Lafayette Parish Man’s Attempt to Remove Vocational Rehabilitation Counselor Fails

thick-metal-welding-mask-for-protecting-the-eyes-1632419-1024x784Under Louisiana law, an employee who is injured while on the job is entitled to “vocational rehabilitation services” (services that help an individual overcome his or her own physical or mental disability in order for that individual to return to work) provided by a vocational rehabilitation counselor. La. R.S. 23:1226 (2016). While an injured employee is entitled to a vocational rehabilitation counselor, is the employee able to dictate his or her own rules and requirements that the vocational rehabilitation counselor must follow? And if an employee is unhappy with the performance of his or her vocational rehabilitation counselor, then what can he or she do to remove that person?

Ellis Hargrave was injured while working for the Louisiana Department of Transportation and Development (“DOTD”). After the injury, DOTD began providing vocational rehabilitation services to Mr. Hargrave. After juggling multiple vocational rehabilitation counselors, DOTD finally settled on assigning Elier Diaz to Mr. Hargrave. Before their first meeting, Mr. Hargrave’s attorney sent a letter containing ten conditions that Mr. Diaz had to agree to before Mr. Hargrave would allow counseling services. The purpose of these conditions was to make Mr. Diaz put Mr. Hargrave’s interests over the interests of DOTD. Mr. Diaz declined to agree with the ten conditions. Mr. Diaz sent a letter to Mr. Hargrave, explaining that he will uphold the standards of the applicable law but declined to agree to any of the extra standards or conditions demanded. Even though the parties disagreed about the ten conditions, an initial evaluation meeting took place with Mr. Diaz, Mr. Hargrave, and Mr. Hargrave’s attorney. The disagreement over the ten conditions eventually led to litigation. This issue eventually ended up at the Supreme Court of Louisiana where it held that nothing in Louisiana law required that a rehabilitation counselor must agree to certain conditions prior to providing vocational rehabilitation services. Hargrave v. State, 100 So.3d 786, 793 (La. 2012).

While the long litigation process over one issue ended, another one soon began. Mr. Hargrave filed another claim with the Workers’ Compensation Judge (“WCJ”) asking the WCJ to remove Mr. Diaz as vocational rehabilitation counselor because Mr. Diaz violated Louisiana law. At trial, Mr. Hargrave asserted that Mr. Diaz violated Louisiana law when he met with DOTD without allowing Mr. Hargrave or his counsel to attend and that Mr. Diaz violated Louisiana law when he stated that Mr. Hargrave and his attorney agreed to the meeting. The WCJ disagreed, holding that Mr. Diaz did not violate Louisiana law. Mr. Hargrave appealed.

On appeal, Mr. Hargrave argued that the WCJ erred by finding Mr. Diaz did not violate Louisiana law when he stated that Mr. Hargrave and his attorney agreed to the meeting and by finding that Mr. Diaz did not violate Louisiana law by not including Mr. Hargrave and his attorney in the meeting with DOTD. Under Louisiana law, a party may not make a misrepresentation for the purpose of obtaining or defeating a workers’ compensation payment or benefit. La. R.S. 23:1208 (2016). Mr. Hargrave contended that Mr. Diaz purposely met with Mr. Hargrave’s physician on two occasions without the presence of Mr. Hargrave. The Court of Appeal disagreed. It emphasized the fact that in both instances Mr. Hargrave and his attorney refused to conduct a conference, either by not participating via telephone or by leaving before the conference started. The Court oofAppeal also noted that Mr. Hargrave failed to identify any specific statements by Mr. Diaz that were false.

Mr. Hargrave also argued that Mr. Diaz violated Louisiana law by meeting with DOTD without Mr. Hargrave and his attorney. Under Louisiana law, an employee must be given notice of any verbal communication or conference at least fifteen days in advance and shall be given an opportunity to attend or participate in that communication or conference. La. R.S. 23:1127 (2016). The Court of Appeal disagreed. It again noted that this meeting would have taken place with Mr. Hargrave’s attendance, but Mr. Hargrave and his attorney unilaterally canceled the conference. Thus, the Court of Appeal found that Mr. Diaz did not violate Louisiana law when meeting with DOTD.

Mr. Hargrave’s case illustrates that vocational rehabilitation counselors are held only to the standards of applicable law. Preventative agreements to ensure that a counselor will only act in the interest of the employee are excessive, as these counselors are already held to standards that ensure fair treatment. Additionally, Mr. Hargrave’s case illustrates the difficulty in removing a vocational rehabilitation counselor. To remove a vocational rehabilitation counselor, one needs the help of an excellent attorney.

Additional Sources: ELLIS HARGRAVE v. ELIER DIAZ

Written by Berniard Law Firm Blog Writer: John Trepel

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