What is Workers’ Compensation?
When an employee in the State of Louisiana has an on the job injury caused by a compensable accident most employees are generally entitled to state workers’ compensation benefits. A compensable accident is a specific identifiable event that occurs while in the course and scope of employment or for certain occupational diseases. This can include anything from a car accident while making a delivery, lifting something heavy or slipping and falling. Generally, an employee injured in such manner is entitled to indemnity benefits for any period of disability or if the injury causes a wage loss. Also, the injured employee is entitled to reasonable and necessary medical treatment for the injuries sustained in the accident.
Workers’ compensation is a no fault system. The theory behind workers compensation is to provide medical treatment for an injured employee and a wage benefit to provide for basic financial needs until the employee is able to return to work. Therefore, it does not matter whose fault the accident was as long as it happened at work. In exchange for making workers compensation a no fault system, an employee is not allowed to sue his employer or a co-employee for tort damages. Tort damages can include pain and suffering and emotional distress. There are certain exceptions to this rule for intentional acts of the employer or co-employees.
What if I have a pre-existing condition?
A pre-existing condition is NOT a bar to a workers’ compensation claim. If the accident aggravated a pre-existing condition then the claim is considered a compensable claim and the employer will be responsible for workers’ compensation benefits.
What benefits can an injured employee make a claim for under workers’ compensation?
There are a number of potential benefits available. The primary ones are listed below:
Medical Expenses: Your employer is required to pay for all of your work related medical expenses. You should not have to pay for any of this. The employer is also required to pay for all of your mileage expenses for travel to obtain your medical treatment. This includes travel to doctor visits, diagnostic tests and pharmacies to obtain your prescriptions.
Temporary Total Disability Benefits (TTD): These benefits are commonly referred to as TTD. During your recovery period from a work-related injury you are entitled to TTD benefits. These are payable at 2/3 of your average weekly wage at the time of the accident and will generally last until you are released back to work in some capacity, whether that be sedentary duty, light duty, etc.
Permanent Partial Disability Benefits (PPD): These benefits compensate an injured employee for an anatomical loss of use of a scheduled body part. The amount of PPD payable depends on the body part injured, the amount of weeks you have already been paid, your average weekly wage and the percentage loss of use of the body part as a result of the accident. These benefits are paid at 2/3 of your average weekly wage.
Supplemental Earnings Benefits (SEB): When you are released to return to work in some sort of capacity but cannot perform your previous job, and this results in your being unable to earn 90% of your pre-accident earnings, then the employer may be required to supplement your income with SEB benefits. These are payable for a maximum of 520 weeks and the employer is entitled to a credit for any benefits previously paid. SEB is generally paid to you on a monthly basis and under this benefit you are provided 2/3 of your monthly wage loss.
Permanent Total Disability Benefits (PTD): PTD benefits are payable for the rest of a person’s life. However, proving entitlement to PTD benefits involve meeting a much higher standard of proof. Awards for PTD benefits are extremely uncommon in Louisiana, but may apply in certain situations such as a catastrophic injury or multiple surgeries.
Vocational Rehabilitation: In certain situations the employer is required to pay for a vocational rehabilitation counselor to assist you in finding a job if you cannot return to work with your previous employer. The employer generally is not doing this for your benefit. They are trying to find you jobs for the purpose of using those jobs to terminate your weekly benefits. When you are contacted by a vocational rehabilitation counselor it is recommended that you contact an attorney as your benefits will most likely be reduced or terminated shortly after a vocational rehabilitation counselor becomes involved.
Death Benefits: If an employee dies as a result of an accident in the course and scope of employment his or her dependants may be entitled to workers compensation death benefits. The amount of benefits will vary based on the number of dependants. If there are no dependents each surviving parent can receive a $75,000 lump sum payment. The employer must also pay for $7,500.00 in funeral expenses.
How long should it take for me to get my first workers’ compensation check?
The employer is required to pay your first indemnity check within 14 days of receiving written evidence of a work disability.
Do I have to treat with my employer’s doctor?
No. Your employer cannot require you to treat with their doctor. You have the right to treat with a doctor of your choice in each field or specialty. See below.
Can I choose my own doctor?
Yes. An injured employee has the right to treat with his or her own doctor in each particular field or specialty. This is one of the most important rights available to an injured worker. Many employers and insurance companies have a list of doctors they will try and steer injured employees to treat with. Once you see their doctor they will try and make you sign a form designating their doctor as your choice. YOU ARE NOT REQUIRED TO DO SO. You can turn down the employer’s doctor and see a doctor of your choice. Employer doctors know who sends them their business and this conflict of interest can lead to those doctors not looking out for your best interest.
Does my employer have to keep my job open while I’m on workers’ compensation?
No. You cannot be let go from your employment solely on the basis of filing a workers’ compensation claim. However, if you are unable to return to your prior job because of your injuries your employer is not required to hold the job for you. If you are let go from your employment because you cannot perform your prior job due to your injuries you can make a claim for indemnity benefits.
Am I required to see a doctor chosen by my employer?
You are not required to treat with the employer doctor but in certain situations the employer can have you evaluated by their doctor as is reasonable. This is so that the employer can have access to a second medical opinion on certain aspects of your medical condition if they choose. They can only send you for an evaluation with their doctor as is reasonable (generally every 6 to 9 months) or to get an opinion on major medical recommendations such as surgery.
What if my doctor and the employer doctor disagree on my medical condition or work status?
Both parties have the right to ask the Louisiana Workforce Commission to appoint a doctor paid for by the employer to examine the employee and give an opinion to assist in resolving the dispute. Whether such an examination should be requested by the employee or contested if requested by the employer is determined on a case by case basis.
How can I get medical treatment if my claim is being denied?
If your claim is being denied we will start litigation on your behalf. We also work with certain medical providers that will provide you with your medical treatment, prescription medication, etc. based upon our word that we will protect their interest in your litigation against the insurance company. Protecting their interest means we either get the insurance company to agree to pay their bill, litigate their claim along with yours, or reimburse them if your case is settled. In many cases, we are able to negotiate a reduced amount on their bills if it is paid out of a settlement. Any settlement would be only with your permission and approval and an upfront understanding of the amount you will get in your pocket after bills are paid.
What do I do if I keep getting medical bills?
If a claim is being denied and is currently in litigation we can usually reach an agreement with the medical provider to stop collection actions against you as long as we protect their interests in the litigation. On all accepted workers compensation claims in Louisiana the employer is responsible for reasonable and medical treatment. When our clients get bills they are sent to the insurance company with a demand for payment. We also inform the provider of the correct person with the insurance company to send the bills too. Also, if the medical provider is attempting to collect an overage from you we inform the provider that it is a violation of the law to attempt to collect on a medical bill from an injured employee on an accepted workers’ compensation claim. Our actions usually get the collection actions stopped.
Can I receive unemployment benefits and workers compensation benefits at the same time?
No. Unemployment and workers compensation are mutually exclusive meaning that you are not entitled to both at the same time. In fact, receipt of unemployment benefits can hurt your workers compensation claim. Every week you receive unemployment the insurance company gets a credit against its workers compensation indemnity obligation to you. This is a week to week credit and not a dollar for dollar credit which means that receipt of unemployment benefits in lieu of workers compensation benefits usually costs you more money in the long run.
Can I receive workers compensation benefits and Social Security benefits at the same time?
Yes. However, Social Security will receive a credit towards its monthly obligation to you depending on a complicated offset formula, and the amount of the credit varies on a case by case basis. Be very careful about settling a workers compensation case when you are on Social Security, Medicare or have a reasonable expectation of being on Medicare within 30 months. In some cases, to protect your future Social Security and Medicare entitlement, a Medicare Set Aside must be done. This is when a certain portion of your settlement is set aside to pay for your future work related medical expenses.
If my workers’ compensation claim is denied what should I do?
The answer to this question depends on what aspects of your claim are being denied. If you are denied benefits you can file a Disputed Claim for Compensation with the Office of Workers’ Compensation, which is commonly referred to as a “1008″ form. When a 1008 form is filed that starts the process towards a workers’ compensation trial. The whole process of pursuing a workers’ compensation claim with the Office of Workers’ Compensation can sometimes take up to six or nine months. On some claims, denial of medical treatment requires filing an appeal of the denial on a ”1009″ form.
How is a workers’ compensation attorney paid?
Attorney fees are based on a contingency fee contract, and the attorney will only receive payment if payments are made to an injured worker. Attorney’s fees are capped by law at 20% of the injured worker’s recovery. Under some circumstances the Judge can order the employer or insured to pay attorney fees.
Am I required to retain an attorney to pursue a workers compensation claim?
You are not required to retain an attorney and can pursue your claim yourself but we highly recommend retaining an attorney who is experienced in handling workers’ compensation matters. The workers’ compensation laws are much more complex than they need to be and are constantly changing. We also recommend retaining an attorney early on in the process as many decisions made early on in the claim significantly affect the indemnity benefits and medical treatment you may receive, as well as the outcome of litigation or settlement value later on if the claim goes that far.
Can I settle my workers compensation case?
Yes. There are a few restrictions but generally workers compensation cases can be settled. There are also different types of settlements which can include a full and final settlement or a resolution of a current claim for compensation.