GOTTE v. AIR CONDUIT LLC (2022)

Writ application denied.

Louisiana Revised Statute 23:1226(B)(3)(c) allows an employer to withhold 50% of the employee's entitled worker's compensation benefits if the employee refuses to comply with rehabilitative services.

Plaintiff's employer reduced his worker's compensation benefits by 50% on the basis plaintiff refused to comply with rehabilitative services. While it is true that plaintiff refused to meet with his counselor, was uncooperative, and ignored several notice letters, plaintiff claimed a conflict of interest and objected to his employer choosing his rehabilitation services counselor. Plaintiff also objected to having said counselor and others attend his doctor visits with him. This presents a serious constitutional issue. Particularly, reducing plaintiff's benefits 50% without a hearing, in my view, constitutes a denial of due process. Plaintiff's right to “file a complaint” is not tantamount to a due process hearing. Allowing the employer to designate the rehabilitation counselor and cut an employee's benefits 50% without a hearing equates to a sham rehabilitation.

Plaintiff has a right and is entitled to a due process hearing before his employer reduces his benefits 50%. I would reverse the lower courts and order the employer to provide plaintiff a hearing before reducing his benefits.

Applicant refused to cooperate with his vocational rehabilitative services counselor as the counselor's hiring by the Respondent necessarily presented a conflict of interest. While apparent, it is a conflict that the legislature has expressly allowed. Further, even though the counselor's attendance at Applicant's doctors’ visits violated La. R.S. 23:1127(D), his remedy was to file a claim with the Office of Worker's Compensation. See La. R.S. 23:1226(B)(3)(a).

While I concur in the denial of the writ, this area of the law warrants legislative reform. See Hargrave v. State, 12-0341 (La. 10/16/12), 100 So.3d 786, 794-796 (Knoll, J. concurring). Currently, employers have unfettered discretion in selecting counselors who are required to provide the best services to employees yet are still beholden to employers. While the statute requires these counselors to maintain certain ethical standards under La. R.S. 23:1226(A), these standards in no way cure the inherent conflict of interest present. Hargrave, supra. Absent legislative action, the current statutory scheme will continue to undermine the quid pro quo underlying the Workers Compensation Act.

Genovese, J., would grant and assigns reasons. Griffin, J., additionally concurs and assigns reasons.