THE BELOW INFORMATION IS NOT LEGAL ADVICE. PLEASE CONSULT AN ACTUAL LAWYER FOR ADVICE ON YOUR INDIVIDUAL SITUATION.
1) What is Louisiana Worker’s Compensation?
As opposed to The Long shore and Harbor Workers Compensation Act
(LHWCA), a federal workers’ compensation statute that covers injured
workers engaged in “maritime employment.” Louisiana Worker’s
Compensation handles most everyone else. Like Long shore claims these
are also handled by administrative process but through the Louisiana
State Department of Labor not the U.S. Department of Labor. Injured
workers who qualify will likewise receive benefits regardless of
2) If I am injured on the job, what is the first thing I should do?
Report your accident or injury to your employer as soon as
possible and get a copy of the accident report for your records.
3) I was injured on my job. What benefits am I entitled to?
If your injury or illness is found to be job-related, you may be entitled to receive:
Lifetime medical care for the injury or illness,
Disability compensation for all (TTD: Temporary Total Disability) or a
portion (SEBs: Supplemental Earnings Benefits) of 2/3 of your wages (up
to a cap), these benefits, unlike those “unscheduled” benefits under the
LSHWA, are usually limited to ten years.
Rehabilitation services, and,
Death, benefits payable to your survivors.
As with the LSHWA, you are not entitled to pain & suffering because of the injury or illness from your employer.
4) What happens if I am denied workers' compensation benefits?
You or your attorney must file a timely Disputed Claim for
Compensation Form LWC-WC 1008, which is an administrative law proceeding
through one of ten offices in the State of Louisiana.
Note: your employer or his insurance company may hire private
investigators to secretly observe and record your daily activities.
These videotapes will likely be used in court against you. PLEASE BE
CAREFUL OUT THERE!
5) Who owes workers' compensation benefits?
Louisiana law requires that an employer have workers' compensation
insurance, he must either be self-insured or have workers' compensation
insurance policy. It is against the law not to be either self-insured
or covered by a valid policy. Severe penalties exist for failure to be
either self-insured or covered by a valid policy.
6) Are certain employees exempt? Yes.
1. Any employee of a private residential householder or any employee of a private unincorporated farm,
2. Musicians and performers who are rendering services pursuant to a performance contract,
3. Some members of crews of any airplane engaged in dusting or spraying operations,
4. Uncompensated officers and uncompensated members of boards of directors of certain nonprofit organizations,
5. Any real estate broker or agent licensed to do business in the state of Louisiana,
6. Many land-man rendering services relating to the exploration, development, production, or transportation of minerals,
7. Many deputy sheriffs are also exempt.
8. Independent contractors involved in manual labor are NOT exempt.
IMPORTANT: Where applicable, an employee who falls under these
exemptions may seek tort recovery for injuries arising out of such
labor, work, or services from any insurance policy that a homeowner or
employer may have which extends coverage to persons injured on their
premises or because of their negligence.
An experience lawyer will know when to file in comp., tort or both.
7) While waiting for my case to go to trial, what am I supposed to do for money?
The Bar Association flatly prohibits most loans to clients.
Assistance, such as food stamps, may be available through social
services. You may also want to contact local charities or churches in
your area. You may not receive unemployment benefits because you are
admitting that you are fully able to work without restriction during the
time you received such benefits. Obviously, this is bad for your comp.
8) What is a lump sum settlement?
A lump sum settlement is an agreement where the insurer/employer
agrees to pay the present value of the disputed claim at once, and
his/her future obligations to the injured workers are fully and finally
released. To determine the value, the sum of payments owed the claimant
may not be discounted at a rate greater than eight percent per year.
9) I want to settle my claim. How much will I get?
Much less than in a tort case. There is no pain & suffering
and you are entitled to only 2/3 (subject to a cap) of lost wages (and
this usually for a maximum of ten years) not 100% of all your predicted
lost wages as in tort. The value of a workers' compensation claim
depends on various factors: your compensation at the time of your injury
vs. your likely future earning capacity (usually times 2/3 (capped)
over a ten year period) plus your future lifetime medical needs related
to the injury plus any penalties due.
10) Do I have to hire an attorney? No but you should hire one.
You are not required to have an attorney in workers'
compensation proceedings; however, you may contact one at any time
during the process; however, obtaining one is strongly recommended if
any dispute arises. An experienced attorney is more likely to get you
all of the benefits you deserve. An attorney will make sure that your
interests are aggressively represented thru out the administrative
process and will negotiate a fair settlement of your claim should you
decide to settle for a lump sum payment. (I've seen many unrepresented
workers get taken to the cleaners at settlement time.) A lawyer will
also be able to tell you if you have any claims arising from any
subsequent employer misconduct such as wrongful termination, fraud,
libel or slander. An attorney will also be able to tell you if you have
any additional claim in tort against a third-party and how to avoid
wrecking your comp. claim while you recover against a third-party.
11) I am not getting my workers' compensation check. What should I do?
If you have an attorney, contact him first. If you don’t you
should contact your employer or your employer's insurance carrier. With a
paper & pen in hand try to pin your adjuster down on exactly why
benefits have been halted, get the adjusters words down as correctly as
possible, mark down who you spoke to, the time and date. If you cannot
resolve the problem with them, you should get an attorney ASAP. Provide
that attorney with your notes. We can help or contact your nearest
Workers' Compensation District Office. They can provide you with a list
of attorneys who practice in this area.
12) Can I choose my own doctor? Yes, but only one in each specialty.
An injured worker has the freedom to choose his or her treating
physician and may switch from one specialty of care to another without
having to seek approval of the employer/insurer. The worker must,
however, have employer’s/insurer’s permission to switch from one
provider to another within the same field of specialty. This will
usually not be forthcoming without good cause. Basically, you are stuck with the doctor you choose in that
specialty, therefore chose well or before you do, contact an experienced
attorney who will know which doctor’s to avoid. While the injured worker has the freedom to select the
treating physician, the physician must have approval from the employer/
insurance carrier to continue treatment beyond $750 worth of care unless
the care is provided under emergency conditions. However, the
withholding of such consent is not to be arbitrary and capricious or
without probable cause also if the employer/insurance carrier is denying
the entire claim this cap does not apply. There may come a time when your employer will require you to
be examined by a physician of his or her choice. You must go, just as
you get your choice, they get one too. Your failure to attend may cause
your compensation payments to be temporarily suspended until you do so.
13) What if my doctor and my employer's doctor disagree about my medical condition?
If you’re this far along, it is high time you got experienced
counsel on your side. If your physician and your employer's physician do
not agree about your medical condition, you may be entitled to an
Independent Medical Examination. If you find yourself in this situation,
Form LWC-WC 1015, Request for Independent Medical Examination, should
be completed and forwarded to the Medical Services Section of the Office
of Workers' Compensation Administration (OWCA).
14) I keep getting medical bills for my workers' compensation injury. What should I do with them?
Contact the medical provider/collection agent and find out if
these bills have been previously sent to your employer or the insurance
carrier, if they have, get this information in writing from the medical
provider/collection agent and then contact an experienced attorney at
once. If the medical bills have not been previously sent to your
employer or the insurance carrier you should send them to your employer
or the insurance carrier; however, you should keep copies.
15) Can my employer fire me because I filed a workers' compensation claim? Yes & no.
Under Louisiana Law, your employer cannot terminate your
employment because you filed a workers' compensation claim. This is
called a wrongful termination claim and you may want to contact an
attorney. However, your employer does not have to keep a job open for
you or make one available when you are able to return to work. So how do
you prove the employer fired you because you file a comp. claim rather
than that he needed a new warm body (This is legally O.K.)…? Did he fill
the position…? Does he fire everyone who files a claim…? Did he fire
you when you returned to work & were able to do that job…? An
experienced attorney can guide you here.
16) Does my employer have to retrain me for another job?
This is one of the weakest areas of the Louisiana Worker’s
Compensation Statute. The employer/insurer may simply do a job survey to
find which jobs are available in your area, within the limits approved
by your doctor but you must also have the educational & vocational
abilities also. Always request that you be given a contemporaneous (at
the same time) copy of the survey so that you can immediately apply for
the alleged positions. Cooperate with Voc Hab, you want to get a job,
have them help write your resume but be sure they are sending you, on a
real time basis, the job leads they claim exist so that you can
immediately apply for these positions. Get a notebook fill it out with
their jobs, when you applied, who you spoke to, what happened, and your
Do this also for similar jobs & those other jobs you
think you are able of doing that you find in the newspaper or elsewhere.
17) When will I get my first compensation check?
Your first payment should be paid on the fourteenth day after
your employer has knowledge of your injury resulting in loss of income.
There is a 7-day waiting period for which you will not be paid benefits.
However, if you miss more than 42 consecutive days, you will be paid
for the 7-day waiting period.
18) What is 23:1208 Fraud? Often an Employer\Insurer Scam.
Why does this even matter? A finding of fraud results in a
loss of all worker’s compensation benefits forever (at least as
interpreted by a recent, terrible 5th Cir. decision).
While we can all agree that when an injured employee is
working and getting Temporary Total Disability benefits that this is
fraud. Yes this is fraud but many, many other things that you would not
think are fraud have been determined to be fraud by unthinking judges
who were “bamboozled” by private detectives and overly creative defense
counsel. In one such egregious decision, a man, whose injury finally
resulted in his leg being amputated above the knee due to insufficient
blood flow caused by the injury, was prior to the amputation, found to
be “exaggerating his pain and his abilities” and therefore had committed
fraud. Specifically, the employer/insurer never claimed that he could
do any kind of work at all! Given such not infrequent gross miscarriages
of justice, an experienced attorney is more likely to avoid these
pitfalls and get you the benefits you deserve.
There are many other such potential miscarriage of justice
areas: be extremely careful when you fill out 1020 forms, better that
your attorney do this or if you are self-employed, that a CPA do it, be
extremely careful when you fill out mileage reimbursement, better not to
do it at all or have your attorney do it with the aid of map-quest.
“Extreme care to be accurate should be exercised when submitting for
mileage reimbursements.”, this according to the State of Louisiana
Department of Labor’s Official site. You have been warned!
19) What other medical benefits are provided?
All related expenses reasonably and necessarily incurred for
obtaining services, medicines, and prosthetic devices should be paid.
However, actually getting these things will likely require the services
of an experienced attorney. If you are denied these devices please
contact us or other experienced counsel
THE ABOVE INFORMATION IS NOT LEGAL ADVICE. PLEASE CONSULT AN ACTUAL LAWYER FOR ADVICE ON YOUR INDIVIDUAL SITUATION.
Bernard V Davis Law Offices 3009 Lime Street, Suite A, New Orleans, LA 70006 (504) 888-1817