The following is a list of frequently asked questions about Louisiana Workers’ Compensation Law organized by general categories. Please be advised that the responses provided are only general in nature and do not constitute legal advice. The information provided is for informational purposes only. Contact with this website does not constitute an attorney-client relationship. For legal advice on any particular set of facts or situations, please contact an attorney.
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Retroactivity of Law Changes
The Claims Process and Settlements
The Employment Relationship and the “Statutory Employer”
Accidents (definition); Arising out of and in the Course of Employment
Occupational Diseases
Calculating the Compensation Rate
Disability Benefits
Offsets and Credits
Medical Benefits
Claims Against Third Parties
1. Retroactivity of Law Changes
When the legislature adds to or changes the workers’ compensation law how do I know whether the change will apply to claims that I am currently handling or only applies to claims that arise after the date of the effective date of the law change?
The issue of the “retroactivity” of the law will sometimes become the basis for a dispute, which will require judicial interpretation. The rule of law that governs this issue is established in Louisiana’s Civil Code Article 6:
“In the absence of contrary legislative expression, substantive laws apply prospectively only. Procedural and interpretive laws apply both prospectively and retroactively, unless there is a legislative expression to the contrary.”
Thus, legislative enactment that creates new rights or takes away prior rights will be considered “substantive” and can only be applied to claims that arise after the date of the enactment. An example would be the 1989 legislative change in the definition of an “accident” which established very restrictive criteria for the compensability of a heart attack at work. This was a substantive law change that could only be applied to cases after the effective date of that enactment. A statute that merely prescribes the method of enforcing, processing, administering, or determining a right, liability, or statute which previously existed is a procedural law and will be applied retroactively. Even an important matter such as when a claim must be filed (“prescription”) has been considered to be a procedural law. For example, in 1986 the legislature amended the time limit for making claim for medical benefits (R.S. 23:1209). This law change applied to all claims filed after the effective date of that amendment to the workers’ compensation act.
What about the published opinions of the courts of appeal or the Louisiana Supreme Court?
Louisiana jurisprudence is often referred to as “civilian” or based on the civil law as opposed to the “common law” tradition. In most matters there is very little difference except that the Louisiana courts have maintained that their role is to “interpret” the intent of the legislature in drafting laws rather than in creating law through judicial opinions. Thus, it is extremely rare for a Louisiana court to issue an opinion, other than one classified as “interpretive” of the law. Court decisions will, therefore, apply retroactively to all cases and all open claims that may ultimately fall within their jurisdiction. This is why it is important for the adjuster to not only be aware of the law as written in the statute but also to know how that law is interpreted by the courts.
2. The Claims Process and Settlements
I just received a “notice of mediation” on a claim that I am paying weekly benefits and have been paying all medical bills. Why would the Office of Workers’ Compensation be sending me this form?
Although a claim should not be filed by an injured worker unless there is a dispute such as late payment or termination of weekly benefits or medical benefits, occasionally an adjuster will receive a notice from the OWC that a claim is being filed by the employee without any indication that there is a problem. The most common explanation is that the claimant has retained the services of an attorney and the attorney is filing the claim simply to put the case in a posture for settlement. However, when there is no legitimate basis for filing the claim it can be dismissed by the court as premature.
What happens at the mediation conference?
This is an informal proceeding in which no judge is present and no testimony is transcribed. The mediator is an attorney who acts as an impartial party. The mediator will give each party an opportunity to state their side of the issues in dispute. Whenever possible the mediator will assist the parties in resolving the dispute. If the matter is not resolved at the conference, the mediator will serve the insurer and the employer or their representative (adjuster or attorney) with a copy of the claim form. The attorney for the employer and insurer will have fifteen days from the date of this service to file an Answer to the claim.
In some of the other states that I handle we cannot settle the future medical exposure. Can this be settled in Louisiana?
The entire future obligation of the employer can be released through settlement. A workers’ compensation judge must approve the settlement of a workers’ compensation claim. The law also requires that the insurer have the approval from the insured.
I have a claim that I have denied based on my investigation, which has raised serious questions about the occurrence of an accident. Am I required to file a formal dispute (LDOL Form 1008) to contest the claim?
Under these circumstances you do not need to do anything but advise the claimant that your investigation does not support his claim that an accident occurred at work. Do not reveal the details of your investigation since this claim may go into litigation and your attorney should decide what is disclosed and when to make the disclosure to the claimant.
3. The Employment Relationship and the “Statutory Employer”
Does a Louisiana employer have an obligation to pay workers’ compensation benefits to a “casual” employee?
Yes. Louisiana does not have a “casual employment” exclusion.
How many employees must a Louisiana employer have on their payroll to be covered under the workers’ compensation law?
There is no numerical threshold in our workers’ compensation law. An employer with only one employee is covered by the law and is required to provide workers’ compensation insurance to protect that employee. However, a sole proprietor can waive their own coverage so that their wages will not be included in the computation of the premiums.
One of my insureds (not in the construction business) is building his new home. Instead of having a contractor he has hired the various subcontractors such as the carpenters, plumber and electrician. Will he be considered an “employer” or “statutory employer” should any of the workers become injured on the job?
So far the case law has held that this individual is not the employer or “statutory employer” of any employee of the subcontractors. However, bad facts could very well create bad law (eg. a very serious injury or death and no insurance to cover the claim). Normally a homeowner will not be considered the employer of anyone who does work on the home. The reason for this rule is that this is not considered to be “trade, business or occupation” of the homeowner. However, when a person is building a home and decides to save money by eliminating the general contractor and acting like a general contractor by hiring the various trades, a court might look upon this particular project as his “trade, business or occupation”. We have numerous examples in the jurisprudence in which the courts have held that one can be engaged in more than one occupation at the same time.
My insured is a general contractor who hired a mud hauling company to deliver mud to a job site. The contractor was given a certificate of insurance showing that the mud company did have workers’ compensation insurance. However, the owner of the company who is one of the drivers has excluded himself from his insurance coverage. If the owner gets injured on my insured’s job will he be considered as an employee of the general contractor or will he be classified as an “independent contractor”?
Although logic and fairness would suggest that this individual should not be able to recover workers’ compensation benefits from the general contractor, it is going to be very difficult to avoid coverage. The owner of the mud hauling business who is injured on this project could seek coverage from the general contractor and its workers’ compensation insurer under two theories. The first would be that he is also an employee of the mud hauling company and as such he is to be regarded as a statutory employee of the general contractor under R.S. 23:1061. If the mud hauling company is not a legal entity (corporation or partnership), then the owner of the mud hauling business could argue that although he may be an “independent contractor” he is performing manual labor which would make him an “employee” of the general contractor under the case law that has interpreted the definition of “independent contractor” in La. Rev. Stat. 23:1021(6).
There are some defenses considered depending on the particular facts of your case. One that should be considered is the general contractor’s right to seek indemnification from the mud company under the provisions of R.S. 23:1062.
4. Accidents (definition); Arising out of and in the Course of Employment
I have a claim for a heart attack that occurred at work. Will this be covered under the Louisiana law?
Heart claims are only covered if the work that the employee was performing at the time of the onset of the heart attack was physically (emotional stress is not considered) “unusual” or “extraordinary” in comparison to the exertion experienced by the average employee in that occupation [R.S. 23:1021(7)(e)]. To determine whether your claim is a covered event you will need to check with the employer to find replica handbags out if the physical stress was unusual for this employee in comparison to other workers doing the same job. It is very important to determine any differences. For example, all truck drivers may perform the same task but the truck driven by the injured employee did not have automatic steering. This single difference could be viewed by the courts as sufficient to make his job “unusual”.
An employee who had an aneurysm fainted and fell at work causing injuries to her back. Is the employer responsible for the back injury and/or the treatment for the aneurysm? What about the disability that may be more serious due to the aneurysm?
This is generally referred to as an “idiopathic fall” (unknown cause). In your example the cause of the fall has been established (aneurysm) and one can assume that there was no employment risk that caused the aneurysm. Although it seems unfair, the employer will be responsible under the workers’ compensation law for the injuries that resulted from the fall (back injury). However, the employer is not responsible for the treatment of the aneurysm. The employer should also be free of any responsibility for any increased disability due to the aneurysm. The court would be required to consider the earning capacity of the employee assuming the only injury was to the back. You should also consider a possible Second Injury claim. If the employer was aware of a pre-existing cardiovascular condition and the medical experts can relate the ultimate aneurysm to this condition, there will be a basis for recovery under the Second Injury Fund.
We have an employee who has a pre-existing allergy to the product that we package in our warehouse. When he is not in this environment he is symptom free. Are we responsible for the wage-loss claim of this employee?
The case law in this area has generally held that so long as the employment did not “cause” the condition, the employer is not responsible for the wage-loss that may result due to the claimant’s inability to return to the job. However, you may be responsible for the temporary aggravation of the pre-existing condition.
An assembly line worker has recently claimed to have developed carpal tunnel syndrome and maintains that this was caused by her job. Is this considered an “occupational disease”?
This can be regarded as an occupational disease if the medical experts relate the development of the condition to the repetitive nature of the work. You should investigate the specific hand and arm movements required in this position. This information should be given to your medical expert to help the expert render an opinion. You may also want to check with the safety department to find out if they have had similar claims in the past. This could assist you in defending the claim on the basis that the disease is not “peculiar to the employment”. You may also want to determine how long the employee has been employed in this job. The occupational statute has a presumption in favor of the employer that a disease is NOT the result of the job if the employee has been employed for less than twelve months.
6. Calculating the Compensation Rate
Are we required to include “fringe benefits” when we calculate the average weekly wage?
For accidents on or after August 15, 1999 no income is included in the calculation of wages unless it is taxable to an employee for federal income tax purposes. The only exception to this rule is income that is withheld by the employer to fund any nontaxable benefit will be included in the calculation of AWW if this fringe was “elected by the employee in lieu of taxable earnings.” If you have a case involving a pre-August 15, 1999 accident you may be required to include “fringe benefits”. The Second and Third Circuit Courts of Appeal required such a calculation before the legislative change.
How do we calculate the average weekly wage for a part-time employee?
Until the 1983 amendment to the workers’ compensation act employers were required to pay compensation benefits to part-time employees based on a presumed 40 work week. The amendment permits the employer to calculate the average weekly wage of a part-time employee based on an average of their actual hours worked in the four full weeks before the accident. However, the law clearly places the burden on the employer to establish that the employee knowingly accepted work that provided less than 40 hours per week AND that the employer has classified the employee as part-time.
What do you do when one or more of the weeks prior to the accident the employee had little or no hours of work due to sickness or vacation?
Assuming that you have a full-time employee, your alternatives are to apply the 40 hour presumption or to ignore the week or weeks where sickness or vacation was involved and use an earlier week of regular work to complete the four full week calculation. The later approach was required by the Second Circuit Court of Appeal in a 1998 decision.
I am handling the claim of a teacher who has an annual contract but has elected to be paid over nine months rather than twelve. Her attorney maintains that her average weekly wage should be calculated based on her monthly salary rather than annual. What should I use to calculate the AWW?
This individual would fall within the “seasonal” employment category which clearly provides that the AWW is based on the annual income divided by 52.
How do you determine the AWW of a mud hauling independent contractor who is paid by the load and his income obviously includes business expenses such as truck maintenance, insurance, gas etc.?
The courts have recognized two methods of determining the AWW for independent contractors. You should consult your attorney to establish which method will apply in your venue. The two methods are:
- To look to the wages paid to another person performing the same work; and
- Taking the total income minus expenses in order to arrive at the actual income to be assigned to the labor.
In the first approach you would assume that this individual was hired to only be a truck driver. Thus, you would be applying the wage information based on the wages paid to other drivers who may be employed by the contractor or you would need to have a vocational expert assist you in establishing wages from other employers. The second approach attempts to remove from the income money that is not truly assignable to labor costs.
I received a report from the treating physician assigning a 15% whole person disability. How does this translate into benefits we must pay to the injured employee?
We do not pay indemnity benefits based on a “whole person” impairment. There are two possible areas of the benefit law that may apply to your case. Assuming that the employee, even with this impairment, is able to earn 90% of his pre-accident earnings, then the only possible area of benefit obligation would be for a permanent partial disability (PPD) under our schedule [R.S. 23:1221(4)]. However, the schedule does not provide an award for “whole person” ratings and does not have any provisions for ratings that are assigned due to injuries to the low back or neck. You should also know that any weekly benefits that are owed under our PPD section are subject to a credit (week for week) for any other indemnity benefits that have been paid (such as temporary total disability). Assuming that this is an injury that has rendered the employee unable to physically perform all of the pre-accident duties and has caused him to be unable to earn 90% of his pre-accident earnings, then you have a case that is more serious and will involve a full analysis under our Supplemental Earnings Benefit law.
The treating physician has finally released the claimant to return to work but has limited his work to light or sedentary. What do I do now?
You must first determine whether the restrictions are medically correct. Get a second opinion on the restrictions, if any, to be placed on the employee. Once you are satisfied with the restrictions assigned to the claimant, you should check with the employer to find out if they will offer the employee a job within those restrictions. Should the employer decline to make such an offer, you will need to retain the services of a vocational expert who is licensed in Louisiana. The vocational expert should be aware of the case law in this burberry replica handbags state that is very specific as to the services that they are to provide the employee and how they can establish the earning capacity of the employee. The vocational expert will perform a labor market survey that you will be able to use in calculating any wage-loss (SEB) benefits that you may owe the employee.
The claimant has been assigned work restrictions and has begun working at a new job which currently pays less than his prior position with the insured. How will I know what benefits may be owed to the claimant?
You should send the claimant the OWC form 1020. This form can be filled out by the claimant and sent to you at the end of each month. Under the workers’ compensation act you do not have an obligation to pay SEB until you have knowledge of the wage loss. By sending the claimant the proper form you will only be required to pay SEB upon receipt of this information.
The claimant told me that he is receiving Social Security Disability benefits. Should I take an offset against the receipt of these benefits?
When an employee is receiving Social Security Benefits it raises two questions:
- Will I be able to take the “reverse offset” and;
- Should I take it?
Whether you are able to take the offset will depend on the calculation of the employee’s average current earning (ACE). The Social Security Administration based on an analysis of the employee’s earnings history determines this figure. High wage earners generally have too high of an ACE to generate any offset. However, you can obtain this information by simply writing to the workers’ compensation judge in the area nearest the claimant and requesting that the OWC obtain information from the Social Security Administration regarding the receipt of any Social Security Disability benefits. Once you have this information you then need to make a strategic determination as to whether you want to take the offset. To assert this offset you must admit that you are paying permanent and total disability benefits. Although, you always have the right to modify a judgment, even one declaring the employee to be permanent and total, you should be aware of this requirement. The other factors to be considered include the question of the size of the offset. Is the offset sufficient to justify the admission of permanent and total disability? Also, if the employee is close to the age of entitlement to old age social security benefits, the social security disability benefits will terminate when he begins to receive old age benefits.
The insured continued to pay the employee full wages for several months after the accident. Can we take a credit for these wages?
The law permits the employer to take a credit for these “unearned” wages. However, the credit is a week for week credit, not a dollar for dollar credit.
After the job accident we paid TTD benefits until the employee was given a full release. Shortly after we terminated benefits he filed for Unemployment Compensation. When those benefits ended he went back to the doctor stating that his back hurts and he can not work and that he has been physically unable to work since his release. Can we take credit for the UC benefits?
Yes. The law permits a week for week credit even though the UC benefits are usually less than WC benefits. You may also have a possible fraud case since he was required to affirm his physical ability to work when he applied for UC.
The claimant is now receiving old age social security benefits. Does the employer have the right to reduce the weekly benefits based on the receipt of old age benefits? There is a 50% credit available to the employer. However, the actual offset amount depends upon the employee’s AWW. The weekly WC and the weekly social security credit (50% of the total) is added together. Only if the total of these two exceed 66 2/3 of the claimant’s AWW is there an offset.
NOTE: Keep your attention focused on the Louisiana Supreme Court decisions. There has been some litigation over the constitutionality of these old age credits and all constitutional issues ultimately are decided by the Louisiana Supreme Court.
After the job accident the employer sent the employee to the company’s occupational medicine physician who treated him until his release to full duty. The employee is now demanding his “choice of physician”. Does he have the right to go “doctor shopping”?
The Louisiana law give the employee the right to select his treating physician in each area of specialty (eg., neurosurgeon, orthopedic surgeon, psychiatrist etc.). However, once an employee has accepted treatment by a physician he may be considered as having made that physician as his “choice”. This is referred to as a de facto selection.
I have scheduled a second opinion on several occasions and the claimant has failed to appear. What can I do?
There is now a quick procedural device that enable an employer to obtain a judicial order requiring the employee to submit to the examination. An employee who fails to appear after being ordered by the court would then have his benefits suspended until the examination takes place. You can not avail yourself of this procedure unless you can show that the employee was given 14 days written notice of the examination that he failed to attend.
The claimant’s physician says that he is still disabled from returning to work but my second opinion physician sent me a report stating that that the claimant can do light to sedentary work. How can we resolve this conflict?
You can send a request to the OWC to have them appoint an independent medical examiner. This examination will be performed at your expense.
10. Claims Against Third Parties
How do I put the third party on notice of our compensation lien? In some of the states that we adjust workers’ compensation claims we are able to protect our lien by simply sending the third party or their insurance company a certified letter.
The employer’s right to recover from a third party the benefits that have been paid can only be “protected” by the filing of suit against the third party within one year of the accident or by filing an intervention in the suit that has been filed by the employee. The suit filed by the employee interrupts prescription for your claim so long as you file an intervention. Unless you have confidence in an agreement you have made with the employee’s attorney that he will “protect” your lien, you should file an intervention into that suit. Although there are potential penalties that can be imposed against the employee if he settles the third party suit without your approval, there are no penalties that prevent the third party from settling with the claimant (and thus dismissing the suit) UNLESS you have intervened in the third party suit.
NOTE: If you have or expect to recover benefits from the Second Injury Board you must notify the Board that there is a third party suit.
What are the “penalties” that are imposed on the employee and the third party if they settle the suit (in which the employer/insurer has filed an intervention) without the employer’s approval?
An employee who settles his claim against a third party without the approval of the employer/insurer forfeits his right to future workers’ compensation benefits (indemnity and medical). This penalty applies against the employee even if the employer has not filed an intervention. The third party who settles the suit will be required to pay the entire lien without need of the employer to establish “fault”. This penalty only applies against the third party if the employer has filed an intervention.
The employee’s attorney has negotiated a settlement with the third party and says that he will send us our “lien” less 1/3 attorney’s fees. Do I owe him attorney’s fees?
The workers’ compensation law recognizes the claim of the plaintiff’s attorney for recovery of a fee from the intervenor in the third party suit. The fee and costs is not to exceed 1/3 of the lien recovery. A fee is also earned if the employer approves the settlement of a third party claim. Again this fee is limited to a maximum of 1/3. Thus, you have some leverage (your approval of the settlement) to negotiate the fee with the attorney. However, the matter becomes more problematic if the settlement funds have already been sent to the attorney, suit has been dismissed and the prescriptive period for you to file suit has passed. These events greatly lessen your leverage, particularly if the amount of the lien recovery offered to you is the full lien less the attorney’s fee.
NOTE: You do have the right to take a credit against any future compensation benefits for the net recovery of the employee in the third party suit.