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LOUISIANA
WORKERS’
COMPENSATION 101
CRAIG MITCHELL, ESQ.
MITCHELL & ASSOCIATES, APLC
CBMITCHELL@MITCHELLAPLC.COM
504-527-6433
www.mitchellaplc.com
www.2Hurt2Work.com
December 17, 2014
WHAT IS WORKERS COMPENSATION?
Workers compensation programs exist in every state. The idea is that if a person gets hurt
working they’ll be able to get medical help. They’ll also be able to get some of their pay.
Louisiana workers’ compensation laws see to it that a person who is injured on the job is entitled
to this almost automatically.
 Medical treatment
 Lost wages
 Job training
 Death and burial benefits
WHO ARE THE WORKERS COMP PLAYERS?
The Louisiana Office of Workers’ Compensation was set up in 1983 to administer the Louisiana
Workers’ Compensation Act. The OWCA’s sole source of funding is from a tax assessment paid
by workers’ compensation insurers and self-insureds. Relevant sections:
 Workers’ Compensation Advisory Council
 Workers’ Compensation Medical Advisory Council
 Hearings Section
Workers’ Compensation Advisory Council
Established by LSA-R.S. 23:1294 and consists of seventeen members appointed by the governor.
Its members are a cross section of business, self-insureds, attorneys, medical fields and public
Workers’ Compensation Medical Advisory Council
Appointed to two year terms by the director of the OWCA to review current guidelines and
provide recommendations. Cross section of disciplines.
Hearings Section
Established to resolve disputed workers’ compensation claims. There are ten district offices
statewide: Alexandria, Baton Rouge, Covington, Harahan, Houma, Lafayette, Lake Charles,
Monroe, New Orleans, and Shreveport.
Louisiana Workers Compensation Statistical Overview
Workers’ compensation plays a more pervasive role than many realize.
 In 2013 nearly $815,000,000 in workers’ compensation insurance premiums were paid to
233 workers’ compensation insurers in Louisiana.
 In 2012 the Hearings Section of the OWCA received 5,178 claims for compensation.
 2,787 trials, 1.968 mediations and 4,872 settlements were conducted or approved in 2012.
TITLE 23 LABOR AND WORKERS’ COMPENSATION - CHAPTER 10
LSA-R.S. 23:1020.1
A. Citation. This Chapter shall be cited as the “Louisiana Workers' Compensation Law”.
B. Purpose. The legislature declares that the purpose of this Chapter is all of the following:
(1) To provide for the timely payment of temporary and permanent disability benefits to all
injured workers who suffer an injury or disease arising out of and in the course and scope of their
employment as is provided in this Chapter.
(2) To pay the medical expenses that are due to all injured workers pursuant to this Chapter.
(3) To return such workers who have received benefits pursuant to this Chapter to the work
force.
C. Legislative intent. The legislature finds all of the following:
(1) That the Louisiana Workers' Compensation Law is to be interpreted so as to assure the
delivery of benefits to an injured employee in accordance with this Chapter.
(2) To facilitate injured workers' return to employment at a reasonable cost to the employer.
D. Construction. The Louisiana Workers' Compensation Law shall be construed as follows:
(1) The provisions of this Chapter are based on the mutual renunciation of legal rights and
defenses by employers and employees alike; therefore, it is the specific intent of the legislature
that workers' compensation cases shall be decided on their merits.
(2) Disputes concerning the facts in workers' compensation cases shall not be given a broad,
liberal construction in favor of either employees or employers; the laws pertaining to workers'
compensation shall be construed in accordance with the basic principles of statutory construction
and not in favor of either employer or employee.
ACCIDENTS AND INJURIES LSA-R.S. 23 §1021
“Accident” means an unexpected or unforeseen actual, identifiable, precipitous event happening
suddenly or violently, with or without human fault, and directly producing at the time objective
findings of an injury which is more than simply a gradual deterioration or progressive
degeneration.
LSA-R.S. 23§1021(1)
“Injury” and “personal injuries” include only injuries by violence to the physical structure of
the body and such disease or infections as naturally result therefrom. These terms shall in no case
be construed to include any other form of disease or derangement, however caused or contracted.
LSA-R.S. 23§1021(8)(a)
Mental injury caused by mental stress. Mental injury or illness resulting from work-related
stress shall not be considered a personal injury by accident arising out of and in the course of
employment and is not compensable pursuant to this Chapter, unless the mental injury was the
result of a sudden, unexpected, and extraordinary stress related to the employment and is
demonstrated by clear and convincing evidence.
LSA-R.S. 23§1021(8)(b)
Mental injury caused by physical injury. A mental injury or illness caused by a physical injury
to the employee's body shall not be considered a personal injury by accident arising out of and in
the course of employment and is not compensable pursuant to this Chapter unless it is
demonstrated by clear and convincing evidence.
LSA-R.S. 23§1021(8)(c)
Heart-related or perivascular injuries. A heart-related or perivascular injury, illness, or death
shall not be considered a personal injury by accident arising out of and in the course of
employment and is not compensable pursuant to this Chapter unless it is demonstrated by clear
and convincing evidence that:
(i) The physical work stress was extraordinary and unusual in comparison to the stress or
exertion experienced by the average employee in that occupation, and
(ii) The physical work stress or exertion, and not some other source of stress or preexisting
condition, was the predominant and major cause of the heart-related or perivascular injury,
illness, or death.
LSA-R.S. 23§1021(8)(e)
DEFENSES TO CLAIMS
Outside the Course and Scope of Employment
An accident occurs in the course of employment when the employee sustains an injury while
actively engaged in the performance of his duties during working hours, either on the employer's
premises or at other places where employment activities take the employee.
 An injury to an employee hurt during “horseplay” is not compensable.
 An injury to an employee resulting from altercation over purely personal matters is not
going to be compensable.
 Injuries that occur “off the clock” and away from the work site are generally not
compensable unless the employer benefits from the activity, the employer sponsors
and/or funds the activity, and there is an increased risk to employee versus general public.
 An injury to an employee due to his or her willful intention to injure another is not
compensable.
LSA-R.S. 23§1081(1)(a)
Employee’s Intoxication
An employee who is injured while intoxicated will not be entitled to workers’ compensation
benefits unless the employee's intoxication resulted from activities which:
 were in pursuit of the employer's interests or,
 the employer procured the intoxicating beverage or substance and encouraged its use
during the employee's work hours.
LSA-R.S. 23§1021(1)(b)
Initial Aggressor Defense
Workers’ compensation benefits are not available to the initial physical aggressor in an
unprovoked physical altercation, unless excessive force was used in retaliation against the initial
aggressor. LSA-R.S. 23§1021(1)(c)
Fraud and Intentional Misrepresentation/Fraud
Workers’ compensation benefits can be denied or terminated if it is shown that the employee
willfully made a false statement or representation in order to obtain (or deny) benefits. Provides
for both civil and criminal penalties
 Applies to employers and their agents as well.
LSA-R.S. 23§1208
Failure to Reveal Previous Injury/Disability
An injured worker’s entitlement to benefits may be forfeited if he or she failed to disclose a pre-
existing condition that is directly related to the injury in dispute.
 The employer provided disclosure/questionnaire must conatin a notice that failure to
answer truthfully may result in the forfeiture of benefits.
LSA-R.S. 23§1208.1
Receipt of Unemployment Benefits
Generally, applying for unemployment requires you to to say you are able to work and pursuin
employment.
Incarceration
Incarceration suspends benefits unless someone is wholly dependent on the employee.
Compromise of Third Party Suit without Consent
By statute the employer has a right of subrogation against any third-party that caused the
employee’s injuries. If the third-party claim is settled without the employer’s approval they are
entitled to stop benefits. The employee can “buy back” their entitlement to future benefits for
amount of the benefits paid, but not exceeding 50% of the settlement.
THE AVERAGE WEEKLY WAGE
Workers compensation indemnity benefits are basically a portion of the wages the injured
employee would lose because he or she can’t work. The “Average Weekly Wage” is the amount
of the indemnity benefits to be paid. Generally speaking, the AWW for hourly workers is 2/3 of
what was earned in the four weeks before the accident, up to $630 per week as of September 1,
2014. The first check is due 14 days after the injury if the employee can’t return to work. LSA-
R.S. 23§1021(13)
 AWW if paid monthly – monthly earnings multiplied by 12 and divided by 52.
 AWW if paid annually – annual salary divided by 52.
 Seasonal employees working less than 44 weeks annually – annual income divided by 52;
if not employed a full year prior to accident then the average income from similar
employees is used.
Weekly TTD, PTD and PPD Rates
Weekly rates are paid at the AWW multiplied by .6667 unless the result is higher than the max
rate. If lower than the max rate the lower number applies.
SEB Rates
SEB is paid monthly by multiplying the difference between the pre-accident AWW and the post-
accident AWW by .6667
SCHEDULED AND NON-SCHEDULED INDEMNITY BENEFITS
The Louisiana Workers' Compensation Law mandates the payment of a portion of an injured
worker’s wages and other out of pocket expenses if he or she was involved in a compensable
accident. There are several different types of indemnity benefits categorized which are sometime
referred to as “scheduled” and “non-scheduled” losses.
TTD - Temporary Total Disability
TTD benefits are provided if the employee proves by clear and convincing evidence without any
presumption of disability that he or she is physically unable to engage in any kind of work.
 Ends once the extent of the injury can be determined and the injured worker no longer
needs continued, regular treatment. LSA-R.S. 23§1221(1)
PTD – Permanent Total Disability
PTD benefits are provided if the employee proves by clear and convincing evidence without any
presumption of disability that he or she is physically unable to engage in any kind of work. LSA-
R.S. 23§1221(2)
SEB – Supplemental Earnings Benefits
SEB is provided if an injured employee can do some work, but is not able to earn 90% or more
of what he or she was making at the time of injury. LSA-R.S. 23§1221(3)
 Capped at 10 years
 Employer gets a credit for the months/years it paid TTD benefits.
PPD – Permanent Partial Disability
PPD gives rise to a scheduled loss, meaning there is a fixed amount of indemnity that is
automatically available to the worker in the event of anatomical loss of use or amputation. LSA-
R.S. 23§1221(4)
 Covers losses of eyes, limbs, fingers or portions of fingers, etc.
 Paraplegia, quadriplegia, loss of both appendages or combination or thirs degree burns
over 40% of the body entitles the employee to an additional $50k.
Death Benefits
If an employee is killed in the course and scope of performing his job his dependents will receive
death benefits. Death may not be immediate – if the workers succumbs to his injuries within two
years after the last treatment death benefits will be available. LSA-R.S. 23§1231
 If no legal dependents, a lump sum of $75k is divided between the children; if no
children each surviving parent receives $75k.
 The schedule of specific payments to be made is found in LSA-R.S. 23§1232
 Benefits to a surviving spouse cease upon remarriage subject to a two year lump sum
payment. LSA-R.S. 23§1233
 Incapacitated children receive payments as long as they are incapacitated. LSA-R.S.
23§1233
 Minor dependent children receive benefits until death, marriage, reaches 18 or, if in
college, age 23. LSA-R.S. 23§1233
COMMON WORKERS COMPENSATION FORMS
Form 1007 First Report of Injury
There are a number of forms the employer has to file when an on the job injury happens. The
First Report of Injury or “1007” is sent by the employer to its workers compensation insurer. The
insurer then reports the information to the Louisiana Office of Workers Compensation. This form
should have all of the basic information about the accident and injury.
Form 1121 Choice of Physician
This is the form the employee fills out to select his or her treating physician. Once a doctor is
picked it is very difficult to change to another doctor in the same field or specialty. If the
employee is referred to the employer will be responsible for paying both doctors.
Form 1010 Request for Medical Treatment
Any healthcare provider who wants to give an injured worker any treatment which will cost
more than $750 has to file the Form 1010 along with all supporting medical records.
Form 1009 Disputed Claim for Medical Treatment
Called a Disputed Claim for Medical Treatment, this form is filed when there is a dispute
between the injured worker and the employer about medical treatment. The Form 1009 is sent to
the Medical Director at the Louisiana Office of Workers Compensation who gives an opinion
about the treatment being disputed. Once the Medical Director has weighed in the party that
doesn’t agree can file a Form 1008. The Form 1009 can only be filed if the insurer has denied a
request for medical treatment, has modified the request somehow, or has not acted on a request.
An injured worker can also file the Form 1009 if the treatment requested isn’t addressed in the
Louisiana Workers Compensation Medical Guidelines.
Form 1015 Request for Independent Medical Examination
This form is filled out by the party that wants to have an Independent Medical Examination
(IME) done. This comes up when there is a dispute about the employees medical condition
between the COP and the doctor the employer picked to provide a second medical opinion
(SMO). The vast majority of the time it is the employer that makes the request. The Director of
the Louisiana Office of Workers Compensation selects the doctor to try to act as the tie breaker.
1002 Notice of Payment, Modification, Suspension, Termination or Controversion
This is one of the first Louisiana workers compensation forms sent to the injured worker when
the first workers compensation indemnity check is sent. It also has to be mailed out when the
amount if the check is changed or benefits are being stopped. The purpose of the form is to show
the claimant the numbers used to come up with the weekly check. It was set up by a law passed
by the Louisiana State Legislature to create a “safe harbor” for employers who calculate benefits
wrong. If there is a disagreement about the amounts or termination the injured worker should
send in the Notice of Disagreement that is attached to the form. The adjuster will have five days
to correct any mistakes or request a hearing with the workers compensation judge. If they don’t
they may have to pay penalties and attorney fees if the amount if the check was wrong or if they
had no reason to stop your workers compensation benefits.
1020 Employee’s Monthly Report of Earnings
The employee may be required to turn in the Form 1020 every month to the claims adjuster to
show whether they had income that month.
1008 Disputed Claim for Compensation
This the form used to initiate a claim in Louisiana Office of Workers Compensation district
office when a dispute comes up. The issue will be decided by an administrative hearing officer
who essentially has all of the power and authority of a state court judge.
Form 1011 Request for Lump Sum Settlement
The OWC has to approve any final settlement of an entire claim for benefits. This means a
claimant can’t just settle their case forever and give up the right for future medical treatment and
indemnity benefit checks.
FILING AND PROSECUTING THE CLAIM
Some of the more common disputes that lead up to the filing of a Disputed Claim for
Compensation are:
 No wage benefits have been paid;
 No medical treatment has been authorized;
 Miscalculation of indemnity benefits;
 Improper reduction or termination of benefits;
 Denial of the opportunity to select a physician;
 Improper or no vocational rehabilitation; or
 The denial of the claim in its entirety.
The Language of Workers Compensation
 AWW – Average Weekly Wage
 TTD – Temporary Total Disability
 SEB – Supplemental Earnings Benefits
 PTD – Permanent Total Disability
 PPD – Permanent Partial Disability
 COP – Choice of Physician
 SMO – Second Medical Opinion
 IME – Independent Medical Examination
 FCE – Functional Capacity Evaluation
 VOC – Vocational Rehabilitation
 LMS – Labor Marley Survey
ABOUT CRAIG MITCHELL
Craig maintains a civil litigation practice with particular focus on insurance related matters,
workers’ compensation, catastrophic personal injury and complex, multi-party litigation. He is a
graduate of Fisk University, one of the nation’s oldest historically black colleges and universities
(HBCU) where he received degrees in English and history, and went on to receive his Juris
Doctorate and Certificate of Specialization in Environmental Law from Tulane Law School in
May, 1996. He is licensed to practice in all Louisiana state courts. He formed Mitchell &
Associates, A Professional Law Corporation, in 1999 and is rated AV by Martindale Hubbell.
Craig is active in the New Orleans community, currently serving as a member of the New
Orleans City Planning Commission after two years as Chair and one year as Vice Chair. He
previously served as a Commissioner on the New Orleans Recreation Development Commission,
as an Advisory Board Member to the Algiers Economic Development Council and on the Boards
of Directors of the New Orleans Public Library (former vice-chairman), New Orleans Public
Library Foundation (former president), Tulane Alumni Association (Tulane Law School
representative), and Young Leadership Council. Craig also served as treasurer of the Alliance for
Good Government’s New Orleans chapter and was appointed government liaison for the Tulane
University Louisiana Council.

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Louisiana Workers Compensation 101

  • 1. LOUISIANA WORKERS’ COMPENSATION 101 CRAIG MITCHELL, ESQ. MITCHELL & ASSOCIATES, APLC CBMITCHELL@MITCHELLAPLC.COM 504-527-6433 www.mitchellaplc.com www.2Hurt2Work.com December 17, 2014
  • 2. WHAT IS WORKERS COMPENSATION? Workers compensation programs exist in every state. The idea is that if a person gets hurt working they’ll be able to get medical help. They’ll also be able to get some of their pay. Louisiana workers’ compensation laws see to it that a person who is injured on the job is entitled to this almost automatically.  Medical treatment  Lost wages  Job training  Death and burial benefits WHO ARE THE WORKERS COMP PLAYERS? The Louisiana Office of Workers’ Compensation was set up in 1983 to administer the Louisiana Workers’ Compensation Act. The OWCA’s sole source of funding is from a tax assessment paid by workers’ compensation insurers and self-insureds. Relevant sections:  Workers’ Compensation Advisory Council  Workers’ Compensation Medical Advisory Council  Hearings Section Workers’ Compensation Advisory Council Established by LSA-R.S. 23:1294 and consists of seventeen members appointed by the governor. Its members are a cross section of business, self-insureds, attorneys, medical fields and public Workers’ Compensation Medical Advisory Council Appointed to two year terms by the director of the OWCA to review current guidelines and provide recommendations. Cross section of disciplines. Hearings Section Established to resolve disputed workers’ compensation claims. There are ten district offices statewide: Alexandria, Baton Rouge, Covington, Harahan, Houma, Lafayette, Lake Charles, Monroe, New Orleans, and Shreveport. Louisiana Workers Compensation Statistical Overview Workers’ compensation plays a more pervasive role than many realize.  In 2013 nearly $815,000,000 in workers’ compensation insurance premiums were paid to 233 workers’ compensation insurers in Louisiana.  In 2012 the Hearings Section of the OWCA received 5,178 claims for compensation.  2,787 trials, 1.968 mediations and 4,872 settlements were conducted or approved in 2012.
  • 3. TITLE 23 LABOR AND WORKERS’ COMPENSATION - CHAPTER 10 LSA-R.S. 23:1020.1 A. Citation. This Chapter shall be cited as the “Louisiana Workers' Compensation Law”. B. Purpose. The legislature declares that the purpose of this Chapter is all of the following: (1) To provide for the timely payment of temporary and permanent disability benefits to all injured workers who suffer an injury or disease arising out of and in the course and scope of their employment as is provided in this Chapter. (2) To pay the medical expenses that are due to all injured workers pursuant to this Chapter. (3) To return such workers who have received benefits pursuant to this Chapter to the work force. C. Legislative intent. The legislature finds all of the following: (1) That the Louisiana Workers' Compensation Law is to be interpreted so as to assure the delivery of benefits to an injured employee in accordance with this Chapter. (2) To facilitate injured workers' return to employment at a reasonable cost to the employer. D. Construction. The Louisiana Workers' Compensation Law shall be construed as follows: (1) The provisions of this Chapter are based on the mutual renunciation of legal rights and defenses by employers and employees alike; therefore, it is the specific intent of the legislature that workers' compensation cases shall be decided on their merits. (2) Disputes concerning the facts in workers' compensation cases shall not be given a broad, liberal construction in favor of either employees or employers; the laws pertaining to workers' compensation shall be construed in accordance with the basic principles of statutory construction and not in favor of either employer or employee. ACCIDENTS AND INJURIES LSA-R.S. 23 §1021 “Accident” means an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration. LSA-R.S. 23§1021(1) “Injury” and “personal injuries” include only injuries by violence to the physical structure of the body and such disease or infections as naturally result therefrom. These terms shall in no case be construed to include any other form of disease or derangement, however caused or contracted. LSA-R.S. 23§1021(8)(a) Mental injury caused by mental stress. Mental injury or illness resulting from work-related stress shall not be considered a personal injury by accident arising out of and in the course of employment and is not compensable pursuant to this Chapter, unless the mental injury was the
  • 4. result of a sudden, unexpected, and extraordinary stress related to the employment and is demonstrated by clear and convincing evidence. LSA-R.S. 23§1021(8)(b) Mental injury caused by physical injury. A mental injury or illness caused by a physical injury to the employee's body shall not be considered a personal injury by accident arising out of and in the course of employment and is not compensable pursuant to this Chapter unless it is demonstrated by clear and convincing evidence. LSA-R.S. 23§1021(8)(c) Heart-related or perivascular injuries. A heart-related or perivascular injury, illness, or death shall not be considered a personal injury by accident arising out of and in the course of employment and is not compensable pursuant to this Chapter unless it is demonstrated by clear and convincing evidence that: (i) The physical work stress was extraordinary and unusual in comparison to the stress or exertion experienced by the average employee in that occupation, and (ii) The physical work stress or exertion, and not some other source of stress or preexisting condition, was the predominant and major cause of the heart-related or perivascular injury, illness, or death. LSA-R.S. 23§1021(8)(e) DEFENSES TO CLAIMS Outside the Course and Scope of Employment An accident occurs in the course of employment when the employee sustains an injury while actively engaged in the performance of his duties during working hours, either on the employer's premises or at other places where employment activities take the employee.  An injury to an employee hurt during “horseplay” is not compensable.  An injury to an employee resulting from altercation over purely personal matters is not going to be compensable.  Injuries that occur “off the clock” and away from the work site are generally not compensable unless the employer benefits from the activity, the employer sponsors and/or funds the activity, and there is an increased risk to employee versus general public.  An injury to an employee due to his or her willful intention to injure another is not compensable. LSA-R.S. 23§1081(1)(a) Employee’s Intoxication An employee who is injured while intoxicated will not be entitled to workers’ compensation benefits unless the employee's intoxication resulted from activities which:  were in pursuit of the employer's interests or,  the employer procured the intoxicating beverage or substance and encouraged its use during the employee's work hours. LSA-R.S. 23§1021(1)(b)
  • 5. Initial Aggressor Defense Workers’ compensation benefits are not available to the initial physical aggressor in an unprovoked physical altercation, unless excessive force was used in retaliation against the initial aggressor. LSA-R.S. 23§1021(1)(c) Fraud and Intentional Misrepresentation/Fraud Workers’ compensation benefits can be denied or terminated if it is shown that the employee willfully made a false statement or representation in order to obtain (or deny) benefits. Provides for both civil and criminal penalties  Applies to employers and their agents as well. LSA-R.S. 23§1208 Failure to Reveal Previous Injury/Disability An injured worker’s entitlement to benefits may be forfeited if he or she failed to disclose a pre- existing condition that is directly related to the injury in dispute.  The employer provided disclosure/questionnaire must conatin a notice that failure to answer truthfully may result in the forfeiture of benefits. LSA-R.S. 23§1208.1 Receipt of Unemployment Benefits Generally, applying for unemployment requires you to to say you are able to work and pursuin employment. Incarceration Incarceration suspends benefits unless someone is wholly dependent on the employee. Compromise of Third Party Suit without Consent By statute the employer has a right of subrogation against any third-party that caused the employee’s injuries. If the third-party claim is settled without the employer’s approval they are entitled to stop benefits. The employee can “buy back” their entitlement to future benefits for amount of the benefits paid, but not exceeding 50% of the settlement. THE AVERAGE WEEKLY WAGE Workers compensation indemnity benefits are basically a portion of the wages the injured employee would lose because he or she can’t work. The “Average Weekly Wage” is the amount of the indemnity benefits to be paid. Generally speaking, the AWW for hourly workers is 2/3 of what was earned in the four weeks before the accident, up to $630 per week as of September 1, 2014. The first check is due 14 days after the injury if the employee can’t return to work. LSA- R.S. 23§1021(13)  AWW if paid monthly – monthly earnings multiplied by 12 and divided by 52.  AWW if paid annually – annual salary divided by 52.
  • 6.  Seasonal employees working less than 44 weeks annually – annual income divided by 52; if not employed a full year prior to accident then the average income from similar employees is used. Weekly TTD, PTD and PPD Rates Weekly rates are paid at the AWW multiplied by .6667 unless the result is higher than the max rate. If lower than the max rate the lower number applies. SEB Rates SEB is paid monthly by multiplying the difference between the pre-accident AWW and the post- accident AWW by .6667 SCHEDULED AND NON-SCHEDULED INDEMNITY BENEFITS The Louisiana Workers' Compensation Law mandates the payment of a portion of an injured worker’s wages and other out of pocket expenses if he or she was involved in a compensable accident. There are several different types of indemnity benefits categorized which are sometime referred to as “scheduled” and “non-scheduled” losses. TTD - Temporary Total Disability TTD benefits are provided if the employee proves by clear and convincing evidence without any presumption of disability that he or she is physically unable to engage in any kind of work.  Ends once the extent of the injury can be determined and the injured worker no longer needs continued, regular treatment. LSA-R.S. 23§1221(1) PTD – Permanent Total Disability PTD benefits are provided if the employee proves by clear and convincing evidence without any presumption of disability that he or she is physically unable to engage in any kind of work. LSA- R.S. 23§1221(2) SEB – Supplemental Earnings Benefits SEB is provided if an injured employee can do some work, but is not able to earn 90% or more of what he or she was making at the time of injury. LSA-R.S. 23§1221(3)  Capped at 10 years  Employer gets a credit for the months/years it paid TTD benefits. PPD – Permanent Partial Disability PPD gives rise to a scheduled loss, meaning there is a fixed amount of indemnity that is automatically available to the worker in the event of anatomical loss of use or amputation. LSA- R.S. 23§1221(4)  Covers losses of eyes, limbs, fingers or portions of fingers, etc.  Paraplegia, quadriplegia, loss of both appendages or combination or thirs degree burns over 40% of the body entitles the employee to an additional $50k.
  • 7. Death Benefits If an employee is killed in the course and scope of performing his job his dependents will receive death benefits. Death may not be immediate – if the workers succumbs to his injuries within two years after the last treatment death benefits will be available. LSA-R.S. 23§1231  If no legal dependents, a lump sum of $75k is divided between the children; if no children each surviving parent receives $75k.  The schedule of specific payments to be made is found in LSA-R.S. 23§1232  Benefits to a surviving spouse cease upon remarriage subject to a two year lump sum payment. LSA-R.S. 23§1233  Incapacitated children receive payments as long as they are incapacitated. LSA-R.S. 23§1233  Minor dependent children receive benefits until death, marriage, reaches 18 or, if in college, age 23. LSA-R.S. 23§1233 COMMON WORKERS COMPENSATION FORMS Form 1007 First Report of Injury There are a number of forms the employer has to file when an on the job injury happens. The First Report of Injury or “1007” is sent by the employer to its workers compensation insurer. The insurer then reports the information to the Louisiana Office of Workers Compensation. This form should have all of the basic information about the accident and injury. Form 1121 Choice of Physician This is the form the employee fills out to select his or her treating physician. Once a doctor is picked it is very difficult to change to another doctor in the same field or specialty. If the employee is referred to the employer will be responsible for paying both doctors. Form 1010 Request for Medical Treatment Any healthcare provider who wants to give an injured worker any treatment which will cost more than $750 has to file the Form 1010 along with all supporting medical records. Form 1009 Disputed Claim for Medical Treatment Called a Disputed Claim for Medical Treatment, this form is filed when there is a dispute between the injured worker and the employer about medical treatment. The Form 1009 is sent to the Medical Director at the Louisiana Office of Workers Compensation who gives an opinion about the treatment being disputed. Once the Medical Director has weighed in the party that doesn’t agree can file a Form 1008. The Form 1009 can only be filed if the insurer has denied a request for medical treatment, has modified the request somehow, or has not acted on a request. An injured worker can also file the Form 1009 if the treatment requested isn’t addressed in the Louisiana Workers Compensation Medical Guidelines.
  • 8. Form 1015 Request for Independent Medical Examination This form is filled out by the party that wants to have an Independent Medical Examination (IME) done. This comes up when there is a dispute about the employees medical condition between the COP and the doctor the employer picked to provide a second medical opinion (SMO). The vast majority of the time it is the employer that makes the request. The Director of the Louisiana Office of Workers Compensation selects the doctor to try to act as the tie breaker. 1002 Notice of Payment, Modification, Suspension, Termination or Controversion This is one of the first Louisiana workers compensation forms sent to the injured worker when the first workers compensation indemnity check is sent. It also has to be mailed out when the amount if the check is changed or benefits are being stopped. The purpose of the form is to show the claimant the numbers used to come up with the weekly check. It was set up by a law passed by the Louisiana State Legislature to create a “safe harbor” for employers who calculate benefits wrong. If there is a disagreement about the amounts or termination the injured worker should send in the Notice of Disagreement that is attached to the form. The adjuster will have five days to correct any mistakes or request a hearing with the workers compensation judge. If they don’t they may have to pay penalties and attorney fees if the amount if the check was wrong or if they had no reason to stop your workers compensation benefits. 1020 Employee’s Monthly Report of Earnings The employee may be required to turn in the Form 1020 every month to the claims adjuster to show whether they had income that month. 1008 Disputed Claim for Compensation This the form used to initiate a claim in Louisiana Office of Workers Compensation district office when a dispute comes up. The issue will be decided by an administrative hearing officer who essentially has all of the power and authority of a state court judge. Form 1011 Request for Lump Sum Settlement The OWC has to approve any final settlement of an entire claim for benefits. This means a claimant can’t just settle their case forever and give up the right for future medical treatment and indemnity benefit checks. FILING AND PROSECUTING THE CLAIM Some of the more common disputes that lead up to the filing of a Disputed Claim for Compensation are:  No wage benefits have been paid;  No medical treatment has been authorized;  Miscalculation of indemnity benefits;  Improper reduction or termination of benefits;  Denial of the opportunity to select a physician;  Improper or no vocational rehabilitation; or  The denial of the claim in its entirety.
  • 9. The Language of Workers Compensation  AWW – Average Weekly Wage  TTD – Temporary Total Disability  SEB – Supplemental Earnings Benefits  PTD – Permanent Total Disability  PPD – Permanent Partial Disability  COP – Choice of Physician  SMO – Second Medical Opinion  IME – Independent Medical Examination  FCE – Functional Capacity Evaluation  VOC – Vocational Rehabilitation  LMS – Labor Marley Survey ABOUT CRAIG MITCHELL Craig maintains a civil litigation practice with particular focus on insurance related matters, workers’ compensation, catastrophic personal injury and complex, multi-party litigation. He is a graduate of Fisk University, one of the nation’s oldest historically black colleges and universities (HBCU) where he received degrees in English and history, and went on to receive his Juris Doctorate and Certificate of Specialization in Environmental Law from Tulane Law School in May, 1996. He is licensed to practice in all Louisiana state courts. He formed Mitchell & Associates, A Professional Law Corporation, in 1999 and is rated AV by Martindale Hubbell. Craig is active in the New Orleans community, currently serving as a member of the New Orleans City Planning Commission after two years as Chair and one year as Vice Chair. He previously served as a Commissioner on the New Orleans Recreation Development Commission, as an Advisory Board Member to the Algiers Economic Development Council and on the Boards of Directors of the New Orleans Public Library (former vice-chairman), New Orleans Public Library Foundation (former president), Tulane Alumni Association (Tulane Law School representative), and Young Leadership Council. Craig also served as treasurer of the Alliance for Good Government’s New Orleans chapter and was appointed government liaison for the Tulane University Louisiana Council.