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Regular Session, 2012
SENATE BILL NO. 607
BY SENATOR PETERSON
WORKERS' COMPENSATION. To provide for the standardization of functional capacity
evaluations in workers' compensation claims. (8/1/12)
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. Early11
referral is critical to the vocational rehabilitation process and shall be initiated12
as soon as possible. Vocational rehabilitation services shall be provided by a13
licensed professional vocational rehabilitation counselor, and all such services14
provided shall be compliant with the Code of Professional Ethics for Licensed15
Rehabilitation 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 SB NO. 607
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work, with a minimum of retraining, as soon as possible after an injury occurs. The1
If the employer or insurer determines that the employee is unable to earn wages2
equal to wages earned prior to the injury, the first appropriate option among the3
following must be chosen by the vocational rehabilitation counselor for the4
worker:5
(a) Return to the same position.6
(b) Return to a modified position.7
(c) Return to a related occupation suited to the claimant's education and8
marketable transferable skills.9
(d) On-the-job training.10
(e) Short-term retraining program (less than twenty-six weeks) of less than11
fifty-two weeks.12
(f) Long-term retraining program (more than twenty-six weeks but not more13
than one year) of at least fifty-two weeks and not more than two years.14
(g) Self-employment.15
(2) Whenever possible, employment in a worker's local job pool must be16
considered and selected prior to consideration of employment in a worker's statewide17
job pool.18
(3)(a) The employer shall be responsible for the selection of a licensed19
professional vocational rehabilitation counselor to evaluate and assist the employee20
in his job placement or vocational training. It shall be the responsibility of the21
licensed professional vocational rehabilitation counselor to meet with the22
employee as soon as possible after vocational services are requested and to23
develop an initial rehabilitation plan. Such rehabilitation plan shall be24
developed with the employee and shall contain all of the following:25
(i) The agreed upon vocational goal of the rehabilitation service.26
(ii) The actual plan to obtain that goal.27
(iii) The cost of any retraining or job modification.28
(iv) The signature of both parties establishing that the plan was29 SB NO. 607
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approved.1
(b) Should the employer refuse to provide these services, or a dispute arises2
concerning the work of the vocational counselor, the employee may file a claim with3
the office to review the need for such services or the quality of services being4
provided. The procedure for hearing such claims shall be expedited as provided in5
R.S. 23:1124.6
(b) (c) An employee shall have no right of action against a vocational7
counselor for tort damages related to the performance of vocational services unless8
and until he has exhausted the administrative remedy provided for in Subparagraph9
(a) (b) of this Paragraph. The running of prescription shall be suspended during the10
pendency of the administrative proceedings provided for in this Paragraph.11
(c) (d) The expedited procedure shall also be made available to the employer12
to require the employee's cooperation in the rehabilitation process. Refusal to accept13
rehabilitation as deemed necessary by the worker's compensation judge shall result14
in a fifty percent reduction in weekly compensation, including supplemental earnings15
benefits pursuant to R.S. 23:1221(3), for each week of the period of refusal.16
* * *17
D. Prior to the workers' compensation judge adjudicating an injured18
employee to be permanently and totally disabled, the workers' compensation judge19
shall determine whether there is reasonable probability that, with appropriate training20
or education, the injured employee may be rehabilitated to the extent that such21
employee can achieve suitable gainful employment and whether it is in the best22
interest of such individual to undertake such training or education. If the workers'23
compensation judge determines that such training or education is appropriate,24
the employer or insurer shall be responsible for the costs of the training or25
education.26
E. When it appears that a retraining program is necessary and desirable to27
restore the injured employee to suitable gainful employment, the employee shall be28
entitled to a reasonable and proper retraining program for a period not to exceed29 SB NO. 607
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words in boldface type and underscored are additions.
twenty-six weeks, which period may be extended for an additional period not to1
exceed twenty-six additional weeks if such extended period is determined to be2
necessary and proper by the workers' compensation judge. an appropriate period3
of time pursuant to Subparagraphs (B)(1)(a) and (b) of this Section. However,4
no employer or insurer shall be precluded from continuing such retraining beyond5
such period on a voluntary basis. An injured employee must request and begin6
retraining within two years three months from the date of the termination of7
temporary total disability as determined by the treating physician. If a retraining8
program requires residence at or near the facility or institution and away from the9
employee's customary residence, reasonable cost of board, lodging, or travel shall10
be borne by the employer or insurer. A retraining program shall be performed at11
facilities within the state when such facilities are available.12
* * *13
§1227. Functional capacity evaluations14
A. For the purposes of this Section, a functional capacity evaluation15
means a detailed evaluation performed by a qualified examiner to objectively16
measure an injured worker's level of function within the context of the demands17
of competitive employment. Measurements of function from a functional18
capacity evaluation will be used to determine an injured worker's ability to19
return to work safely to full or part-time employment with or without20
modification.21
B. (1) A qualified functional capacity evaluation examiner shall be a22
licensed physical therapist or occupational therapist who meets all requirements23
to practice in Louisiana and has completed:24
(a) A minimum of two years of clinical experience evaluating and25
treating adult patients in an outpatient setting.26
(b) A nationally recognized functional capacity evaluation course that27
has been approved for continuing education by the Louisiana Physical Therapy28
Board, the Occupational Therapy Advisory Committee, the State Board of29 SB NO. 607
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Medical Advisors, or the Louisiana State Board of Medical Examiners at the1
time the course was completed.2
(c) A minimum of eight hours of continuing education every two years3
in work-related courses such as ergonomics, job assessments, functional4
capacity evaluations, work conditioning, or work hardening which are approved5
by the Louisiana Physical Therapy Board, the Occupational Therapy Advisory6
Committee, or the State Board of Medical Advisors as being related and7
appropriate.8
(2) The authorized examiner shall provide a proof of compliance with9
Subparagraph (1) of this Paragraph to the employer or insurer.10
C. (1) The authorized examiner shall review pertinent medical records,11
be cognizant of any physical limitations, perform a detailed history and physical12
examination, administer the functional assessment, interpret all relevant data,13
and produce a functional capacity evaluation report including the standardized14
functional capacity summary form, as promulgated by the Office of Workers'15
Compensation Administration. An approved functional capacity evaluation16
shall be evidenced by the scientific rigor of reliability and validity studies, and17
should be primarily functional or dynamic in nature and mimic the job as much18
as possible. A Functional capacity evaluation-based primarily computerized19
testing will not be considered valid.20
(2) Testing shall be conducted in two consecutive days for a minimum of21
five hours on the first day and a minimum of two hours the second day. The22
second day of testing can be rescheduled for special circumstances as23
determined by the examiner, but must be completed within forty-eight business24
hours of the initial visit. If the functional capacity evaluation is not completed,25
them the treating physician and claims adjustor shall be notified and the26
examiner will complete the report as outlined in Subparagraph D with the27
information on-hand, and the Functional capacity evaluation will be considered28
valid.29 SB NO. 607
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(3) The employer, insurer, or third-party administrator shall authorize1
a minimum of twelve hours for the functional capacity evaluation. The2
examiner may request additional hours from the employer, insurer , or third-3
party administrator when necessary to perform an accurate functional capacity4
evaluation for the injured worker.5
(4) When an injured worker attempts to resume employment with his6
previous employer and has a permanent restrictions or is returning to a7
modified employment position, a functional job description shall be supplied8
before the functional capacity evaluation is performed. A four to eight hour9
modified Functional capacity evaluation can be performed in assessing an10
employee's capacity to return to a transitional duty with his current employer.11
(5) Nothing in this Section shall prohibit the use of early return-to-work12
functional capacity evaluations involving efforts to identify the job tasks an13
injured worker can perform safely when modified temporarily to return to14
work with his former employer.15
D. The Functional capacity evaluation report, including the16
standardized "Functional Capacity Summary Form" as promulgated by the17
Office of Workers' Compensation Administration, shall be completed within18
seven working days and forwarded to the treating physician. The treating19
physician shall approve the functional capacity evaluation findings with20
notations of any suggested modifications.21
E. The vocational rehabilitation counselor shall provide a functional job22
description quantifying the physical demands of the injured worker's job or23
proposed alternative employment in terms of postures, functional activities,24
forces, weights, repetitions, frequency, distances, durations, time frames, and25
other necessary information concerning physical activity and tasks. If a26
functional job description is not available for an injured worker's job or27
proposed position at the time of testing, the vocations rehabilitation counselor28
or the examiner, if qualified, may be requested to perform a job assessment and29 SB NO. 607
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write a functional job description if the examiner has the appropriate training1
to perform such job assessment.2
The original instrument and the following digest, which constitutes no part
of the legislative instrument, were prepared by Carla S. Roberts.
DIGEST
Present law provides that, when an employee has suffered an injury covered by workers'
compensation which precludes the employee from earning wages equal to wages earned
prior to the injury, the employee shall be entitled to prompt rehabilitation services. Present
law provides that 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.
Proposed law provides that early referral is critical to the vocational rehabilitation process
and shall be initiated as soon as possible.
Present law provides 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. 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 which is less than twenty-six weeks.
F. Long-term retraining program for more than twenty-six weeks but not more
than one year .
G. Self-employment.
Proposed law retains present law but only if the employer or insurer determines that the
employee is unable to earn wages equal to wages earned prior to the injury, then the
appropriate option for future employment of training must be chosen by the vocational
rehabilitation counselor for the worker.
Proposed law retains present law but relative to the related occupation to which the claimant
should return changes from "marketable skill" to "transferable skills".
Proposed law retains present law but changes the length of long-term retraining program
from more than 26 weeks but not more than one year to at least 52 weeks and not more than
two years and changes the length of short-term retraining program from less than 26 weeks
to not more than 52 weeks.
Present law provides that 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.
Proposed law retains present law but provides that it shall be the responsibility of the SB NO. 607
SLS 12RS-813 ORIGINAL
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Coding: Words which are struck through are deletions from existing law;
words in boldface type and underscored are additions.
licensed professional vocational rehabilitation counselor to meet with the employee as soon
as possible after vocational services are requested and to develop an initial rehabilitation
plan. Such rehabilitation plan shall be developed with the employee and shall contain the
all of the following:
(1)The agreed upon vocational goal of the rehabilitation service.
(2)The actual plan to obtain that goal.
(3)The cost of any retraining or job modification.
(4)The signature of both parties establishing that the plan was approved.
Present law provides that 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.
Proposed law retains present law but provides that if the workers' compensation judge
determines that such training or education is appropriate, the employer or insurer shall be
responsible for the costs of the training or education.
Present law provides that 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. Proposed law changes the 26 weeks to an appropriate period
of time.
Present law provides that 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.
Proposed law changes this requirement for retraining to within three months.
Proposed law provides that a functional capacity evaluation means 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 employm ent. Proposed law
provides that function from a functional capacity evaluation will be used to determine an
injured worker's ability to return to work safely to full or part-time employment with or
without modification.
Proposed law provides that a qualified functional capacity evaluation examiner shall be a
licensed physical therapist or occupational therapist who meets all requirements to practice
in Louisiana and has completed:
A. A minimum of two years of clinical experience evaluating and treating adult
patients in an outpatient setting.
B. A nationally recognized functional capacity evaluation course that has been
approved for continuing education by the Louisiana Physical Therapy Board,
the Occupational Therapy Advisory Committee, the State Board of Medical
Advisors, or the Louisiana State Board of Medical Examiners at the time the
course was completed. SB NO. 607
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words in boldface type and underscored are additions.
C. A minimum of eight hours of continuing education every two years in work-
related courses such as ergonomics, job assessments, functional capacity
evaluations, work conditioning, or work hardening which are approved by
the Louisiana Physical Therapy Board, the Occupational Therapy Advisory
Committee, or the State Board of Medical Advisors as being related and
appropriate.
Proposed law provides that the authorized examiner shall review pertinent medical records,
be cognizant of any physical limitations, perform a detailed history and physical
examination, administer the functional assessment, interpret all relevant data, and produce
a functional capacity evaluation report including the standardized functional capacity
summary form, as promulgated by the Office of Workers' Compensation Administration.
Proposed law provides that an approved functional capacity evaluation shall be evidenced
by the scientific rigor of reliability and validity studies, and should be primarily functional
or dynamic in nature and mimic the job as much as possible. A functional capacity
evaluation-based primarily computerized testing will not be considered valid.
Proposed law provides 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 the second day.
Proposed law provides that the employer, insurer, or third-party administrator shall authorize
a minimum of twelve hours for the functional capacity evaluation. Proposed law provides
that the examiner may request additional hours from the employer, insurer, or third-party
administrator when necessary to perform an accurate functional capacity evaluation for the
injured worker.
Proposed law provides that, when an injured worker attempts to resume employment with
his previous employer and has permanent restrictions or is returning to a modified
employment position, a functional job description shall be supplied before the functional
capacity evaluation is performed. Present law provides that four to eight hour modified
functional capacity evaluation can be performed in assessing an employee's capacity to
return to a transitional duty with his current employer.
Proposed law provides that, nothing in this Section shall prohibit the use of early return-to-
work functional capacity evaluations involving efforts to identify the job tasks an injured
worker can perform safely when modified temporarily to return to work with his former
employer.
Proposed law provides that the functional capacity evaluation report, including the
standardized "Functional Capacity Summary Form" as promulgated by the Office of
Workers' Compensation Administration, shall be completed within seven working days and
forwarded to the treating physician. Proposed law provides that the treating physician shall
approve the functional capacity evaluation findings with notations of any suggested
modifications.
Proposed law provides that the vocational rehabilitation counselor shall provide a functional
job description quantifying the physical demands of the injured worker's job or proposed
alternative employment in terms of postures, functional activities, forces, weights,
repetitions, frequency, distances, durations, time frames, and other necessary information
concerning physical activity and tasks. Proposed law provides that a functional job
description is not available for an injured worker's job or proposed position at the time of
testing, the vocations rehabilitation counselor or the examiner, if qualified, may be requested
to perform a job assessment and write a functional job description if the examiner has the
appropriate training to perform such job assessment.
Effective August 1, 2012. SB NO. 607
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(Amends R.S. 23:1226(A)(B)(D) and(E); adds R.S. 23:1227)