In Louisiana workers compensation, a mediation is an informal meeting of the injured employee (ideally with the injured employee’s attorney) and the attorney for the workers compensation insurance company with a neutral individual – called a mediator – who attempts to resolve the issues that are in dispute.
The mediator is a neutral party and does not take sides; instead, the mediator’s purpose is to settle the disputed issues, or even the entire claim, without the need for further litigation.
Though the parties can choose a private mediator at their own cost (although it is almost always the insurance company who pays the mediator), most mediations in Louisiana workers compensation occur within the Louisiana Office of Workers Compensation (OWC) since there is no fee or cost in those mediations.
Mediation under either method is voluntary by the parties unless otherwise ordered by the workers compensation Judge.
The Office of Workers Compensation (OWC) mediators are licensed attorneys who are specifically trained in handling mediations, knowledgable about dispute resolution techniques, and experienced in resolving Louisiana workers compensation disputes.
These OWC mediators attempt to resolve the workers compensation disputes between the parties so that the parties will not have to go to a hearing in front of the workers compensation Judge.
In other words, a mediation is an opportunity for an injured employee to settle his or her disputed issues – or even settle the employee’s entire claim – within the Office of Workers Compensation (OWC) system at no cost, before those disputed issues go to trial.
HOW DOES A MEDIATION CONFERENCE WORK IN LOUISIANA WORKERS COMPENSATION?
A request for a mediation conference must be made in writing by both the employee and the workers compensation insurance company representative to the Office of Workers Compensation (OWC).
Upon such a request, the OWC mediator will contact the parties and schedule the mediation conference.
The mediation conference will take place in the Office of Workers Compensation (OWC) district office where either the claim has been filed and assigned, or (if no claim has been filed) where the selected mediator is located.
TWO TYPES OF MEDIATION CONFERENCES
The employee and the workers compensation insurance company can participate in a mediation both before and/or after a Disputed Claim for Compensation (Form LWC-WC 1008) has been filed.
A mediation conference prior to the filing of a Disputed Claim for Compensation (Form LWC-WC 1008) is referred to as a “pre-1008” mediation conference, while a mediation conference after the filing of a Disputed Claim for Compensation (Form LWC-WC 1008) is referred to as a “post- 1008” mediation conference.
If the claim is not resolved by mediation, and if the mediation was held before filing a Disputed Claim for Compensation (Form LWC-WC 1008), then the injured employee must file a Disputed Claim for Compensation (Form LWC-WC 1008) in order to pursue workers compensation benefits.
But if the claim is not resolved by mediation, and if the mediation was held after filing a Disputed Claim for Compensation (Form LWC-WC 1008), then the disputed claim then will proceed to trial in front of the workers compensation Judge.
Either the employee or the workers compensation insurance company representative may request an additional mediation at any time in the claim, but again all parties must agree to the mediation conference unless it is ordered by a workers compensation Judge.
PRIOR TO THE MEDIATION CONFERENCE
After the parties have made a joint written request for a mediation conference to any Office of Workers Compensation mediator, these parties must send to the mediator a confidential position statement, of no more than ten pages, that outlines the issues in dispute and the position of each party.
Once the mediator has received the joint written request, the mediator will schedule a mediation conference and provide notice of the date and time of the conference in the same manner and at the same time to all parties.
This notice of the mediation conference may be given by telephone, but will also be given by United States Mail, facsimile, or email.
WHO MUST ATTEND THE MEDIATION?
On the day of the mediation conference, each party must have a representative at the mediation to participate, either in person or via telephone, who has the authority to enter into negotiations in a good faith effort to resolve the issues in dispute.
However, the attorneys for the parties may only participate in the mediation conference via telephone if the other party agrees.
If any party fails to appear at a mediation conference ordered by the judge or requested by the parties, the workers compensation Judge may fine the absent party an amount, not more than $500, which will be paid to the Office of Workers Compensation Administrative Fund.
Also, if a party fails to appear at a mediation, the workers compensation Judge may award costs and reasonable attorney’s fees to the party that attended and order that the absent party pay these costs and reasonable attorney’s fees.
However, these fines, costs, and attorney’s fees, will not be awarded until a contradictory hearing is held in front of the workers compensation Judge.
WHAT HAPPENS DURING THE ACTUAL MEDIATION
Basically, most mediations – including those in Louisiana workers compensation – begin with the parties and the neutral mediator all seated in the same room together, usually around a large conference table.
The mediator will start by explaining to the parties why they are there and how the mediation will work.
Then, the sides will take turns, introducing themselves and explaining what they are seeking or offering, and why they are seeking or offering that.
Next, the two sides will separate by moving to separates rooms, and the mediator will go back and forth and exchange counter-offers or positions between the two parties, in order to eventually come to a settlement or agreement between the parties.
Eventually, the matter will either settle, or the mediator will declare that no settlement can be reached.
However, whether the claim settles or not, all statements made at any mediation conference shall be privileged and shall not be admissible in any subsequent status conference, pretrial conference, hearing, or trial.
This simply means that nothing said at a mediation – including a settlement position – can be used against that party at any other time.
Also, unlike Court proceedings, there is no court reporter or stenographer to record or write down what is said at mediations, and no witnesses are called to testify at mediations.
WORKERS COMPENSATION MEDIATION REPORTS
Upon completion of a mediation in Louisiana workers compensation, the mediator will draft a mediation report, and the mediator and all the parties will sign the report.
If the mediation was a pre-1008 mediation conference, and the matter could not be settled, then the mediator will issue a report stating the result of the conference, and the report will be issued to the parties immediately following the conference by facsimile, email or U.S. mail within five days.
If the mediation was a post-1008 mediation conference, and the matter could not be settled, then the mediator will issue a report stating the result of the conference, and the report will be issued to the workers compensation Judge immediately following the conference, and to the parties by facsimile, email or U.S. mail within five days.
But if a settlement is reached at the mediation, then the mediator will issue a report stating the agreement, and general terms of the settlement and the original report will be issued to the workers compensation Judge immediately following the conference, and to the parties by facsimile, email or U.S. mail within five days.
HOW TO PREPARE FOR A MEDIATION CONFERENCE IN LOUISIANA WORKERS COMPENSATION
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.
HOW TO APPROACH A MEDIATION CONFERENCE
Mediation can be a really helpful tool in settling a workers compensation claim, because it emphasizes the common goal of resolution that both sides are seeking, while de-emphasizing the confrontational element that is naturally a part of any dispute.
So it is important to understand that mediation is not the courtroom where the two sides argue that they are right and the other side is wrong; instead, mediation is a process to find agreement between the injured employee and the workers compensation insurance company.
In other words, when an injured employee walks into mediation, the employee is there to work toward the settlement of the claim for an amount that the employee is willing to take, not to argue facts before the workers compensation Judge.
Mediation is voluntary and works only if both sides are willing to compromise, so the injured employee needs to have a realistic assessment of the value of the employee’s claim.
THE LOUISIANA STATUTE ON MEDIATION CONFERENCES IN LOUISIANA WORKERS COMPENSATION
The primary Louisiana statute regarding mediation conferences in Louisiana workers compensation is La. R.S. 23:1310.3, which reads as follows:
§1310.3. Initiation of claims; voluntary mediation; procedure
A. A claim for benefits, the controversion of entitlement to benefits, or other relief under the Workers Compensation Act shall be initiated by the filing of the appropriate form with the office of workers compensation administration. Mailing, facsimile transmission, or electronic transmission of the form and payment of the filing fee within five days of any such mailing or transmission constitutes the initiation of a claim under R.S. 23:1209.
B. Upon receipt of the form, the assistant secretary shall assign the matter to a district. Upon receipt of the form, a district office shall effect service of process on any named defendant in any manner provided by law or by certified mail. All subsequent pleadings requiring service shall also be served in any manner provided by law or by certified mail. A defendant shall file an answer within fifteen days of service of the form or within a delay for answering granted by the workers compensation judge not to exceed an additional ten days.
C. The filing of the answer shall be deemed timely when the answer is mailed, transmitted by facsimile, or electronic transmission on or before the day on which said delays run. If the answer is received by mail, facsimile, or electronic transmission on or before the first legal day following the expiration of the due date, there shall be a rebuttable presumption that the answer was timely filed. In all cases where the presumption does not apply, the timeliness of the mailing or transmittal shall be shown by an official United States postmark, official receipt of certificate from the United States Postal Service, facsimile transmission confirmation, or electronic receipt confirmation made at the time of transmission which indicates the date thereof.
D.(1) Upon joint request of the parties, or upon order of the presiding workers compensation judge, all parties shall engage the services of either of the following:
(a) A Louisiana Workforce Commission, office of workers compensation administration mediator, and such mediation shall be held in the district office in which the selected mediator is assigned.
(b) A private mediator, and such mediation shall be held at a location mutually agreeable to the parties.
(2) The selection of the mediator shall be by mutual agreement of the parties.
(3) Each party shall provide a representative, in person or via telephone, to participate in the mediation conference, who has been provided with authority to enter into negotiations in a good faith effort to resolve the issue in dispute. The attorneys for the parties may participate in the mediation conference via telephone by mutual consent of the parties.
(4) Within five days of the conclusion of the mediation conference, the parties shall certify to the court, via United States mail, electronic transmission, or facsimile transmission, that a mediation conference has occurred and the results thereof.
(5) Nothing shall prohibit the parties from requesting a mediation conference prior to the filing of a disputed claim for compensation; however, neither the request nor participation in the mediation conference shall interrupt the running of prescription.
E. If any party fails to appear at a mediation conference ordered by the judge or requested by the parties after proper notice, the workers compensation judge upon request of a party may fine the delinquent party an amount not to exceed five hundred dollars, which shall be payable to the Office of Workers Compensation Administrative Fund. In addition, the workers compensation judge may assess against the party failing to attend costs and reasonable attorney fees incurred by any other party in connection with the conference. The penalties provided for in this Subsection shall be assessed by the workers compensation judge only after a contradictory hearing which shall be held prior to the hearing on the merits of the dispute.
F. Except as otherwise provided by R.S. 23:1101(B), 1361, and 1378(E), the workers compensation judge shall be vested with original, exclusive jurisdiction over all claims or disputes arising out of this Chapter, including but not limited to workers compensation insurance coverage disputes, group self-insurance indemnity contract disputes, employer demands for recovery for overpayment of benefits, the determination and recognition of employer credits as provided for in this Chapter, and cross-claims between employers or workers compensation insurers or self-insurance group funds for indemnification or contribution, concursus proceedings pursuant to Louisiana Code of Civil Procedure Articles 4651 et seq. concerning entitlement to workers compensation benefits, payment for medical treatment, or attorney fees arising out of an injury subject to this Chapter.
G.(1) Any party challenging the constitutionality of any provision of this Chapter shall specially plead such an allegation in the original petition, an exception, written motion, or answer, which shall state with particularity the grounds for such an allegation.
(2) Within thirty days of the filing of any pleading raising the issue of unconstitutionality, the party making such an allegation must file a petition in a state district court of proper jurisdiction for purposes of adjudicating the claim of unconstitutionality. Such filing shall be given priority in hearing such claim not more than ten days from being presented to the district court.
(3) Failure to follow the procedures set forth in this Section shall bar any claim as to the unconstitutionality of any provision of this Chapter on appeal.
Acts 1988, No. 938, §2, eff. July 1, 1989; Acts 1989, No. 26, §1; Acts 1989, No. 260, §1, eff. Jan. 1, 1990; Acts 1991, No. 892, §1; Acts 1992, No. 760, §1; Acts 1995, No. 348, §1, eff. June 16, 1995; Acts 1997, No. 88, §1, eff. June 11, 1997; Acts 1997, No. 94, §1, eff. June 11, 1997; Acts 2001, No. 1084, §1; Acts 2004, No. 341, §1, eff. June 18, 2004; Acts 2005, No. 257, §1; Acts 2006, No. 48, §1, eff. May 16, 2006; Acts 2010, No. 53, §1; Acts 2018, No. 612, §7, eff. July 1, 2020; Acts 2018, 2 E.S., No. 12, §1, eff. June 12, 2018.