1) La. R.S. 23:1201.1 outlines new procedures for employees to dispute compensation benefits or medical benefits provided by employers in Louisiana. 2) The statute provides protections for employers who follow the procedural rules, including opportunities to avoid penalties and attorney's fees through "safe harbors". 3) A key form is the LWC-WC-1002 form which must be properly filed by employers when initiating, modifying, suspending, controverting, or terminating benefits to qualify for the statute's protections.

1. Michael S.
Rodriguez, Esq.
www.2Hurt2Work.com
Exploring
The
Unforeseen

2. Effective
August 1, 2013
Louisiana legislature enacted
La. R.S. 23:1201.1
A new procedure for an employee to
controvert compensation and certain
medical benefits.

3. La. R.S. 23:1201.1 is beneficial
to an employer who abides with the
procedural rules set out in the statute:
 Preliminary Determination - a non-binding mini trial that
forecasts how the Judge will rule at an actual full trial
on the merits.
 Creates multiple opportunities (i.e. safe harbors) for the
employer or insurer to avoid being cast with penalties
and attorney’s fees.

4. As an initial
warning…
the additional protections provided by
La. R.S. 23:1201.1 are not guaranteed
and can be forfeited if the procedural
rules set out in the statute are not
followed.

5. Before discussing
La. R.S. 23:1201.1
careful attention needs to be paid
to the LWC-WC-1002 Form. This
form is essential to the employer
initiating, modifying, suspending,
controverting, or terminating
benefits under the new law.

6. The Form
is easily downloaded off the Louisiana
Workforce Commission website
http://www.laworks.net/
1
2
3

7. The 1002 Form
should be used by the employer in the
following situations:
 first payment of compensation
 modification of compensation / medical benefits
 suspension of compensation / medical benefits
 termination of compensation / medical benefits
 controversion of compensation / medical benefits
 23:1121 issues & disputes – Choice of Physician
 23:1124 issues & disputes - SMO
 23:1208 issues & disputes - Fraud
 23:1226 issues & disputes - Rehabilitation
This form
should not be
used to
address
medical
necessity
questions.
The procedure
to address
medical
necessity
questions is
outlined La.
R.S. 23:1203.1

8. LA Revised Statute
23:1201.1 (A) …
outlines the steps an employer or
insurer must follow to avail itself of the
penalties and attorney’s fees safe
harbor provisions, and the preliminary
determination hearing process.

9. The employer must
first prepare a
1002 Form
The next step depends on whether the
1002 form is being issued relative to an
initial payment, or if it is being issued
relative to a modification, suspension,
termination, or controversion of
benefits.

10. Initial Payment
1. The 1002 form must be sent to the employee via U.S. mail
simultaneously with the first payment. If the employee is
represented, a copy of the 1002 form must be sent via facsimile
to the employee’s attorney.
2. A copy of the same form should be sent to the Office of
Workers’ Compensation within ten days of the initial payment.
The address where the 1002 should be sent is Office of
Workers’ Compensation, P.O. Box 94040, Baton Rouge, LA
70804.

11. Modification, Suspending,
Terminating or
Controverting Benefits
1. The 1002 form must be sent to the employee via certified mail
on or before the effective date of modification, suspension,
termination or controversion of benefits.
2. A copy of the same form
should be sent to -----→
3. If the employee is represented, a copy of the1002 form must be
sent via facsimile to his/her attorney.
Office of Workers’ Compensation
P.O. Box 94040, Baton Rouge
LA 70804

12. Failing to follow
procedures…
set out by La. R.S. 23:1201.1 (A), will
subject the employer to a lawsuit
without the benefit of any safe harbors
from penalties and attorney’s fees, as
well as forfeiting their right to a
preliminary determination hearing.

13. If employer follows procedures in
La. R.S. 23:1201 (A)…
and the employee disagrees with the
1002 Form issued by the employer, the
employee must file a Notice of
Disagreement or prepare a Letter of
Amicable Demand.
The Notice of Disagreement or Letter of Amicable
Demand must specify the basis of disagreement and
include any calculations or back due payments, which
the employee deems correct.

14. First Safe Harbor
from Penalties and
Attorney’s Fees
 Employer has seven business days to comply with the demand.
 If the employer complies with the employees demand within this
time frame, the employee will be banned from making a claim
for penalties and attorney’s fees for the improper calculation,
termination, suspension, or controversion of benefits.
The employee is precluded from filing a formal lawsuit during this seven day “safe
harbor” period. Violation of this rule would subject the employee to an Exception of
Prematurity.
The Notice of Disagreement or
Letter of Amicable Demand RECEIVED

15.  If the employer does not comply with the Notice
of Disagreement or Letter of Amicable Demand
within 7 business days, the employee is allowed
to file a lawsuit in Worker’s Compensation Court.
 If the employer originally complied with the
procedural requirements in La. R.S. 23:1201.1
(A), it can request a preliminary determination in
its Answer. This will open the door to additional
safe harbors from penalties and attorney’s fees.
Procedure for
Requesting Preliminary
Determination Hearing
What
happens if
subsequent
1002 issues
arise after a
lawsuit is
filed?

16. 1) employee does not follow the notice and mailing requirements for the
1002 form set out by La. R.S. 23:1201.1 (A).
2) employer does not initially accept compensability of a claim subject to
further investigation and subsequent controversion.
3) employer fails to request a preliminary determination in his Answer.
An employee can challenge an employer’s right to a preliminary determination at any
time by filing a Motion with the Court. The Judge will hold a rule to show cause to
determine whether a preliminary determination is appropriate.
Preliminary Determination
and Safe Harbor Provisions
Not Available if…

17. Discovery for
Preliminary
Determination Hearing
 The Workers' Compensation Judge shall initiate a telephone
status conference with the parties to schedule discovery deadlines
 The scope of discovery will be limited to the issues raised in the
1002 form and disputed by the employee.
The preliminary determination hearing shall be held no later than 90 days from the
scheduling conference. However, upon a showing of “good cause”, one 30 day
extension will be available.
Preliminary Determination Requested

18. Preliminary
Determination
Hearing
 The preliminary determination hearing will be a contradictory hearing
in which all parties can introduce evidence.
 The testimony of physicians may be introduced by certified records or
deposition. The parties can also agree to allow uncertified medical
records into evidence.
 Witnesses are allowed to testify at the hearing or, if agreed on by the
parties, may offer testimony by introduction of a deposition.
 Once the preliminary determination has been completed, the Judge
will have thirty days to issue a recommendation.

19. EMPLOYER OPTIONS
After a Preliminary
Determination Hearing
Once a recommendation has been made
by the Worker’s Compensation Judge,
the employer has ten days to either:
Notify the injured
employee or his
representative in
writing that the
employer does not
accept the
determination.
Accept and comply with
preliminary determination
recommendation and mail a
revised 1002 Form to the
injured employee or his
representative, along with any
payment amount determined,
and any arrearage due.

20. SECOND Safe Harbor
from Penalties and
Attorney’s Fees
EMPLOYER
Accepts & Complies
within 10 days to
Preliminary Determination…
shall not be subject to any
penalty or attorney fees
arising out of the original
notice which was the subject
of the preliminary hearing.
EMPLOYER
DOES NOT
Accept or Comply
within 10 days to
Preliminary Determination…
may, at the trial on the
merits, be subject to
penalties and attorney fees,
arising out of the issues
raised in the original notice.

21. EMPLOYER…
disagrees with the Preliminary
Determination &
complies with the judges ruling
THIRD Safe Harbor
from Penalties and
Attorney’s Fees
 must satisfy Preliminary Determination within 10
days of mailing by court.
 must notify court within 10 days that employer
would like to proceed to trial on the merits of the
1002 action.
After trial, does
the employer
benefit from a
3rd Safe Harbor
from Penalties
and Attorney’s
Fees?

22. Preliminary Determination
Ruling NOT a Final Judgment
& Added Benefits to Employer
 Any employer who accepts and complies with the preliminary
determination, and who does not request to proceed to trial on the
merits of the 1002 matters, shall retain the right to further controvert
future matters.
 An employer’s acceptance of the preliminary determination ruling is
not an admission of liability for future matters.
 Preliminary determination rulings are not subject to the courts
modification jurisdiction or the doctrine of res judicata.

23. Expedited Summary
Proceedings Authorized
by Statute
La. R.S. 23:1201.1 (K)(8)(a) provides for expedited summary proceedings
regardless of whether the employer is entitled to a preliminary
determination in the following circumstances:
 employee choice of physician disputes;
 employee disputes over vocational rehabilitation;
 employer seeks to compel the employee to sign the choice of
physician form;
 employer seeks to compel employee to attend SMO or IME;
 employer seeks to require the employee to return form LWC-1025 or
LWC-1020; and,
 employee seeks to have a suspension of benefits lifted for failure to
attend an SMO, IME, Voc Rehab, and for failure to submit 1020’s.

24. Final Thoughts
on Expedited Proceedings…
 Expedited proceedings shall be set within 3 days of the motion being
filed and no later than 30 days after. The expedited proceeding will
be carried out as a rule to show cause.
 A ruling made by the worker’s compensation judge at an expedited
summary proceeding will be binding on all parties without any further
hearings or a trial.
 If the employer was originally entitled to a preliminary determination,
and a ruling is made at an expedited proceeding, an employer can
avoid penalties and attorney’s fees by complying with the ruling within
10 calendar days (Safe Harbor).

25. Thank You for
Attending