Time Limits for Filing a Claim in Louisiana Workers Compensation

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In Louisiana workers compensation, an injured worker must report his or her accident or injury to the employer within 30 days of the day that it occurs, the worker's right to recover workers compensation benefits may expire.

But, there also exist time limits under which an injured employee must take legal action, which means filing a Disputed Claim for Compensation (or Form 1008) with the Louisiana Office of Workers Compensation, if the employee is not receiving full benefits on time.  

If the injured employee does not take legal action before these time limits, then the employee will lose his or her rights to make a claim for workers compensation benefits.

These time limits are often referred to as a "statute of limitations" or a "prescriptive period."

Unfortunately, these time limits can be confusing, because the time limitations often depend on what type of benefits the injured employee is entitled and whether the employee had received any benefits previously.

So for example, if the injured employee is entitled to multiple types of workers compensation benefits (such as lost wages and medical treatment), the employee will likely have multiple deadlines or time limits to deal with, and these deadline are separate and independent of each other.

In other words, the prescriptive period - or time limit - can run out on an injured employee's eligibility for lost wage benefits, while the employee still remain eligible for medical benefits, and vice versa.

Also, the time limit for lost wage (or indemnity) benefits depends on the type of lost wage (or indemnity) benefit, and the time limit for medical benefits depends on the type of injury or illness suffered by the employee.

Basic Time Limits for Filing a Claim in Louisiana Workers Compensation

Again, the time limits established for making a claim for lost wage benefits or for medical benefits are separate, and the payment for one type of benefit will not interrupt the time limits on the other type of benefit.

Nonetheless, the following are the basic time limits - or "statute of limitations" or "prescriptive periods" -  for filing a workers compensation claim, broken down by claims for lost wage benefits and claims for medical benefits.

Time Limits for Medical Benefits

In Louisiana workers compensation, if no medical benefits have been paid, a worker has one year from the date of the accident to file a claim for medical benefits.

But, if any medical benefits have been paid, an employee has three years from the date of the last payment to file a claim for additional medical treatment.

So, in other words, 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 the last payment for medical benefits was made by the workers compensation insurance company, whichever is later.

The voluntary payment of a medical bill after the 3 year prescriptive period has already passed will mean that the time limit will restart for another 3 year period. 

Time Limits for Lost Wage (Indemnity) Benefits

If no benefits have been paid, a worker has one year from the date of the accident to file a claim for lost wage (or indemnity) benefits.

If any benefits have been paid, medical or indemnity, then an employee has one year from the date of the last payment of benefits to seek further benefits for Temporary Total Disability (TTD), Permanent Partial Disability (PPD) or Permanent Total Disability (PPD) benefits.

But, if the claim is for Supplemental Earnings Benefits (SEBs), and the employee previously received Temporary Total Disability (TTD), Permanent Partial Disability (PPD) or Permanent Total Disability (PPD) benefits, then the employee has three years from the date of last payment to pursue additional benefits.

But, if the claim is for Supplemental Earnings Benefits (SEBs), and the worker previously received only Supplemental Earnings Benefits (SEBs), then the employee has two years from the date of last payment to pursue additional benefits, if the employee did not receive Supplemental Earnings Benefits (SEBs) for 13 consecutive weeks during the two year period.

So, to recap, the following are the basic time limits for filing claims for lost wage benefits:

    • If no lost wage benefits have been paid: 1 year from the date of accident.
    • If the employee seeks PPD, TTD or PTD benefits, and any type of lost wage benefits have been paid: 1 year from the date of last payment.
    • If the employee seeks SEBs, and PPD, TTD or PTD benefits have been previously paid, but SEBs have not been previously paid: 3 years from the date of last payment.
    • If the employee seeks SEBs, and SEBs have been previously paid: 2 years from the date of last payment, if SEBs were not paid for any given 13 consecutive weeks.

Additional Time Limits for Filing a Claim in Louisiana Workers Compensation

Occupational Disease Claims

Under Louisiana workers compensation, a claim for workers compensation benefits that is based not upon a specific accident - but instead is based on a work-related illness or disease (also called an occupational disease) - has a different time limits than a claim based on a specific accident.

Specifically, a Disputed Claim for Compensation (or Form 1008) for an illness or occupational disease must be filed with the Louisiana Office of Workers Compensation within 1 year of whichever of the following happens last:

    1. The disease manifested itself.
    2. The employee is disabled from working as a result of the disease.
    3. The employee knows or has reasonable grounds to believe that the disease is occupationally related.

So again, if an employee suffers from an occupational disease, the employee's claim can be filed for up to one year from the day in which the disease appeared, the day the employee became unable to work because of the disease, or the day the employee learned (or should have learned) that the disease is related to his or her job - whichever happened last.

Also, regarding the employee's dependents' claim for death benefits as a result of an occupation disease, Louisiana law holds that all claims for death arising from an occupational disease must be filed within one year of the date of death of such employee or within one year of the date the claimant employee has reasonable grounds to believe that the death resulted from an occupational disease.

The "Developing Injury Rule" Exception

Generally speaking, in Louisiana workers compensation, if no benefits have been paid, an injured employee has one year from the date of the accident to file a claim for lost wage benefits or for medical benefits.

However, there exists one very important exception to that rule, know as the "Developing Injury Rule."

Under the developing injury rule, when a worker suffers a developmental injury that does not immediately result in disability, this injured worker may file a claim within one year of the date on which the injury develops, but no later than 3 years from the date of the accident.

However, in developmental injury cases, where the proceedings have begun after 2 years from the date of the accident but within 3 years from the date of the work accident, the employee may be entitled to Temporary Total Disability (TTD) benefits for a period not to exceed 6 months and the payment of such Temporary Total Disability (TTD) benefits will interrupt prescription (or time limits) as to any other type of lost wage benefit. 

Under Louisiana law, an injury "develops" when it becomes clear that the employee can no longer perform employment duties in a satisfactory manner.  Also, an employee who suffers a work-related injury that is immediately apparent, but only later develops into a disability, has a "developmental injury" for prescription purposes.  

The purpose of the "Developing Injury Rule" is to protect employees who suffer accidents but continue working until the resulting injury prevents them from working any further. However, the rule also supports employers who need a dedicated workforce, including the types of dedicated employees who suffer accidents but continue working until the resulting injury prevents them from working any further.

Interruption of Prescriptive Period Time Limits

The time limits - or prescriptive periods - for filing a disputed claim for medical expenses and for filing a disputed claim for disability benefits are separate, and therefore payment of a medical expense does not interrupt prescription as to a claim for disability benefits.

Also, the time limit for filing a Disputed Claim for Compensation with the Louisiana Office of Workers Compensation is not extended because the injured employee received another type of disability benefits, such as Social Security Disability or benefits from a private short term disability policy.

Nonetheless, there are certainly types of legal situations wherein prescription is interrupted, and therefore the time limits get extended.

Typically, these types of legal situations involves a tort (which is simply an act that gives rise to injury or harm to another and amounts to a civil wrong for which courts impose liability) and/or a tortfeasor (which is simply someone who is committing a tort).  

For example:

    • The timely filing of a tort suit by the employee against the employer will interrupt prescription on a workers compensation claim against the same defendant.  
    • The timely filing of a tort suit by the employee against any third party will interrupt prescription on a workers compensation claim, but only if the third party is found to be liable in the tort action. 
    • The timely filing of a tort suit by the employee against any third party will interrupt prescription on the claim of the employer or carrier against that tortfeasor for reimbursement of compensation paid.
    • The timely filing of a workers compensation claim by the employee will interrupt prescription as to a third-party tortfeasor or the employer for tort damages, unless the workers compensation claim turns out to be without merit because no work relationship is established, or if prescription has already run against the tort claim when the timely workers' compensation claim is made.
    • The timely filing of a workers compensation claim within a year of the date of accident will interrupt prescription for a tort suit against any third party, but the voluntary payment of workers' compensation benefits will not act as an interruption of the tort claim.   
    • The timely filing of a workers compensation claim by the employee will interrupt prescription for the employee's tort suit against the employer. 
    • The timely filing of a workers compensation claim by the employee will interrupt prescription with respect to a claim by the worker's physician against the workers compensation insurance company for reimbursement of medical expenses incurred in treating the employee.

And on the flip side, there are definitely types of legal situations wherein prescription is NOT interrupted, and therefore the time limits do NOT get extended.

For example, the voluntary payment of weekly benefits by the employer, without the filing of a suit against it, does not interrupt prescription with respect to an alleged tortfeasor.

Other Issues with Time Limits for Filing a Claim in Louisiana Workers Compensation

As detailed above, the time limits for an injured employee to file a claim for lost wage benefits are as follows:

    1. One year after the accident; or
    2. One year after the last payment of compensation, except for claims of Supplemental Earnings Benefits (SEBs), in which the period of 3 years after the last payment of compensation applies (of whatever type); or
    3. One year from the time the “injury develops” if the injury “does not result at the time of, or develop immediately after the accident”, but in no event more than two years after the accident.

The claim of an injured employee for payment of medical expenses must be filed within one year of the accident if no payments have been made, or within three years of the last payment if they have been made.

However, aside from these general rules - and the rules for occupational diseases and developing injuries - there are other important additional rules concerning time limits on filing a workers compensation claim.

What Constitutes the Filing of a Claim?

In order to file a Disputed Claim for Compensation with the Louisiana Office of Workers Compensation, the completed Form 1008 must be provided to  the director of the Office of Workers Compensation, who - like a clerk of court in other Courts - handles the receipt of the claim, the docketing process, and the scheduling of the hearings, mediation conferences, and all other administrative  and legal actions that are required.

However, the time limit for filing a workers compensation claim is not met at the time that the claim is received by the Louisiana Office of Workers Compensation, but rather it is met at the time that the claim is sent or mailed to the Louisiana Office of Workers Compensation by the injured employee.

In other words, a workers compensation claim is filed on time if it is mailed on or before its due date

This rule is similar to most filing deadlines in appellate courts, but different and different from most filing deadlines applied to civil petitions filed in district courts.

What Constitutes a Compensation Payment?

In Louisiana workers compensation, any payment for a workers compensation benefit made within one year following the accident or injury has the effect of interrupting the time limits for filing a Disputed Claim for Compensation.

In such a case, the new time limit for filing a claim (also known as the statute of limitations or prescriptive period) changes to one year from the time of making the last payment, or in the case of Supplemental Earnings Benefits (SEBs), three years from the time of making the last payment for workers compensation benefits.

But what exactly constitutes a “payment”? And what exactly constitutes the “time of making the last payment”? 

Well, as far as what exactly constitutes a “payment” for interrupting prescription, the payment must be some type of a weekly compensation benefit, and not wages actually earned by the employee nor benefits payable under other wage-protection plans.

So if an injured employee after his accident continues to receive wages, or checks unspecified as to their purpose, and this employee is not fully earning these wages, they will be treated as workers compensation benefits and will interrupt prescription.

But, the following types of payment will NOT be considered as workers compensation benefits and therefore will NOT interrupt prescription (or time limits):

    1. Wages or unspecified checks which the employee is shown to have earned;
    2. “Sick leave” benefit checks; and
    3. Payments or checks derived from non-workers compensation forms of employer wage-protection plans.

The Time of Making of A Benefit Payment

The question of the “time of making the last payment” usually involves receipt and cashing of a check, as opposed to the writing of the check.

Though some workers compensation courts have found that interruption of the statute of limitations (or time limits) occurs when the benefits check was cashed, most some workers compensation courts have found that interruption of the statute of limitations (or time limits) occurs when the injured employee actually receives the check.

However, in order to avoid confusion and fully protect one's legal rights, an injured employee should always file a Disputed Claim for Compensation well in advance of one year after both the receipt and cashing of a check, and the writing of the check.

Prescription When There Has Been an Unauthorized Settlement

Under Louisiana workers compensation, if the parties have entered into a lump sum settlement or a compromise agreement which is invalid because it was not approved by the court, or (in the case of a lump sum settlement) because the discount was in excess of 8% per annum, then the injured worker is expressly allowed to file another Disputed Claim for Compensation (including a claim for penalties and attorney's fees) at any time within two years after the date of payment of the lump sum settlement.

Under such a circumstance, it is irrelevant that the accident giving rise to the settlement had occurred more than one year earlier. 

Also, if the settlement was procured by actual fraud, the injured worker may ignore the settlement and sue for full compensation even though more than two years have passed.

Time Limits When an Employee is “Lulled into False Sense of Security”

Under Louisiana workers compensation, the prescription period - or time limit - can be suspended if the injured employee is “lulled into a false sense of security” by the workers compensation insurance company or the employer, and is thereby induced or tricked into not filing his or her workers compensation claim until after the regular time limit expires.

In order for the injured employee to show that he or she was “lulled into a false sense of security,” this employee must show that some words, action or inaction on the part of the workers compensation insurance company or the employer induced or tricked the employee into not filing a claim until the time for prescription had passed.

However, the employee does not need to prove that the workers compensation insurance company or the employer intentionally misled the employee as to the workers compensation benefits then being paid or as to the time period available for filing a workers compensation claim.

Nonetheless, it is not easy to prove that an injured employee was “lulled into a false sense of security,” and therefore is it rare that the workers compensation courts are willing to suspend the time limits on this basis.

Time Limitations with Respect to Minor Children and Incompetents

In Louisiana workers compensation, there are no time limits for a minor child or a mentally incompetent person to file a workers compensation claim, unless a curator or tutor has been appointed to represent this minor child or mentally incompetent person. 

In other words, prescription does not begin to run against a minor child or a mentally incompetent person until after a curator or a tutor has been appointed for this individual.

This rule stands, regardless of whether the minor had continuously lived with his or her parent who was authorized to institute an action on the minor's behalf without a formal appointment as tutor.

But, even in such a case, the prescription period - or time limit - only begins to run upon formal appointment of a tutor, emancipation of the minor, or attainment of the age of majority.

Abandonment of a Workers Compensation Claim

In Louisiana workers compensation, "abandonment" is a legal term that refers to when an injured worker gives up his or her legal rights to a claim, after having filed a workers compensation claim, because this worker failed to take any action on the claim.

Specifically, in Louisiana workers compensation, an injured worker gives up all his or her legal rights to a claim, if this worker fails to "request a hearing and final determination within five years from the date the petition is initiated."

Once the employee's claim is abandoned, this "claim shall be barred as the basis of any claim for compensation" and will be dismissed by the Office of Workers Compensation due to the lack of legal actions by the injured employee.

This dismissal by the Office of Workers Compensation due to abandonment will serve as a “final adjudication” of the employee's right to claim compensation on that specific claim.  This simply means that the injured employee can not just file another claim for dispute regarding that specific accident or injury.

So the bottom line with abandonment is that, once an injured employee files a Disputed Claim for Compensation with the Louisiana Office of Workers Compensation, this employee has 5 years to request a hearing on that claim, or the employee permanently loses all his or her legal rights to that claim.

The Louisiana Statute for Prescription and Filing Time Limits in Louisiana Workers Compensation

The Louisiana statutes concerning prescription and time limits for filing a Disputed Claim for Compensation are La. R.S. 23:1209, La. R.S. 23:1221, and La. R.S. 23:1234. These statutes read in pertinent part as follows:

§1209. Prescription; timeliness of filing; dismissal for want of prosecution

A.(1) In case of personal injury, including death resulting therefrom, all claims for payments shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter, or unless within one year after the accident a formal claim has been filed as provided in Subsection B of this Section and in this Chapter.

(2) Where such payments have been made in any case, the limitation shall not take effect until the expiration of one year from the time of making the last payment, except that in cases of benefits payable pursuant to R.S. 23:1221(3) this limitation shall not take effect until three years from the time of making the last payment of benefits pursuant to R.S. 23:1221(1), (2), (3), or (4).

(3) When the injury does not result at the time of or develop immediately after the accident, the limitation shall not take effect until expiration of one year from the time the injury develops, but in all such cases the claim for payment shall be forever barred unless the proceedings have been begun within three years from the date of the accident.

(4) However, in all cases described in Paragraph (3) of this Subsection, where the proceedings have begun after two years from the date of the work accident but within three years from the date of the work accident, the employee may be entitled to temporary total disability benefits for a period not to exceed six months and the payment of such temporary total disability benefits in accordance with this Paragraph only shall not operate to toll or interrupt prescription as to any other benefit as provided in R.S. 23:1221.

B. Any claim may be filed with the assistant secretary, office of workers' compensation, by delivery or by mail addressed to the office of workers' compensation. The filing of such claims shall be deemed timely when the claim is mailed on or before the prescription date of the claim. If the claim is received by mail on the first legal day following the expiration of the due date, there shall be a rebuttable presumption that the claim was timely filed. In all cases where the presumption does not apply, the timeliness of the mailing shall be shown only by an official United States postmark or by official receipt or certificate from the United States Postal Service made at the time of mailing which indicates the date thereof.

C. All claims for medical benefits payable pursuant to R.S. 23:1203 shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter, or unless within one year after the accident a formal claim has been filed with the office as provided in this Chapter. Where such payments have been made in any case, this limitation shall not take effect until the expiration of three years from the time of making the last payment of medical benefits.

D. When a petition for compensation has been initiated as provided in R.S. 23:1310.3, unless the claimant shall in good faith request a hearing and final determination thereon within five years from the date the petition is initiated, that claim shall be barred as the basis of any claim for compensation under the Worker's Compensation Act and shall be dismissed by the office for want of prosecution, which action shall operate as a final adjudication of the right to claim compensation thereunder.

Amended by Acts 1975, No. 583, §7, eff. Sept. 1, 1975. Acts 1983, 1st Ex. Sess., No. 1, §1, eff. July 1, 1983; Acts 1985, No. 884, §1; Acts 1985, No. 926, §1, eff. Jan. 1, 1986; Acts 1988, No. 938, §1, eff. July 1, 1989; Acts 1989, No. 260, §1, eff. Jan. 1, 1990; Acts 2008, No. 220, §8, eff. June 14, 2008; Acts 2012, No. 783, §1.

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

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

(3) Supplemental earnings benefits.

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

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

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

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

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

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

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

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

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

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

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

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

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

§1234.  Minors and mental incompetents; rights and privileges, by whom exercised; prescriptions applicable

In case an injured employee is mentally incompetent or a minor or, where death results from the injury, in case any dependent as herein defined is mentally incompetent or a minor at the time when any right, privilege or election accrues to him under this Chapter, his duly qualified curator or tutor, as the case may be, may, in his behalf, claim and exercise such right, privilege or election, and no limitation of time, in this Chapter provided for, shall run, so long as such incompetent or minor has no curator or tutor, as the case may be.

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