Under the Louisiana Workers’ Compensation Act (“LWCA”), the insurer or self-insured employer, as the workers’ compensation payor, is obligated to furnish an injured employee with all medical treatment that is both causally related to the work injury and medically necessary. And, if the employee, is able to return to work with restrictions, but due to the work accident, cannot earn his/her pre-accident wages, then the payor is also obligated to furnish the employee with vocational rehabilitation (“voc rehab”) services.
Typically, we see voc rehab when an employer is unable to accommodate the employee’s restrictions in a manner which would allow him/her to earn more than 90% of his/her pre-accident wages—entitling the employee to Supplemental Earnings Benefits (“SEB”) . However, technically, under La. R.S. 23:1226(A), any employee who suffers a work injury “which precludes that employee from earning wages equal to the wages earned prior to the accident” is entitled to “prompt rehabilitation.” Therefore, there is no requirement that the employer be unable to accommodate the employee’s restrictions or that the employee actually be entitled to SEB to be entitled to voc rehab.
In any event, such rehabilitation services must be provided by a licensed, professional voc rehab counselor with a goal of returning to the employee to work as soon as possible after the injury occurs—with minimal retraining.
If you, as the payor, are paying weekly compensation benefits and the employee refuses to cooperate with these voc rehab efforts, you may reduce the employee’s weekly compensation benefits by 50% for each week that he/she continues to refuse voc rehab. Any reduction on these grounds does NOT require a court order but MUST be done in compliance with LSA-R.S. 23:1201.1 (i.e., via an LWC-WC-1002 Notice of Modification).
Therefore, once the need for voc rehab becomes apparent, we typically recommend:
- Assigning a rehab counselor (NOTE: you get the choice of voc rehab specialist but you do not get to direct rehabilitation efforts );
- Having the assigned voc rehab counselor schedule an initial interview with the injured employee;
- If the assigned voc rehab counselor has issues making contact with the employee and/or scheduling the initial interview, send written correspondence to the employee providing a deadline by which the employee is to contact the voc rehab counselor and schedule the interview. This correspondence should also caution the employee of the possibility of a 50% reduction in weekly workers’ compensation benefits should he/she fail to schedule the interview by the date specified; and
- If the employee continues to refuse vocational rehabilitation efforts, prepare an LWC-WC-1002 Notice of Modification and send a copy to (i) the injured employee via certified mail to the address at which he/she is currently receiving benefits, (ii) his/her attorney via facsimile if represented, and (iii) the Office of Workers’ Compensation. Make sure to do so on or before the effective date of the modification.
- Complete a second LWC-WC-1002 Notice of Modification resuming benefits (including the payment of back due benefits) once the employee does participate in voc rehab. Copies of the notice should be served as outlined above.
- Once the voc rehab specialist identifies an available position for which the employee is qualified and able to earn at least 90% of his/her pre-accident wages, terminate weekly compensation benefits. Please note best practices ( and some appellate circuits) require physician approval of the position prior to the termination.
