After the Accident and Injury
Following an accident or injury, the employee should immediately report the accident and injury to the employer, preferably a supervisor, and preferably in writing.
Though the employee legally has 30 days to report the accident and injury, the employee should not wait at all. Delaying can be a big mistake. Instead, simply report the accident right away. Don't keep it a secret, and don't downplay the severity of the injuries.
Reporting the accident and injury right away should get the claim underway. Once the employer is notified, the employer must report the accident in writing to its workers compensation insurance company.
Once the insurance company is notified, it must timely process the claim and issue an indemnity payment within 14 days. So it is critical for the employee to report the accident right away.
Seeking Medical Attention
Once the employee has reported the accident, the employee should turn his or her focus on getting (or continuing to get) all necessary medical treatment and care.
In particular, the employee should go to the doctor of his or her choice - not the employer's doctor or the insurance company's doctor. However, the employee should insist that the insurance company pay for this medical treatment.
If the insurance company refuses to pay for the medical treatment, then the employee should still proceed with the treatment if possible, and contact a qualified Louisiana workers compensation attorney immediately.
When seeking medical attention, it is critical for the employee to provide as much detail about both the accident and all the injuries to the medical providers. These medical providers should make a written record of all this information, which will be become critical evidence in the employee's workers compensation claim.
Assembling and Keeping Appropriate Information
As soon as an employee is injured in a work-related accident, the employee should begin gathering and keeping all the information and documents.
For example, the employee should request and keep a copy of any accident report prepared by the employer.
Second, to whatever extent possible, the employee should try to keep notes on the events, or even a journal. Keeping notes can be a great asset later on in the employee's claim. Of course, it helps to write down everything as it happens, so that it can be as correct as possible. The employee should write down details about the accident (including tie, place, and witnesses), the reporting of the accident, the medical treatment, and anything that seems as if it could possibly be important or relevant.
Third, once the employee notifies the employer of the accident and injury, the employer must complete a form called the "Employer's First Report of Injury or Illness" and provide a copy to both the employer's workers compensation insurance company and the Louisiana Office of Workers' Compensation, in order to notify them both of the accident and injury. The employee should ask the employer for a copy of this First Report of Injury or Illness, and keep this copy for the employee's records.
Filing a Form 1008: Disputed Claim for Compensation
If the employer is not fully and properly and timely paying the proper workers compensation wage and medical benefits, the employee should file a Form 1008 (Disputed Claim for Compensation) with the Office of Workers Compensation. This Form 1008 is the form that will initiate the claim or dispute within the workers compensation court system.
This claim may be filed by hand delivery, United States mail, facsimile transmission or electronic transmission (with verified signature) addressed to the Office of Workers Compensation administration. There is a small fee to to file the form, but this fee may be waived upon showing financial hardship.
Once the OWC (Office of Workers Compensation) receives the Form 1008 from the employee, the OWC will serve the defendants (typically the employer and its workers compensation insurance company) with the Form 1008.
The defendants are required to file an answer to the allegations in the Form 1008 within 15 days after they receive service of the Form 1008. The defendants will file the answer within the OWC, but are also required to provide a copy of the answer to all the parties in the case, including the employee.
Dispute for Medical Benefits
For medical benefits, before filing a Form 1008 (Disputed Claim for Compensation) with the Office of Workers Compensation, the employee must take extra steps before filing a Form 1008. Specifically, once the workers compensation insurance company has denied medical treatment (typically in a Form 1010), the employee must first file a Form 1009 (Disputed Claim for Medical Treatment) appeal with the Office of Workers Compensation Administration Medical Director.
The Form 1009 must be filed within fifteen calendar days of the date that the insurer's denial was received by the employee. The medical director shall render a decision as soon as is practicable, but in no event, not more than thirty calendar days from the date of filing.
Louisiana law states that “any aggrieved party” shall file, within fifteen calendar days, an appeal with the OWCA Medical Director. Aggrieved party is defined as “a person whose personal or property rights are adversely affected by a judgment or decree of a court.” This means the employee, the employee's lawyer, or the employee's medical provider can file this 1009. But the Form 1009 must be received in the OWCA Medical Services Section no later than 15 calendar days from the date on the written denial.
OWC Medical Director
Once the medical director renders a decision, any party who disagrees with the decision of the medical director can then appeal by filing a Form 1008 (Disputed Claim for Compensation) with the Office of Workers Compensation.
This Form 1008 must be filed within 15 days of the date that the decision of the medical director is mailed to the parties. The filed Form 1008 shall include a copy of the Form 1009 and a copy of the decision of the medical director. The party filing the Form 1008 must simultaneously notify all the other parties that an appeal of the medical director's decision has been filed.
The decision of the medical director may be overturned when it is shown by clear and convincing evidence that the decision of the medical director was not in accordance with the provisions of the Louisiana Workers' Compensation Medical Treatment Guidelines.
Time Limits For Filing A Disputed Claim for Compensation
Unfortunately, the time limits for filing a Disputed Claim for Compensation are complicated.
To start with, Louisiana law holds that the time limits to file claims for workers compensation indemnity benefits (lost wages) are separate and distinct from the time limits to file claims for workers compensation medical benefits.
Importantly, this means that an employee's time limit for filing a claim for indemnity benefits (lost wages) can expire even though the employee is still receiving medical benefits or medical treatment provided by the workers compensation insurance company.
Additionally, there are many exceptions and other rules and requirements concerning the time limits for filing a Disputed Claim for Compensation in Louisiana workers compensation. And the information which dictates what the precise time limits are is likely not in the hands of the employee, but in the hands of the insurance company.
For both these reasons, as well as numerous other reasons, an employee should seriously consider retaining an attorney to handle his or her workers compensation claim.
Nonetheless, the basic time limitations for filing a Disputed Claim for Compensation in Louisiana workers compensation are as follows:
- A claim for medical benefits must be filed within one year of the date of the accident or within three years of the date that Workers Compensation medical benefits were last paid, whichever is later.
- If the employee has never received any indemnity (lost wages) benefits for his or her injury, then a claim for indemnity (lost wages) benefits must be filed within one year of the date of the accident.
- If the employee has received any indemnity (lost wages) benefits for his or her injury, then a claim for Temporary Total Disability, Permanent Partial Disability or Permanent Total Disability benefits must be filed within one year of the date on which the employee was last paid indemnity benefits.
- If the employee has received any Supplemental Earnings Benefits for his or her injury, then a claim for indemnity (lost wages) benefits must be filed within two years of the date on which the employee was last paid Supplemental Earnings Benefits if the Supplemental Earnings Benefits were not paid for any given thirteen consecutive weeks during those two years.
- If the employee has previously received only Temporary Total Disability, Permanent Partial Disability or Permanent Total Disability benefits, then a claim for indemnity (lost wages) benefits must be filed within three years of the date on which the employee was last paid one of those types of benefits.
- When a claim for workers compensation benefits is based upon a work-related illness or occupational disease, instead of a particular accident or injury, then a claim for workers compensation benefits must be filed within one year of the date that:
- The disease manifested itself in the employee;
- The employee became disabled from working as a result of the disease; and
- The employee knows or has reasonable grounds to believe that the disease is occupationally related.
Does An Injured Employee Need an Attorney?
Calculating the time limits for filing a claim is extremely complicated. Knowing which forms to file, and when to file them, and how to complete them, is also very complicated. But above all, an employee representing himself or herself in the Louisiana workers compensation court system - against the insurance company's team lawyers - is next to impossible.
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. The benefits of legal representation far far outlay the costs.
However, one of the biggest mistakes that employees make is waiting too long to hire a workers compensation attorney. By that time, the insurance company has likely already diminished, limited, or extinguished many of the employee's legal rights, and thus devalued the employee's claim.
Contrary to what the insurance company want 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).
Important Considerations in Hiring a Workers Compensation Attorney
Any injured worker should strongly consider the following:
- The primary goal of the workers compensation insurance companies is to maximize profit. Thus the insurance companies are much more interested in their profits than in paying injured workers the benefits they deserve.
- Both the employer and the workers compensation insurance company will have lawyers working for them. The primary goal of the lawyers of the employer and the insurance company is to have the workers compensation insurance company pay as little as possible for the injured employee's claim. That is their job, if they do not do their job they will be fired.
- The workers compensation insurance company will have insurance adjusters working for them. The primary goal of these adjusters is to pay as little as possible for the injured employee's claim. That is their job, if they do not do their job they will be fired.
- Once the employee notifies the employer of the accident and injury, the employee will have to directly work with and directly deal with the insurance company's claims adjuster, if the injured employee does not hire an attorney.
- The insurance adjuster will run the claim of the injured employee. The adjuster decides which benefits the injured employee will receive, and which benefits the injured employee will not receive. The adjuster will not advise the injured employee of his or her rights, and the adjuster will not advise the injured employee of however to maximize his or her claim. That is not the adjuster's job; the adjuster's job is to minimize the employee's claim. This is a zero sum game: the more the insurance companies pay, the less they keep; the less the insurance companies pay, the more they keep. So it is extremely important to understand that the adjuster - no matter how nice he or she appears - is NOT on the side of the injured party; the insurance adjuster is on the OPPOSITE side of the injured employee and is working AGAINST the injured employee.
- Besides minimizing benefits, the insurance adjusters will dedicate as little time and effort as possible to the employee's claim, while trying close the employee's claim as soon as possible for as little as possible. Again, this is the job that the adjusters were hired to do. It does not matter if the adjuster is a nice person or appears to be a nice person. They were hired to do a job, and they will do it or lose their job. The bottom line is that the insurance adjusters are NOT looking out for the injured employee.
- Very often, the first and primary concern if the employer is not the health of welfare or its employees, but rather how to keep its workers compensation insurance premiums as low as possible. And that means not reporting claims, or trying to convince an employee that there was not really an accident, or that there was not really an injury, or that it is not in the employee's best interest to report the accident or injury to the insurance company.
The Value of Hiring a Workers Compensation Attorney
An experienced qualified Louisiana workers compensation attorney knows exactly how to deal with and handle the workers compensation insurance companies, including their adjusters and their lawyers. An attorney will make sure the employee receives their workers compensation in a timely and complete manner, and will maximize the recovery to the employee.
Finally, when it is time to settle a workers compensation claim, an attorney will almost always recover many times more than an employee will recover, even after considering the attorney's 20% fee.
For these reasons, despite what the workers compensation insurance companies want the employee to believe, it is almost always in the best interest of an injured employee to hire an attorney. In particular, the worse the injury and the greater the lost wages, the more it is in the interest of the employee to hire a lawyer as soon as possible.
It is a huge mistake for any employee who has suffered a serious work-related injury to not hire an experienced workers compensation attorney as soon as possible. The attorney will handle all the work, and the employee will end up with a much greater financial result, and possibly a much better medical result.