When an employee is injured on the job, the goal of any employer is to assist in getting their employee returned to work. This process often includes consultations with a vocational rehabilitation counselor and can also just involve the employer presenting the employee with a modified duty offer of employment. When the employee with a previous no-work restriction is released to a modified work status, many employers often ask if the physician must approve of the modified job. This issue is one that many courts in Louisiana often struggle, and the dispute still leads to litigation.
 
The Louisiana Supreme Court ruled on this issue in Banks v. Indus. Roofing & Sheet Metal Works, Inc., 696 So.2d 551 (La. 7/1/97), ultimately holding that a physician does not have to personally approve of the modified duty job offer. The Court further held that an employer will meet its burden of proving job availability by establishing:

1. the existence of a suitable job within claimant’s physical capabilities and within claimant’s or the employer’s community or reasonable geographic region;
2. the amount of wages that an employee with claimant’s experience and training can be expected to earn in that job; and
3. an actual position available for that particular job at the time that the claimant received notification of the job’s existence.

The Court included no requirement that the job offers be reviewed first by a physician.

The Third Circuit Court of Appeal has, in recent decisions, upheld the finding that physician approval is not necessary for the employer to meet its burden of establishing job availability. Clark v. Sedgwick CMS, 179 So.3d 943 (La.App. 3 Cir. 11/25/15); City of Jennings v. Doucet, 865 So.2d 1056 (La.App. 3 Cir. 2/4/04). However, some courts still have concerns about not getting the physician’s approval. See Alexander v. Sanderson Farms, Inc., 17 So.3d 5 (La.App. 1 Cir. 5/8/09).

Despite not being required by the Louisiana Supreme Court, a best practice is to get the physician to approve of the positions found by the vocational rehabilitation counselor or offered by the employer. Many attorneys for the employee will argue a modified job offer is not valid, if not reviewed by the doctor or that the job offered is not within the restrictions. It is the employer’s responsibility to ensure the modified job offer fits within the restrictions provided by the physician, and the best way to accomplish this is to get the physician to approve it. By getting the physician to approve the job, an employer can:

1. Remove the argument that the job is not approved by the physician
2. Avoid the associated litigation costs when a court must determine if the job falls within the restrictions the physician provided

An employer can potentially be liable for penalties and attorney fees if a court finds they reduced benefits after an employee denies a modified duty job offer that does not fit within the physician provided restrictions. Lafleur v. Alec Elec., 898 So.2d 474 (La.App. 1 Cir. 12/30/04, 6), writ denied, 898 So.2d 1287 (La. 4/8/05), and writ denied, 898 So.2d 1288 (La. 4/8/05). It is also best practice for employers to always have up to date job descriptions with the physical demand level included for when they need to submit a description to a physician.

Allen & Gooch is providing this legal update for informational purposes only. This article should not be construed as legal advice or a legal opinion as to any specific facts or circumstances. You should consult your own attorney concerning your particular situation and any specific legal questions you may have.