The opinion
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
14-338
JUAN CARLOS ALLEN
VERSUS
AFFORDABLE HOME FURNISHINGS
AND LOUISIANA SAFETY ASSOCIATION OF TIMBERMEN
************
APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION, DISTRICT 4
PARISH OF LAFAYETTE, NO. 07-08002
HONORABLE SHARON MORROW, JUDGE
************
J. DAVID PAINTER
JUDGE
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Court composed of John D. Saunders, Billy Howard Ezell, and J. David Painter,
Judges.
AFFIRMED.
Michael B. Miller
P.O. Box 1630
Crowley, LA 70527
COUNSEL FOR PLAINTIFF-APPELLANT:
Juan Carlos Allen
Sean Rastanis
Travis Garrison
909 Poydras St., Ste. 1800
New Orleans, LA 70112
COUNSEL FOR DEFENDANT-APPELLEE:
Affordable Home Furnishings
PAINTER, Judge.
Plaintiff, Juan Carlos Allen, appeals the judgment of the Workers’
Compensation Judge (WCJ) reducing his benefits retroactively to September 24,
2103, for refusing to participate in vocational rehabilitation.
FACTS
Allen was injured in the course and scope of his employment with
Affordable Home Furnishings (Affordable) in July 2013. Vocational rehabilitation
was originally scheduled with Jody Villion-Devillier. Allen declined to participate
in counseling after Devillier refused to agree to certain conditions set by his
counsel. Affordable filed a motion to compel vocational rehabilitation and to
reduce benefits. The WCJ ordered the employer to find another rehabilitation
specialist employed by a different agency and to submit the name to counsel for
Allen. The WCJ gave Allen ten days to object to the rehabilitation specialist
named. Affordable submitted the name of Mona Davie to counsel for Allen, and no
objection was interposed. A conference between Davie and Allen was set for
September 24, 2013. On September 11, 2013, counsel for Allen sent a letter to
Davie requesting that she agree to certain conditions and asking that if she did not
agree to the conditions, she list the conditions with which she did not agree to
follow. Davie did not reply to the letter. On September 24, 2013, when Davie went
to meet with Allen, she was again presented with a written list of conditions. At the
end of the document, she was given a choice of signing after a line which stated: “I
have reviewed the foregoing conditions and have struck all conditions which I do
not agree to follow. The remainder of the conditions I will comply with” or one
which stated: “It is my decision not to sign this document.” Davie testified that she
told counsel that if she was required to sign, she would need more time. She did
not see Allen that day, and it was her understanding that she would not be allowed
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to see him unless she signed. She signed a sheet stating that: “I, Mona Davie, am
taking the attach (sic) document to review prior to signing.” At the hearing, she
clarified her refusal to sign saying that her failure to sign was not an indication that
she would not follow the law or the ethical guidelines of her profession.
At the conclusion of the hearing, the WCJ ordered that Allen’s benefits were
to be reduced by fifty percent retroactive to September 24, 2013, until the
vocational conference took place and that counsel for both parties copy each other
on any correspondence and/or emails sent to the vocational counselor. Allen
appeals.
DISCUSSION
Allen first asserts that the WCJ erred in reducing indemnity benefits by fifty
percent. La.R.S. 23:1226 provides as follows:
A. When an employee has suffered an injury covered by this Chapter
which precludes the employee from earning wages equal to wages
earned prior to the injury, the employee shall be entitled to prompt
rehabilitation services. 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 as
established by R.S. 37:3441 et seq.
B. (1) 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 (less than twenty-six weeks).
(f) Long-term retraining program (more than twenty-six weeks but not
more than one year).
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(g) Self-employment.
(2) Whenever possible, employment in a worker’s local job pool must
be considered and selected prior to consideration of employment in a
worker's statewide job pool.
(3)(a) 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. Should the
employer refuse to provide these services, or a dispute arises
concerning the work of the vocational counselor, the employee may
file a claim with the office to review the need for such services or the
quality of services being provided. The employee shall have a right to
an expedited summary proceeding pursuant to R.S. 23:1201.1(K)(8).
The workers’ compensation judge shall set a hearing date within three
days of receiving the motion. The hearing shall be held not less than
ten, nor more than thirty days, after the employer or payor receives
notice, delivered by certified or registered mail, of the employee’s
motion. The workers’ compensation judge shall provide notice of the
hearing date to the employer and payor at the same time and in the
same manner that notice of the hearing date is provided to the
employee or his attorney. For the purposes of this Section, an
employee shall not be required to submit the dispute on the issue of
vocational services to mediation or go through a pretrial conference
before obtaining a hearing. The hearing shall be conducted as a rule to
show cause.
(b) An employee shall have no right of action against a vocational
counselor for tort damages related to the performance of vocational
services unless and until he has exhausted the administrative remedy
provided for in Subparagraph (a) of this Paragraph. The running of
prescription shall be suspended during the pendency of the
administrative proceedings provided for in this Paragraph.
(c) Upon refusal by the employee, the employer or payor may reduce
weekly compensation, including supplemental earnings benefits
pursuant to R.S. 23:1221(3), by fifty percent for each week of the
period of refusal. Reduction of benefits by the employer or payor shall
be made in accordance with the provisions of R.S. 23:1201.1(A)
through (E).
C. (1) Rehabilitation services required for disabled workers may be
initiated by:
(a) An insurer or self-insured employer by designating a rehabilitation
provider and notifying the office.
(b) The office by requiring the insurer or self-insured employer to
designate a rehabilitation provider.
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(c) The employee, through a request to the office. The office shall
then require the insurer to designate a rehabilitation provider.
(2) Rehabilitation services provided under this Part must be delivered
through a rehabilitation counselor approved by the office.
As in Hargrave v. State, 12-341 (La. 10/16/12), 100 So.3d 786, Allen seems
to be arguing that the conditions are a reasonable response to the history of sham
rehabilitation cases in the past. However, the court in Hargrave addressed the
effect of the 2003 and 2005 amendments to 23:1226 on the imposition of
conditions on a rehabilitation counselor.
The 2003 amendment therefore allowed the employee to file a claim
with the OWC to review the “quality of services being provided” if “a
dispute arises concerning the work of the vocational counselor....”
Acts 2003, No. 980. The 2003 amendment also added paragraphs 3(b)
and 3(c) to grant the counselor limited immunity from tort and to
allow the employer to compel the employee’s cooperation in the
rehabilitation process. If the employee refuses to accept rehabilitation
as deemed necessary by the OWC, he shall be subject to a fifty
percent reduction in weekly compensation for each week of the period
of refusal. La.Rev.Stat. 23:1226(B)(3)(c). The 2005 amendment
mandated the counselor be a licensed professional vocational
rehabilitation counselor. Acts 2004, No. 257. Thus, the legislature
clearly recognized a right of the employee to challenge the quality of
the vocational rehabilitation services and, consequently, set forth a
procedure for resolving any disputes concerning the work of the
vocational rehabilitation counselor.
....
. . . . As the Interiano [v. Fernando Pastrana Const., 04-430
(La.App. 5 Cir. 10/26/04), 887 so.2d 547] court reasoned, there is no
requirement in La.Rev.Stat. 23:1226 that a vocational rehabilitation
counselor must agree to certain conditions prior to providing
vocational rehabilitation services. Certainly absent any showing by
the claimant that there is an actual dispute as to the provision of
services or the quality thereof, requiring the counselor to abide by
such conditions, even if intended as a prophylactic measure,
necessarily resorts to speculation and conjecture as to the future
actions of the counselor.
In other words, since the amendments, a claimant has a means of redress
when a rehabilitation counselor does not fulfill the statutory mandate. However, a
record of abuse must first be made before a remedy can be fashioned by the WCJ.
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Therefore, conditions may not be imposed on rehabilitation in advance of the
provision of services.
Allen further argues that he did not refuse rehabilitation arguing that the
WCJ found only an obstruction of rehabilitation services. Davie testified, however,
that it was her understanding that she would not be allowed to meet with Allen
unless she signed the document containing the conditions. There was no testimony
to suggest that the idea was mistaken or that she was told that she did not need to
sign the document. Therefore, we find no error in the decision to reduce benefits
from the scheduled date of the vocational rehabilitation conference.
Excluded Testimony
Allen next argues that it was error on the part of the WCJ to sustain
Affordable’s objection to questions posed to Davie by counsel for Allen regarding
when she might sign a document and what a client might demand of her as a
counselor. Affordable objected to the questions as irrelevant, and the WCJ
sustained the objections. We find no error in this determination since the questions
were not such as to elicit information regarding whether Allen’s refused vocational
rehabilitation services, which was the sole purpose of the hearing.
Correspondence
Finally, Allen argues that the trial court erred in ordering Allen and his
counsel to copy counsel for Affordable on all correspondence sent to Davie since
this was not prayed for in the motion. The motion to reduce benefits requested
additional relief as detailed in the attached motion. The motion asked that the WCJ
issue an order prohibiting Allen’s counsel from sending ex-parte communication to
Davie. The judge’s decision to require Allen and his counsel to copy opposing
counsel on all correspondence with Davie is a reasonable response to this request
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since granting the relief sought would prohibit correspondence of any kind with
Davie. Therefore, we find no error in the order granted by the trial court.
CONCLUSION
For these reasons, the judgment of the trial court is affirmed. Costs of this
appeal are assessed to the Plaintiff-Appellant, Juan Carlos Allen.
AFFIRMED.
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