When are jobs deemed available during vocational rehabilitation?

When providing vocational counseling services on worker’s compensation cases, our role is to assist the injured worker with a focus on job placement.  Any jobs developed on behalf of the injured worker in their geographic area must be open and available. So, what is the definition of “available?”

Most Louisiana worker’s compensation courts agree that to demonstrate that a job is available within an employee’s physical capabilities, the treating physician must approve the job.

A conflict exists among appellate courts however, as to whether a job may be considered available to the employee before the physician approves the job.
In Banks, Jr. v. Industrial Roofing & Sheet Metal Works, Inc. (No. 96-C-2840, 07/01/97), one of the issues involved the timeliness of when jobs were identified by the vocational counselor as open and available and when they were presented to Banks. In determining job availability, will the court consider jobs that are available when the employee is notified of their existence or when the physician approves them? 

The 3rd Circuit, requires that the vocational counselor identify available jobs, obtain physician approval of those jobs, confirm that the jobs are still available when approved by the physician, and then notify the injured employee of the jobs (East-Garrett v. Greyhound Bus Lines, 99-421 (La. App. 3 Cir. 11/3/99), 746 So.2d 715.  The court explained its reasoning as follows: We find it implicit in the holding of Banks that the employer must establish that the jobs are still in existence when it is determined that they are within the employee’s capabilities.

In Davis v. Cippriani’s Italian Restaurant, , the 1st Circuit Court of Appeal upheld the trial court’s finding that vocational services provided to the employee were inadequate to show that the employee had wage earning capacity because “[t]he counselor was unable to show that the opportunities were still open at the time claimant’s treating physician signed-off on them.”

In Payne v. Lawn Lourd Lawn Service, the 2nd Circuit rejected the argument that an employer must obtain physician approval before notifying an employee of a job. The court found no requirement in the Banks decision for prior physician approval of jobs.

Although there is some disagreement by the courts as to whether a job may be considered available to the employee before the physician approves the job, it would seem that all the courts would agree that the treating physician’s opinion should be sought. Our practice is to provide the injured worker with job openings when they are identified while simultaneously sending the job descriptions to the treating physician for review and approval.  When approved, the employers are re-contacted to determine the status, and the injured worker is notified immediately with the results. Ultimately, it is up to the courts to rule when a job is considered available.

We offer complimentary consultations concerning "hypothetical matters."

To strategize with one of our vocational experts or life care plan experts at Stokes & Associates please call David Barrett at 504-454-5009, visit our website, www.stokes-associates.com or email dbarrett@stokes-associates.com.

Larry S. Stokes, Ph.D.
Aaron Wolfson, Ph.D.
Lacy Sapp, MHS, CRC, LPC, LRC, CLCP 
Todd Capielano, M.Ed., LRC, CRC, LPC, CLCP

David Barrett