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Regular Session, 2011
HOUSE BILL NO. 502
BY REPRESENTATIVE PONTI
Prefiled pursuant to Article III, Section 2(A)(4)(b)(i) of the Constitution of Louisiana.
WORKERS COMPENSATI ON: To provide relative to workers' compensation
AN ACT1
To amend and reenact R.S. 23:1226(A), (B), (D), and (E) and 1377(A) and to enact R.S.2
23:1227 and 1377(G), relative to workers compensation; to provide with respect to3
vocational rehabilitation; to provide for functional capacity evaluation testing; to4
provide with respect to the Second Injury Fund; and to provide for related matters.5
Be it enacted by the Legislature of Louisiana:6
Section 1. R.S. 23:1226(A), (B), (D), and (E) and 1377(A) are hereby amended and7
reenacted and R.S. 23:1227 and 1377(G) are hereby enacted to read as follows:8
§1226. Rehabilitation of injured employees9
A. When an employee has suffered an injury covered by this Chapter which10
precludes the employee from earning wages equal to wages earned prior to the11
injury, the employee shall be entitled to prompt rehabilitation services. Early referral12
is critical to the vocational rehabilitation process and shall be initiated as soon as13
possible. Vocational rehabilitation services shall be provided by a licensed14
professional vocational rehabilitation counselor, and all such services provided shall15
be compliant with the Code of Professional Ethics for Licensed Rehabilitation16
Counselors as established by R.S. 37:3441 et seq.17
B.(1) The goal of rehabilitation services is to return a disabled worker to18
work, with a minimum of retraining, as soon as possible after an injury occurs. The19
If the employer or insurer determines that the employee is unable to earn wages20 HLS 11RS-905 ORIGINAL
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equal to wages earned prior to the injury, the first appropriate option among the1
following must be chosen for the worker:2
(a) Return to the same position.3
(b) Return to a modified position.4
(c) Return to a related occupation suited to the claimant's education and5
marketable skills.6
(d) On-the-job training.7
(e) Short-term retraining program (less than twenty-six weeks) of less than8
fifty-two weeks.9
(f) Long-term retraining program (more than twenty-six weeks but not more10
than one year) of at least fifty-two weeks and not more than two years.11
(g) Self-employment.12
(2) Whenever possible, employment in a worker's local job pool must be13
considered and selected prior to consideration of employment in a worker's statewide14
job pool.15
(3)(a) The employer shall be responsible for the selection of a licensed16
professional vocational rehabilitation counselor to evaluate and assist the employee17
in his job placement or vocational training. It shall be the responsibility of the18
licensed professional vocational rehabilitation counselor to meet with the employee19
as soon as possible after vocational services are requested and to develop an initial20
rehabilitation plan. Such rehabilitation plan shall be developed with the employee21
and shall contain the following:22
(1) The agreed upon vocational goal of the rehabilitation service.23
(2) The actual plan to obtain that goal.24
(3) The signature of both parties establishing that the plan was approved.25
(b) Should the employer refuse to provide these services, or a dispute arises26
concerning the work of the vocational counselor, the employee may file a claim with27
the office to review the need for such services or the quality of services being28 HLS 11RS-905 ORIGINAL
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provided. The procedure for hearing such claims shall be expedited as provided in1
R.S. 23:1124.2
(b) (c) An employee shall have no right of action against a vocational3
counselor for tort damages related to the performance of vocational services unless4
and until he has exhausted the administrative remedy provided for in Subparagraph5
(a) (b) of this Paragraph. The running of prescription shall be suspended during the6
pendency of the administrative proceedings provided for in this Paragraph.7
(c) (d) The expedited procedure shall also be made available to the employer8
to require the employee's cooperation in the rehabilitation process. Refusal to accept9
rehabilitation as deemed necessary by the worker's compensation judge shall result10
in a fifty percent reduction in weekly compensation, including supplemental earnings11
benefits pursuant to R.S. 23:1221(3), for each week of the period of refusal.12
* * *13
D. Prior to the workers' compensation judge adjudicating an injured14
employee to be permanently and totally disabled, the workers' compensation judge15
shall determine whether there is reasonable probability that, with appropriate training16
or education, the injured employee may be rehabilitated to the extent that such17
employee can achieve suitable gainful employment and whether it is in the best18
interest of such individual to undertake such training or education. If the workers'19
compensation judge determines that such training or education is appropriate, the20
employer or insurer shall be responsible for the costs of the training or education.21
E. When it appears that a retraining program is necessary and desirable to22
restore the injured employee to suitable gainful employment, the employee shall be23
entitled to a reasonable and proper retraining program for a period not to exceed24
twenty-six weeks, which period may be extended for an additional period not to25
exceed twenty-six additional weeks if such extended period is determined to be26
necessary and proper by the workers' compensation judge. an appropriate period of27
time pursuant to Subparagraphs (B)(1)(a) and (b) of this Section. However, no28
employer or insurer shall be precluded from continuing such retraining beyond such29 HLS 11RS-905 ORIGINAL
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period on a voluntary basis. An injured employee must request and begin retraining1
within two years from the date of the termination of temporary total disability as2
determined by the treating physician. If a retraining program requires residence at3
or near the facility or institution and away from the employee's customary residence,4
reasonable cost of board, lodging, or travel shall be borne by the employer or insurer.5
A retraining program shall be performed at facilities within the state when such6
facilities are available.7
* * *8
§1227. Functional capacity evaluations9
A. For the purposes of this Section, a functional capacity evaluation means10
a detailed evaluation performed by a qualified examiner to objectively measure an11
injured worker's level of function within the context of the demands of competitive12
employment. Measurements of function from a functional capacity evaluation shall13
be used to determine an injured worker's ability to return safely to full- or part-time14
employment with or without modification.15
B.(1) A qualified functional capacity evaluation examiner shall be a licensed16
physical therapist or occupational therapist who meets all requirements to practice17
in Louisiana and has completed:18
(a) A minimum of two years of clinical experience evaluating and treating19
adult patients in an outpatient setting.20
(b) A nationally recognized functional capacity evaluation course that has21
been approved for continuing education by the Louisiana Physical Therapy Board,22
the Occupational Therapy Advisory Committee, the State Board of Medical23
Advisors, or the Louisiana State Board of Medical Examiners at the time the course24
was completed.25
(c) A minimum of eight hours of continuing education every two years in26
work-related courses such as ergonomics, job assessments, functional capacity27
evaluations, work conditioning, or work hardening which are approved by the28 HLS 11RS-905 ORIGINAL
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Louisiana Physical Therapy Board, the Occupational Therapy Advisory Committee,1
or the State Board of Medical Advisors as being related and appropriate.2
(2) The authorized examiner shall provide a proof of compliance with3
Subparagraph (1) of this Paragraph to the employer or insurer.4
C.(1) The authorized examiner shall review pertinent medical records, be5
cognizant of any physical limitations, perform the physical examination, administer6
the functional assessment, interpret all relevant data, and produce a functional7
capacity evaluation report. The report shall be a standardized functional capacity8
summary form, as promulgated by the Office of Workers' Compensation9
Administration and shall identify the type of functional capacity evaluation10
performed. An approved functional capacity evaluation shall be evidenced by the11
scientific rigor of reliability and validity studies and shall include a functional12
analysis of job tasks, history and physical examination, and job-specific functional13
capacity tests.14
(2) Testing shall be conducted in two consecutive days unless the examiner15
determines that it is necessary to reschedule the second day of testing to the16
following work day. If the second day of testing is not completed within forty-eight17
hours of the initial visit, then the treating physician and claims adjustor shall be18
notified and the entire two-day functional capacity evaluation shall be rescheduled.19
(3) The employer, insurer, or third-party administrator shall authorize a20
minimum of twelve hours for the functional capacity evaluation. The examiner may21
issue additional hours upon request of the employer, insurer, or third-party22
administrator when necessary to perform an accurate functional capacity evaluation23
for the injured worker.24
(4) When an injured worker attempts to resume employment with his25
previous employer and he is subject to permanent restrictions or he is returning to26
a modified employment position, a functional job description shall be supplied27
before the functional capacity evaluation is performed.28 HLS 11RS-905 ORIGINAL
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(5) Nothing in this Section shall prohibit the use of early return-to-work1
functional capacity evaluations involving efforts to identify the job tasks an injured2
worker can perform safely when modified temporarily to return to work with his3
former employer.4
D. Once the examiner completes the functional capacity evaluation and the5
report, he shall forward the report to the treating physician for his review. The6
treating physician shall approve the functional capacity evaluation findings within7
fifteen days or assign additional restrictions to be included in the final functional8
capacity evaluation report. If the treating physician does not respond within fifteen9
days, then the findings of the examiner are presumed to be accurate and appropriate10
for the injured worker. The final functional capacity evaluation report shall then be11
used by the vocational rehabilitation specialist in coordination with the examiner to12
determine if an available job is appropriate for that worker. Approval and13
disapproval of proposed jobs for an injured worker shall be forwarded by the14
examiner to the treating physician.15
E. The vocational rehabilitation counselor shall provide a functional job16
description quantifying the physical demands of the injured worker's job or proposed17
alternative employment in terms of postures, functional activities, forces, weights,18
repetitions, frequency, distances, durations, time frames, and other necessary19
information concerning physical activity and tasks. If a functional job description20
is not available for an injured worker's job or proposed position at the time of testing,21
the examiner may be requested to perform a job assessment and write a functional22
job description if the examiner has the appropriate training to perform such job23
assessment.24
* * *25
§1377. Workers' Compensation Second Injury Fund26
A. There is hereby created and established in the state treasury a special fund27
which shall be designated as the "Workers' Compensation Second Injury Fund",28
hereinafter referred to as the "fund". The fund shall be maintained as a separate29 HLS 11RS-905 ORIGINAL
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account in the state treasury for the purposes of funding the administrative expenses1
of the board and reimbursing compensable claims of property and casualty insurers,2
self-insured employers, and group self-insurance funds as set forth by R.S. 23:13713
et seq. Except as provided in Subsection Subsections F and G of this Section,4
monies shall be withdrawn therefrom only pursuant to legislative appropriation and5
shall be subject to budgetary control as provided by law. All remaining and6
unencumbered balances at the end of any fiscal year shall remain credited to the fund7
and shall be used solely for the purposes stated in this Section. Any interest income8
generated by the fund shall accrue to the fund.9
* * *10
G. The Second Injury Board may approve an annual lump sum amount up11
to one percent of the board's annual budget to be allocated to Louisiana12
Rehabilitation Services for use in assisting potential employers and qualified13
employees with permanent partial disabilities under the Louisiana Rehabilitation14
Services Vocational Rehabilitation Program. Services may include work evaluation15
and job readiness services, assessment for and provision of assistive technology, and16
work station modification directly related to the employment, reemployment, or17
retention of such employees. The funds paid by the Second Injury Board, as well as18
any fund matching and earned interest shall only be used for these purposes. The19
Louisiana Rehabilitation Services shall provide the Second Injury Board with a20
quarterly report to include funding balances and expenditures as well as case21
statistical information.22
DIGEST
The digest printed below was prepared by House Legislative Services. It constitutes no part
of the legislative instrument. The keyword, one-liner, abstract, and digest do not constitute
part of the law or proof or indicia of legislative intent. [R.S. 1:13(B) and 24:177(E)]
Ponti HB No. 502
Abstract: Provides for testing and early recognition of the need for vocational training in
workers' compensation claims and authorizes the Second Injury Board to allocate
funds to assist employers and employees with disabilities.
Present law provides for rehabilitation of injured employees. HLS 11RS-905 ORIGINAL
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Present law requires that vocational rehabilitation services shall be provided by a licensed
professional vocational rehabilitation counselor.
Proposed law retains present law and further provides that early referral is critical and that
vocational rehabilitation shall begin as soon as possible.
Present law provides that the goal of rehabilitation is to return to work as quickly as possible,
in the same position, a modified position, to a related occupation, receive job training, or
become self-employed.
Proposed law changes the frequency of short-term training from less than 26 weeks to less
than 52 weeks.
Proposed law changes the frequency range of long term training from between 26 weeks and
a year, to at least 52 weeks, but not more than a year.
Present law requires employers to select a licensed professional vocational rehabilitation
counselor to evaluate and assist the employee in job placement and training.
Proposed law retains present law and further provides that it is the responsibility of the
counselor to meet with the employee as soon as possible and develop a rehabilitation plan.
Present law provides that a workers' compensation judge shall determine if, after training,
the injured worker could be rehabilitated enough to obtain employment.
Proposed law retains present law and further provides that the employer or insurer shall pay
for training if the judge determines that it is appropriate.
Proposed law defines "functional capacity evaluation" to mean a detailed evaluation
performed by a qualified examiner to objectively measure an injured worker's level of
function within the context of the demands of competitive employment.
Proposed law provides that measures of function from a functional capacity evaluation shall
be used to determine an injured worker's ability to safely return to employment, with or
without modification.
Proposed law provides for qualifications of functional capacity evaluation counselors.
Proposed law outlines the procedure that the functional capacity evaluation counselor shall
use to evaluate the injured worker, and the criteria upon which the worker shall be evaluated
and tested.
Proposed law provides that the testing shall take place in two consecutive days, with
extensions for certain circumstances.
Proposed law requires that when the injured employee returns to work, the functional job
description must be supplied before the evaluation is formed.
Proposed law does not limit the ability to return to work early.
Proposed law provides that the examiner shall forward the report to the physician, and
provides that the physician shall approve the report within 15 days, or the recommendations
of the examiner are presumed accurate without the physicians input.
Present law creates the Workers' Compensation Second Injury Fund to fund the
administrative expenses of the Second Injury Board and to reimburse compensable claims
of property and casualty insurers, self-insured employers, and group self-insurance funds. HLS 11RS-905 ORIGINAL
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Proposed law provides that the Second Injury Board may approve funds to be allocated to
the Louisiana Rehabilitation Services to assist potential employers and qualified employees
with disabilities.
Proposed law requires the Louisiana Rehabilitation Services to provide a quarterly report to
the Second Injury Fund Board.
(Amends R.S. 23:1226(A), (B), (D), and (E) and 1377(A); Adds R.S. 23:1227 and 1377(G))