What Exactly Can an Attorney Do for An Injured Worker in Louisiana Workers Compensation?
A qualified, experienced Louisiana workers compensation attorney can drastically improve an injured employee’s situation and claim.
Specifically, a Louisiana workers compensation attorney can:
- Help find the best doctor for an injured employee;
- Manage the workers compensation claims process;
- Ensure the full lost wage benefits are received;
- Ensure that all medical treatment is approved and received;
- Manage the vocational rehabilitation process;
- Represent the employee in workers compensation disputes;
- Represent the employee in third-party claims; and
- Maximize the employee’s settlement.
Given the 20% limit on workers compensation attorney’s fees in Louisiana, almost every injured employee should strongly consider hiring a qualified attorney to represent him or her in the claim.
In short, the benefits of legal representation in Louisiana workers compensation far outlay the costs.
However, one of the biggest mistakes that employees make is waiting too long to hire a workers compensation attorney.
By the time many injured workers hire an attorney, the insurance company has likely already diminished, limited, or extinguished many of the employee’s legal rights, and thus devalued the employee’s claim.
And contrary to what the insurance company wants the employee to believe, the insurance company will not treat the employee better if the employee doesn’t hire a lawyer, the insurance company will treat the employee worse (and often much much worse).
AN ATTORNEY CAN HELP FIND THE BEST DOCTOR FOR AN INJURED EMPLOYEE IN LOUISIANA WORKERS COMPENSATION
One of the most important roles an attorney can provide for an injured employee is to assist in finding and choosing a specific doctor in each medical field or specialty for the employee.
Under Louisiana workers compensation law, an injured employee is entitled to choose one treating physician in each field or specialty.
In other words, a Louisiana workers compensation claimant is allowed to select his or her own doctor.
Choosing the right doctor is absolutely critical in an injured employee’s workers compensation case for two main reasons:
- Choosing the right doctor will be essential in getting the best medical treatment that the employee seeks; and
- Choosing the right doctor will be crucial in getting the best legal outcome for the employee’s workers compensation claim.
For these reasons, the two most important decisions that an injured worker will make in his or her workers compensation claim are (1) who is the employee’s attorney; and (2) who is the employee’s doctor.
For example, the treating physician will be essentially deciding:
- Whether an injury or medical condition is considered a disability;
- Which medical treatments are necessary; and
- Whether the injury or medical condition is a result of a work-related accident.
HOW TO CHOOSE THE RIGHT DOCTOR
By far, the best way to find the right doctor for a workers compensation claim is to take the advice and recommendations of a knowledgable and experienced workers compensation attorney.
A good workers compensation attorney will know who the best doctors are for a specific workers compensation claim.
In fact, it is a big part of an attorney’s job to know who the best doctors are for different types of injuries and in different locations.
A good workers compensation attorney will know:
- Which doctors are experienced in handling workers compensation claims;
- Which doctors have a history of fighting for injured workers in workers compensation claims;
- Which doctors have a reputation as great medical doctors; and
- Which doctors have offices that are efficient and organized.
If the injured employee does not have a good workers compensation attorney, then he or she should hire one.
But otherwise, good sources for referrals are emergency room physicians and staff, and primary care doctors. But typically, these referrals may not be made in consideration of the specific rules and terminology involved in a Louisiana workers compensation claim.
And again, the injured employee should never choose the insurance company’s doctor as the employee’s treating physician, who will likely only declare that nothing is wrong with the employee, or rush the employee back to work prematurely.
WHO IS THE RIGHT DOCTOR?
As any good workers compensation attorney knows, the best doctors for workers compensation claims are doctors who:
- Are recognized among their peers as great medical doctors;
- Have a reputation as great medical doctors the local community;
- Have a reputation as being attentive and thorough with an excellent bed-side manner;
- Are very knowledgable about other physicians, in the event the doctor needs to make a referral to a different specialist;
- Are experienced in handling complicated workers compensation guidelines, forms, and rules;
- Are experienced in handling legal proceedings such as depositions;
- Have a reputation in the legal community of fighting for injured workers; and
- Have offices and staff that are efficient and organized enough to handle complex workers compensation claims.
So basically, the injured worker should be looking for a first-rate doctor, well-experienced with workers compensation, who cares enough to fight for injured workers over insurance companies.
And the doctor must be someone the employee can trust since the doctor will be critical in many important decisions that may significantly impact the employee’s health, as well as the employee’s workers compensation claim.
AN ATTORNEY CAN MANAGE THE CLAIMS PROCESS IN LOUISIANA WORKERS COMPENSATION
Much of a workers compensation claim in Louisiana revolves around complicated, confusing, and difficult administrative processes.
These administrative processes involve:
- Medical guidelines;
- Legal rules;
- Legal procedures;
- Approval processes; and
- Other requirements.
However, the problem with these complicated administrative processes is that even minor mistakes, or form errors, or missed deadlines can result in the employee’s entire claim being denied or terminated.
For these reasons, it is extremely helpful to have an experienced Louisiana workers compensation attorney manage an injured employee’s workers compensation claim and ensure that no such errors are made.
Specifically, a Louisiana workers compensation attorney can manage an employee’s claim by:
- Calculate your current and future medical bills;
- Completing required forms;
- Ensuring that all deadlines are met;
- Performing all calculations correctly; and
- Following all legal rules and procedures.
And by doing so from the very beginning, a workers compensation attorney can ensure that a claim is never denied in the first place.
Also, if a claim managed by an attorney is denied for some reason, the attorney will have built a solid record on which to appeal or challenge any such denial.
COMMUNICATIONS WITH THE INSURANCE COMPANY
Once an injured employee retains an attorney to handle a workers compensation claim, this attorney will handle all the communications with the insurance company and the insurance company’s representatives.
This means that, to the great relief of almost all injured employees in a workers compensation claim, the employee will never have to talk to or deal with personally the insurance company or the insurance company’s representatives.
Instead, the employee’s attorney will handle all such communications, including communications with:
- The insurance adjuster;
- The insurance company’s claim’s manager;
- The insurance company’s medical case manager;
- The insurance company vocational rehabilitation expert; and
- The insurance company’s attorney.
Also, by having an attorney will handle all such communications, the injured employee can rest assured that the workers compensation insurance company is not stripping away the injured employee’s rights in an effort to minimize the amount of money that the insurance company will pay out on the claim.
Instead, the employee can focus on his or her recovery and medical treatment.
AN ATTORNEY CAN ENSURE THAT FULL LOST WAGE INDEMNITY BENEFITS ARE RECEIVED IN LOUISIANA WORKERS COMPENSATION
An experienced Louisiana workers compensation attorney can make sure that an injured employee continues to receive the maximum amount of indemnity (lost wage) benefits on time, every time, for the entire time that the employee is unable to return to full-time employment.
Indemnity benefits are the lost wages that an injured employee is entitled to recover, due to an inability to work, when the employee is unable to return to his or her job because of a work-related injury or illness.
However, an injured employee will not receive the full amount of his or her lost wages, but instead only 2/3 of the Average Weekly Wage in the four weeks before the accident.
This is a common misconception among injured employees – that they will get 100% of their lost wages under Louisiana workers compensation. Again, unfortunately, the law in Louisiana is instead that the employee will not receive their entire lost wages, but only two-thirds of the wages you earned in the four weeks before your accident.
There are numerous ways to calculate lost wage benefits, based on the earnings of the employee and on how the employee is paid. These include:
- Hourly Basis
- Weekly, Monthly, Seasonal or Annual Basis
- Bonuses, Tips, and Fringe Benefits
- Employees of More Than One Employer
- Unit, Piecework, or Commission Basis
- Workers Who Supply Equipment or Helpers
- Workers Paid Out of Profit
Additionally, the amount of the indemnity benefits is capped (or limited) by Louisiana law.
So if the employee earns a significant amount, that amount will likely be limited to a certain maximum amount.
Last, if a work injury or illness prevents an employee from earning 90% of the earnings that the employee made before an accident, an attorney should be able to recover Supplemental Earnings Benefits (SEBs), which will be in the amount equal to two-thirds of the earnings of the Average Weekly Wage of what the employee was earning before the accident and what the injured employee is thereafter earning or capable of earning.
In any event, the goal of a workers compensation attorney should be to recovery 100% of the maximum amount of indemnity (lost wage) benefits on time, every time, for the entire time that the employee is unable to return to full-time employment.
AN ATTORNEY CAN ENSURE THAT ALL MEDICAL TREATMENT IS APPROVED AND RECEIVED IN LOUISIANA WORKERS COMPENSATION
Perhaps the most important goal for a workers compensation attorney is to ensure that all the injured employee’s medical treatment is approved and provided to the employee.
This goal concerning medical treatment also involves getting the correct diagnosis for the employee’s injury and top quality medical care.
This goal is so important because the workers compensation insurance companies constantly refuse to pay for medical treatment and often simply just ignore requests for approval of the medical treatment.
But in Louisiana workers compensation, an injured employee is entitled to have all of his or her accident-related medical bills paid by the employer’s workers compensation insurance company.
These medical bills include all necessary and reasonable medical expenses pertaining to the work-related injury, such as:
- Doctors visits;
- Diagnostic tests such as X-rays and MRIs;
- Prescription drug medications;
- Medical supplies;
- Hospital care and stays;
- Medical treatments;
- Surgeries and surgical treatment;
- Bloodwork and lab tests;
- Medical tests;
- Physical therapy;
- Medical rehabilitation efforts required for physical recovery;
- Prosthetic devices;
- Medically necessary treatments recommended by the treating physician;
- Reasonable travel expenses for obtaining medical services, medicines, and prosthetic devices; and
- Any non-medical treatment recognized by the laws of Louisiana as legal and related to the work injury.
In fact, Louisiana workers compensation provides Medical Treatment Guidelines for what comprises reasonable and necessary medical treatment, as well as a Medical Fee Schedule to set the costs of specific medical care and treatments.
Also, except for emergency care, the workers compensation insurance company must approve in advance any treatments that cost over $750.00.
PAYMENT OF MEDICAL EXPENSES AND BILLS
Medical bills for approved treatment must be paid by the workers compensation insurance company within 60 days unless the medical provider sends the bill electronically, wherein the time limit for payment is 30 days.
So, therefore, under Louisiana law, all medical treatment should be authorized and/or paid within 60 days from the date the insurance company receives written notice of the treatment and expense.
So if an employee receives any medical bills for treatment relating to his or her work-related injury, the employee should immediately send the medical bills to the employer or preferably to the workers compensation insurance company.
Or, if an employee incurs out-of-pocket medical expenses, then this employee should immediately send to the employer or the workers compensation insurance company an itemized list of out-of-pocket medical expenses and receipts paid by the employee so that the employee can be reimbursed as soon as possible.
Louisiana workers compensation generally covers aggravations of pre-existing conditions. Louisiana law also covers whenever the employee’s work accelerates the injury.
Specifically, Louisiana workers compensation courts have ruled that “an otherwise healthy employee with a pre-existing condition is entitled to benefits if she can prove that her work contributed to, aggravated, or accelerated her injury.”
But going even further, Louisiana courts have found that workers compensation will cover any work-related injury “which is more than a gradual deterioration or progressive degeneration.”
So, the general rule is that an employee’s pre-existing disease or condition does not disqualify a claim, if the work-related injury aggravated, accelerated, or combined with the disease or condition to produce the disability for which compensation is claimed.
Therefore, in a Louisiana workers compensation pre-existing condition aggravation case, the critical factors to look for are:
- Whether the condition was asymptomatic prior to the alleged incident;
- The sudden onset of symptoms; and
- The ability to identify some instigating incident at or during work.
And also, in workers compensation cases, a disability is presumed to be the result of a work-related accident if, before the accident, the injured person was in good health, but beginning with the accident, the symptoms of the disability appear and continue.
In essence, the employer takes his employees as he finds them, and cannot deny a workers compensation claim based on pre-existing conditions.
So the bottom line of all this is: if an employee had preexisting back problems but no symptoms prior to his or her work-related accident, then that employee’s back injuries should be covered under Louisiana workers compensation.
AN ATTORNEY CAN MANAGE THE VOCATIONAL REHABILITATION PROCESS IN LOUISIANA WORKERS COMPENSATION
Despite its stated purpose, vocational rehabilitation is a trap, because the workers compensation insurance company will simply use vocational rehabilitation as a means to reduce or terminate the employee’s lost wage benefits (which can be done regardless of whether the employee gets a new job).
To avoid the vocational rehabilitation trap, an injured employee should hire an experienced Louisiana workers compensation attorney to handle his or her entire workers compensation claim.
In fact, the only way for an injured employee really to fight against the insurance company’s efforts to reduce or terminate the employee’s lost wage benefits is to retain an experienced Louisiana workers compensation attorney to push back against and refute the insurance company’s efforts to reduce or terminate the employee’s lost wage benefits.
A skilled Louisiana workers compensation attorney can help in defeating the insurance company’s efforts to reduce or terminate the employee’s lost wage benefits and can prevent the employee from accepting a pre-mature or low-ball settlement as a result of the vocational rehabilitation trap.
The earlier a workers compensation attorney can begin handling an injured employee’s claim, the better.
However, an experienced workers compensation attorney’s skills can be most effective during the vocational rehabilitation process, and especially effective in refuting the insurance company’s Labor Market Survey,
An experienced Louisiana workers compensation attorney can fight back against the insurance company, while assisting the injured employee, by:
- Ensuring that the employee’s lost wage benefits are being paid in full and on time;
- Preparing the employee for the employee’s meetings with the vocational rehabilitation counselor;
- Accompanying the employee to his or her first meeting with the vocational rehabilitation counselor;
- Being present for any interview conducted with the employee by the vocational rehabilitation counselor or the insurance company representative;
- Supervising the vocational rehabilitation process to make sure the vocational rehabilitation counselor and the insurance company are complying with the law;
- Supervising the vocational rehabilitation process to make sure the vocational rehabilitation counselor and the insurance company are not coercing the employee into giving up benefits;
- Instructing the employee on how to properly handle a Functional Capacity Evaluation (FCE);
- Challenging the validity of a Labor Market Survey through research and evidence;
- Investigating all positions identified by the vocational rehabilitation counselor in a Labor Market Survey;
- Refuting the availability and wage rates of jobs listed on a Labor Market Survey;
- Challenging whether jobs listed in a Labor Market Survey actually fall within the treating physician’s work restrictions;
- Challenging whether jobs listed in a Labor Market Survey contain a true and proper job description for the treating physician to review;
- Investigating whether the treating physician actually signed off on each job listed in a Labor Market Survey, without additional limitations;
- Investigating whether each job listed in a Labor Market Survey actually falls inside of the employee’s education, training, and skills;
- Determining whether each job listed in a Labor Market Survey actually existed on the date on which the employee was made aware of it; and
- Determining whether each job listed in a Labor Market Survey actually is located where it is described, and within 30 miles of the employee.
The bottom line is that vocational rehabilitation is a trap because its real purpose is not to find the injured employee a new job or to provide retraining, but instead merely to give the insurance company the ability to terminate the employee’s lost wages (indemnity) benefits.
So an injured employee should aggressively fight against the insurance company’s efforts to reduce or terminate the employee’s lost wage benefits, and the best way to do that is with the help of a skilled, experienced Louisiana workers compensation attorney.
AN ATTORNEY CAN REPRESENT THE EMPLOYEE IN WORKERS COMPENSATION DISPUTES IN LOUISIANA WORKERS COMPENSATION
Unfortunately, the workers compensation insurance companies constantly deny claims in an unfair manner.
Most frequently, these insurance companies:
- Refuse to pay claims for medical treatment,
- Refuse to timely pay full lost wage benefits; and
- Often simply just ignores the employee’s workers compensation claim altogether.
In such situations, an injured employee must retain a qualified Louisiana workers compensation attorney to protect the employee’s legal right and fight back against the insurance company in order to recover the employee’s full workers compensation benefits.
An attorney can challenge an unfair claim denial by the insurance company by appealing the denial to a Judge with the Office of Workers Compensation Administration (OWCA), and presenting evidence – such as medical records, physician testimony, and witness testimony – to the Judge at a hearing.
Also, if the Office of Workers Compensation Judge rules against the employee, the employee can still appeal that ruling the appellate courts.
HOW AN ATTORNEY CAN CHALLENGE A DENIED CLAIM
A workers compensation trial – also known as a workers compensation hearing – is requested by filing a Disputed Claim for Compensation (Form 1008) with the Louisiana Office of Workers Compensation.
A copy of the actual LWC-WC Form 1008 is available here.
But before filing a Disputed Claim for Compensation (Form 1008) in Louisiana workers compensation, certain steps must be taken, and certain procedures must be followed.
First, the employee must report the accident or injury to the employer within 30 days after the accident or injury occurs or is discovered by the employee.
Then, if the employee’s workers compensation claim is denied – either in whole or in part – the employee can file a Disputed Claim for Compensation (Form 1008) with the Louisiana Office of Workers Compensation, which essentially requests a trial.
However, additional deadlines and procedures exist 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).
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 five 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.”
So again, if the workers compensation insurance company denies the medical treatment requested by the health care provider, or does not respond within five days, the decision can be appealed to the OWC Medical Director by filing a Form LWC-WC 1009 (Disputed Claim for Medical Treatment) within 15 calendar days of the date of denial.
And then, any party who disagrees with the decision of the OWCA Medical Director can seek a review by the workers compensation district Judge by filing a Form LWC-WC 1008 (Disputed Claim for Compensation) with the appropriate OWCA district office within 15 days of the date of which the Medical Director’s decision is mailed to the parties.
AN ATTORNEY CAN REPRESENT THE EMPLOYEE IN THIRD-PARTY CLAIMS IN LOUISIANA WORKERS COMPENSATION
Sometimes, an employee is injured while at work due to the actions of someone other than the employer or co-worker.
In such a situation, the injured employee will likely have a workers compensation claim AND a “third-party claim” against the individual (other than the employer or co-worker) who was responsible for the accident or the injury.
Many times, this “third-party claim” is, in fact, a separate personal injury claim.
And often, this separate personal injury claim is known as an “underlying personal injury claim” because this personal injury claim lies underneath the workers compensation claim.
Under Louisiana’s “exclusive remedy rule,” an injured employee is not allowed to sue the employer (or co-workers) for damages such as pain and suffering; an employee may only obtain lost wage benefits and medical benefits for the employer’s workers compensation insurance company.
However, an injured employee can sue third parties (individuals and companies besides the employer or its co-workers) for damages such as pain and suffering.
But both the employee, the employer, and the workers compensation insurance company may have valid claims against the third party.
RIGHTS OF THE EMPLOYEE AGAINST THIRD-PARTY WRONGDOERS
Under Louisiana law, workers compensation is the “exclusive remedy” between the employer and the employee, meaning that an employee can generally only sue his or her employer through the Louisiana workers compensation system and rules.
However, claims by an injured employee against a third party wrongdoer whose fault brought about the employee’s injury are not through the Louisiana workers compensation system and rules.
Louisiana law expressly authorizes the employee to proceed against any third party for damages even though the employee has been awarded workers compensation benefits by his or her employer for the same injury.
Nonetheless, an employer or its insurance company can be reimbursed – which will prevent double recovery by the employee – when the employer or its insurance company intervenes in (or steps into) the employee’s lawsuit against the third-party and required that the judgment be in favor of the employer or its insurance company in order to reimburse the employer or its insurance company.
In such a case of intervention by the employer or its insurance company, only the excess recovery goes to the employee; and in some instances, the employer or its insurance company’s “recovery” takes the form of a credit against future compensation owed, permitting the suspension of those future payments.
And, the employer or its insurance company may institute its own suit against the third-party wrongdoer, in which case the employee can intervene in order to ensure that the employee recovers a maximum sum.
AN ATTORNEY CAN MAXIMIZE THE EMPLOYEE’S SETTLEMENT IN LOUISIANA WORKERS COMPENSATION
An injured employee should always hire an experienced Louisiana workers compensation attorney to handle his or her settlement.
Not only will the attorney be able to obtain much more money for the employee even after a 20% attorney’s fee, but the attorney will handle everything and provide the employee with peace of mind that everything was handled properly in order to maximize the employee’s settlement amount.
If an injured employee attempts to settle his or her claim without an attorney, the adjuster for the workers compensation insurance company insurance will almost always undervalue the claim and take advantage of the employee by selling him or her short with an inadequate settlement amount.
An experienced Louisiana workers compensation attorney can maximize the amount that the injured worker will receive in settlement through several ways, including:
- Timing the settlement properly;
- Determining the true value of a claim;
- Using skillful negotiation tactics; and
- Properly handling a mediation.
So again, for these reasons, an injured employee should always hire an experienced Louisiana workers compensation attorney to handle his or her settlement.
AN ATTORNEY CAN MAXIMIZE A MEDIATION OPPORTUNITY
The best ways for an injured employee (and ideally the employee’s attorney) to prepare for a mediation conference in Louisiana Works compensation are to:
- Make sure the injured employee and the employee’s attorney know the proper value of the claim;
- Make sure that the workers compensation insurance company representative understands the employee’s position; and
- Make sure that the mediator understands the facts of the claim and the employee’s position.
Regarding point #1, information on determining the proper value of a claim can be found here.
Regarding point #2, an employee can make sure that the workers compensation insurance company representative understands the employee’s position by having the employee’s attorney submit a written settlement demand to the workers compensation insurance company at least several weeks before the mediation.
This settlement demand should include an analysis of all the relevant issues, as well as a specific demand for what the employee is seeking, including a specific monetary figure well above what the employee might actually settle for.
Regarding point #3, an employee can make sure that the mediator understands the facts of the claim and the employee’s position by having the employee’s attorney submit a confidential position paper to the mediator well in advance of the mediation.
This confidential position paper should include relevant information about the claim, including:
- The employee’s age and date of birth;
- The employee’s average weekly wage;
- The date of the accident with the number of weeks benefits paid so far;
- A description of the injury with a summary of the employee’s medical status;
- A summary of the employee’s vocational rehabilitative efforts;
- The employee’s medication names and costs;
- The status of any third-party claims or subrogation interests;
- The status of any health insurance or health care provider liens; and
- The status of any SSDI/Medicare concerns.
It is also very important to provide the mediator with an accurate future value of a claim in order for the mediation to be successful.