The Injured Worker’s Rights Under Vocational Rehabilitation in Louisiana Workers Compensation
Under Louisiana law, an injured employee is entitled to prompt vocational rehabilitation services when he or she suffers an injury which precludes him or her from earning wages equal to those earned prior to 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 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 worker 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 worker’s need for post-employment services.
CONFIDENTIALITY IN VOCATIONAL REHABILITATION
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 WORKER’S RESPONSIBILITIES FOR VOCATIONAL REHABILITATION IN LOUISIANA WORKERS COMPENSATION
The Louisiana Workforce Commission for the Department of Labor has identified the following worker’s responsibilities in the vocational rehabilitation process, under which an injured employee should:
- Take an active part in planning and making decisions.
- Ask questions anytime if something is not understood.
- Stay in regular contact with the people working with the employee.
- Follow through with all the agreed-upon activities.
- Keep the vocational rehabilitation counselor advised of anything that changes one’s ability to complete a vocational rehabilitation program.
- Ask the vocational rehabilitation counselor for any help needed during any part of the vocational rehabilitation program.
- Actively seek employment when job-ready.
- Tell the vocational rehabilitation counselor when employment is achieved.
- Ensure that the vocational rehabilitation plan developed by the employee and the vocational rehabilitation counselor meets the employee’s needs.
THE INSURANCE COMPANY’S RESPONSIBILITIES FOR VOCATIONAL REHABILITATION IN LOUISIANA WORKERS COMPENSATION
A workers compensation insurance company is required under Louisiana law to provide vocational rehabilitation services.
However, vocational rehab 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 claimant’s physical capabilities and within claimant’s or the employer’s community or reasonable geographic region, the amount of wages that an employee with 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 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.
THE LOUISIANA STATUTE FOR VOCATIONAL REHABILITATION IN LOUISIANA WORKERS COMPENSATION
The primary Louisiana statute for vocational rehabilitation is La. R.S. 23:1226, which reads as follows:
§1226. Rehabilitation of injured employees
A. When an employee has suffered an injury covered by this Chapter which precludes the employee from earning wages equal to wages earned prior to the injury, the employee shall be entitled to prompt rehabilitation services. Vocational rehabilitation services shall be provided by a licensed professional vocational rehabilitation counselor, and all such services provided shall be compliant with the Code of Professional Ethics for Licensed Rehabilitation Counselors as established by R.S. 37:3441 et seq.
B.(1) The goal of rehabilitation services is to return a worker with a disability to work, with a minimum of retraining, as soon as possible after an injury occurs. The first appropriate option among the following must be chosen for the worker:
(a) Return to the same position.
(b) Return to a modified position.
(c) Return to a related occupation suited to the claimant’s education and marketable skills.
(d) On-the-job training.
(e) Short-term retraining program (less than twenty-six weeks).
(f) Long-term retraining program (more than twenty-six weeks but not more than one year).
(2) Whenever possible, employment in a worker’s local job pool must be considered and selected prior to consideration of employment in a worker’s statewide job pool.
(3) (a) The employer shall be responsible for the selection of a licensed professional vocational rehabilitation counselor to evaluate and assist the employee in his job placement or vocational training. Should the employer refuse to provide these services, or a dispute arises concerning the work of the vocational counselor, the employee may file a claim with the office to review the need for such services or the quality of services being provided. The employee shall have a right to an expedited summary proceeding pursuant to R.S. 23:1201.1(K)(8). The workers compensation judge shall set a hearing date within three days of receiving the motion. The hearing shall be held not less than ten, nor more than thirty days, after the employer or payor receives notice, delivered by certified or registered mail, of the employee’s motion. The workers compensation judge shall provide notice of the hearing date to the employer and payor at the same time and in the same manner that notice of the hearing date is provided to the employee or his attorney. For the purposes of this Section, an employee shall not be required to submit the dispute on the issue of vocational services to mediation or go through a pretrial conference before obtaining a hearing. The hearing shall be conducted as a rule to show cause.
(b) An employee shall have no right of action against a vocational counselor for tort damages related to the performance of vocational services unless and until he has exhausted the administrative remedy provided for in Subparagraph (a) of this Paragraph. The running of prescription shall be suspended during the pendency of the administrative proceedings provided for in this Paragraph.
(c) Upon refusal by the employee, the employer or payor may reduce weekly compensation, including supplemental earnings benefits pursuant to R.S. 23:1221(3), by fifty percent for each week of the period of refusal. Reduction of benefits by the employer or payor shall be made in accordance with the provisions of R.S. 23:1201.1(A) through (E).
C.(1) Rehabilitation services required for workers with disabilities may be initiated by:
(a) An insurer or self-insured employer by designating a rehabilitation provider and notifying the office.
(b) The office by requiring the insurer or self-insured employer to designate a rehabilitation provider.
(c) The employee, through a request to the office. The office shall then require the insurer to designate a rehabilitation provider.
(2) Rehabilitation services provided under this Part must be delivered through a rehabilitation counselor approved by the office.
D. Prior to the workers compensation judge adjudicating an injured employee to be permanently and totally disabled, the workers compensation judge shall determine whether there is reasonable probability that, with appropriate training or education, the injured employee may be rehabilitated to the extent that such employee can achieve suitable gainful employment and whether it is in the best interest of such individual to undertake such training or education.
E. When it appears that a retraining program is necessary and desirable to restore the injured employee to suitable gainful employment, the employee shall be entitled to a reasonable and proper retraining program for a period not to exceed twenty-six weeks, which period may be extended for an additional period not to exceed twenty-six additional weeks if such extended period is determined to be necessary and proper by the workers compensation judge. However, no employer or insurer shall be precluded from continuing such retraining beyond such period on a voluntary basis. An injured employee must request and begin retraining within two years from the date of the termination of temporary total disability as determined by the treating physician. If a retraining program requires residence at or near the facility or institution and away from the employee’s customary residence, reasonable cost of board, lodging, or travel shall be borne by the employer or insurer. A retraining program shall be performed at facilities within the state when such facilities are available.
F. Temporary disability benefits paid pursuant to R.S. 23:1221(1) shall include such period as may be reasonably required for training in the use of artificial members and appliances and shall include such period as the employee may be receiving training or education under a retraining program pursuant to this Section.
G. The permanency of the employee’s total disability under R.S. 23:1221(2) cannot be established, determined, or adjudicated while the employee is employed pursuant to an on-the-job training or a retraining program as provided in Subsections B and E of this Section.
Acts 1983, 1st Ex. Sess., No. 1, §1, eff. July 1, 1983; Acts 1988, No. 938, §1, eff. July 1, 1989; Acts 1989, No. 23, §1, eff. June 15, 1989; Acts 1989, No. 260, §1, eff. Jan. 1, 1990; Acts 1989, No. 454, §6, eff. Jan. 1, 1990; Acts 1997, No. 88, §1, eff. June 11, 1997; Acts 2003, No. 980, §1; Acts 2004, No. 341, §1, eff. June 18, 2004; Acts 2005, No. 257, §1; Acts 2013, No. 337, §1; Acts 2014, No. 811, §12, eff. June 23, 2014.