Lack of good faith prevents employer from changing vocational counselor

In Louisiana, an employer must show good cause before being able to change its choice of a vocational rehabilitation counselor.

Case name: Carmouche v. Kraft Foods, Inc., No. 10-401 (La. Ct. App. 04/13/11).

Ruling: The Louisiana Court of Appeal held that an employer was not entitled to change its vocational counselor and a truck driver was not entitled to temporary total disability benefits.

What it means: In Louisiana, an employer must show good cause before being able to change its choice of a vocational rehabilitation counselor.

Summary: A truck driver was injured while in the course and scope of his employment. He received vocational rehabilitation counseling. A job was located for the driver as a home-based telephone solicitor. The driver tried the job for three days, then quit, stating that his pain, medicated state, and the antagonism of the people he called made the job too stressful. The employer terminated vocational rehabilitation and reduced his benefits to supplemental earnings benefits. The employer sought to change its choice of vocational rehabilitation counselor. The Louisiana Court of Appeal held that the employer was not entitled to change its vocational rehabilitation counselor and that the driver was not entitled to temporary total disability benefits.

The court explained that no statute supported the conclusion that the employer could change its choice of a vocational rehabilitation counselor at will. The court found that an employer must show good cause, which the employer did not show.

The driver asserted that he was entitled to TTD benefits based on application of the substantial pain doctrine. The court explained that the doctrine is limited to cases involving an award of supplemental earnings benefits. An award of TTD benefits can only be predicated upon a showing that the worker is physically unable to perform any employment, including employment while working in pain. Here, the doctrine did not apply. Every one of the driver's physicians opined that he was physically able to return to employment, so he was not entitled to TTD benefits. However, he was entitled to supplemental earnings benefits.

A dissenting judge opined that the driver was not physically capable of doing the telephone job because of the combined pain, medication, and stress.

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