Awards of Penalties, Attorney's Fees, Costs and Interest Against the Insurance Company in Louisiana Workers Compensation

Fullsizeoutput 3072

Penalties, Attorney's Fees, Costs and Interest for Termination of Lost Wage Benefits 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.

So these awards of penalties, attorney's fees, costs and interest are an exception to the so-called “American rule” that each party bears its own litigation costs.

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.

Importantly, if a workers compensation insurance company discontinues lost wage payments for a  workers compensation claim without probable cause or in an arbitrary or capricious manner, then this workers compensation insurance company is subject to a penalty of up to $8,000 and reasonable attorneys' fees.

Time Limits for Lost Wage Benefits

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.

Penalties and Attorney's Fees

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."

For example, two of the most common situations where penalties and attorney's fees are awarded are:

    1. A failure to investigate factual or medical information before denying a claim; and
    2. A failure to properly calculate the employee's compensation rate for list wages.

Also, neither "computer errors" or "software glitches" are acceptable excuses.

Costs and Judicial Interest

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.

Also, judicial interest on attorney's fees and penalties is calculated from the date of their award, rather than from the date of judicial demand.

However, a failure to request judicial interest may prevent a later request or award of the judicial interest.   

Penalties for Medical Expenses and Medical Reports in Louisiana Workers Compensation

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.

Such such actions and conduct by the workers compensation insurance companies regularly result in an award penalties and attorney's fees in Louisiana workers compensation.

Failure to Authorize Medical Treatment

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

However, for disputes over whether medical treatment is necessary, Louisiana's "Utilization Review" process has its own deadlines and procedures for authorization and appeal of requested medical treatment, and these procedures must be followed for medical claims before an injured employee can file a Disputed Claim for Compensation (Form 1008), which can include a claim for penalties, attorney's fees, and costs.

Specifically, Louisiana's "Utilization Review" rules provide the following process and procedures to be followed when an injured employee seeks approval from the workers compensation insurance company to begin or continue treatment beyond the limit of $750:

    • The medical provider requests authorization for treatment from the workers compensation insurance company, and the insurance company must notify the medical provider within 5 business days of receipt of the request of the action taken on it.
    • If the request is denied, “any aggrieved party” must file, within 15 calendar days, an appeal by filing a LWC-WC 1009 “Disputed Claim for Medical Treatment” appeal with the OWCA medical director, who then renders a decision “as soon as is practicable” but in no event more than 30 days from the filing of the appeal. 
    • After the issuance of the OWCA medical director's decision, “any party who disagrees” with the decision may then appeal by filing a ‘Disputed Claim for Compensation' Form 1008 within 15 days after the mailing of the decision of the medical director.
    • This filing of the Form 1008 begins the ordinary legal process for other workers' compensation claims.
    • A workers' compensation judge then considers the decision by the medical director and may reverse it “when it is shown, by clear and convincing evidence” that the decision of the medical director “was not in accordance with the provisions of this Section.”

But if the workers compensation insurance company claims that the employee's complaints are not related to the work accident, or if it disputes the employee's inability to work, then these are questions of medical causation, the employee's physical condition, and the extent of the employee's work capabilities, and the workers compensation insurance company should have the employee examined by a Second Medical Opinion (SMO) or possibly Independent Medical Examination (IME) doctor afterwards. 

And the workers compensation insurance company exposes itself to penalties and attorney's fees if it merely relies on a conflict in medical reports in its refusal to authorize medical treatment.

That is, if the workers compensation insurance company simply relies on the opinion of its own doctor performing aSecond Medical Opinion (SMO), over the opinion of the employee's own treating physician - instead of requesting an Independent Medical Examination (IME) - then this workers compensation insurance company will likely have to pay penalties and attorney's fees, because the opinion of the treating physician almost always wins out over a Second Medical Opinion (SMO) opinion based on a single evaluation done by the doctor for the insurance company. 

Failure to Provide Proper Payment for Medical Services

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, 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.

Failure to Consent to a Choice of Physician

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.

Similar to when the workers compensation insurance company fails to provide payment for authorized workers compensation medical benefit payments, if the insurance company fails to consent to the injured employee's choice of physician form, then this insurance company 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 consent to the injured employee's choice of physician, then this workers compensation can be forced to pay reasonable attorney fees for each disputed claim.

An injured employee can provide written notice to the workers compensation insurance company of the employee's choice of physician, by completing a simple Choice of Physician Form, which can be found by clicking here.

Failure to Provide an Employee with a Medical Examination Report

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.

Specifically, an employee who is required by the workers compensation insurance company to submit to a medical examination, or who has accepted treatment from the employer's chosen health care provider, is entitled to a free copy of the written medical examination results or medical records within 30 days after the workers compensation insurance company receives the results or records.

And if the workers compensation insurance company fails to provide the employee with the written report or records within the 30-day period, this workers compensation insurance company is subject to a penalty of $250 plus reasonable attorneys' fees, for its failure to provide medical reports of the employer's examining physician.

Failure to Investigate Properly

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.

This is because the workers compensation insurance company has a legal duty to investigate claims fully. 

In fact, even if the employee's workers compensation claim is ultimately found to be non-compensable, the workers compensation insurance company can - and routine is - forced to pay penalties and attorney's fees for its handling of the employee's claim. 

This is because the ascertainment of whether or not penalties and attorney's fees are owed is based on the facts known by the workers compensation insurance company at the time of its actions or inactions. 

In other words, even if the workers compensation insurance company eventually proves at trial that the employee's claim is not compensable, the workers compensation insurance company cannot simply deny benefits when the facts known to it at the time of the denial do not support such a denial. 

The “Reasonably Controverted” and “Arbitrary, Capricious or Without Probable Cause” Standards for Penalties and Attorney's Fees in Louisiana Workers Compensation

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." 

According to Louisiana courts, the standards of “reasonably controverted” and “arbitrary, capricious or without probable cause” are very similar, but not exactly the same.

That is, 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.

In other words: given the facts, medical and otherwise, known to the workers compensation insurance company, did the workers compensation insurance company have a reasonable basis to believe that medical expenses and compensation benefits were not due the employee?

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 Louisiana Supreme Court has also ruled that for the “reasonably controverted” standard, the workers compensation Judge must “ascertain whether the employer or his insurer engaged in a non-frivolous legal dispute or possessed factual and/or medical information to reasonably counter the factual and medical information presented by the claimant throughout the time he refused to pay all or part of the benefits allegedly owed."

Nonetheless, the issue of a refusal to pay weekly benefits or medical payments, or the discontinuance of those payments, is a factual one to be determined upon the merits and factual circumstances of each case.

Examples of the “Reasonably Controverted” and “Arbitrary, Capricious or Without Probable Cause” Standards

So again, penalties and attorney's fees for untimely payments cannot be invoked if the claim has been “reasonably controverted,” and penalties and attorney's fees cannot be awarded for discontinuance of payments unless the failure to pay is found to be "arbitrary, capricious and without probable cause."

Concerning a refusal based on the insurance company's conclusion from medical reports available to it at the time of the refusal, penalties and attorney's fees will typically be denied if:

    1. The medical information is such that no disability is indicated; or
    2. There is credible medical evidence (though not entirely undisputed) showing that the employee can return to work.

Concerning a legal dispute rather than a medical dispute, the workers compensation Judge will typically deny an award of penalties and attorney's fees if:

    1. The insurance company has a “bona fide” dispute as to whether the claim is even compensable; or
    2. The legal issue involved is a complex or novel one. 

But, the workers compensation Judge will typically award of penalties and attorney's fees if there is:

    1. A refusal without substantial reason;
    2. A simple statement that the matter was unclear from a legal standpoint;
    3. A presentment of a frivolous defense;
    4. A failure to keep current on the law; or
    5. A failure to conduct a sufficient investigation to determine whether benefits are due.

Additionally, though perfection is not expected from the workers compensation insurance company, errors in the calculation of benefits typically result in an award of penalties and attorney's fees.

Calculations of Attorney Fees, Penalties, Costs and Interest in Louisiana Workers Compensation

Beyond the basics, there exist additional rules for calculations of penalties, attorney's fees, costs and interest on lost wages and medical benefits when a claim has not been reasonably controverted.

“Caps” on Penalties and Attorney's Fees for Multiple Violations

In Louisiana workers compensation, multiple violations by the workers compensation insurance company will bring about bring multiple penalties, and the aggregate (or total) of these penalties can be quite substantial.

However, under Louisiana law, there currently exists a "cap" of $8,000 on the total award for such violations.

These workers compensation penalties are paid directly to the injured employee (unless the healthcare provider was who requested them), which means that they are not payable to the employee's attorney.

Additionally, even when there are multiple violations, only one reasonable attorney's fee may be awarded as part of the penalty for multiple violations.

Requests for penalties and attorney's fees accompany almost every contested workers compensation matter, and these penalties and attorney's fees are awarded fairly frequently.

The Amount of Attorney's Fees Awarded

In Louisiana workers compensation, the only limitation on the amount of attorney's fees is that they should be “reasonable.”

An award of attorney's fees is not to be used as a punishment; instead, the attorney's fees should be measured by the complexity of the case and the required skill of the attorney.

The workers compensation Judge will have the discretion to determine the amount of the attorney's fees to be awarded, and will typically take into account the following factors:

    1. The degree of skill and ability exercised by the attorney;
    2. The amount of the claim;
    3. The amount recovered for the injured employee; and
    4. The amount of time devoted to the claim by the attorney.

Nevertheless, each claim for attorney's fees will be considered in light of the specific circumstances of each claim, and again the amount of attorney's fees awarded must be a reasonable amount in light of the above-listed factors.

Generally speaking, awards for attorney's fees typically range from between $10,000 and $20,000, though the awards can certainly be above or below these amounts, depending on the specific circumstances of the claim, including the above-listed factors.

And, if an award of attorney's fees is made, judicial interest runs on that award from the date of judgment, in the same manner and time in which judicial interest begins to run for penalties.

Awards of Attorney's Fees Greater than Twenty Percent

In Louisiana workers compensation, the amount of attorney's fees is limited to 20% of the amount recovered for the injured employee.

However, when attorney fees are separately awarded to the employee (and to be paid by the workers compensation insurance company), this 20% limitation on attorney's fees does not apply.

It is neither unethical nor a violation of the Louisiana law for the employee'􏰊s attorney to accept and keep the award for attorney's fees, even if it is greater than 20% of the total recovery in the claim.

However, in order to keep the award for attorney's fees, even if it is greater than 20% of the total recovery in the claim, the written contract between the employee and the employee's attorney must state that the attorney's fee awarded will be in addition to the 20% contingency fee (and not in lieu of the 20% contingency fee), and the total amount of attorney's fees must be both reasonable and approved by the workers􏰊 compensation Judge.

The "Safe Harbor" from Penalties and Attorney's Fees in Louisiana Workers Compensation 

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 all benefits must inform the injured employee by sending a Form 1003 Stop Payment Form.  

But also, 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.

In fact, the insurance company must complete and forward a Form 1002 at the same time as the initial payment of indemnity benefits is made to the employee, or on or prior to the effective date of any modification (including a change from TTD to SEB benefits), suspension, termination, or controversion of indemnity or medical benefits.

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 employee must follow the following procedures if the employee disagrees with the workers compensation insurance company's action and wants the workers compensation Judge to resolve the dispute: 

    1. Once the injured employee (or ideally the employee's attorney) receives the Form 1002 from the workers compensation insurance company, the employee must complete the Notice of Disagreement portion of the Form 1002 (or a Letter of Amicable Demand) and return it with the original Form 1002 to the insurance company by mail or facsimile.
    2. In the Notice of Disagreement portion of the Form 1002, the injured employee must notify the workers compensation insurance company of the basis for disagreement by stating the type and amount of workers compensation benefits that the employee should be receiving.
    3. Once the workers compensation insurance company receives the Notice of Disagreement portion of the Form 1002 from the injured employee, the insurance company has 7 days in which to agree to pay the benefits that the employee claims in the Notice of Disagreement portion of the Form 1002 that the employee is owed.
    4. If the workers compensation insurance company fails to pay within 7 days all the benefits that the employee claims in the Notice of Disagreement portion of the Form 1002 that the employee is owed, then the employee may file a new Disputed Claim for Compensation (Form 1008) or amend a pending disputed claim with the Louisiana Office of Workers Compensation court.
    5. Once the Disputed Claim for Compensation (Form 1008) is filed by the employee, then the workers compensation insurance company may in its answer request a preliminary determination hearing with the workers compensation Judge, which is a non-binding mini-trial that forecasts how the Judge will rule at an actual full trial on the merits.
    6. If the workers compensation insurance company fails to request a preliminary determination in its answer, then the disputed claim will be scheduled for a workers compensation trial.
    7. If the workers compensation insurance company does request a preliminary determination in its answer, then the disputed claim will be scheduled for a preliminary determination (and shall be held no later than 90 days from the telephone scheduling conference that sets the date for the preliminary determination).
    8. If held, the preliminary determination will be a contradictory hearing in which all parties can introduce evidence, including medical records, physician depositions, and witness testimony.
    9. Once the preliminary determination has been completed, the workers compensation Judge has 30 days to issue a recommendation.
    10. After the workers compensation Judge issues a recommendation, the workers compensation insurance company has 10 days to either: (1) notify the injured employee or his representative in writing that the employer does not accept the determination, or (2) accept and comply with the preliminary determination recommendation, and mail a revised Form 1002 to the injured employee along with the payments due. If the workers compensation insurance company accepts and complies within 10 days of the preliminary determination, it shall not be subject to any penalties or attorney fees.
    11. If the workers compensation insurance company does not accept and comply with the preliminary determination, then the disputed claim will be scheduled for a workers compensation trial.

But again, even if the workers compensation Judge finds at the trial that the denial or discontinuance of benefits was improper, this Form 1002 process initiated by the workers compensation insurance company creates a "safe harbor" that prevents the employee from recovering penalties and attorney's fees. 

Other Types of Awards for Penalties, Attorney's Fees, Costs and Interest in Louisiana Workers Compensation

In addition to penalties, attorney's fees, costs and interest on lost wages and medical benefits, there exist additional ways for an injured employee to recover penalties, attorney's fees, costs and interest.

Penalties for Failure to Pay A Judgment or Settlement

If a Louisiana workers compensation claim proceeds to trial, and the workers compensation Judge issues a judgment against the workers compensation insurance company, and if this final, non-appealable judgment is not paid within 30 days after it becomes due, then the insurance company will be penalized either:

    1. A 24% penalty imposed on the amount of the judgment; or 
    2. A fine of $100 per day;

whichever is greater.

Also, this total $100 per calendar day penalty shall not exceed $3,000 in the aggregate, and the employee's attorney is entitled to reasonable attorney's fees for the collection of the judgment. 

Additionally, workers compensation settlements are treated as final judgments under the statute as well. So, if the employee settles for $100,000, but does not receive payment for 31 days, the penalty is $24,000 plus attorney's fees. 

Last, 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.

However, judicial interest on attorney's fees and penalties is calculated from the date of their award, rather than from the date of judicial demand.

A useful judicial interest calculator can be found here.

Failure to Pay Mileage

An employee injured on the job in Louisiana is entitled to be compensated for the cost of traveling to and from any medical appointments, and for the cost of traveling to and from any pharmacies in order to obtain any medications related to necessary care.

The amount of transportation reimbursement is based on the miles (or "mileage") traveled to and from the medical provider or pharmacy.  

As of 2019, this mileage reimbursement rate is $0.54 (or 54 cents) per mile. Thus, if an injured worker traveled a total of 100 miles in a month to and from medical providers and pharmacies, then this worker would be entitled to $54.00 in mileage reimbursement for that month.

Under Louisiana workers compensation law, like authorized medical benefits, travel mileage must be paid within 60 days after the workers compensation insurance company receives a written notice of the mileage.

If the workers compensation insurance company fails to provide payment for this travel mileage, 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 this travel mileage payments, then this workers compensation can be forced to pay reasonable attorney fees for each disputed claim.

Failure of an Employer to Provide Workers Compensation Insurance

Under Louisiana law, if an employer does not have workers compensation insurance for its employees, then - in addition to being liable for the employee's workers compensation benefits - this employer will face stiff fines and penalties.

Specifically, if an employer does not have workers compensation insurance for its employees, then the employer will have to pay:

    1. Civil penalties of up to $250 per employee for the first offense, and not more than $250 per employee for subsequent offenses, not to exceed $10,000;
    2. An additional 50% more in the amount of lost wage (indemnity) benefits due to the injured employee;
    3. Criminal penalties, if the employer willfully failed to provide workers compensation, of fines of up to $250 per employee per day and/or imprisonment with or without hard labor for not more than one year; and
    4. Criminal penalties, if the employer willfully misrepresents to any person that he has workers compensation coverage, of fines of up to $250 per day and/or imprisonment with or without hard labor for no less than one year and no more than ten years.

Additionally, the Office of Workers Compensation may actually close and discontinue a business if it repeatedly fails to provide workers compensation insurance for its employees.

Also, the Financial and Compliance Office of the Louisiana Office of Workers Compensation will assess and collect any and all penalties for failure to secure workers compensation insurance.

The Louisiana Statutes for Awards of Penalties, Attorney's Fees, Costs and Interest in Louisiana Workers Compensation

The primary Louisiana statute regarding awards of penalties, attorney's fees, costs, and interest are 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, and La. R.S. 23:1201.3, which read as follows:

§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.

Putting Our Clients First

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.

Menu