So you were hurt on the job and are suffering a related wage loss covered by the Louisiana Workers Compensation Act. You have discovered your workers’ compensation claim pays your related medical bills, vocational rehabilitation benefits, mileage benefits, and a portion of your lost wages. Your lawyer has made sure that your Average Weekly Wage has been correctly calculated.
Now your treating doctor(s) says that you are physically able to return to work but you are unable to return to the same position because of your accident-related disability AND your employer of injury does not have alternative modified duty work for you. You are not earning AND are not capable of earning 90% of your pre-injury wage in another position. You want to return to work but are having difficulty finding a suitable job given your skills, education, and work restrictions. You (or your workers’ compensation lawyer) are contacted by the workers’ compensation insurance company’s vocational rehabilitation counselor to schedule a vocational rehabilitation conference.
You realize that the value of your potential workers’ compensation settlement will be primarily made up of any unpaid past wage loss, mileage and medical benefits (check with your healthcare providers to make sure they have been paid by the workers’ compensation insurance company) and your future mileage, wage loss, vocational rehab benefits and medical (a Medicare Set-Aside may be required). If you lose any of these benefits, the value of any potential settlement will also probably be reduced.
You also know that to avoid losing your wage loss benefits, you must be actively engaged in the vocational rehabilitation process to disprove any damaging errors in the vocational rehabilitation counselor’s Labor Market Survey (“LMS”). Both you and your lawyer are attending the meeting. What should you expect?
The counselor may assess through an interview and testing your abilities, limitations, physical and mental restrictions, general temperament, interests, aptitude, social skills, education, and other relevant characteristics and needs. However, the main purpose of this meeting is to gather information from you to try to reduce your weekly workers’ compensation benefits. A Labor Market Survey will soon be generated and delivered to you (or your lawyer) that supposedly identifies:
- the existence of a suitable job ( considering your age, experience, and education) within your physical restrictions assigned by your doctor and within a reasonable geographic region;
- the amount of wages you can expect to earn in that position;
- an actual position available for that particular job at the time you receive notification of the job’s existence.
Actual Job Placement is not required for the workers’ compensation insurer and your employer of injury to try to reduce your weekly workers compensation benefits. They just have to point to suitable jobs that exist. Your wage loss benefits will probably be reduced using the jobs pointed to in the Labor Market Survey. Therefore, you need to gather information to defend your benefits. To try to avoid your weekly benefits from being reduced or terminated, you must thoroughly investigate all positions identified by the vocational counselor in the Labor Market Survey (list of jobs) she or he mailed to you (probably by certified mail) to determine if they are suitable. DO NOT WAIT, OTHERWISE, YOU WILL BE GATHERING STALE EVIDENCE!
Gather as many documents and witnesses you can to help you prove what the proposed job is really about. Print out the actual job description online, call the potential employer to express your sincere interest in the job, apply for the position, and gather as much information on the phone and at the job interview about the physical, education, and experience requirements of the job and pay rate as possible. Keep a journal to document the date, place, time, name of the person you spoke with, and what they said about the actual position as compared to the job described in the vocational counselor’s labor market survey. Save a copy of your job applications with these prospective employers. Photograph it with your phone, if necessary. Hopefully, you get the job, but if you do not, at least you will have a better idea of what the job is about.