Vocational Rehabilitation is a Sham and a Farce in Louisiana Workers Compensation
An employee injured on the job in Louisiana is entitled to vocational rehabilitation services, which are supposed to assist the 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.
Employees were almost always hard at work at the time of injury, and are almost always eager to return to work despite injuries.
So when an injured employee is told (usually by a vocational rehabilitation counselor) that Louisiana workers compensation has a system called vocational rehabilitation which is supposed to help injured workers find re-training or a new job, this injured employee is eager to work that system.
But the big lie is that vocational rehabilitation hardly ever provides actual re-training or an actual new job, but instead is simply a tool for the vocational rehabilitation counselor and the workers compensation insurance company to reduce and eliminate the worker'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 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 employee's 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 restrictions).
Then, once the injured worker's treating physician signs off on the jobs in the Labor Market Survey, the workers compensation insurance company can immediately reduce or terminate the employee's lost wage benefits.
Thus, vocational rehabilitation is a sham and a farce, and no friend to the injured worker. In fact, vocational rehabilitation can be the injured worker's biggest nightmare.
Vocational Rehabilitation is a Trap in Louisiana Workers Compensation
So basically, vocational rehabilitation is supposed to serve two functions in a workers compensation claim: (1) a program for job re-training or new job placement, and (2) a method for determining an injured worker's wage-earning capacity for the sole purpose of reducing or terminating the worker's lost wage benefits.
The problem with the dual purpose approach is that job re-training and new job placement hardly ever actually occur, but rather serve as a trap for the injured employee, because they entice the worker to provide the very evidence required to determine an injured worker's wage-earning capacity for the sole purpose of reducing or terminating the worker's lost wage benefits.
Vocational rehabilitation is a trap because the vocational rehabilitation counselor appears advantageous to the injured worker since this counselor is free to the worker, but in reality, this vocational rehabilitation counselor is actually working actively against the interests of the worker, since the vocational rehabilitation counselor is hired, paid, and managed by the workers compensation insurance company.
This workers compensation insurance company has to meet its bottom line - which means reducing and eliminating benefits to the employee - because it owes no duty to the interests of the employee, but is solely obligated to maximize profit to its stock shareholders.
Therefore, vocational rehabilitation is a trap because the vocational rehabilitation counselor has no choice but to work against the injured employee while pretending to look out for the injured worker.
Little or No Job Training or Job Re-Training Ever Occurs in Louisiana Workers Compensation
If the injured employee is unable to be able to return to his or her position (either with or without modifications/accommodations), and can prevent the workers compensation insurance company from eliminating his or her lost wage benefits, then the employee's next option is to seek job re-training.
But again, the purpose of vocational rehabilitation from the viewpoint of the insurance company is simply to minimize or terminate the employee's indemnity (or lost wages) benefits.
Thus, the real purpose of vocational rehabilitation is not to find the injured employee a new job or to provide job re-training. And for this reason, very little job re-training ever actually occurs in workers compensation claims.
In fact, the specific Louisiana statute (law) lists in its first sentence that: "the goal of rehabilitation services is to return a disabled worker to work, with a minimum of retraining, as soon as possible after an injury occurs."
Short-Term and Long-Term Re-Training Programs
The purpose of the short-term and long-term re-training programs, as well as on-the-job training programs, is for the injured employee to obtain skills that they do not have prior to the training programs, that they can utilize to get a job.
Typically, the on-the-job training program results in placement with the employer providing the training; while short-term and long-term re-training programs are more educational, developing skills and preparing an injured worker to return to work in the labor market, through the job placement process.
A short-term re-training program, which is defined by Louisiana law as less than 26 weeks, could be found in vocational and technical schools, as well as specialty schools for certain industries. This undertaking typically removes the worker from the workforce while in training.
Typically, there is a cost associated with a short-term re-training program, which would include tuition, books, and supplies, as well as costs for transportation, parking, and other ancillary expenses incurred when in training. There is a shortage of short-term re-training programs in Louisiana that are offered by schools, including vocational and technical schools.
A long-term re-training program, which is defined by Louisiana law as more than 26 weeks, but not more than one year, is more readily available in the State of Louisiana. A long-term re-training program would also include the expenses mentioned above and removes the injured worker from the workforce while undergoing such training.
But Job Re-Training Rarely Ever Even Occurs
So job re-training is only even a possibility when the employee is injured so badly that it impossible to return to his or her prior job, and there are no other jobs available in the area that match the employee's education and skill level.
But even then, workers compensation insurance companies very rarely provide for re-training programs - either short-term or long-term - due to the cost of such programs and the time needed for such programs.
The costs of a re-training program would include the reasonable costs of board, lodging, and necessary travel, if there are no re-training programs close to the injured employee.
Also, in the very rare cases where job re-training actually occurs, a request for vocational retraining must be filed within two years from the end date of temporary total disability as determined by the treating physician.
And the few injured workers who actually are determined to be eligible for vocational rehabilitation job re-training can typically receive lost wage benefits for up to 26 weeks, with an additional 26-week extension possible in special situations.
The Employee Should Beware When Contacted by a Vocational Rehabilitation Counselor in Louisiana Workers Compensation
Louisiana workers compensation law specifically holds that: "an employer can discharge its burden 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. All of this can be proven without the cooperation or participation of the employee."
So, actual job placement is not required, and the workers compensation insurance company can eliminate an employee's lost wage benefits simply by:
- Showing the existence of a job within the employee's physical capabilities and geographic region;
- Showing the amount of wages that an employee with that employee's experience and training can expect to earn in that job; and
- Showing 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.
For these reasons, an injured employee should be extremely concerned if he or she is contacted by a vocational rehabilitation counselor.
The bottom line is that if an injured employee is contacted by a vocational rehabilitation counselor, this almost always means that the workers compensation insurance company is attempting and preparing to reduce or eliminate the employee's lost wage benefits.
The employee should beware, because the vocational rehabilitation counselor's primary goal - what the counselor is paid to do - is to provide evidence and testimony as an expert witness for the insurance company in order to prove that the injured employee can return to work, and thus should no longer receive lost wage benefits.
The injured employee must understand that the workers compensation insurance company chooses, hires, pays, manages, and directs the vocational rehabilitation counselor to do exactly what the insurance company wants - which is to eliminate the employee's lost wage benefits.
If the vocational rehabilitation counselor does not work to eliminate the employee's lost wage benefits, then he or she will not only be fired, but he or she will never be hired by any of the workers compensation insurance companies ever again.
Negative Effects on the Doctor-Patient Relationship
Also, a vocational rehabilitation counselor can work against the employee through actions with the employee's treating physician by attempting to:
- Poison the relationship between the employee and his or her physician;
- Undermine the physician by attempting to dispute diagnoses or treatment plans;
- Try to convince the doctor that the employee is uninjured;
- Try to convince the doctor that the employee can work specific types of jobs; and
- Try to convince the doctor to prematurely release the employee back to work.
For these reasons, the injured employee should maintain a continuous, open, and honest dialogue with his or her doctor, including discussions about the employee's workers compensation claim.
Negative Effects on the Employee's Potential Settlement
Finally, the injured employee must understand that the work performed by the vocational rehabilitation counselor can have a tremendous effect on the size of the settlement - if any - that the employee may receive.
If the efforts of the vocational rehabilitation counselor are defeated or stymied, the injured employee can do very well in promptly achieving his or her top-dollar settlement amount.
However, if the vocational rehabilitation counselor is successful in reducing or eliminating the employee's lost wage benefits, the employee may be left with a very small settlement or no settlement at all.
How to Avoid the Trap of Vocational Rehabilitation in Louisiana Workers Compensation
Avoiding the vocational rehabilitation trap can be difficult, but it is certainly possible.
Really, the only way for an injured employee to fight against the insurance company's efforts to reduce or terminate the employee's lost wage benefits is to retain an experienced Louisiana workers compensation attorney to push back against the vocational rehabilitation trap.
From the injured employee's perspective, the vocational rehabilitation process begins with a meeting with the vocational rehabilitation counselor, who will make an inventory of the employee's past employment history and work skills.
From there, the injured employee will likely perform a Functional Capacity Evaluation (FCE) so that the workers compensation insurance company can attempt to measure the employee's physical limitations that the employee may have due to the employee's injury or illness.
Based on the results of the vocational rehabilitation counselor's gathered employment history and work skills, as well as the employee's Functional Capacity Evaluation (FCE), a Labor Market Survey will likely be prepared by the vocational rehabilitation counselor and presented to the employee and then presented to the employee's treating physician.
Once the employee's treating physician confirms in writing (or "signs off" on the jobs), then the workers compensation insurance company can immediately reduce or terminate the employee's lost wage benefits.
So again, the real purpose of the vocational rehabilitation process, including the efforts of the vocational rehabilitation counselor, is to enable the workers compensation insurance company to terminate the employee's lost wage benefits.
How to Fight the Reduction or Elimination of Lost Wage Benefits
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 - from start to finish.
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 useful 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:
- 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 an 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 the Labor Market Survey;
- Refuting the availability and wage rates of jobs listed in 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 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 indemnity (or lost wages) 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).
(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.