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 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 the benefit of the employee.
That is, instead of the insurer 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 insurer will appoint a vocational 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).
Vocational Rehabilitation Is A Trap
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 vocation rehab 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 he employee's indemnity (or lost wages) benefits.
Basic Steps to Vocational Rehabilitation
The Louisiana Workforce Commission for the Department of Labor has identified the following eight basic steps in the vocational rehabilitation process with the Louisiana Rehabilitation Services (LRS):
- Referral & Application
- Initial Interview
- Successful Rehabilitation—Employment
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.