Sonic Ambassador v. Richard

Citation: 270 So. 3d 847Docket: 18-708

Court: Louisiana Court of Appeal; April 24, 2019; Louisiana; State Appellate Court

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On August 22, 2012, Damon Richard sustained injuries during his employment with Sonic of Ambassador and was treated by Dr. John D. Sledge, III, who determined he was capable of sedentary work as of July 8, 2015. Sonic requested Richard to participate in vocational rehabilitation services through GENEX, which he declined, citing prior involvement by another GENEX employee. Subsequently, on January 8, 2016, Sonic filed a motion to compel vocational services, prompting Richard to dispute the vocational services and seek penalties and attorney fees on May 18, 2016, under La.R.S. 23:1226. Sonic filed another motion on June 30, 2016, proposing CoreCare Management for vocational rehabilitation after the court ruled GENEX could not provide these services due to its prior medical management role. Richard's attorney set conditions that CoreCare's counselor, Shelley Brantley, had to accept before meeting with Richard, which she refused. A hearing on February 18, 2017, led to a judgment denying Sonic's motion to compel vocational rehabilitation, as the trial court believed Brantley's testimony was necessary for resolution. 

On October 2, 2017, although Brantley was present, the OWC determined her testimony was unnecessary. Sonic argued, referencing Hargrave v. State, that Brantley could not be compelled to agree to conditions since there was no dispute about the quality of services. Richard’s counsel contended that Brantley simply needed to indicate which conditions she would follow. No new evidence was presented, and the OWC ordered the continuation of vocational rehabilitation services, compelling Richard to meet with the counselor for an information exchange, while acknowledging that further refusal could lead to penalties.

Mr. Miller argues that his client receives all necessary information in a single meeting with Ms. Brantley and has no recourse if she declines to answer certain questions. The court clarifies that if Ms. Brantley refuses to provide answers compliant with the Code of Professional Ethics, Mr. Miller's client may choose not to proceed. The court orders a meeting for information exchange between Mr. Richard, the vocational rehabilitation representative, and Mr. Miller, allowing Mr. Richard to decide on the vocational rehabilitation process. 

Subsequently, Mr. Richard's case faced a rule to show cause hearing set for January 19, 2018, to determine potential dismissal. On January 5, 2018, the Office of Workers' Compensation (OWC) granted the motion to compel vocational rehabilitation and dismissed the case without prejudice, before the scheduled hearing. A judgment of dismissal was entered on February 6, 2018. Mr. Richard's counsel, Sonic of Ambassador, argued that the rule to show cause was issued in error and requested the hearing be rendered moot. Mr. Richard appealed the dismissal, claiming deprivation of a trial on the merits and asserting that the dismissal could adversely affect his claim. He raised several assignments of error, including the dismissal's correctness, the appropriateness of vocational rehabilitation, the failure to address his dispute regarding vocational services, and errors in factual findings and the judgment modification without new evidence. 

The analysis references Louisiana Revised Statutes 23:1226, which states that injured employees are entitled to prompt rehabilitation services if their injury prevents them from earning prior wages.

Vocational rehabilitation services must be provided by a licensed professional vocational rehabilitation counselor, adhering to the Code of Professional Ethics. The primary objective is to facilitate the return of disabled workers to employment with minimal retraining as soon as feasible after an injury. Available options for reintegration include returning to the same or a modified position, transitioning to a related occupation, on-the-job training, short-term retraining (under 26 weeks), long-term retraining (26 weeks to one year), or self-employment. Local job opportunities should be prioritized over statewide options.

Employers are responsible for selecting a licensed vocational rehabilitation counselor for employee evaluation and assistance. If an employer fails to provide these services or if disputes arise, employees may file a claim for service review with the office, which will be processed through an expedited hearing. A workers' compensation judge will schedule a hearing within three days of the motion's receipt, to occur between ten and thirty days thereafter. Employees are exempt from mediation or pretrial conferences before the hearing.

Employees may not pursue tort claims against vocational counselors until administrative remedies are exhausted, and the statute of limitations will be paused during these proceedings. Refusal of rehabilitation services by an employee can lead to a 50% reduction in weekly compensation by the employer.

Rehabilitation services can be initiated by insurers, self-insured employers, or employees through requests to the office, which must then ensure that services are provided by an approved rehabilitation counselor. In the referenced case, the only dispute before the Office of Workers' Compensation (OWC) was regarding the motion for vocational rehabilitation services.

A review of the record indicates that the Office of Workers' Compensation (OWC) did not address any issues related to Mr. Richard's injury or entitlement to compensation, focusing solely on whether vocational rehabilitation with Ms. Brantley would proceed. The OWC's judgment, which granted a motion to compel vocational rehabilitation, dismissed the case "without prejudice," properly concluding the matter as the only issue had been resolved. The dismissal language will be amended to clarify that it pertains only to the vocational rehabilitation aspect of Sonic's claim, preserving all other rights and remedies for Mr. Richard.

Mr. Richard's assertion that Sonic opposed the dismissal is incorrect; Sonic suggested to the OWC that a hearing on the dismissal notice was moot since the claim had already been dismissed. This communication was made with the approval of Mr. Richard's counsel. Mr. Richard’s arguments focus on the trial court's decision to allow vocational rehabilitation to proceed with Ms. Brantley, who declined conditions proposed by Mr. Richard's counsel prior to their meeting.

Sonic's motion to compel rehabilitation was justified as it responded to a history of "sham rehabilitation" in workers' compensation. The OWC ruled that Ms. Brantley was not obligated to specify which conditions she would accept, referencing the Louisiana Supreme Court’s decision in Hargrave, which deemed such conditions unnecessary and unreasonable. The court noted that legislative amendments to La.R.S. 23:1226 granted employees the right to challenge the quality of vocational rehabilitation services and provided a mechanism for resolving disputes over a counselor's work.

The court, in Allen v. Affordable Home Furnishings, reaffirmed that conditions cannot be imposed on rehabilitation counselors before services commence. The amendments from 2003 and 2005 allowed employees to file claims regarding service quality and granted limited immunity to counselors while enabling employers to require employee cooperation in rehabilitation. Noncompliance could result in a fifty percent reduction in weekly compensation for each week of refusal.

La.Rev.Stat. 23:1226(B)(3)(c) requires vocational rehabilitation counselors to be licensed professionals, as established by the 2005 amendment. The statute allows employees to challenge the quality of vocational rehabilitation services and provides a resolution process for disputes. The court in Interiano v. Fernando Pastrana Const. clarified that there is no prerequisite for a vocational rehabilitation counselor to agree to conditions before offering services, unless a claimant demonstrates an actual dispute regarding service quality. Without evidence of such a dispute, imposing conditions would be speculative. Consequently, after the amendments, claimants can seek remedies only after documenting abuse by counselors. In this case, since no services had been rendered, there was no basis for disputing their quality. Therefore, the Office of Workers' Compensation's judgment to proceed with vocational rehabilitation services and dismiss Mr. Richard's motion was upheld. The dismissal was amended to clarify it pertained only to vocational rehabilitation, preserving all other rights and remedies for the worker. The costs of the appeal were assigned to the appellant, Damon Richard. The judgment was affirmed, with amendments noted.