Physical Approval and Vocational Rehabilitation

This question has suddenly come up a few times over the last month or so from various clients, so I wanted to set the record straight when it comes to whether jobs found through vocational rehabilitation need physician approval. When an employee is injured on the job, the goal of any employer is to assist in getting their employee returned to work. This process often includes consultations with a vocational rehabilitation counselor and can also just involve the employer presenting the employee with a modified duty offer of employment. The issue that arises often is whether the claimant’s treating physician needs to approve those jobs.

The Louisiana Supreme Court ruled on this issue in Banks v. Indus. Roofing & Sheet Metal Works, Inc., 696 So.2d 551 (La. 7/1/97), ultimately holding that a physician does not have to personally approve of the modified duty job offer. The Court stated that an employer will meet its burden of proving job availability by establishing: the existence of a suitable 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 be expected to earn in that job; and an actual position available for that particular job at the time that the claimant received notification of the job’s existence.

As an aside, regarding “within claimant’s or the employer’s community of reasonable geographic region,” please note that we typically use the “30-mile radius” rule. However, no such rule actually exists, and the courts have used different mileage depending on the region. Also note that the statute states that we can use the employer’s geographic region. We have had this issue come up, and courts vary, but it is something to keep in mind whenever searching for jobs within the claimant’s restrictions.

Notice that the LA Supreme Court included no requirement that the job offers be reviewed first by a physician.

The Third Circuit has confirmed that physician approval is not necessary for the employer to meet its burden of establishing job availability. Clark v. Sedgwick CMS, 179 So.3d 943 (La. App. 3 Cir. 11/25/15); City of Jennings v. Doucet, 865 So.2d 1056 (La. App. 3 Cir. 2/4/04). However, some of the other appellate courts still have concerns about not getting the physician’s approval. See Alexander v. Sanderson Farms, Inc., 17 So.3d 5 (La. App. 1 Cir. 5/8/09).

Many attorneys for the employee will argue that a job found through vocational rehabilitation is not valid if not reviewed by the doctor or that the job offered is not within the restrictions. It is the employer’s responsibility to ensure the modified job offer fits within the restrictions provided by the physician. We always make the argument that a licensed vocational rehabilitation counselor is an expert when it comes to placing injured employees in jobs that fall within their physical restrictions, so physician approval should not be necessary. The key element is hiring a vocational rehabilitation counselor that is experienced in handling workers’ compensation matters.