What is Workers’ Compensation?
When an employee in the State of Louisiana has an on the job injury most employees are entitled to workers’ compensation benefits. An 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 at work is entitled to indemnity benefits for any period of disability or if the injury causes a wage loss. The injured employee is also 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 can return to work. Therefore, it does not matter whose fault the accident was as long as it happened at work o in the course and scope of your employment. 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 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 can be considered a compensable claim and the employer can be responsible for workers’ compensation benefits.
What benefits can an injured employee claim under workers’ compensation?
There are several 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 number 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% or more 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 monthly 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. Proving entitlement to PTD benefits involves meeting a much higher standard of proof. Awards for PTD benefits 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 your jobs for the sole purpose of stopping your weekly benefit checks.
Death Benefits. If an employee dies as a result of an accident in the course and scope of employment his or her dependents may be entitled to workers’ compensation death benefits. The number of benefits will vary based on the number of dependents.
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 your 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. Your employer can require you to be examined by their doctor as a second medical opinion but only on a limited basis.
Can I choose my treating 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. 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.
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 based on 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. There are exceptions to this if the Family and Medical Leave Act apply to your employer. However, even in those cases they only have to keep you on the payroll a few months.
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. This is so that the employer can have access to a second medical opinion on certain aspects of your medical condition if they choose.
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.
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, the bills are sent to the insurance company with a demand for payment. We also inform the medical 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 instead 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 an offset 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 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 indemnity benefits, or if your entire claim is denied, 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. On accepted 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, at 20% of the injured worker’s recovery. Under some circumstances, a 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 you can pursue your claim yourself, but we 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 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 individual issues.