A Louisiana Third Circuit Court of Appeal case published November 25th partly reversed a WCJ’s ruling because of the incorrect application of the legal standard for proving job availability, and includes a weighty concurrence regarding the “state of the law” for vocational rehabilitation. In Clark v. Sedgwick CMS, Walgreens, Kenneth Clark suffered a back injury, the facts of which are undisputed. Walgreens, acting via Sedgwick, paid Clark TTDs, but later converted his benefits to SEBs, based on the reasoning that Clark’s voc rehab counselor had found seven jobs for him. Clark, a high school graduate, was a “model client” according to the counselor, and even prepared a log of his independent job search activities which showed that he applied for 105 positions, to no avail. As such, the WCJ ruled that Clark was entitled to SEBs at his TTDs rate because Walgreens/Sedgwick did not show “that the jobs were available to Clark at the time that his benefits were reduced.” The WCJ also found that Clark was entitled to further voc rehab, but did not award penalties or attorney’s fees for the termination of those services or for the benefit reductions. Walgreens appealed on the basis that the WCJ used the incorrect standard for job availability.
On appeal, the Third Circuit indeed found that, “the WCJ twice stated the incorrect standard after having initially set out the proper standard [which is an actual position available for that particular job at the time claimant received notification of the job’s existence].” The court then stated its decision to remand the matter back to the WCJ, without weighing in on the issue of fees.
However, in a twist, Judge Savoie wrote a concurrence saying, “I agree with the majority’s findings; however, I feel compelled to comment on the state of the law.” Judge Savoie proceeds to question the adequacy of the voc rehab programs currently available to injured workers. The commentary reads in part: “While the law is clear that actual job placement is not necessary, there should be a component of the [three prong employer’s burden] test that includes whether the employee has a reasonable chance of placement in the position…Mr. Clark is competing with a slew of healthy, able-bodied individuals that have inundated the job market due to the downturn in the economy, and it is clearly hampering his efforts to be hired. The fact that Mr. Clark was injured during a weak economy is not his fault, and he should not be made to suffer for it.”
Read the decision in full here.