existence.
So all of this can be proven without the cooperation or participation of the employee, and actual job placement is totally unnecessary.
Essentially, if the employee’s doctor releases the employee to work with restrictions (such as light-duty), the insurer 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 area that actually are available and that are a match with the employee’s skills and present physical ability (as per the doctor’s written restrictions).
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.
The workers compensation insurance company has still met its responsibilities under Louisiana law to provide vocational rehabilitation services and can legally reduce or eliminate the employee’s lost wages benefits.
How to Handle Vocational Rehabilitation Disputes in Louisiana Workers Compensation
Again, the workers compensation insurance company is responsible for the selection of a licensed professional vocational rehabilitation counselor to properly evaluate and assist the employee in his job placement or vocational training.
However, since vocational rehabilitation usually works against the employee (in an effort to reduce or terminate the employee’s lost wage benefits), it is rare that the workers compensation insurance company refuses to provide any vocational rehabilitation services.
But, unfortunately, the vocational rehabilitation rights of an injured worker are frequently violated by either the workers compensation insurance company or by the vocational rehabilitation therapist.
In fact, disputes regularly arise concerning the vocational rehabilitation services or the vocational rehabilitation counselor.
At any rate, if the workers compensation insurance company refuses to provide these vocational rehabilitation services, or a dispute arises concerning these vocational rehabilitation services or the work of the vocational counselor, then the injured employee may file a claim with the Louisiana Office of Workers Compensation (OWC) – otherwise known as workers compensation court – in order to review the need for the vocational rehabilitation services or the quality of vocational rehabilitation services being provided.
Office of Workers Compensation Court Procedure
Under Louisiana law, once an injured employee files a claim with the Louisiana Office of Workers Compensation (OWC) – otherwise known as workers compensation court – in order to dispute the vocational rehabilitation services being provided, this injured employee is entitled to an expedited summary proceeding.
An expedited summary proceeding means that there will be a hearing scheduled and held very quickly, but the hearing will not be a full-blown trial.
Instead of a full-blown trial, this expedited hearing will be conducted as a much quicker and simpler “rule to show cause.”
In fact, the workers compensation Judge shall set a hearing date within three days of receiving the request for such a hearing.
And the hearing shall be held not less than ten days, nor more than 30 days, after the workers compensation insurance company receives notice of the hearing. This notice of hearing much be delivered to the workers compensation insurance company by either certified mail or registered mail.
The Louisiana Office of Workers Compensation Judge will provide notice of the hearing date to the workers compensation insurance company at the same time and in the same manner that the notice of the hearing date is provided to the injured worker and/or his or her attorney.
Also, the injured worker does not have to submit the dispute on the issue of vocational rehabilitation services to a mediation conference or go through a pretrial conference before obtaining this expedited hearing.
And the injured employee cannot sue the vocational rehabilitation counselor outside of workers compensation court until this employee has exhausted all administrative avenues in workers compensation court.
The Louisiana Statutes for Disputes in Vocational Rehabilitation in Louisiana Workers Compensation
The primary Louisiana statute for disputes in vocational rehabilitation are La. R.S. 23:1226 and La. R.S. 23:1201.1, which read 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.
§1201.1. Controversion of compensation and medical benefits
A. Upon the first payment of compensation or upon any modification, suspension, termination, or controversion of compensation or medical benefits for any reason, including but not limited to issues of medical causation, compensability of the claim, or issues arising out of R.S. 23:1121, 1124, 1208, and 1226, the employer or payor who has been notified of the claim, shall do all of the following:
(1) Prepare a “Notice of Modification, Suspension, Termination, or Controversion of Compensation and/or Medical Benefits”.
(2) Send the notice of the initial indemnity payment to the injured employee on the same day as the first payment of compensation is made by the payor after the payor has received notice of the claim from the employer.
(3) Send a copy of the notice of the initial payment of indemnity to the office within ten days from the date the original notice was sent to the injured employee or by facsimile to the injured employee’s representative.
(4) Send the “Notice of Payment, Modification, Suspension, Termination, or Controversion of Compensation and/or Medical Benefits” to the injured employee by certified mail, to the address at which the employee is receiving payments of compensation, on or before the effective date of a modification, suspension, termination, or controversion.
(5) Send a copy of the “Notice of Payment, Modification, Suspension, Termination, or Controversion of Compensation and/or Medical Benefits” to the office on the same business day as sent to the employee or to his representative.
B. The form of the “Notice of Payment, Modification, Suspension, Termination, or Controversion of Compensation and/or Medical Benefits” shall be promulgated by the office.
C. The assistant secretary shall make the notice available upon request by the employee and the employee’s representative.
D. If the injured employee is represented by an attorney, the notice shall also be provided to the employee’s representative by facsimile. Proof that the notice was sent to the employee’s representative by facsimile shall be prima facie evidence of compliance with Subsection A of this Section.
E. The provisions of this Section shall not apply to questions of medical necessity as provided by R.S. 23:1203.1.
F.(1) Any injured employee or his representative who disagrees with any information provided on the notice form sent by the employer or payor, shall notify the employer or payor of the basis for disagreement by returning the form to the employer or payor as provided on the form, or by letter of amicable demand, and provide any amounts of compensation he believes appropriate.
(2) No disputed claim shall be filed regarding any such disagreement unless the notice required by this Section has been sent to the employer or payor who initially sent the notice.
G.(1) If the employer or the payor provides the benefit that the employee claims is due, including any arrearage, on the returned form or letter of amicable demand within seven business days of receipt of the employee’s demand, the employer or payor shall not be subject to any claim for any penalties or attorney fees arising from the disputed payment, modification, suspension, termination, or controversion.
(2) If the employer or payor does not provide the benefit that the employee claims is due, the employee may file a disputed claim for benefit provided it is filed within the prescriptive period established under R.S. 23:1209. If the prescription date of the claim occurs within the seven-day waiting period, the employee will be allowed to file a disputed claim without waiting the seven business days as provided in Paragraph (1) of this Subsection. However, the employer or payor shall still be allowed seven business days to provide the benefit that the employee claims is due, and if the employer does provide the benefit, the disputed claim will be moot regarding the issues arising out of the payment, suspension, modification, termination, or controversion of benefits. All other issues alleged in the disputed claim will be unaffected by the payment.
H. The employer or the payor who wishes to have a preliminary determination hearing shall request the hearing in his answer to the disputed claim arising from the notice of initial payment or any subsequent modification, suspension, termination, or notice of controversion. In cases where a disputed claim is already pending when an issue arises from a subsequent notice of payment, modification, suspension, termination, or controversion of benefits, such request shall be made in an amended pleading filed within fifteen days of the expiration of the seven-day period set forth in Paragraph (G)(1) of this Section.
I.(1) An employer or payor who has not complied with the requirements set forth in Subsection A through E of this Section or has not initially accepted the claim as compensable, subject to further investigation and subsequent controversion shall not be entitled to a preliminary determination. An employer or payor who is not entitled to a preliminary determination or who is so entitled but fails to request a preliminary determination may be subject to penalties and attorney fees pursuant to R.S. 23:1201 at a trial on the merits or hearing held pursuant to Paragraph (K)(8) of this Section.
(2) If disputed by the parties, upon a rule to show cause held prior to the preliminary determination or any hearing held pursuant to this Section, the workers compensation judge shall determine whether the employer is in compliance.
J.(1) Upon the filing of the request for a preliminary determination hearing, the workers compensation judge shall initiate a telephone status conference with the parties to schedule the discovery deadlines and to facilitate the exchange of documents. The scope of the discovery will be limited to the issues raised in the disputed payment, suspension, modification, termination, or controversion of benefits. The preliminary determination hearing shall be a contradictory hearing at which all parties shall have the opportunity to introduce evidence.
(2) The testimony of physicians may be introduced by certified records or deposition. The parties may agree to allow uncertified medical records and physician reports to be introduced into evidence. Witnesses may testify at the hearing or, if agreed on by the parties, may offer testimony by introduction of a deposition.
(3) The preliminary determination hearing shall be held no later than ninety days from the scheduling conference. However, upon a showing of good cause, one extension of an additional thirty days is permitted upon approval by the workers compensation judge. The workers compensation judge shall issue a preliminary determination no later than thirty days after the hearing.
(4) Any employer or payor requesting a preliminary determination hearing shall produce all documentation relied on by the employer or payor in calculating, modifying, suspending, terminating, or controverting the employee’s benefits. These documents shall be disclosed to the employee or the employee’s representative within ten days of the request for the preliminary determination hearing.
K.(1) The employer or payor shall, within ten calendar days of the mailing of the determination from the workers compensation judge, do either of the following:
(a) Accept and comply with preliminary determination of the workers compensation judge regarding the payment, suspension, modification, termination, or controversion of benefits and mail a revised “Notice of Modification, Suspension, Termination, or Controversion of Compensation and/or Medical Benefits” to the injured employee or employee’s representative, along with any payment amount determined, and any arrearage due.
(b) Notify the injured employee or his representative in writing that the employer or payor does not accept the determination.
(2) Any employer or payor who accepts and complies with the workers compensation judge’s determination within ten calendar days, shall not be subject to any penalty or attorney fees arising out of the original notice which was the subject of the preliminary hearing.
(3) Any employer or payor who accepts and complies with the workers compensation judge’s determination, but who disagrees with such preliminary determination, shall notify the court within ten days of receipt of the preliminary determination of his desire to proceed to a trial on the merits of the matters that were the subject of the preliminary hearing.
(4) Any employer or payor who does not accept the workers compensation judge’s determination or fails to comply with the determination within ten calendar days, may, at the trial on the merits, be subject to penalties and attorney fees pursuant to R.S. 23:1201, arising out of the issues raised in the original notice of payment, modification, suspension, termination, or controversion of benefits, which was the subject of the preliminary hearing.
(5) Any injured employee who disagrees with the preliminary determination shall notify the court within ten days of the receipt of such preliminary determination of his desire to proceed to a trial on the merits of the matters that were the subject of the preliminary hearing. If the employer or payor has accepted and complied with the preliminary hearing determination, the employer or payor shall also be entitled to litigate all issues including those issues presented at the preliminary determination hearing.
(6) Any employer or payor who accepts and complies with the determination of the workers compensation judge, and who does not request to proceed to trial on the merits of the matters that were the subject of the preliminary hearing, shall retain the right to further controvert future matters. The workers compensation judge’s determination shall not be considered an order concerning benefits due requiring modification, nor shall the determination be considered res judicata of any matters which were the subject of the preliminary hearing. The acceptance of the preliminary determination by the employer or payor shall not be considered an admission.
(7) In matters where the employee has filed a disputed claim and the employer or payor is not entitled to a preliminary determination, the matter shall proceed to trial on the merits.
(8)(a) Upon motion of either party, whether or not the employer or payor is entitled to a preliminary determination, the workers compensation judge’s ruling in a hearing shall be conducted as an expedited summary proceeding and shall be considered an order of the court and not requiring a further trial on the merits, if it concerns any of the following matters:
(i) The employee has sought choice of physician pursuant to R.S. 23:1121(B)(1).
(ii) The employee has filed a claim pursuant to R.S. 23:1226(B)(3)(a).
(iii) The employer or payor seeks to compel the employee to sign the choice of physician form pursuant to R.S. 23:1121(B)(5).
(iv) The employer or payor seeks to compel the employee’s submission to a medical examination pursuant to R.S. 23:1124.
(v) The employer seeks to require the employee to return form LWC-1025 or LWC-1020.
(vi) The employee seeks to have a suspension of benefits for failure to comply with R.S. 23:1121(B)(1) lifted.
(vii) The employee seeks to have a suspension of benefits for failure to submit to a medical examination lifted.
(viii) The employee seeks to have a suspension of benefits for failure to comply with R.S. 23:1208(H) lifted.
(ix) The employee seeks to have a reduction in benefits for failure to cooperate with vocational rehabilitation lifted.
(b)(i) The workers compensation judge shall set the expedited summary proceeding hearing date pursuant to Items (a)(iii), (iv), and (v) of this Paragraph within three days of receiving the employer’s motion for the expedited hearing. The hearing shall be held not less than ten nor more than thirty days after the motion has been filed.
(ii) The workers compensation judge shall provide the notice of the hearing date to the employee or his attorney at the same time and in the same manner that the notice of the hearing date is provided to the employer or payor.
(iii) For the purposes of this Section, the party seeking an expedited hearing shall not be required to submit the dispute to mediation or go through a pretrial conference before obtaining a hearing. The hearing shall be conducted as a rule to show cause.
(c) The workers compensation judge shall order the employee to sign the choice of physician form, enforce the employee’s submission to the medical examination, or provide the LWC-1020 or LWC-1025 form as applicable unless the employee can show good cause for his refusal.
(d) If the employee seeking relief pursuant to this Paragraph can show good cause for his refusal, the workers compensation judge shall order the suspension or reduction in benefits lifted and the payment of any arrearage due. If the employee fails to show good cause for refusal, the workers compensation judge shall order the suspension or reduction in benefits to continue until the employee complies.
(e) An employer or payor who is entitled to a preliminary determination and who complies with an order of the court issued pursuant to a hearing held in accordance with this Paragraph within ten calendar days shall not be subject to any penalty or attorney fees arising out of the original notice which was the subject of the hearing.
L. Notwithstanding any provision in this Section to the contrary, the failure to comply with any provision of this Section shall not itself be considered a failure to reasonably controvert benefits; however, failure of the employer or payor to comply shall result in loss of penalty and attorney fee protections provided in this Section.
Acts 2013, No. 337, §1.
