Adverse Actions by the Employer and the Insurance Company in Louisiana Workers Compensation

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Termination of Benefits in Louisiana Workers Compensation

Unfortunately, in Louisiana workers compensation, the workers compensation insurance company can lawfully terminate workers compensation benefits - both medical benefits and lost wage (indemnity) benefits - without any approval from the Louisiana Office of Workers Compensation.

And, the workers compensation insurance company can terminate an employee's workers compensation benefits while the injured employee is still under active medical care.

Typical reasons that the workers compensation insurance company tries to terminate workers compensation benefits are:

    1. The employee's updated medical status; and
    2. Misconduct by the employee that is unrelated to the claim.

For example, Louisiana law holds that Temporary Total Disability benefits can be terminated when the employee's physical condition has resolved to the point that a reasonable and reliable determination of the extent of disability may be made, and the condition has improved to the point that continued, regular treatment by a physician is not required.

The workers compensation insurance company can also terminate an employee's workers compensation benefits if the employee refuses to undergo reasonable treatment, because the employee must make every effort to get better so that the employee can return to work.

And, the workers compensation insurance company will frequently terminate an employee's workers compensation benefits following a Second Medical Opinion (SMO), which is an examination by the workers compensation insurance company's own doctor.  

The best way to prevent a termination of workers compensation benefits is to hire a qualified experienced Louisiana workers compensation attorney before the termination of benefits occurs.

But if the injured employee's workers compensation benefits are in fact terminated, the employee can:

    1. Negotiate with the workers compensation insurance company for a reinstatement of the benefits;
    2. Request an Independent Medical Examination (IME) which is an examination by a third doctor, usually chosen by the court;
    3. File a Disputed Claim for Compensation (Form 1008) with the Office of Workers' Compensation, in order to go to court;
    4. Return to work in a restricted capacity, such as light duty; and
    5. Gather additional medical evidence in order to convince the workers compensation insurance company to reverse its position.

An employee's best course of action following a termination of benefits will depend on the specific reasons why the benefits were terminated in the first place.

And the best way to choose the right course of action following a termination of workers compensation benefits is to be represented by an experienced Louisiana workers compensation attorney.

Penalties, Attorney's Fees, Costs and Interest in Louisiana Workers Compensation

Under Louisiana workers compensation law, the Office of Workers Compensation Judge may impose sanctions on a workers compensation insurance company for a failure to pay an employee's claims within a suitable period of time after an adequate proof of loss, without a reasonable excuse.

These sanctions include awards of penalties, attorney's fees, costs and interest against the workers compensation insurance company, and in favor of the injured employee.

    • Louisiana workers compensation law sets forth various specific time periods for certain types of lost wage payments, as well as the applicable penalties for failing to meet those deadlines:
    • Under Louisiana workers compensation law, the first installment of lost wage (indemnity) benefits for Temporary Total Disability (TTD), Permanent Total Disability (PTD) or death benefits is due 14 days after the workers compensation insurance company has knowledge of the injury or death.
    • Also, the first installment of lost wage (indemnity) benefits for Supplemental Earnings Benefits (SEBs) is due 14 days after the workers compensation insurance company has knowledge that the Supplemental Earnings Benefits (SEBs) are due.
    • For Permanent Partial Disability (PPD) benefits, payment for these Permanent Partial Disability (PPD) benefits is due 30 days after the workers compensation insurance company receives a medical report giving notice of the employee's permanent partial disability.

If the above-listed time limits are not met, there is a 12% penalty to be added to each unpaid installment due, or a total of not more than $50 per calendar day, whichever is greater, subject to a maximum aggregate penalty of $2,000, plus reasonable attorney's fees, unless the workers compensation insurance company can provide a valid excuse for the delay.

Even though a separate penalty may be assessed for each infraction, the maximum amount of penalties which may be imposed at a hearing on the merits - regardless of the number of penalties which might be imposed - is $8,000.

And, importantly, all these penalties or attorney's fees for untimely payment or non-payment of lost wage benefits are made payable directly to the employee.

Furthermore, the excuses of the workers compensation insurance company are only valid if the claim was reasonably controverted or if such nonpayment resulted from conditions over which the employer or insurer had no control.

So basically, the fundamental test for deciding whether or not penalties and attorney's fees are dues is whether the denial was “reasonably controverted” or resulted "from conditions over which the employer or insurer had no control."

In addition to the above-detailed penalties and attorney's fees, if a claim goes to trial in front of the workers compensation Judge, the Judge may award legal costs to the winning party for:

    1. Expert witness fees;
    2. Deposition costs and fee;
    3. The costs for providing copies of medical records;
    4. The costs for providing any testimony, transcripts and/or records used at trial; and
    5. Any other costs that the workers compensation Judge finds reasonable.

In addition to the above-detailed penalties, attorney's fees, and costs, if a claim goes to trial in front of the workers compensation Judge, once a trial judgment has been issued, the winning party becomes entitled to judicial interest (or legal interest) at an annually-changing rate.

Judicial interest on all unpaid benefits runs from the date each benefit was due until the date of satisfaction of the judgment.

A useful judicial interest calculator can be found here.

Penalties for Medical Expenses and Medical Reports

In addition to penalties, attorney's fees, costs and interest on lost wage (indemnity) benefits, the workers compensation insurance company may be subject to penalties, attorney's fees, costs and interest on medical benefits, medical expenses and medical reports.

The most common situations where penalties and attorney's fees are awarded in regards to medical benefits, medical expenses and medical reports, are:

    1. A failure to authorize medical treatment;
    2. A failure to provide proper payment of medical bills and expenses;
    3. A failure to consent to an employee's choice of physician.
    4. A failure to provide an employee with a medical examination report; and
    5. A failure to investigate.

So, the workers compensation insurance company must make reasonable efforts to determine the injured employee's medical condition before refusing to authorize medical benefits.

Under Louisiana workers compensation law, authorized medical benefits must be paid within 60 days after the workers compensation insurance company receives a written medical report along with proper billing information.

If the workers compensation insurance company fails to provide payment for these authorized workers compensation medical benefit payments, or fails to consent to the employee's choice of physician, then this workers compensation is subject to a civil penalty in an amount that is up to the greater of:

    1. 12% of any unpaid compensation or medical benefits; and
    2. $50 for every day that the owed compensation or benefits remain unpaid, up to $2,000.

And, if the workers compensation insurance company is fined for multiple violations, the maximum total penalty that may be imposed, regardless of the number of penalties which might be imposed, is $8,000.

Also, if the workers compensation insurance company fails to provide payment for these authorized workers compensation medical benefit payments, then this workers compensation can be forced to pay reasonable attorney fees for each disputed claim.

However, in the event that a health care provider prevails on a claim for payment of a medical fee, these penalties and reasonable attorney fees (based upon actual hours worked) may be awarded and paid directly to the health care provider.

Additionally, under Louisiana workers compensation law, if the workers compensation insurance company fails to provide an employee with a copy of a Medical Examination Report, the employee can be awarded a $250 penalty and reasonable attorney fees.

And, under Louisiana workers compensation law, if the workers compensation insurance company fails to investigate factual or medical information about the injured employee before denying his or her claim, the employee can be awarded penalties and reasonable attorney fees.

The “Reasonably Controverted” and “Arbitrary, Capricious or Without Probable Cause” Standards 

Under Louisiana workers compensation law, penalties and attorney's fees are awarded for failure to properly pay benefits on time unless the workers compensation insurance company can “reasonably controvert” the claim or the non-payment results from conditions over which the workers compensation insurance company had no control.  

Additionally, penalties and attorney's fees are awarded when the workers compensation insurance company discontinues benefits when the discontinuance is found to be "arbitrary, capricious or without probably cause." 

In other words, if the workers compensation insurance company can present a reasonable basis for some subsequent objection to the workers compensation benefits, then it will not have to pay penalties and attorney's fees.

The Louisiana Supreme Court has ruled that proof of a violation of the “reasonably controverted” standard would be established by showing “action of a less egregious nature than that required for arbitrary and capricious behavior.”

The "Safe Harbor" from Penalties and Attorney's Fees 

Unfortunately, Louisiana law provides a legal "safe harbor" that protects the workers compensation insurance company from claims for penalties and attorney's fees. 

Under Louisiana workers compensation law, a workers compensation insurance company which terminates an employee's benefits must complete a Form LWC-WC 1002 (Notice of Payment, Modification, Suspension, Termination, or Controversion of Compensation or Medical Benefits/Notice of Disagreement), and send the completed form to the injured employee by certified mail and to the employee's attorney by facsimile.

Unfortunately, this Form 1002 creates a "safe harbor" that protects the workers compensation insurance company from claims by the employee for penalties and attorney's fees. 

That is, if the workers compensation insurance company properly completes and forwards the Form 1002 on time, the employee will not be able to recover penalties and attorney's fees, even if the workers compensation Judge ultimately finds that the denial or discontinuance of benefits was improper.

The Fraud Defense in Louisiana Workers Compensation

Under Louisiana workers compensation law, workers compensation fraud is defined as:

    1. A false statement or representation willfully made by any person for the purpose of obtaining (or defeating) any workers compensation benefit or payment, either for himself or for any other person; 
    2. Aiding and abetting, or counseling an employer or claimant, either directly or indirectly, to willfully make a false statement or representation; or
    3. A failure by an employee to answer truthfully in response to an employer's inquiry about previous injuries, disabilities, or other medical conditions, when this failure to answer directly relates to the medical condition for which a claim for benefits is made, or when this failure to answer affects the employer's ability to receive reimbursement from the second injury fund.  

The "benefits claimed or payments obtained" relating to the fraud includes the cost or value of indemnity benefits, and the cost or value of health care, medical case management, vocational rehabilitation, transportation expense, and the reasonable costs of investigation and litigation.

Any employee who is found to have committed fraud - after a determination by the  workers compensation Judge - will forfeit and lose any and all workers compensation benefits.

Additionally, criminal penalties for fraud include the following:

    1. Imprisonment for up to 10 years, or fines up to $10,000, or both, when the benefits fraudulently claimed or payments fraudulently obtained are $10,000 or more;
    2. Imprisonment for up to 5 years, or fines up to $5,000, or both, when the benefits fraudulently claimed or payments fraudulently obtained are $2,500 or more but less than $10,000;
    3. Imprisonment for up to 6 months, or fines up to $500, or both, when the benefits fraudulently claimed or payments fraudulently obtained are less than $2,500.

In addition to the criminal penalties, civil penalties for fraud include the following:

    1. Civil penalties of between $500 and $5,000 payable to the Kids Chance Scholarship Fund of the Louisiana Bar Foundation; and
    2. Restitution for benefits claimed or payments obtained through fraud and only up to the time the employer became aware of the fraudulent conduct.

The bottom line for injured employees is that, if the employee makes a false statement in order to obtain workers compensation benefits, this employee will lose all his or her benefits and owe a substantial amount in penalties.

The most important and most disputed elements of the fraud defense are the “intent” element and the determination of whether the misrepresentation was actually made for the purpose of receiving or defeating workers compensation benefits.

Fraud is Known as "The Kiss of Death" 

Among workers compensation attorneys, fraud is frequently referred to as "the kiss of death" because its remedies are so harsh.

These fraud remedies and penalties are so harsh because the employee will likely give up all of his workers compensation benefits, both past and future.

In fact, Louisiana workers compensation law requires the employee who is found to have committed fraud to pay back all the workers compensation benefits that he or she has received up until the fraud was discovered.

In other words, the forfeiture is “retroactive” and cancel alls workers compensation benefits from the outset of the claim.

So fraud is frequently referred to as "the kiss of death" because if the employee is credibly accused of fraud, sometimes the employee's best move can be to withdraw all claims for benefits and hope that the workers compensation insurance company does not pursue restitution (meaning reimbursement of prior benefits) or other penalties (both civil and criminal) against the employee. 

The Two Types of Fraud: Section 1208 Fraud and Section 1208.1 Fraud

In Louisiana workers compensation, there are two types of fraud:

    1. Section 1208 Fraud; and
    2. Section 1208.1 Fraud.

Section 1208 Fraud involves any false statement or misrepresentation, including one concerning a prior injury, made specifically for the purposes of obtaining workers compensation benefits.

Section 1208.1 Fraud involves a failure to answer truthfully an inquiry by the employer about prior injuries, disabilities or other medical conditions, if the failure directly relates to the medical condition for which a claim for benefits is made or affects the employer's ability to receive reimbursement from the second injury fund.

The major differences between Section 1208 Fraud and Section 1208.1 Fraud are:

    1. Section 1208 Fraud does not require the employee have knowledge that the misrepresentation will result in the forfeiture of workers compensation benefits, while Section 1208.1 Fraud does require such knowledge;
    2. Section 1208 Fraud does not require that the employer be prejudiced by the misrepresentation, while Section 1208.1 Fraud does require such prejudice;
    3. Section 1208 Fraud has a criminal penalty, while Section 1208.1 Fraud does not a criminal penalty; and
    4. Section 1208 Fraud does not have any notice requirements, while Section 1208.1 Fraud has very stringent notice requirements. 

Also, Section 1208 Fraud applies to false statements made to anyone and generally becomes applicable at the time of an accident or claim, while Section 1208.1 Fraud is somewhat more narrow, applying to the employment-related questioning of an employee or prospective employee by an employer, even when there is no pending workers' compensation claim.

In fact, concerning notice requirements, under Section 1208.1 Fraud, the employer must print a notice (in ten-point type) on the questionnaire of the effect of untruthful answers; these notice requirements do not apply to Section 1208 Fraud.

Accidents Involving Drug or Alcohol Intoxication in Louisiana Workers Compensation

Under Louisiana workers compensation law, if an employee was intoxicated at the time of the employee's injury, and the intoxication caused the injury, then the workers compensation insurance company is not required to pay workers compensation benefits to that employee.

However, the intoxicated employee will be entitled to workers compensation benefits if:

    1. The intoxication results from activities in pursuit of the employer's interests; or
    2. The intoxication results from activities in which the employer procured and encouraged the use of the beverage or substance during work hours.

Good examples of these exceptions that allow coverage are business luncheons or parties.

Louisiana law permits the employer to administer drug and alcohol testing immediately after an alleged job accident or injury. 

Additionally, Louisiana law allows the use of blood alcohol tests to establish intoxication, according to the following standards:

    • If the blood alcohol reading is less than 0.05, then it is presumed that the employee was not intoxicated.
    • If the blood alcohol reading is between 0.05 and 0.8, then there are no presumptions and the test is simply evidence to be considered.
    • If the blood alcohol reading is over 0.8, then intoxication is presumed.

An injured employee's refusal to submit to a blood test also results in a presumption of intoxication.

Also, if the employee tests positive for a legal but non-prescribed controlled substance (such as prescription pain medications), then intoxication is presumed if the employee had no prescription.

If an employee tests positive, then the employee has the right to be retested immediately afterwards at own the employee's own expense.

The Shifting Burden of Proof

If an employee tests positive, then the workers compensation court will presume that:

    1. The employee was intoxicated at the time of the accident; and
    2. The employee's intoxication was the cause of the accident.

So, once the employer or the workers compensation insurance company establishes that employee was intoxicated at the time of the accident, then the burden will shift to the employee to prove that the intoxication was not a contributing cause of the accident, in order to defeat the intoxication defense of the workers compensation insurance company.

Therefore, there are basically two presumptions at work during the intoxication defense:

    1. The presumption of intoxication, based on the blood alcohol content percentages or drug readings; and
    2. The presumption that the intoxication of the employee was a cause of the accident.

However, once these presumptions are established, either presumption can be rebutted by the employee.

But the injured employee can certainly rebut (or overturn) the presumption of intoxication, for example by:

    1. Offering testimony from family, friends or co-workers who had observed the employee before, after and during the alleged accident, but did not see anything unusual or which would lead them to conclude that the employee was intoxicated;
    2. Offering testimony from co-workers who were in a position to testify that the employee did not appear to be intoxicated immediately prior to the accident because the employee was performing his or her job duties in a normal manner and without problem;
    3. Offering testimony from a toxicology expert that the amount of marijuana by-product in the urine could have come from passive inhalation;
    4. Offering testimony from a toxicology expert that the amount of by-product in the urine indicated drug use days or weeks earlier, but not on the day of the accident;
    5. Offering testimony from the employee denying drug use on the day of the accident but admitting to drug use days or weeks earlier; and
    6. Offering evidence that the testing was not performed immediately after the accident.

However, if the workers compensation insurance company does meet its burden of proving intoxication, it will presumed that the accident was caused by the intoxication, and the burden of proof then shifts to the employee to prove that the intoxication was not a contributing cause of the accident.

Also, if an injured employee receives emergency care following the employee's accident or injury, but is later found intoxicated at the time of the accident, the workers compensation insurance company is only liable for the reasonable medical care provided the worker until such time as he is stabilized and ready for discharge from the acute care facility, at which time the employer's responsibility shall end for medical and compensation benefits. 

How to Overcome and Defeat a Failed Drug or Alcohol Test 

If an injured employee fails a drug or alcohol test after an accident, this employee may still be able receive workers compensation benefits.

For example, despite failing a drug or alcohol test, an injured employee may still be able to receive workers compensation benefits for the following reasons:

    • The employee's intoxication resulted from activities that were in pursuit of the employer's interests.
    • The employee's intoxication resulted from activities in which the employer procured and encouraged the use of the beverage or substance during work hours (such as business luncheons or parties).
    • The drug and alcohol testing was not performed immediately after the accident.
    • A urine test, instead of a blood test, was used to establish the influence of marijuana.
    • The employee did not use drugs on the day of the accident, but did use drugs days or weeks earlier, and a toxicology expert can testify that this is what the toxicology report shows.
    • The employee did not smoke marijuana, but may have passively inhaled second-hand marijuana smoke, and a toxicology expert can testify that this is what the toxicology report shows.
    • The employee actually has a prescription for the prescription drug medications that appeared positive on the drug test.
    • Sworn testimony - from the employee's family, friends or co-workers who had observed the employee before, after and during the alleged accident - demonstrates that these family, friends or co-workers did not see anything unusual or which would lead them to conclude that the employee was intoxicated.
    • Sworn testimony from the employee's co-workers demonstrates that the employee did not appear to be intoxicated immediately prior to the accident because the employee was performing his or her job duties in a normal manner and without problem.
    • The evidence shows that the intoxication did not cause the accident, for example, because: 
        1. The employee did not appear to be intoxicated on the day of the accident;
        2. The conduct of the employee was not improper or illegal in any manner;
        3. The work being done by the employee was not improper or illegal in any manner;
        4. The employee was simply just in the wrong place at the wrong time; or
        5. The accident had nothing to do with the actions of the employee.
    • The employer did not have a written policy prohibiting drug and alcohol intoxication at work that also stated the specific consequences such as denial of workers compensation benefits and the termination of benefits.
    • The employer did not have a written specific drug and alcohol testing policy which:
        1. Is more than a simple statement of zero tolerance;
        2. Sets out the specific testing protocols and procedures;
        3. Provides a definite course or method of action selected from among testing alternatives;
        4. Sets forth a specific method or methods for drug testing;
        5. Selects from various testing methods;
        6. Specifies under what circumstances an employee may be required to submit to a test; and
        7. Complies with the Office of Workers Compensation's drug testing rules and the Louisiana Drug Testing Statute.
    • The written drug and alcohol use policy and the written drug and alcohol testing policy were not specifically communicated and provided to the employee.
    • The drug or alcohol test failed to follow the Office of Workers Compensation's rules for collecting the sample itself or the rules for proper chain of custody procedures, because: 
        1. The collection of samples was not performed under reasonably sanitary conditions;
        2. The samples were not collected and tested with due regard to the privacy of the individual being tested, and in a manner reasonably calculated to prevent substitutions or interference with the collection or testing of reliable samples;
        3. The sample collection was not documented, or the documentation procedures did not include labeling of samples so as reasonably to preclude the probability of erroneous identification of test result, and an opportunity for the employee to provide notification of any information which he considers relevant to the test, including identification of currently or recently used prescription or nonprescription drugs, or other relevant medical information; and
        4. The sample collection, storage, and transportation to the place of testing was not performed so as reasonably to preclude the probability of sample contamination or adulteration.

And again, even if an employee tests positive for drugs or alcohol, the employee can still receive workers compensation benefits if the employee can rebut and overturn either the presumption that the employee was intoxicated at the time of the accident or the presumption that the employee's intoxication was a cause of the accident.

Private Investigators and Video Surveillance in Louisiana Workers Compensation

Louisiana workers compensation insurance companies frequently hire private investigators to perform video surveillance on injured employees, for the purpose of avoiding coverage and denying workers compensation benefits such as lost wages and medical benefits.

A typical workers compensation insurance company will hire private investigators to obtain video surveillance of an injured employee that shows the employee performing actions or activities that do not correspond to his or her  injuries.

Also, the workers compensation insurance company will often have the private investigator schedule video surveillance on days when the injured employee has a scheduled medical appointment or a deposition, because the private investigator will know almost exactly when the employee will be leaving his or her home that day, and where the employee will be going, in order to easily surveil and capture video footage.

Then, once the workers compensation insurance company has obtained the video surveillance, it will use that video to assert a fraud defense against the employee in order to deny the employee all his or her workers compensation benefits, or even just to reduce the settlement value of the employee's claim.

Workers compensation insurance companies frequently hire private investigators to perform video surveillance once they feel that a claim is entering settlement mode, or if the claim is a large claim, because even if they cannot assert a fraud defense to deny the employee all his or her workers compensation benefits, video surveillance at the right time can be enough to significantly reduce the settlement value of the employee's claim.

A workers compensation insurance company will use the most trivial of events as a basis to surveil, such as:

    1. When there are no witnesses to the accident;
    2. When the employee didn't receive immediate medical attention following an accident or injury;
    3. When there was a large lapse in time between when the accident occurred and when it was reported;
    4. When the employee repeatedly misses scheduled doctor or medical treatment appointments;
    5. When the employee claims an emotional injury;
    6. When the employee claims a soft-tissue injury; or
    7. When the employee claims a subjective injury that is hard to verify.

But, an injured employee can take the following measures to counter the surveillance activities of a private investigator:

    1. Always be on the lookout for individuals who may be conducting surveillance;
    2. Always follow the orders of the employee's doctor as closely as possible, meaning if the doctor tells the employee not to lift more than 20 pounds, then the employee should not ever lift more than 20 pounds;
    3. Always be extra thoughtful to follow the orders of the employee's doctor, even when not thinking, in a hurry, or distracted;
    4. Always assume the employee is being watched by a private investigator, and act accordingly;
    5. Never talk to, confront, or interact with a suspected private investigator;
    6. Never use profanity or flip-off a suspected private investigator;
    7. If the employee thinks he or she is being videotaped, pretend that the employee does not know they are being videotaped;
    8. Avoid making social media comments or posts about the employee's injuries, workplace or physical activities;
    9. Hire the employee's own private investigator to determine if he or she is being surveilled; 
    10. Check the employee's business cell phone or laptop for spyware;
    11. Check the employee's business cell phone or laptop for special apps or software programs, which may shorten battery life, emit random noises, reduce call quality, increase data usage, or produce strange texts messages; 
    12. Be cautious at all times whenever out in public or working outside the house; and
    13. Never work - even part-time or through self-employment - while receiving workers compensation lost benefits, unless that extra income is being reported to the workers compensation insurance company by use of OWC Form 1020 (Employee's Monthly Report of Earnings).

By far, the most important thing for an injured employee is to never do anything that is outside the physical restrictions put on the employee by his or her doctor, especially concerning lifting, bending, walking, running, climbing, physical exercise, lawn work, heavy outdoor chores, and other physical activities.

Retaliatory Termination of Employment Is Illegal in Louisiana Workers Compensation

Under Louisiana workers compensation law, an employer cannot fire an employee just because that employee has filed a workers compensation claim.

Also, no employer can refuse to hire a job applicant just because that applicant has filed a workers compensation claim.

If an employer does fire an employee, or refuses to hire a job applicant, just because that employee or job applicant has filed a workers compensation claim, than that employee or job applicant can recover from the employer or prospective employer the amount the employee would have earned but for the discrimination (based upon the starting salary of the position sought or the earnings of the employee at the time of the discharge), but no more than one year's earnings, together with reasonable attorney's fees and court costs.

However, if an employee or job applicant is found by a court to have brought a frivolous claim for wrongful termination, than that employee or job applicant shall be held responsible for the reasonable damages which the employer incurred as a result of this wrongful termination claim, including reasonable attorney's fees and court costs.

So the bottom line here is that an employee may not be discharged for filing a workers compensation claim, but may face serious consequences if the employee brings a frivolous claim for retaliatory discharge.

However, it is important for the employee to understand that an employee can be legally terminated if the employee's treating physician finds that the employee can no longer medically perform his or her job duties. In such a situation though, the employee should continue to receive full workers compensation benefits.

But Louisiana workers compensation law does allows the employer to terminate the employee's job position employment if the employee is medically unable to perform the work, and Louisiana law does not require the employer to allow an injured employee to return to his or her job position when the employee has recovered from his or her injury.

So, at a hearing for retaliatory termination (or wrongful termination), if the employee provides sufficient circumstantial evidence to prove that the employee was more probably than not discharged because he or she filed a workers compensation claim, the employer may defend itself by showing, through a preponderance of the evidence, that there was another non-discriminatory basis for the discharge (or the refusal to hire).

Valid reasons for termination of employment (even when the employee is receiving workers compensation benefits) include when:

    1. The employee has failed to complete his or her job duties before the employee's injury;
    2. The employee demonstrated identifiable poor performance before the employee's injury;
    3. The employee who is a contract employee is being terminated for a reason listed in the contract;
    4. The employee who is in a labor union is being terminated for a reason listed in the union's collective bargaining agreement;
    5. The employee violated an established company policy;
    6. The employee engaged in professional misconduct;
    7. The employee acted illegally or criminally;
    8. The employee failed a workplace drug or alcohol screening;
    9. The employer is restructuring its business and the employee's job position is being eliminated; and
    10. The employer is having financial problems and needs to reduce the number of employees.

Nonetheless, the injured employee or job applicant must be vigilant to ensure that the employer's explanation for the termination is not merely an excuse for retaliatory discharge. 

The Louisiana Statutes for Adverse Actions by the Employer or the Insurance Company in Louisiana Workers Compensation

The primary Louisiana statutes regarding adverse actions by the employer or the workers compensation insurance company are La. R.S. 23:1081, La. R.S. 23:1125, La. R.S. 23:1170, La. R.S. 23:1171.1, La. R.S. 23:1171.2, La. R.S. 23:1172, La. R.S. 23:1172.1, La. R.S. 23:1172.2, La. R.S. 23:1201, La. R.S. 23:1201.1, La. R.S. 23:1201.3, La. R.S. 23:1208, La. R.S. 23:1208.1, La. R.S. 23:1208.2, La. R.S. 23:1221, and La. R.S. 23:1361, which read as follows:

§1081. Defenses

(1) No compensation shall be allowed for an injury caused:

(a) by the injured employee's willful intention to injure himself or to injure another, or

(b) by the injured employee's intoxication at the time of the injury, unless the employee's intoxication resulted from activities which were in pursuit of the employer's interests or in which the employer procured the intoxicating beverage or substance and encouraged its use during the employee's work hours, or

(c) to the initial physical aggressor in an unprovoked physical altercation, unless excessive force was used in retaliation against the initial aggressor.

(2) In determining whether or not an employer shall be exempt from and relieved of paying compensation because of injury sustained by an employee for any cause or reason set forth in this Subsection, the burden of proof shall be upon the employer.

(3) For purposes of proving intoxication, the employer may avail himself of the following presumptions:

(a) If there was, at the time of the accident, 0.05 percent or less by weight of alcohol in the employee's blood, it shall be presumed that the employee was not intoxicated.

(b) If there was, at the time of the accident, in excess of 0.05 percent but less than 0.08 percent by weight of alcohol in the employee's blood, such fact shall not give rise to any presumption that the employee was or was not intoxicated, but such fact may be considered with other competent evidence in determining whether the employee was intoxicated.

(c) If there was, at the time of the accident, 0.08 percent or more by weight of alcohol in the employee's blood, it shall be presumed that the employee was intoxicated.

(4) Percent by weight of alcohol in the blood shall be based upon grams of alcohol per one hundred cubic centimeters of blood.

(5) If there was, at the time of the accident, evidence of either on or off the job use of a nonprescribed controlled substance as defined in 21 U.S.C. 812, Schedules I, II, III, IV, and V, it shall be presumed that the employee was intoxicated.

(6) The foregoing provisions of this Section shall not be construed as limiting the introduction of any other competent evidence bearing upon the question of whether the employee was under the influence of alcoholic beverages or any illegal or controlled substance.

(7)(a) For purposes of this Section, the employer has the right to administer drug and alcohol testing or demand that the employee submit himself to drug and alcohol testing immediately after the alleged job accident.

(b) If the employee refuses to submit himself to drug and alcohol testing immediately after the alleged job accident, then it shall be presumed that the employee was intoxicated at the time of the accident.

(8) In order to support a finding of intoxication due to drug use, and a presumption of causation due to such intoxication, the employer must prove the employee's use of the controlled substance only by a preponderance of the evidence. In meeting this burden, the results of employer-administered tests shall be considered admissible evidence when those tests are the result of the testing for drug usage done by the employer pursuant to a written and promulgated substance abuse rule or policy established by the employer.

(9) All sample collection and testing for drugs under this Chapter shall be performed in accordance with rules and regulations adopted by the assistant secretary which ensure the following:

(a) The collection of samples shall be performed under reasonably sanitary conditions.

(b) Samples shall be collected and tested with due regard to the privacy of the individual being tested, and in a manner reasonably calculated to prevent substitutions or interference with the collection or testing of reliable samples.

(c) Sample collection shall be documented, and the documentation procedures shall include:

(i) Labeling of samples so as reasonably to preclude the probability of erroneous identification of test result; and

(ii) An opportunity for the employee to provide notification of any information which he considers relevant to the test, including identification of currently or recently used prescription or nonprescription drugs, or other relevant medical information.

(d) Sample collection, storage, and transportation to the place of testing shall be performed so as reasonably to preclude the probability of sample contamination or adulteration; and

(e) Sample testing shall conform to scientifically accepted analytical methods and procedures. Testing shall include verification or confirmation of any positive test result by gas chromatography, gas chromatography-mass spectroscopy, or other comparably reliable analytical method, before the result of any test may be used as a basis for any disqualification pursuant to this Section. Test results which do not exclude the possibility of passive inhalation of marijuana may not be used as a basis for disqualification under this Chapter. However, test results which indicate that the concentration of total urinary cannabinoids as determined by immunoassay equals or exceeds fifty nanograms/ml shall exclude the possibility of passive inhalation.

(10) All information, interviews, reports, statements, memoranda, or test results received by the employer through its drug testing program are confidential communications and may not be used or received in evidence, obtained in discovery, or disclosed in any public or private proceeding, except in a proceeding related to an action under R.S. 23:1021 et seq. or R.S. 23:1601(10) in a claim for unemployment compensation proceeding, hearing, or civil litigation when drug use by the tested employee is relevant.

(11) No cause of action for defamation of character, libel, slander, or damage to reputation arises in favor of any person against an employer who has established a program of drug or alcohol testing in accordance with this Chapter and rules and regulations adopted pursuant thereto, unless:

(a) The results of that test were disclosed to any person other than the employer, an authorized employee or agent of the employer, the tested employee, or the tested prospective employee or appropriate governmental agency or court.

(b) The information disclosed was based on a false test result; and

(c) All elements of an action for defamation of character, libel, slander, or damage to reputation as established by statute or jurisprudence, are satisfied.

(12) Notwithstanding any language to the contrary, once the employer has met the burden of proving intoxication at the time of the accident, it shall be presumed that the accident was caused by the intoxication. The burden of proof then is placed upon the employee to prove that the intoxication was not a contributing cause of the accident in order to defeat the intoxication defense of the employer.

(13) In the event a health care provider delivers emergency care to an injured worker later presumed or found to be intoxicated under this Section, the employer shall be responsible for the reasonable medical care provided the worker until such time as he is stabilized and ready for discharge from the acute care facility, at which time the employer's responsibility shall end for medical and compensation benefits.

Acts 1983, 1st Ex. Sess., No. 1, §1, eff. July 1, 1983; Acts 1989, No. 454, §3, eff. Jan. 1, 1990; Acts 1990, No. 958, §1; Acts 2001, No. 781, §2, eff. Sept. 30, 2003; Acts 2001, No. 1014, §§1 and 2, eff. June 27, 2001.

NOTE: Section 6 of Acts 2001, No. 781 provides that the provisions of the Act shall become null and of no effect if and when Section 351 of P.L. 106-346 regarding the withholding of federal highway funds for failure to enact a 0.08 percent blood alcohol level is repealed or invalidated for any reason.

§1125.  Right of employee to written report of medical examination; penalty for failure to furnish

A.  Whenever an employee who is being treated by his choice of medical provider shall, at the request of the employer, the employer's insurer, or the representative of the employer or its insurer, submit to any type of medical examination and a medical report is received by said requester, such employee or his representative shall be entitled to a copy of the written report of the results of said examination within thirty days from the date the requester receives the report.

B.  Whenever an employee has accepted medical treatment by a health care provider referred by the employer, the employer's insurer, or the representative of the employer or its insurer, he shall be entitled to receive a copy of any medical records of the medical provider that are in the possession of the employer or its insurer within thirty days from the date of the written demand upon the employer, the employer's insurer, or the representative of the employer or its insurer.

C.  Such written report or records shall be furnished to said employee or his representative at no cost to the employee.  Any employer who without just cause fails to furnish such report or records to an employee so requesting same within the thirty-day period provided for above shall be liable to the employee for a civil penalty in the amount of two hundred fifty dollars, plus reasonable attorney fees for the collection of such penalty.

Added by Acts 1976, No. 243, §1; Acts 1999, No. 134, §1, eff. June 9, 1999.

§1170. Penalty for failure to secure workers' compensation insurance; assessment and collection

A. In addition to any other penalty prescribed by law, any employer who fails to secure compensation required by R.S. 23:1168 shall be liable for a civil penalty, to be assessed by the workers' compensation judge, of not more than two hundred fifty dollars per employee for a first offense, and liable for a civil penalty of not more than five hundred dollars per employee for a second or subsequent offense; however, the maximum civil penalty for a first offense shall not exceed ten thousand dollars for all related series of violations. All civil penalties collected shall be deposited in the Office of Workers' Compensation Administrative Fund established in R.S. 23:1291.1(E).

B. The workers' compensation judge shall assess any civil penalty incurred under Subsection A of this Section against any employer who fails to provide proof of compliance within fifteen days of any notice. Any penalty assessed and collected pursuant to this Section shall be forwarded to the fraud administrator for collection. In his discretion, the fraud administrator may remit, mitigate, or negotiate the penalty if proof of the mitigating circumstances is provided within fifteen days of notice of the assessment. In determining the amount of the penalty to be assessed, or the amount agreed upon in any negotiation, consideration shall be given to the appropriateness of such penalty in light of the life of the business of the employer charged, the gravity of the violation, and the extent to which the employer charged has complied with the provisions of R.S. 23:1168, or has otherwise attempted to remedy the consequences of the said violation. Individual proceedings shall be conducted pursuant to the provisions of R.S. 23:1171.

C. In addition to any penalties assessed in accordance with the provisions of this Chapter, the workers' compensation judge shall order the employer to provide proof of compliance with R.S. 23:1168 within forty-five days of the order.

Acts 1988, No. 938, §2, eff. July 1, 1989; Acts 1989, No. 512, §1, eff. Jan. 1, 1990; Acts 1992, No. 447, §1, eff. June 20, 1992; Acts 1992, No. 764, §1; Acts 2001, No. 1185, §2, eff. July 1, 2001; Acts 2001, No. 1185, §10, eff. July 1, 2002; Acts 2010, No. 288, §1; Acts 2014, No. 375, §1; Acts 2018, No. 612, §7, eff. July 1, 2020; Acts 2018, 2nd E.S., No. 12, §1, eff. June 12, 2018.

§1171.1. Discontinuance of business; injunction; procedure

A. The assistant secretary, or his designee, shall investigate an employer if he receives information from any person or entity that such employer has failed to provide security for compensation as required by R.S. 23:1168. If such allegations can be reasonably substantiated, and the employer has previously been subject to a civil penalty pursuant to R.S. 23:1170 or criminal penalties pursuant to R.S. 23:1172, the assistant secretary, or his designee, and the employer has previously been fined under R.S. 23:1170 or been penalized under R.S. 23:1172, the assistant secretary shall notify the employer that, unless he can show proof of compliance with R.S. 23:1168 within fifteen days, he shall be subject to a civil penalty pursuant to the provisions of R.S. 23:1170.

B. If such allegations can be reasonably substantiated and the employer has been fined under R.S. 23:1170 or penalized under R.S. 23:1172, the assistant secretary shall notify the employer that unless he can show proof of compliance with R.S. 23:1168 within fifteen days, he shall be subject to further fines and penalties, including but not limited to an injunction against further business operations.

C. If within fifteen days of the employer's receipt of such notice he has not submitted to the assistant secretary satisfactory proof of such compliance, the assistant secretary or his designee shall request the workers' compensation judge of any district where the employer does business to set the matter for hearing in accordance with the procedures set forth by law for claims for workers' compensation benefits. Upon the request of the assistant secretary or his designee, the workers' compensation judge shall issue a rule to show cause to the employer why he should not be fined or penalized for failure to show proof of compliance with R.S. 23:1168 when requested.

D.(1) If at such hearing, it is determined that the employer is in violation of his obligation under R.S. 23:1168, the workers' compensation judge shall fine the employer in the manner provided pursuant to R.S. 23:1170(A) and shall order the employer to provide proof of compliance with R.S. 23:1168 within forty-five days of the order by securing the appropriate coverage. Should the employer fail to file such evidence, the workers' compensation judge shall assess a fine for a second offense and issue a cease and desist order prohibiting the employer from continuing its business operations until such time as the employer complies with R.S. 23:1168, and all fines issued are paid in full.

(2) Any cease and desist order issued by the workers' compensation judge under Paragraph (1) of this Subsection shall include specific findings of fact based upon evidence of all of the following:

(a) The employer received notice of the hearing.

(b) The employer employs employees for whom it must secure workers' compensation insurance or be authorized to self-insure under the provisions of this Chapter.

(c) The employer has willfully failed to provide security for compensation as required by R.S. 23:1168 and there has been a final determination in a matter in which the employer has been fined under R.S. 23:1170 or penalized under R.S. 23:1172.

(d) The employer continues to operate its business in the absence of such security for compensation.

(3) There shall be a presumption that an employer who has previously been civilly fined for a second offense, or has previously been criminally penalized, has willfully failed to secure his obligation under R.S. 23:1168.

(4) A cease and desist order shall not issue prior to a hearing and there shall be no interruption of an employer's business operation if he submits satisfactory proof to the workers' compensation judge of his compliance with R.S. 23:1168, regardless of whether he may have been in violation thereof previously.

E.(1) After the issuance of a cease and desist order and upon the request of the assistant secretary or the assistant secretary's designee, the attorney general shall immediately institute proceedings for injunctive relief against the employer in the district court of any judicial district in this state where the employer does business. In such district court proceedings, a certified copy of any cease and desist order entered by the workers' compensation judge in accordance with this Section based upon evidence in the record shall be prima facie evidence of the facts found in such record.

(2) Such injunctive relief may include the issuance of a temporary restraining order under Louisiana Code of Civil Procedure Article 3601 et seq., which order shall enjoin the employer from continuing its business operations until it has procured the required insurance or authorization to self-insure or has posted adequate security with the court pending the procurement of such insurance or authorization. The court, in its discretion, shall determine the amount that shall constitute adequate security.

F. The issuance of an order to cease and desist or the issuance of a temporary restraining order or an injunction against an employer for failure to insure or keep insurance in force as required by R.S. 23:1168 shall be in addition to any civil or criminal penalties imposed by any other provision of law or Paragraph (D)(1) of this Section.

Acts 1995, No. 368, §1, eff. June 16, 1995; Acts 1997, No. 88, §1, eff. June 11, 1997; Acts 2008, No. 705, §1; Acts 2010, No. 288, §1; Acts 2014, No. 375, §1.

§1171.2. Default of employer; additional liability

The amount of weekly compensation provided in this Chapter shall be increased by fifty percent in any case where the employer has failed to provide security for compensation as required by R.S. 23:1168.

Acts 1995, No. 368, §1, eff. June 16, 1995.

§1172. Criminal penalties

A. Any employer who willfully fails to provide security for compensation required by R.S. 23:1168 shall be subject to a fine of up to two hundred fifty dollars per day that the employer willfully failed to provide security for compensation or imprisonment with or without hard labor for not more than one year, or both such fine and imprisonment. All fines collected shall be deposited in the Office of Workers' Compensation Administrative Fund established in R.S. 23:1291.1(E).

B. Evidence of two prior penalties assessed by the Louisiana Workforce Commission pursuant to R.S. 23:1170 and 1171 in any given three-year period shall constitute a prima facie case of a willful violation.

C.(1) No person acting gratuitously and without malice, fraudulent intent, or bad faith, shall be subject to civil liability for libel, slander, or any other relevant tort, and no civil cause of action of any nature shall exist against such person or entity by virtue of the filing of reports or furnishing of other information, either orally or in writing, relative to a violation by any person of the provisions of R.S. 23:1168.

(2) The grant of immunity provided by this Subsection shall not abrogate or modify in any way any statutory or other privilege or immunity otherwise enjoyed by such person or entity.

Acts 1988, No. 938, §2, eff. July 1, 1989; Acts 1989, No. 512, §1, eff. Jan. 1, 1990; Acts 1992, No. 447, §1, eff. June 20, 1992; Acts 1995, No. 368, §1, eff. June 16, 1995; Acts 1995, No. 1129, §1, eff. June 29, 1995; Acts 2008, No. 743, §7, eff. July 1, 2008; Acts 2010, No. 288, §1; Acts 2018, No. 612, §7, eff. July 1, 2020; Acts 2018, 2nd E.S., No. 12, §1, eff. June 12, 2018.

§1172.1. Willful misrepresentation by employer; aiding or abetting; criminal penalties; civil immunity

A. It shall be unlawful for any employer in writing to willfully misrepresent to any person that he has provided or provides security for compensation as required by R.S. 23:1168.

B. It shall be unlawful for any person, whether present or absent, directly or indirectly, to aid and abet an employer, or directly or indirectly counsel an employer to willfully misrepresent that the employer has provided or provides security for compensation as required by R.S. 23:1168.

C. Whoever violates any provision of this Section shall be imprisoned, with or without hard labor, for not less than one year nor more than ten years, or fined up to two hundred fifty dollars per day that the employer willfully failed to provide security for compensation, or both. All fines collected shall be deposited in the Office of Workers' Compensation Administrative Fund established in R.S. 23:1291.1(E).

D.(1) No person acting gratuitously and without malice, fraudulent intent, or bad faith, shall be subject to civil liability for libel, slander, or any other relevant tort, and no civil cause of action of any nature shall exist against such person or entity by virtue of the filing of reports or furnishing of other information, either orally or in writing, relative to a violation by any person of the provisions of this Section.

(2) The grant of immunity provided by this Subsection shall not abrogate or modify in any way any statutory or other privilege or immunity otherwise enjoyed by such person or entity.

Acts 1993, No. 828, §1, eff. June 22, 1993; Acts 1995, No. 1129, §1, eff. June 29, 1995; Acts 2010, No. 288, §1; Acts 2018, No. 612, §7, eff. July 1, 2020; Acts 2018, No. 12, §1, eff. June 30, 2018.

§1172.2. Unlawful practices

A. It shall be unlawful for any person to knowingly make any false, fraudulent, or misleading oral or written statement, or to knowingly omit or conceal material information for the purpose of obtaining workers' compensation coverage, or for the purpose of avoiding, delaying, or diminishing the amount of payment of any workers' compensation premiums.

B. It shall be unlawful for any person to knowingly misrepresent or conceal payroll, classification of workers, or information regarding any employer's loss history which would be material to the computation and application of an experience rating modification factor for the purpose of avoiding or diminishing the amount of payment of any workers' compensation premiums.

C. It shall be unlawful for any person, whether present or absent, directly or indirectly, to aid and abet any other person, or directly or indirectly counsel any other person, to engage in conduct in violation of this Section.

D. Whoever violates any provision of this Section shall be imprisoned, with or without hard labor, for not less than one year nor more than ten years, or fined up to two hundred fifty dollars per day that such person's violation of any provision of this Section resulted in failure to properly provide security for compensation, or both. All fines collected shall be deposited in the Office of Workers' Compensation Administrative Fund established in R.S. 23:1291.1(E).

E.(1)(a) Any person, insurer, or self-insurance fund who has knowledge of or who believes that a false, fraudulent, or misleading statement is knowingly made or is knowingly omitted for the purpose of avoiding, delaying, or diminishing the amount of payment of any workers' compensation premium shall, within sixty days of notice of such statement or omission, send to the office of workers' compensation administration, on a form prescribed by the assistant secretary, the information requested and such additional information as may be requested by the office of workers' compensation administration.

(b) The office of workers' compensation administration shall review such reports and select such acts of misrepresentation as, in its judgment, may require further investigation.

(c) The office of workers' compensation administration shall then cause an independent examination of the facts surrounding such acts to be made to determine the extent, if any, to which fraud, deceit, or intentional misrepresentation of any kind exists.

(d) The office of workers' compensation administration shall report any alleged violations of law which its investigations disclose to the appropriate licensing agency and prosecuting authorities having jurisdiction with respect to such violation.

(2) No person or entity acting without malice, fraudulent intent, reckless disregard for the truth, or bad faith, shall be subject to civil liability for libel, slander, or any other relevant tort, and no civil cause of action of any nature shall exist against such person or entity by virtue of the filing of reports or furnishing of other information, either orally or in writing, relative to a violation by any employer of the provisions of this Section.

(3) The grant of immunity provided by this Subsection shall not abrogate or modify in any way any statutory or other privilege or immunity otherwise enjoyed by such person or entity.

(4) Any person or entity entitled by this Subsection to immunity from civil liability shall also be entitled to an award of attorney fees and costs if they are the prevailing party in a civil suit and the party bringing the action was not substantially justified in doing so. For purposes of this Section, a proceeding is "substantially justified" if it had a reasonable basis in law or fact at the time it was initiated.

Acts 1995, No. 1129, §1, eff. June 29, 1995; Acts 2010, No. 3, §1, eff. May 11, 2010; Acts 2010, No. 288, §1; Acts 2018, No. 612, §7, eff. July 1, 2020, Acts 2018, 2nd E.S., eff. June 12, 2018.

§1201. Time and place of payment; failure to pay timely; failure to authorize; penalties and attorney fees

A.(1) Payments of compensation under this Chapter shall be paid as near as may be possible, at the same time and place as wages were payable to the employee before the accident; however, when the employee is not living at the place where the wages were paid, or is absent therefrom, such payments shall be made by mail, upon the employee giving to the employer a sufficient mailing address. However, a longer interval, not to exceed one month, may be substituted by agreement without approval of the assistant secretary. An interval of more than one month must be approved by the assistant secretary.

(2) Notwithstanding the requirement to make payments by mail in Paragraph (1) of this Subsection, electronic transfer of funds, including but not limited to direct deposit or use of a debit card, is an appropriate method of payment of compensation under this Chapter. Where a payor or insurer elects to issue debit cards and makes weekly payments by way of electronic funds transfers, an injured worker represented by an attorney may elect to have his weekly indemnity check deposited directly into his attorney's trust account. Where such an election is made, the payor or insurer shall provide notice by way of email only to the injured worker's attorney containing a list of all claims and amounts included in the direct deposit within forty-eight hours of the direct deposit.

B. The first installment of compensation payable for temporary total disability, permanent total disability, or death shall become due on the fourteenth day after the employer or insurer has knowledge of the injury or death, on which date all such compensation then due shall be paid.

C. Installment benefits payable pursuant to R.S. 23:1221(3) shall become due on the fourteenth day after the employer or insurer has knowledge of the compensable supplemental earnings benefits on which date all such compensation then due shall be paid. 

D. Installment benefits payable pursuant to R.S. 23:1221(4) shall become due on the thirtieth day after the employer or insurer receives a medical report giving notice of the permanent partial disability on which date all such compensation then due shall be paid.

E.(1) Medical benefits payable under this Chapter shall be paid within sixty days after the employer or insurer receives written notice thereof, if the provider of medical services is not utilizing the electronic billing rules and regulations provided for in R.S. 23:1203.2.

(2) For those providers of medical services who utilize the electronic billing rules and regulations provided for in R.S. 23:1203.2, medical benefits payable under this Chapter shall be paid within thirty days after the employer or insurer receives a complete electronic medical bill, as defined by rules promulgated by the Louisiana Workforce Commission.

F. Except as otherwise provided in this Chapter, failure to provide payment in accordance with this Section or failure to consent to the employee's request to select a treating physician or change physicians when such consent is required by R.S. 23:1121 shall result in the assessment of a penalty in an amount up to the greater of twelve percent of any unpaid compensation or medical benefits, or fifty dollars per calendar day for each day in which any and all compensation or medical benefits remain unpaid or such consent is withheld, together with reasonable attorney fees for each disputed claim; however, the fifty dollars per calendar day penalty shall not exceed a maximum of two thousand dollars in the aggregate for any claim. The maximum amount of penalties which may be imposed at a hearing on the merits regardless of the number of penalties which might be imposed under this Section is eight thousand dollars. An award of penalties and attorney fees at any hearing on the merits shall be res judicata as to any and all claims for which penalties may be imposed under this Section which precedes the date of the hearing. Penalties shall be assessed in the following manner:

(1) Such penalty and attorney fees shall be assessed against either the employer or the insurer, depending upon fault. No workers' compensation insurance policy shall provide that these sums shall be paid by the insurer if the workers' compensation judge determines that the penalty and attorney fees are to be paid by the employer rather than the insurer.

(2) This Subsection shall not apply if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control.

(3) Except as provided in Paragraph (4) of this Subsection, any additional compensation paid by the employer or insurer pursuant to this Section shall be paid directly to the employee.

(4) In the event that the health care provider prevails on a claim for payment of his fee, penalties as provided in this Section and reasonable attorney fees based upon actual hours worked may be awarded and paid directly to the health care provider. This Subsection shall not be construed to provide for recovery of more than one penalty or attorney fee.

(5) No amount paid as a penalty or attorney fee under this Subsection shall be included in any formula utilized to establish premium rates for workers' compensation insurance.

G. If any award payable under the terms of a final, nonappealable judgment is not paid within thirty days after it becomes due, there shall be added to such award an amount equal to twenty-four percent thereof or one hundred dollars per day together with reasonable attorney fees, for each calendar day after thirty days it remains unpaid, whichever is greater, which shall be paid at the same time as, and in addition to, such award, unless such nonpayment results from conditions over which the employer had no control. No amount paid as a penalty under this Subsection shall be included in any formula utilized to establish premium rates for workers' compensation insurance. The total one hundred dollar per calendar day penalty provided for in this Subsection shall not exceed three thousand dollars in the aggregate.

H. Within fourteen days after the final payment of compensation has been made, the employer or insurer shall send a notice to the office, in the manner prescribed by the rules of the assistant secretary, stating:

(1) The name of the injured employee or any other person to whom compensation has been paid, or both.

(2) The date of injury or death.

(3) The dates on which compensation has been paid.

(4) The total amount of compensation paid.

(5) The fact that final payment has been made.

I. Any employer or insurer who at any time discontinues payment of claims due and arising under this Chapter, when such discontinuance is found to be arbitrary, capricious, or without probable cause, shall be subject to the payment of a penalty not to exceed eight thousand dollars and a reasonable attorney fee for the prosecution and collection of such claims. The provisions as set forth in R.S. 23:1141 limiting the amount of attorney fees shall not apply to cases where the employer or insurer is found liable for attorney fees under this Section. The provisions as set forth in R.S. 22:1892(C) shall be applicable to claims arising under this Chapter.

J. Notwithstanding the fact that more than one violation in this Section which provides for an award of attorney fees may be applicable, only one reasonable attorney fee may be awarded against the employer or insurer in connection with any hearing on the merits of any disputed claim filed pursuant to this Section, and an award of such single attorney fee shall be res judicata as to any and all conduct for which penalties may be imposed under this Section which precedes the date of the hearing.

Amended by Acts 1954, No. 723, §1; Acts 1983, 1st Ex. Sess., No. 1, §§1, 6, eff. July 1, 1983; Acts 1985, No. 926, §1, eff. Jan. 1, 1986; Acts 1988, No. 938, §1, eff. July 1, 1989; Acts 1989, No. 23, §1, eff. June 15, 1989; Acts 1989, No. 24, §1; Acts 1989, No. 260, §1, eff. Jan. 1, 1990; Acts 1992, No. 1003, §1, eff. Jan. 1, 1993; Acts 1995, No. 1137, §1, eff. June 29, 1995; Acts 1997, No. 88, §1, eff. June 11, 1997; Acts 2003, No. 1204, §1; Acts 2008, No. 415, §2, eff. Jan. 1, 2009; Acts 2010, No. 3, §1, eff. May 11, 2010; Acts 2012, No. 652, §1, eff. July 1, 2013; Acts 2012, No. 860, §1; Acts 2013, No. 337, §1.

§1201.1. Controversion of compensation and medical benefits

A. Upon the first payment of compensation or upon any modification, suspension, termination, or controversion of compensation or medical benefits for any reason, including but not limited to issues of medical causation, compensability of the claim, or issues arising out of R.S. 23:1121, 1124, 1208, and 1226, the employer or payor who has been notified of the claim, shall do all of the following:

(1) Prepare a "Notice of Modification, Suspension, Termination, or Controversion of Compensation and/or Medical Benefits".

(2) Send the notice of the initial indemnity payment to the injured employee on the same day as the first payment of compensation is made by the payor after the payor has received notice of the claim from the employer.

(3) Send a copy of the notice of the initial payment of indemnity to the office within ten days from the date the original notice was sent to the injured employee or by facsimile to the injured employee's representative.

(4) Send the "Notice of Payment, Modification, Suspension, Termination, or Controversion of Compensation and/or Medical Benefits" to the injured employee by certified mail, to the address at which the employee is receiving payments of compensation, on or before the effective date of a modification, suspension, termination, or controversion.

(5) Send a copy of the "Notice of Payment, Modification, Suspension, Termination, or Controversion of Compensation and/or Medical Benefits" to the office on the same business day as sent to the employee or to his representative.

B. The form of the "Notice of Payment, Modification, Suspension, Termination, or Controversion of Compensation and/or Medical Benefits" shall be promulgated by the office.

C. The assistant secretary shall make the notice available upon request by the employee and the employee's representative.

D. If the injured employee is represented by an attorney, the notice shall also be provided to the employee's representative by facsimile. Proof that the notice was sent to the employee's representative by facsimile shall be prima facie evidence of compliance with Subsection A of this Section.

E. The provisions of this Section shall not apply to questions of medical necessity as provided by R.S. 23:1203.1.

F.(1) Any injured employee or his representative who disagrees with any information provided on the notice form sent by the employer or payor, shall notify the employer or payor of the basis for disagreement by returning the form to the employer or payor as provided on the form, or by letter of amicable demand, and provide any amounts of compensation he believes appropriate.

(2) No disputed claim shall be filed regarding any such disagreement unless the notice required by this Section has been sent to the employer or payor who initially sent the notice.

G.(1) If the employer or the payor provides the benefit that the employee claims is due, including any arrearage, on the returned form or letter of amicable demand within seven business days of receipt of the employee's demand, the employer or payor shall not be subject to any claim for any penalties or attorney fees arising from the disputed payment, modification, suspension, termination, or controversion.

(2) If the employer or payor does not provide the benefit that the employee claims is due, the employee may file a disputed claim for benefit provided it is filed within the prescriptive period established under R.S. 23:1209. If the prescription date of the claim occurs within the seven-day waiting period, the employee will be allowed to file a disputed claim without waiting the seven business days as provided in Paragraph (1) of this Subsection. However, the employer or payor shall still be allowed seven business days to provide the benefit that the employee claims is due, and if the employer does provide the benefit, the disputed claim will be moot regarding the issues arising out of the payment, suspension, modification, termination, or controversion of benefits. All other issues alleged in the disputed claim will be unaffected by the payment.

H. The employer or the payor who wishes to have a preliminary determination hearing shall request the hearing in his answer to the disputed claim arising from the notice of initial payment or any subsequent modification, suspension, termination, or notice of controversion. In cases where a disputed claim is already pending when an issue arises from a subsequent notice of payment, modification, suspension, termination, or controversion of benefits, such request shall be made in an amended pleading filed within fifteen days of the expiration of the seven-day period set forth in Paragraph (G)(1) of this Section.

I.(1) An employer or payor who has not complied with the requirements set forth in Subsection A through E of this Section or has not initially accepted the claim as compensable, subject to further investigation and subsequent controversion shall not be entitled to a preliminary determination. An employer or payor who is not entitled to a preliminary determination or who is so entitled but fails to request a preliminary determination may be subject to penalties and attorney fees pursuant to R.S. 23:1201 at a trial on the merits or hearing held pursuant to Paragraph (K)(8) of this Section.

(2) If disputed by the parties, upon a rule to show cause held prior to the preliminary determination or any hearing held pursuant to this Section, the workers' compensation judge shall determine whether the employer is in compliance.

J.(1) Upon the filing of the request for a preliminary determination hearing, the workers' compensation judge shall initiate a telephone status conference with the parties to schedule the discovery deadlines and to facilitate the exchange of documents. The scope of the discovery will be limited to the issues raised in the disputed payment, suspension, modification, termination, or controversion of benefits. The preliminary determination hearing shall be a contradictory hearing at which all parties shall have the opportunity to introduce evidence.

(2) The testimony of physicians may be introduced by certified records or deposition. The parties may agree to allow uncertified medical records and physician reports to be introduced into evidence. Witnesses may testify at the hearing or, if agreed on by the parties, may offer testimony by introduction of a deposition.

(3) The preliminary determination hearing shall be held no later than ninety days from the scheduling conference. However, upon a showing of good cause, one extension of an additional thirty days is permitted upon approval by the workers' compensation judge. The workers' compensation judge shall issue a preliminary determination no later than thirty days after the hearing.

(4) Any employer or payor requesting a preliminary determination hearing shall produce all documentation relied on by the employer or payor in calculating, modifying, suspending, terminating, or controverting the employee's benefits. These documents shall be disclosed to the employee or the employee's representative within ten days of the request for the preliminary determination hearing.

K.(1) The employer or payor shall, within ten calendar days of the mailing of the determination from the workers' compensation judge, do either of the following:

(a) Accept and comply with preliminary determination of the workers' compensation judge regarding the payment, suspension, modification, termination, or controversion of benefits and mail a revised "Notice of Modification, Suspension, Termination, or Controversion of Compensation and/or Medical Benefits" to the injured employee or employee's representative, along with any payment amount determined, and any arrearage due.

(b) Notify the injured employee or his representative in writing that the employer or payor does not accept the determination.

(2) Any employer or payor who accepts and complies with the workers' compensation judge's determination within ten calendar days, shall not be subject to any penalty or attorney fees arising out of the original notice which was the subject of the preliminary hearing.

(3) Any employer or payor who accepts and complies with the workers' compensation judge's determination, but who disagrees with such preliminary determination, shall notify the court within ten days of receipt of the preliminary determination of his desire to proceed to a trial on the merits of the matters that were the subject of the preliminary hearing.

(4) Any employer or payor who does not accept the workers' compensation judge's determination or fails to comply with the determination within ten calendar days, may, at the trial on the merits, be subject to penalties and attorney fees pursuant to R.S. 23:1201, arising out of the issues raised in the original notice of payment, modification, suspension, termination, or controversion of benefits, which was the subject of the preliminary hearing.

(5) Any injured employee who disagrees with the preliminary determination shall notify the court within ten days of the receipt of such preliminary determination of his desire to proceed to a trial on the merits of the matters that were the subject of the preliminary hearing. If the employer or payor has accepted and complied with the preliminary hearing determination, the employer or payor shall also be entitled to litigate all issues including those issues presented at the preliminary determination hearing.

(6) Any employer or payor who accepts and complies with the determination of the workers' compensation judge, and who does not request to proceed to trial on the merits of the matters that were the subject of the preliminary hearing, shall retain the right to further controvert future matters. The workers' compensation judge's determination shall not be considered an order concerning benefits due requiring modification, nor shall the determination be considered res judicata of any matters which were the subject of the preliminary hearing. The acceptance of the preliminary determination by the employer or payor shall not be considered an admission.

(7) In matters where the employee has filed a disputed claim and the employer or payor is not entitled to a preliminary determination, the matter shall proceed to trial on the merits.

(8)(a) Upon motion of either party, whether or not the employer or payor is entitled to a preliminary determination, the workers' compensation judge's ruling in a hearing shall be conducted as an expedited summary proceeding and shall be considered an order of the court and not requiring a further trial on the merits, if it concerns any of the following matters:

(i) The employee has sought choice of physician pursuant to R.S. 23:1121(B)(1).

(ii) The employee has filed a claim pursuant to R.S. 23:1226(B)(3)(a).

(iii) The employer or payor seeks to compel the employee to sign the choice of physician form pursuant to R.S. 23:1121(B)(5).

(iv) The employer or payor seeks to compel the employee's submission to a medical examination pursuant to R.S. 23:1124.

(v) The employer seeks to require the employee to return form LWC-1025 or LWC-1020.

(vi) The employee seeks to have a suspension of benefits for failure to comply with R.S. 23:1121(B)(1) lifted.

(vii) The employee seeks to have a suspension of benefits for failure to submit to a medical examination lifted.

(viii) The employee seeks to have a suspension of benefits for failure to comply with R.S. 23:1208(H) lifted.

(ix) The employee seeks to have a reduction in benefits for failure to cooperate with vocational rehabilitation lifted.

(b)(i) The workers' compensation judge shall set the expedited summary proceeding hearing date pursuant to Items (a)(iii), (iv), and (v) of this Paragraph within three days of receiving the employer's motion for the expedited hearing. The hearing shall be held not less than ten nor more than thirty days after the motion has been filed.

(ii) The workers' compensation judge shall provide the notice of the hearing date to the employee or his attorney at the same time and in the same manner that the notice of the hearing date is provided to the employer or payor.

(iii) For the purposes of this Section, the party seeking an expedited hearing shall not be required to submit the dispute to mediation or go through a pretrial conference before obtaining a hearing. The hearing shall be conducted as a rule to show cause.

(c) The workers' compensation judge shall order the employee to sign the choice of physician form, enforce the employee's submission to the medical examination, or provide the LWC-1020 or LWC-1025 form as applicable unless the employee can show good cause for his refusal.

(d) If the employee seeking relief pursuant to this Paragraph can show good cause for his refusal, the workers' compensation judge shall order the suspension or reduction in benefits lifted and the payment of any arrearage due. If the employee fails to show good cause for refusal, the workers' compensation judge shall order the suspension or reduction in benefits to continue until the employee complies.

(e) An employer or payor who is entitled to a preliminary determination and who complies with an order of the court issued pursuant to a hearing held in accordance with this Paragraph within ten calendar days shall not be subject to any penalty or attorney fees arising out of the original notice which was the subject of the hearing.

L. Notwithstanding any provision in this Section to the contrary, the failure to comply with any provision of this Section shall not itself be considered a failure to reasonably controvert benefits; however, failure of the employer or payor to comply shall result in loss of penalty and attorney fee protections provided in this Section.

Acts 2013, No. 337, §1.

 §1201.3. Failure to pay compensation; judgment and execution; interest; revocation or suspension of insurer's license

A. If payment of compensation or an installment payment of compensation due under the terms of an award, except in case of appeals from an award, is not made within ten days after the same is due by the employer or insurance carrier liable therefor, the workers' compensation judge may order a certified copy of the award to be filed in the office of the clerk of court of any parish, which award whether accumulative or lump sum, when recorded in the mortgage records, shall be a judicial mortgage as provided in Civil Code Article 3299. Any compensation awarded and all payments thereof directed to be made by order of the workers' compensation judge shall bear judicial interest from the date compensation was due until the date of satisfaction. The interest rate shall be fixed at the rate in effect on the date the claim for benefits was filed with the office of workers' compensation administration.

B. Upon the filing of the certified copy of the workers' compensation judge's award a writ of execution shall issue and process shall be executed and the cost thereof taxed, as in the case of writs of execution, on judgments of courts of record, as provided by the Louisiana Code of Civil Procedure.

C. If any insurance carrier intentionally, knowingly, or willfully violates any of the provisions of the Worker's Compensation Act, the insurance commissioner, on the request of a workers' compensation judge or the assistant secretary, shall suspend or revoke the license or authority of such insurance carrier to do compensation business in this state.

D. The provisions of this Section relating to the execution and process for the enforcement of awards shall be and are cumulative to other provisions now existing or which may hereafter be adopted relating to liens or enforcement of awards or claims for compensation.

Acts 1988, No. 938, §2, eff. July 1, 1989; Acts 1989, No. 260, §1, eff. Jan. 1, 1990; Acts 1997, No. 52, §1; Acts 1997, No. 88, §1, eff. June 11, 1997.

§1208. Misrepresentations concerning benefit payments; penalty

A. It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.

B. It shall be unlawful for any person, whether present or absent, directly or indirectly, to aid and abet an employer or claimant, or directly or indirectly, counsel an employer or claimant to willfully make a false statement or representation.

C.(1) Whoever violates any provision of this Section, when the benefits claimed or payments obtained have a value of ten thousand dollars or more, shall be imprisoned, with or without hard labor, for not more than ten years, or fined not more than ten thousand dollars, or both.

(2) Whoever violates any provision of this Section, when the benefits claimed or payments obtained have a value of two thousand five hundred dollars or more, but less than a value of ten thousand dollars shall be imprisoned, with or without hard labor, for not more than five years, or fined not more than five thousand dollars, or both.

(3) Whoever violates any provision of this Section, when the benefits claimed or payments obtained have a value of less than two thousand five hundred dollars, shall be imprisoned for not more than six months or fined not more than five hundred dollars, or both.

(4) Notwithstanding any provision of law to the contrary which defines "benefits claimed or payments obtained", for purposes of Subsection C of this Section, the definition of "benefits claimed or payments obtained" shall include the cost or value of indemnity benefits, and the cost or value of health care, medical case management, vocational rehabilitation, transportation expense, and the reasonable costs of investigation and litigation.

D. In addition to the criminal penalties provided for in Subsection C of this Section, any person violating the provisions of this Section may be assessed civil penalties by the workers' compensation judge of not less than five hundred dollars nor more than five thousand dollars payable to the Kids Chance Scholarship Fund, Louisiana Bar Foundation, and may be ordered to make restitution. Restitution may only be ordered for benefits claimed or payments obtained through fraud and only up to the time the employer became aware of the fraudulent conduct.

E. Any employee violating this Section shall, upon determination by workers' compensation judge, forfeit any right to compensation benefits under this Chapter.

F. Whenever the employer reports an injury to the office pursuant to R.S. 23:1306, the employer and employee shall certify their compliance with this Chapter to the employer's payor on a form prescribed by the assistant secretary, which form shall include all of the following information:

(1) A summary of the fines and penalties for workers' compensation fraud.

(2) The names, addresses, phone numbers, and signatures of the employee and the employer.

(3) The fine or penalty that may be imposed for failure to report to the payor as required by this Section.

G. Whenever an employee receives benefits pursuant to this Chapter for more than thirty days, the employee shall upon reasonable request report his other earnings to his employer's payor on a form prescribed by the assistant secretary and signed by the employee.

H.(1) Whenever an employee fails to report to his employer's payor as required by this Section within fourteen days of his receipt of the appropriate form, the employer or payor may suspend the employee's right to benefits as provided in this Chapter. If otherwise eligible for benefits, the employee shall be entitled to all of the suspended benefits after the form has been provided to the payor. Suspension of benefits by the employer or payor shall be made in accordance with the provisions of R.S. 23:1201.1(A) through (E). The employer or payor may move for an order to compel the employee to return the form.

(2) Whenever an employer fails to report to its payor as required by this Section, the employer may be subject to a penalty of five hundred dollars, payable to the payor.

(3) The payor may request an assessment of a penalty for the employer's failure to report as provided in this Subsection by filing a form LDOL-WC-1008 with the assistant secretary.

I.(1) No person acting gratuitously and without malice, fraudulent intent, or bad faith, shall be subject to civil liability for libel, slander, or any other relevant tort, and no civil cause of action of any nature shall exist against such person or entity by virtue of the filing of reports or furnishing of other information, either orally or in writing, relative to a violation by any person of the provisions of this Section.

(2) The grant of immunity provided by this Subsection shall not abrogate or modify in any way any statutory or other privilege or immunity otherwise enjoyed by such person or entity.

Acts 1989, No. 454, §5, eff. Jan. 1, 1990; Acts 1992, No. 763, §1; Acts 1993, No. 829, §1, eff. June 22, 1993; Acts 1995, No. 368, §1, eff. June 16, 1995; Acts 1995, No. 1129, §1, eff. June 29, 1995; Acts 1997, No. 88, §1, eff. June 11, 1997; Acts 1997, No. 90, §1, eff. June 11, 1997; Acts 1997, No. 394, §1; Acts 1997, No. 1108, §1; Acts 2003, No. 702, §1; Acts 2005, No. 257, §1; Acts 2013, No. 337, §1.

§1208.1.  Employer's inquiry into employee's previous injury claims; forfeiture of benefits

Nothing in this Title shall prohibit an employer from inquiring about previous injuries, disabilities, or other medical conditions and the employee shall answer truthfully; failure to answer truthfully shall result in the employee's forfeiture of benefits under this Chapter, provided said failure to answer directly relates to the medical condition for which a claim for benefits is made or affects the employer's ability to receive reimbursement from the second injury fund.  This Section shall not be enforceable unless the written form on which the inquiries about previous medical conditions are made contains a notice advising the employee that his failure to answer truthfully may result in his forfeiture of worker's compensation benefits under R.S. 23:1208.1.  Such notice shall be prominently displayed in bold faced block lettering of no less than ten point type.

Acts 1988, No. 938, §2, eff. Jan. 1, 1989; Acts 1989, No. 454, §5, eff. Jan. 1, 1990.

§1208.2. Duty to report fraud; immunity from civil liability

A. Any person having knowledge of or who believes that an act is being or has been committed in violation of this Chapter shall report orally or in writing to the assistant secretary the information that forms the basis of such knowledge or belief, as well as any such additional information relevant thereto as the assistant secretary or his employees or his agents may require.

B. Any person who provides information pursuant to this Section without malice, fraudulent intent, or bad faith, shall be immune from all civil liability for such action.

Acts 1995, No. 368, §1, eff. June 16, 1995.

§1221. Temporary total disability; permanent total disability; supplemental earnings benefits; permanent partial disability; schedule of payments

Compensation shall be paid under this Chapter in accordance with the following schedule of payments:

(1) Temporary total.

(a) For any injury producing temporary total disability of an employee to engage in any self-employment or occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured, and whether or not an occupation for which the employee at the time of injury was particularly fitted by reason of education, training, or experience, sixty-six and two-thirds percent of wages during the period of such disability.

(b) For purposes of Subparagraph (1)(a) of this Paragraph, compensation for temporary disability shall not be awarded if the employee is engaged in any employment or self-employment regardless of the nature or character of the employment or self-employment including but not limited to any and all odd-lot employment, sheltered employment, or employment while working in any pain.

(c) For purposes of Subparagraph (1)(a) of this Paragraph, whenever the employee is not engaged in any employment or self-employment as described in Subparagraph (1)(b) of this Paragraph, compensation for temporary total disability shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including but not limited to any and all odd-lot employment, sheltered employment, or employment while working in any pain, notwithstanding the location or availability of any such employment or self-employment.

(d) An award of benefits based on temporary total disability shall cease when the physical condition of the employee has resolved itself to the point that a reasonably reliable determination of the extent of disability of the employee may be made and the employee's physical condition has improved to the point that continued, regular treatment by a physician is not required.

(2) Permanent total.

(a) For any injury producing permanent total disability of an employee to engage in any self-employment or occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured, and whether or not an occupation for which the employee at the time of injury was particularly fitted by reason of education, training, and experience, sixty-six and two-thirds percent of wages during the period of such disability.

(b) For purposes of Subparagraph (2)(a) of this Paragraph, compensation for permanent total disability shall not be awarded if the employee is engaged in any employment or self-employment regardless of the nature or character of the employment or self-employment including but not limited to any and all odd-lot employment, sheltered employment, or employment while working in any pain.

(c) For purposes of Subparagraph (2)(a) of this Paragraph, whenever the employee is not engaged in any employment or self-employment as described in Subparagraph (2)(b) of this Paragraph, compensation for permanent total disability shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including, but not limited to, any and all odd-lot employment, sheltered employment, or employment while working in any pain, notwithstanding the location or availability of any such employment or self-employment.

(d) Notwithstanding any judgment or determination that an employee is permanently and totally disabled, if such employee subsequently has or receives any earnings, including, but not limited to, earnings from odd-lot employment, sheltered employment, or employment while working in any pain, such employee shall not receive benefits pursuant to this Paragraph but may receive benefits computed pursuant to Paragraph (3) of this Section, if applicable.

(e) The issue of permanent total disability provided herein shall not be adjudicated or determined while the employee is engaged in employment pursuant to R.S. 23:1226(G), but such employment shall not prevent adjudication or determination of the employee's right to any other benefits otherwise provided in this Chapter; however, the employee shall not by virtue of employment pursuant to R.S. 23:1226(G) be deprived of the right to determination or adjudication of permanent total disability herein at a time when he is not engaged in such employment.

(3) Supplemental earnings benefits.

(a)(i) For injury resulting in the employee's inability to earn wages equal to ninety percent or more of wages at time of injury, supplemental earnings benefits, payable monthly, equal to sixty-six and two-thirds percent of the difference between the average monthly wages at time of injury and average monthly wages earned or average monthly wages the employee is able to earn in any month thereafter in any employment or self-employment, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee at the time of the injury was particularly fitted by reason of education, training, and experience, such comparison to be made on a monthly basis. Average monthly wages shall be computed by multiplying his wages by fifty-two and then dividing the product by twelve.

(ii) When the employee is entitled to monthly supplemental earnings benefits pursuant to this Subsection, but is not receiving any income from employment or self-employment and the employer has not established earning capacity pursuant to R.S. 23:1226, payments of supplemental earning benefits shall be made in the manner provided for in R.S. 23:1201(A)(1).

(b) For purposes of Subparagraph (3)(a), of this Paragraph, the amount determined to be the wages the employee is able to earn in any month shall in no case be less than the sums actually received by the employee, including, but not limited to, earnings from odd-lot employment, sheltered employment, and employment while working in any pain.

(c)(i) Notwithstanding the provisions of Subparagraph (b) of this Paragraph, for purposes of Subparagraph (a) of this Paragraph, if the employee is not engaged in any employment or self-employment, as described in Subparagraph (b) of this Paragraph, or is earning wages less than the employee is able to earn, the amount determined to be the wages the employee is able to earn in any month shall in no case be less than the sum the employee would have earned in any employment or self-employment, as described in Subparagraph (b) of this Paragraph, which he was physically able to perform, and (1) which he was offered or tendered by the employer or any other employer, or (2) which is proven available to the employee in the employee's or employer's community or reasonable geographic region.

(ii) For purposes of Subsubparagraph (i) of this Subparagraph, if the employee establishes by clear and convincing evidence, unaided by any presumption of disability, that solely as a consequence of substantial pain, the employee cannot perform employment offered, tendered, or otherwise proven to be available to him, the employee shall be deemed incapable of performing such employment.

(d) The right to supplemental earnings benefits pursuant to this Paragraph shall in no event exceed a maximum of five hundred twenty weeks, but shall terminate:

(i) As of the end of any two-year period commencing after termination of temporary total disability, unless during such two-year period supplemental earnings benefits have been payable during at least thirteen consecutive weeks; or

(ii) After receipt of a maximum of five hundred twenty weeks of benefits, provided that for any week during which the employee is paid any compensation under this Paragraph, the employer shall be entitled to a reduction of one full week of compensation against the maximum number of weeks for which compensation is payable under this Paragraph; however, for any week during which the employee is paid no supplemental earnings benefits, the employer shall not be entitled to a reduction against the maximum number of weeks payable under this Paragraph; or

(iii) When the employee retires; however, the period during which supplemental earnings benefits may be payable shall not be less than one hundred four weeks.

(e)(i) The fact that an employee has suffered previous disability, impairment, or disease, or received compensation therefor, shall not preclude him from receiving benefits for a subsequent injury or preclude benefits for death resulting therefrom.

(ii) If an employee receiving supplemental earnings benefits suffers a subsequent injury causing the payment of temporary total disability, permanent total disability, or supplemental earnings benefits, the combined benefits payable shall not exceed the maximum compensation rate in effect for temporary total disability at the time of the subsequent injury. Any reduction in benefits due to such limit shall be applied first to the supplemental earnings benefits payable as a result of the prior injury.

(f) Any compensable supplemental earnings benefits loss shall be reported by the employee to the insurer or self-insured employer within thirty days after the termination of the week for which such loss is claimed. The assistant secretary shall provide by rule for the reporting of supplemental earnings benefits loss by the injured worker and for the reporting of supplemental earnings benefits and payment of supplemental earnings benefits by the employer or insurer to the office and may prescribe forms for such reporting. The office, upon request by the employer or insurer, shall provide verification through unemployment compensation records under the Louisiana Employment Security Law of any claimed supplemental earnings benefits loss and shall obtain such verification from other states, if applicable.

(g) When an injured employee has been released to return to work with or without restrictions, and the employer maintains an established written and promulgated substance abuse policy which requires employer-administered drug testing prior to employment or return to work, upon the employee's failure to meet the requirements of such employer's established policy and inability to qualify for the position for that reason, the obligation for all benefits pursuant to this Chapter, with the sole exception of the obligation to provide reasonable and necessary medical treatment, shall be terminated and the employee shall be subject to the terms and conditions established in the employer's promulgated drug testing policy and program. The provisions of this Subparagraph shall not apply to prescription medication prescribed for the employee in the dosages so prescribed by a physician.

(4) Permanent partial disability. In the following cases, compensation shall be solely for anatomical loss of use or amputation and shall be as follows:

(a) For the loss of a thumb, sixty-six and two-thirds percent of wages during fifty weeks.

(b) For the loss of a first finger, commonly called the index finger, sixty-six and two-thirds percent of wages during thirty weeks.

(c) For the loss of any other finger, or a big toe, sixty-six and two-thirds percent of wages during twenty weeks.

(d) For the loss of any toe, other than a big toe, sixty-six and two-thirds percent of wages during ten weeks.

(e) For the loss of a hand, sixty-six and two-thirds percent of wages during one hundred fifty weeks.

(f) For the loss of an arm, sixty-six and two-thirds percent of wages during two hundred weeks.

(g) For the loss of a foot, sixty-six and two-thirds percent of wages during one hundred twenty-five weeks.

(h) For the loss of a leg, sixty-six and two-thirds percent of wages during one hundred seventy-five weeks.

(i) For the loss of an eye, sixty-six and two-thirds percent of wages during one hundred weeks.

(j) Loss of both hands, or both arms, or both feet, or both legs, or both eyes, or one hand and one foot, or any of two thereof, or paraplegia, or quadriplegia shall, in the absence of conclusive proof of a substantial earning capacity, constitute permanent total disability.

(k) The loss of the first phalanx of the thumb or big toe, or two phalanges of any finger or toe, shall be considered to be equal to the loss of one-half of such member, and the compensation shall be one-half of the amount above specified.

(l) The loss of more than one phalanx of a thumb, or more than two phalanges of any finger or toe shall be considered as the loss of the entire member; provided, however, that in no case shall the amount received for more than one finger exceed the amount provided in this schedule for the loss of a hand, or the amount received for the loss of more than one toe exceed the amount provided in this schedule for the loss of a foot.

(m) Amputation between the elbow and the wrist shall be considered as equivalent to the loss of a hand and amputation between the knee and the ankle shall be equivalent to the loss of a foot.

(n) A permanent total anatomical loss of the use of a member is equivalent to the amputation of the member.

(o) In all cases involving a permanent partial anatomical loss of use or amputation of the members mentioned hereinabove, compensation shall bear such proportion to the number of weeks provided for herein for the total loss of such members as the percentage loss or impairment to such members bears to the total loss of the member, provided that in no case shall compensation for an injury to a member exceed the compensation payable for the loss of such member.

(p) In cases not falling within any of the provisions already made, where the employee is seriously and permanently disfigured or suffers a permanent hearing loss solely due to a single traumatic accident, or where the usefulness of the physical function of the respiratory system, gastrointestinal system, or genito-urinary system, as contained within the thoracic or abdominal cavities, is seriously and permanently impaired, compensation not to exceed sixty-six and two-thirds percent of wages for a period not to exceed one hundred weeks may be awarded. In cases where compensation is so awarded, when the disability is susceptible to percentage determination, compensation shall be established in the proportions set forth in Subparagraph (o) of this Paragraph. In cases where compensation is so awarded, when the disability is not susceptible to percentage determination, compensation as is reasonable shall be established in proportion to the compensation hereinabove specifically provided in the cases of specific disability.

(q) No benefits shall be awarded or payable in this Paragraph unless the percentage of the anatomical loss of use or amputation, as provided in Subparagraphs (a) through (o) of this Paragraph or the percentage of the loss of physical function as provided in Subparagraph (p) or (s) of this Paragraph is as established in the most recent edition of the American Medical Association's "Guides to the Evaluation of Permanent Impairment".

(r)(i) In all claims for inguinal hernia, it must be established by a preponderance of the evidence that the hernia resulted from injury by accident arising out of and in the course and scope of employment; that the accident was reported promptly to the employer, and that the employee was attended by a licensed physician within thirty days thereafter.

(ii) If the employee submits to treatment, including surgery, recommended by a competent physician or surgeon, the employer or insurer shall pay compensation benefits as elsewhere fixed by this Chapter.

(iii) If the employee refuses to submit to such recommended treatment, including surgery, and establishes by a preponderance of the evidence that his refusal is based upon his conscientious religious objection thereto or that such recommended treatment, including surgery, involves an unusual and serious danger to him, the employer or insurer shall pay compensation benefits as elsewhere fixed by this Chapter. In all other cases of the employee's refusal to submit to such recommended treatment, including surgery, the employer shall provide all necessary first aid and medical treatment and supply the necessary truss, support, or other mechanical appliance at a total cost not in excess of six hundred dollars. In addition, the employer shall pay compensation for a period not to exceed twenty-six weeks.

(iv) Recurrence of the hernia following surgery shall be considered as a separate hernia, and the provisions and limitations of this Subparagraph shall apply.

(s)(i) In addition to any other benefits to which an injured employee may be entitled under this Chapter, any employee suffering an injury as a result of an accident arising out of and in the course and scope of his employment shall be entitled to a sum of fifty thousand dollars, payable within one year after the date of the injury. Interest on such payment shall not commence to accrue until after it becomes payable. Such payment shall not be subject to any offset for payment of any other benefit under this Chapter. Such payment shall not be subject to a claim for attorney fees; however, attorney fees may be awarded in a claim to collect such payment pursuant to R.S. 23:1201.2.

(ii) In any claim for an injury, it must be established by clear and convincing evidence that the employee suffers an injury and that such resulted from an accident arising out of and in the course and scope of his employment. Nothing herein shall limit the right of any party to obtain a second medical opinion or, in appropriate cases, the opinion of an additional medical opinion medical examiner pursuant to R.S. 23:1123.

(iii) Only the following injuries shall be considered injuries for which benefits pursuant to this Subparagraph may be claimed:

(aa) Paraplegia or quadriplegia or the total anatomical loss of both hands, or both arms, or both feet, or both legs, or both eyes, or one hand and one foot, or any of two thereof; however, functional loss or loss of use shall not constitute anatomical loss.

(bb) Third degree burns of forty percent or more of the total body surface.

(iv) Notwithstanding the provisions of R.S. 23:1291.1 and 1377, any benefit paid pursuant to this Subparagraph shall be reported to the office separately from any other benefit paid pursuant to this Chapter and shall not be subject to assessment by the office or by the Louisiana Workers' Compensation Second Injury Board.

(v) Repealed by Acts 2006, No. 494, §1.

Amended by Acts 1996, 1st Ex. Sess., No. 31, §1, eff. May 1, 1996; Acts 1997, No. 1172, §4, eff. June 30, 1997; Acts 1999, No. 444, §1, eff. June 18, 1999; Acts 1999, No. 702, §1; Acts 1999, No. 776, §1; Acts 2001, No. 522, §1; Acts 2001, No. 1014, §1, eff. June 27, 2001; Acts 2001, No. 1070, §1; Acts 2003, No. 306, §1; Acts 2006, No. 494, §1; Acts 2012, No. 860, §1; Acts 2017, No. 381, §2, eff. June 23, 2017.  

§1361.  Unlawful discrimination prohibited

A.  No person, firm or corporation shall refuse to employ any applicant for employment because of such applicant having asserted a claim for workers' compensation benefits under the provisions of this Chapter or under the law of any state or of the United States.  Nothing in this Section shall require a person to employ an applicant who does not meet the qualifications of the position sought.

B.  No person shall discharge an employee from employment because of said employee having asserted a claim for benefits under the provisions of this Chapter or under the law of any state or of the United States.  Nothing in this Chapter shall prohibit an employer from discharging an employee who because of injury can no longer perform the duties of his employment.

C.  Any person who has been denied employment or discharged from employment in violation of the provisions of this Section shall be entitled to recover from the employer or prospective employer who has violated the provisions of this Section a civil penalty which shall be the equivalent of the amount the employee would have earned but for the discrimination based upon the starting salary of the position sought or the earnings of the employee at the time of the discharge, as the case may be, but not more than one year's earnings, together with reasonable attorney's fees and court costs.

D.  The rights and remedies granted by this Section shall not limit or in any way affect any rights and remedies that may be available under the provisions of any other state or federal law.

E.  Any party found by a workers' compensation judge or a court of competent jurisdiction to have brought a frivolous claim under this Section shall be held responsible for reasonable damages incurred as a result of this claim, including reasonable attorney's fees and court costs.

Added by Acts 1980, No. 704, §1.  Acts 1983, 1st Ex. Sess., No. 1, §6; Acts 1993, No. 638, §1, eff. June 15, 1993; Acts 1997, No. 88, §1, eff. June 11, 1997.

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Our clients always come first. Putting our clients first means we always offer free consultations, and free off-street parking, just one block off the highway in New Orleans. Putting our clients first also means we have a strict 24-hour communications policy, wherein our clients’ phone calls are always returned within 24 hours, if not sooner. That also means that our clients never have an issue getting through to their attorney, whether on the phone or in person.

A Proven Track Record of Success

We have successfully recovered millions of dollars in settlements for our clients in personal injury claims, auto accidents, and insurance claims. The reason that our opponents settle our clients’ cases for full value is because they know we prepare all our clients’ cases for trial from the start. In fact, we are known for not being afraid to take cases to trial, and thus our opponents know they are in for a fight when going against our clients.

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