Ellis Hargrave v. State of Louisiana

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-836

ELLIS HARGRAVE

VERSUS

STATE OF LOUISIANA

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APPEAL FROM THE
OFFICE OF WORKERS‟ COMPENSATION - # 4
PARISH OF LAFAYETTE, DOCKET NO. 06-04633
ADAM C. JOHNSON, WORKERS‟ COMPENSATION JUDGE
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SYLVIA R. COOKS
JUDGE

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Court composed of Sylvia R. Cooks, John D. Saunders, and Shannon J.
Gremillion, Judges.

AFFIRMED, AS AMENDED.

Gremillion, J., concurs in part and dissents in part and assigns written reasons.

Michael Benny Miller
Miller & Miller
P.O. Box 1630
Crowley, LA 70527-1630
(337) 785-9500
COUNSEL FOR PLAINTIFF/APPELLEE:
Ellis Hargrave

Sylvia M. Fordice
Assistant Attorney General
556 Jefferson Street, 4th Floor
Lafayette, LA 70501
(337) 262-1700
COUNSEL FOR DEFENDANT/APPELLANT:
State of Louisiana

COOKS, Judge.

The State of Louisiana, through the Department of Transportation and

Development (DOTD) appeals the order of the Workers‟ Compensation Judge

(WCJ) requiring Ellis Hargrave, its employee currently receiving workers‟

compensation benefits, to submit to vocational rehabilitation counseling subject to

the limitations set forth in this court‟s opinion in Crain Bros., Inc. v. Richard, 02-

1342 (La.App. 3 Cir. 4/9/03), 842 So.2d 523. For the reasons that follow, we

affirm, as amended.

FACTS

This dispute originated on June 29, 2005, when Hargrave alleges he was

injured while working for DOTD. This Court has heard aspects of this case before.

See Hargrave v. State through Dep’t of Transp. And Dev., 09-818 (La.App. 3 Cir.

4/7/10), 35 So.3d 437, writ granted, 10-1044 (La. 9/17/10), 45 So.3d 1034,

affirmed, 10-1044 (La. 1/19/11), 54 So.3d 1102.

DOTD sought to obtain vocational rehabilitation counseling for Hargrave.

Difficulty arose when the original counselor, who had begun services, severed his

relationship with the agency that DOTD contracted with for such services. A

second counselor was unsuccessful in arranging an appointment with Hargrave.

DOTD then retained Elier A. Diaz to provide vocational rehabilitation services to

Hargrave. The retention of Diaz also fostered some difficulty, prompting Hargrave

to file a Motion and Order to Quash Conference. The WCJ appointed Diaz as the

vocational rehabilitation counselor in the case by an order signed on July 20, 2009.

Subsequently, DOTD filed an expedited rule to show cause why Hargrave

should not be ordered to cooperate with Diaz or be subject to reduction of his

workers‟ compensation benefits. The crux of the dispute was Hargrave‟s

insistence that the counseling be subjected under the terms approved by this Court

in Crain Brothers, 842 So.2d 523. The rule was heard, and Hargrave was

compelled to cooperate with Diaz, but under the conditions approved in Crain

Brothers. This appeal ensued, wherein DOTD asserts the WCJ erred in ordering

the counseling to proceed under the Crain Brothers conditions, several of which it

contends are vague and contrary to the law.

ANALYSIS

Providing vocational rehabilitation services to injured workers is a

fundamental aspect of workers‟ compensation. Injured employees who are unable

to earn wages equal to what they earned before they were injured are entitled to

“prompt rehabilitation services.” La.R.S. 23:1226(A). Section 1226 mandates that

such services be provided by a licensed vocational counselor. Those services must

be provided by the counselor in accordance with the Code of Professional Ethics

for Licensed Rehabilitation Counselors, found in La.Admin.Code

46:LXXXVI.1601 et seq. Section 1226 also prioritizes the appropriate options that

must be chosen for the worker, including returning him to the same position,

returning him to a modified position, returning him to a related occupation suited

to his skills and education, various educational options, and, finally, self-

employment.

DOTD acted on its obligation to provide rehabilitation services to Hargrave.

In response, Hargrave demanded the following conditions precedent to his

accepting rehabilitation services:

(A) That meetings be held at my office at Hargrave‟s attorney‟s
office;

(B) That Diaz agree not to question Hargrave “as to any facts
other than those facts necessary to provide vocational rehabilitation
under LSA R.S. 23:1226”;

(C) That Hargrave‟s attorney “will be simultaneously copied on
all documents sent to anyone concerning my client. This is to include
correspondence, job analyses, and all appendices to your
correspondence”;

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(D) That Hargrave‟s attorney be a party to all oral conversations
between Diaz and the employer, insurer or their representative or
attorney;

(E) That Diaz will not subject Hargrave “to jobs which are
inappropriate;”

(F) That Diaz will upon request provide his entire file for
copying or provide a copy of your entire file without charge;

(G) That Diaz understands that although he was selected by and
paid by Hargrave‟s employer/insurer, he was dedicated to finding a
job for Hargrave which Hargrave can obtain and also continue to
perform;

(H) That the purpose of the vocational rehabilitation Diaz
provides is for Hargrave‟s benefit;

(I) “No other person has provided vocational rehabilitation in
this case;”

(J) That Diaz or his firm “has no connection, directly or
indirectly,” with DOTD, its insurer or their agents, except that it was
chosen and paid by the employer/insurer to provide vocational
rehabilitation in this case.

These conditions are identical to the conditions approved by this court in Crain

Brothers.

In Crain Brothers, 842 So.2d at 526, we ruled that La.R.S. 23:1226,

“considered in its entirety does not restrict the WCJ from exercising her inherent

power to require that a vocational counselor, selected pursuant to the statute, act in

accordance with the rules regulating his professional conduct to assure his

integrity, honesty and fair dealing in rendering the services prescribed.” The

implementation of the Crain Brothers conditions have been upheld in several

decisions rendered by this Court. See Luquette v. Clayborn Self, 05-1367 (La.App.

3 Cir. 5/3/06), 929 So.2d 817; Moody v. Abrom Kaplan Mem’l Hosp., 05-527

(La.App. 3 Cir. 12/30/05), 918 So.2d 1203. However, as noted in Interiano v.

Fernando Pastrana Construction, 04-430, p.4 (La.App. 5 Cir. 10/26/04), 887

So.2d 547, 549, we “did not hold that the conditions set forth by the claimant‟s

counsel were mandatory in every case or that they should be „deemed necessary by

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the hearing officer‟ in every situation.” We simply found “that La.R.S. 23:1226

does not restrict the worker‟s compensation judge from requiring a vocational

counselor to agree to certain terms,” and we found no manifest error in the WCJ‟s

finding that the conditions set forth by the claimant‟s counsel under those

circumstances were reasonable. Id.

As in Crain Brothers, there is simply nothing included in the record which

indicates that the WCJ committed manifest error in determining these conditions to

be reasonable under the facts of this case, with the exception of condition (I). That

condition provides “[n]o other person has provided vocational rehabilitation in this

case.” We find condition (I) is unreasonable because Diaz cannot assure that no

other counselor provided vocational rehabilitation to Hargrave in the current case,

given that two other vocational rehabilitation counselors have either attempted or

performed vocational rehabilitation services. Thus, adherence to this condition is

not possible in this case.

DECREE

For the foregoing reasons, we affirm the WCJ‟s imposition of the conditions,

with the exception that condition (I) is ordered stricken as it cannot be followed in

this particular case. Costs of this appeal are taxed to the State of Louisiana,

through the Department of Transportation and Development.

AFFIRMED, AS AMENDED.

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STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-836

ELLIS HARGRAVE

VERSUS

STATE OF LOUISIANA

GREMILLION, Judge, concurs in part and dissents in part.

The State of Louisiana through the Department of Transportation and

Development (DOTD) appeals the order of the Workers’ Compensation Judge

(WCJ) requiring Ellis Hargrave, its employee currently receiving workers’

compensation benefits, to submit to vocational rehabilitation counseling subject to

the limitations set forth by the employee’s lawyer and discussed in this court’s

opinion in Crain Bros., Inc. v. Richard, 02-1342 (La.App. 3 Cir. 4/9/03), 842 So.2d

523. The majority wishes to place the stamp of judicial imprimatur on applying

this lawyer’s conditions on all vocational rehabilitation consultations. For the

reasons that follow, I dissent.

Providing vocational rehabilitation services to injured workers is a

fundamental aspect of workers’ compensation. Injured employees who are

subsequently unable to earn wages equal to what they earned before they were

injured are entitled to “prompt rehabilitation services.” La.R.S. 23:1226(A).

Section 1226 mandates that such services be provided by a licensed vocational

counselor in accordance with the Code of Professional Ethics for Licensed

Rehabilitation Counselors, found in La.Admin. Code 46:LXXXVI.1601 et seq.

Section 1226 also prioritizes the appropriate options that must be chosen for the

worker, including returning him to the same position, returning him to a modified

position, returning him to a related occupation suited to his skills and education,

various educational options, and, finally, self-employment.

DOTD acted on its obligation to provide rehabilitation services to Hargrave.

In response, Hargrave’s lawyer required certain conditions precedent to his

accepting rehabilitation services: (A) That Diaz’s meetings with Hargrave be held

at his attorney’s office in Crowley, Louisiana; (B) That Diaz agree not to question

Hargrave ‟as to any facts other than those facts necessary to provide vocational

rehabilitation under LSA R.S. 23:1226;” (C) That Hargrave’s attorney ‟will be

simultaneously copied on all documents sent to anyone concerning my client. This

is to include correspondence, job analyses, and all appendices to your

correspondence;” (D) That Hargrave’s attorney be a party to all oral conversations

between Diaz and the employer, insurer, representative, or attorney; (E) That Diaz

will not subject Hargrave ‟to jobs which are inappropriate;” (F) That Diaz will

upon request provide his entire file for copying or provide a copy of his entire file

without charge; (G) That Diaz understands that although he was selected by and

paid by Hargraves’s employer/insurer, he was dedicated to finding a job for

Hargrave which Hargrave can obtain and also continue to perform; (H) That the

purpose of the vocational rehabilitation Diaz provides is for Hargrave’s benefit; (I)

‟No other person has provided vocational rehabilitation in this case;” and, (J) That

Diaz or his firm ‟has no connection, directly or indirectly,” with DOTD, its insurer

or their agents, except that it was chosen and paid by the employer/insurer to

provide vocational rehabilitation in this case.

Our approval of these conditions in Crain Brothers was clearly premised on

the finding in that particular case that the WCJ did not manifestly err in imposing

the conditions.

The WCJ in Hargrave’s case approved these restrictions on the rehabilitation

services Diaz was to provide. In argument and in brief, Hargrave asserts that the

sole justification for these restrictions is to prevent Diaz from conducting a ‟sham

rehabilitation.” Hargrave cites a plethora of cases in which courts found that the

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rehabilitative services were not being provided as the legislature intended. The

cited jurisprudence indicates that courts recognize ‟sham rehabilitations” when

they are perpetrated. Sham rehabilitation efforts do occur, but the law does not

presume that all rehabilitation efforts seek this end.

Nevertheless, I find that certain conditions imposed by the WCJ would

prevent misconduct by the counselor. The counselor’s job is to find real

alternatives for the injured employee and not to act as a litigation consultant to the

employer. I find no manifest error in the requirement that Hargrave’s attorney be a

party to any discussions about his client or that he be copied simultaneously with

all correspondence from Diaz pertaining to anyone concerning Hargrave

(restrictions (C) and (D)). The condition that Diaz understand and agree that his

client is Hargrave, restriction (G), comports with Canon 2 of the Code of

Professional Ethics for Licensed Rehabilitation Counselors. La.Admin. Code

46:LXXXVI.1602. A restriction that requires the counselor to abide by cannons of

ethics, which are referenced in La.R.S. 23:1226, is necessary, but it cannot be

unreasonable. Likewise, the requirements that the purpose of Diaz’s consultation

is to find a suitable job for Hargrave, restriction (G), and that the purpose of the

consultation is to benefit Hargrave, restriction (H), clearly conform to the purpose

expressed in La.R.S. 23:1226 and are thus unnecessary but not unreasonable.

However, it is impossible for Diaz to abide by restriction (I) because two

others have already attempted, and one to a certain degree accomplished, the

performance of vocational rehabilitation services for Hargrave. It was manifest

error to impose this restriction on Diaz.

I also find it manifestly erroneous to impose any restriction on the counselor

that impedes the rehabilitation process or that is vague. For instance, restriction (E)

impedes the rehabilitation process. The counselor is required to determine whether

a job is “appropriate” for the injured employee, and if the employee disagrees, the

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WCJ then makes that determination. This restriction, the violation of which could

subject Diaz to sanction, serves to chill the actions of the counselor, who will have

to second-guess whether he has violated an order of the WCJ.

Similarly, restriction (B) fails to specify what is off-limits in terms of the

counselor’s questioning of the employee. The restriction does not provide the

counselor with standards sufficient to allow Diaz to determine his compliance. See

Mendoza v. Leon’s Plumbing Co., 04-0189 (La.App. 4 Cir. 12/22/04), 892 So.2d

600.

I find no manifest error in requiring Diaz make his file available for copying,

restriction (F), but do find that the WCJ did manifestly erred in requiring that said

copying be at Diaz’s expense. The party seeking copies customarily is required to

pay for them. If Hargrave prevails at trial, those copies can be taxed as costs of

court. Furthermore, while shifting this expense burden helps keep litigation dollars

in Hargrave’s pocket, it does absolutely nothing to prevent the alleged ill of “sham

rehabilitations.”

Restriction (A), the requirement that all meetings take place at Hargrave’s

attorney’s office, is primarily intended to convenience Hargrave’s counsel, not to

prevent the perpetuation of a “sham.” Nevertheless, I find no manifest error in the

WCJ’s ruling.

Conversely, restriction (J), which requires an affirmation that neither Diaz

nor his “firm” has a “connection” with DOTD, is impermissibly vague. Without a

more definite statement as to what form of “connection” between Diaz or his firm

and DOTD is prohibited, the restriction is unreasonable.

The decision of the WCJ to impose restrictions on vocational rehabilitation

services is reviewed under the manifest error standard. But those restrictions must

adequately inform the counselor of the duties imposed and the practices proscribed.

They may not be vague. Further, the decision to impose restrictions on

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rehabilitative services must not impede the rehabilitative process. No boilerplate

list of restrictions has heretofore been given sanction in all cases; the decision to

impose restrictions must be made on a case-by-case basis.

I would affirm the WCJ’s imposition of restrictions (A), (C), (D), (F), (G),

and (H), subject to the aforementioned amendment, and reverse the imposition of

restrictions (B), (E), (I), and (J).

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