HLS 12RS-1106 ORIGINAL
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Regular Session, 2012
HOUSE BILL NO. 903
BY REPRESENTATIVE KATRINA JACKSON
WORKERS COMPENSATI ON: Provides with respect to vocational rehabilitation for
disabled employees
AN ACT1
To amend and reenact R.S. 23:1226(A), (B), (D), and (E) and to enact R.S. 23:1227, relative2
to workers' compensation; to provide with respect to vocational rehabilitation; to3
provide for functional capacity evaluation testing; and to provide for related matters.4
Be it enacted by the Legislature of Louisiana:5
Section 1. R.S. 23:1226(A), (B), (D), and (E) are hereby amended and reenacted and6
R.S. 23:1227 is hereby enacted to read as follows:7
§1226. Rehabilitation of injured employees8
A. When an employee has suffered an injury covered by this Chapter which9
precludes the employee from earning wages equal to wages earned prior to the10
injury, the employee shall be entitled to prompt rehabilitation services. Early referral11
is critical to the vocational rehabilitation process and shall be initiated as soon as12
possible. Vocational rehabilitation services shall be provided by a licensed13
professional vocational rehabilitation counselor, and all such services provided shall14
be compliant with the Code of Professional Ethics for Licensed Rehabilitation15
Counselors as established by R.S. 37:3441 et seq.16
B.(1) The goal of rehabilitation services is to return a disabled worker to17
work, with a minimum of retraining, as soon as possible after an injury occurs. The18
If the employer or insurer determines that the employee is unable to earn wages19
equal to wages earned prior to the injury, the first appropriate option among the20 HLS 12RS-1106 ORIGINAL
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following must shall be chosen by the vocational rehabilitation counselor for the1
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 transferable skills.6
(d) On-the-job training.7
(e) Short-term retraining program (less than twenty-six fifty-two weeks).8
(f) Long-term retraining program (more than twenty-six weeks but not more9
than one year of at least fifty-two weeks and not more than two years).10
(g) Self-employment.11
(2) Whenever possible, employment in a worker's local job pool must shall12
be considered and selected prior to consideration of employment in a worker's13
statewide job pool.14
(3)(a) The employer shall be responsible for the selection of a licensed15
professional vocational rehabilitation counselor to evaluate and assist the employee16
in his job placement or vocational training. It shall be the responsibility of the17
licensed professional vocational rehabilitation counselor to meet with the employee18
as soon as possible after vocational services are requested and to develop an initial19
rehabilitation plan. Such rehabilitation plan shall be developed with the employee20
and shall contain the following:21
(i) The agreed upon vocational goal of the rehabilitation service.22
(ii) The actual plan to obtain that goal.23
(iii) The cost of any retraining or job modification.24
(iv) 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 12RS-1106 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 12RS-1106 ORIGINAL
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period on a voluntary basis. An injured employee must shall request and begin1
retraining within two years three months from the date of the termination of2
temporary total disability as determined by the treating physician. If a retraining3
program requires residence at or near the facility or institution and away from the4
employee's customary residence, reasonable cost of board, lodging, or travel shall5
be borne by the employer or insurer. A retraining program shall be performed at6
facilities within the state when such 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 will13
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 12RS-1106 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 a detailed history and a physical6
examination, administer the functional assessment, interpret all relevant data, and7
produce a functional capacity evaluation report including the standardized functional8
capacity summary form, as promulgated by the office of workers' compensation9
administration. An approved functional capacity evaluation shall be evidenced by10
the scientific rigor of reliability and validity studies and should be primarily11
functional/dynamic in nature and mimic the job as much as possible. A functional12
capacity evaluation based primarily on computerized testing will not be considered13
valid.14
(2) Testing shall be conducted in two consecutive days for a minimum of15
five hours on the first day and a minimum of two hours on the second day. The16
second day of testing can be rescheduled for special circumstances as determined by17
the examiner, but shall be completed within forty-eight business hours of the initial18
visit. If the functional capacity evaluation is not completed, then the treating19
physician and claims adjustor shall be notified and the examiner will complete the20
report as outlined in Subparagraph D with the information on hand, and the21
functional capacity evaluation will be considered valid.22
(3) The employer, insurer, or third-party administrator shall authorize a23
minimum of twelve hours for the functional capacity evaluation. The examiner may24
request additional hours from the employer, insurer, or third-party administrator25
when necessary to perform an accurate functional capacity evaluation for the injured26
worker.27
(4) When an injured worker attempts to resume employment with his28
previous employer and he is subject to permanent restrictions or he is returning to29 HLS 12RS-1106 ORIGINAL
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a modified employment position, a functional job description shall be supplied1
before the functional capacity evaluation is performed. A four-to-eight hour2
modified functional capacity evaluation can be performed in assessing an employee's3
capacity to return to a transitional duty with his current employer.4
(5) Nothing in this Section shall prohibit the use of early return-to-work5
functional capacity evaluations involving efforts to identify the job tasks an injured6
worker can perform safely when modified temporarily to return to work with his7
former employer.8
D. The functional capacity evaluation report, including the standardized9
functional capacity summary form as promulgated by the office of workers'10
compensation administration shall be completed within seven working days and11
forwarded to the treating physician. The treating physician shall approve the12
functional capacity evaluation findings with notations of any suggested13
modifications.14
E. The vocational rehabilitation counselor shall provide a functional job15
description quantifying the physical demands of the injured worker's job or proposed16
alternative employment in terms of postures, functional activities, forces, weights,17
repetitions, frequency, distances, durations, time frames, and other necessary18
information concerning physical activity and tasks. If a functional job description19
is not available for an injured worker's job or proposed position at the time of testing,20
the vocational rehabilitation counselor or the examiner, if qualified, may be21
requested to perform a job assessment and write a functional job description if the22
examiner has the appropriate training to perform such job assessment.23
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)]
Katrina Jackson HB No. 903
Abstract: Provides for vocational rehabilitation of injured employees in workers'
compensation claims. HLS 12RS-1106 ORIGINAL
HB NO. 903
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Present law provides for rehabilitation of injured employees.
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 retraining from less than 26 weeks to less
than 52 weeks.
Proposed law changes the frequency range of long-term retraining 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.
Present law provides that an injured employee must request and begin a retraining program
within two years.
Proposed law changes the time period from two years to three months.
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 will
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 requires that testing shall be conducted in two consecutive days for a minimum
of five hours on the first day and a minimum of two hours on the second day.
Proposed law allows the second day of testing to be rescheduled for special circumstances
as determined by the examiner, but must be completed within 48 business hours of the initial
visit.
Proposed law requires that when the injured employee returns to work, the functional job
description must be supplied before the evaluation is formed. HLS 12RS-1106 ORIGINAL
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Proposed law does not limit the ability to return to work early.
Proposed law provides that the standardized functional capacity summary form shall be
completed within seven working days and forwarded to the treating physician.
Proposed law requires the vocational rehabilitation counselor to provide a functional job
description to quantify the physical demands of the injured worker's job or proposed
alternative employment.
(Amends R.S. 23:1226(A), (B), (D), and (E); Adds R.S. 23:1227)