Underlying Personal Injury Claims and Other Third-Party Claims in Louisiana Workers Compensation

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What Are Third-Party Claims and Underlying Personal Injury 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.

Examples of Typical Third-Party Claims 

Typical examples of situations in which an injured employee may have a workers compensation claim and a third-party claim include the following: 

    • An on-the-job car or truck accident in which another motorist (besides the employee) was at fault;
    • A slip-and-fall or a trip-and-fall accident that occurred on someone else's property;
    • A construction site accident caused by a subcontractor, supplier or utility company;
    • A workplace fire caused by dangerous chemicals; and
    • A workplace accident caused by defective equipment or machinery.

Nonetheless, the most frequent situations in which an injured employee has a workers compensation claim and a third-party claimer the on-the-job car or truck accidents in which another motorist (besides the employee) was at fault. 

Who Exactly is a Third Party in Louisiana Workers Compensation?

Since the employee is entitled to proceed against a “third person” for tort damages, and the employer or the insurance company is entitled to proceed against a “third person” for reimbursement of compensation paid, then it is important to know who a “third person” is for these purposes.

The following are NOT third persons as to the employee, and they are thus immune from a proceeding in tort: 

    • The employee's actual employer; 
    • The employee's co-workers, under that same employer, including supervisory employees or executive officers; 
    • Any principal (statutory employer) as to the employee;
    • Any employees of a principal; 
    • A partner, if the employee is employed by a partnership; and
    • An officer, director or stockholder of the employee's employer or any principal.

However, this immunity does not extend to protect:

    • Any of the above persons against their liability “resulting from an intentional act;”
    • Any officer, director, partner, stockholder, or employee of a principal or employer or who is “not engaged at the time of the injury in the normal course and scope of his employment;” or
    • A partner whose partnership has been formed for the purpose of evading workers compensation liability.

Moreover, a “third person” in Louisiana workers compensation will ordinarily be a person or entity outside the broad employment situation altogether, such as:

    1. Another driver in a vehicular accident;
    2. The manufacturer of a defective product; or
    3. A customer of the employer.

But some persons related in various ways to the employment picture may still be considered third persons, such as the employees of a contractor, who must be considered as third persons as far as the employees of a principal are concerned.

This concept is often termed as being able to “sue down” but not being able to “sue up.”

Also, if a person ordinarily a co-employee of the injured employee (and thus immune from a tort suit) becomes the borrowed employee of another employer, it can be argued that the immunity of this co-employee is lost (unless that other employer is a principal).  

An Uninsured Motorist Insurance Carrier Is Not A Third Person in Louisiana Workers Compensation

If an employee is injured in a compensable accident but is prohibited from suing his or her employer or a co-employee in a personal injury tort lawsuit, it can be argued that the employer or co-employee is a person from whom the employee is “legally entitled to recover damages” but who is “uninsured” in the sense that the employee cannot recover anything from him.  

However, Louisiana courts have consistently ruled that an injured employee is not entitled to recover from an uninsured motorist carrier providing coverage either to the employer or co-employee, or to the injured employee himself or herself.

In other words, an Uninsured Motorist insurance company or carrier is not considered a "third person" for Louisiana workers compensation claims.

The third-party tort action allowed under Louisiana law is intended to permit the injured employee to seek tort recovery against persons genuinely outside the employment family altogether.

But Louisiana law does not allow the injured employee any additional tort recoveries against the employer or co-employee beyond those expressly provided (such as for an intentional act). 

Rights of the Employee against Third-Party Wrongdoers in Louisiana Workers Compensation

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.

In other words, Louisiana law makes the workers compensation remedy exclusive only as between the employee and his employer, and not to third parties.

But again, in Louisiana, the employee can claim workers compensation against his employer and at the same time, sue a third-party wrongdoer for damages.

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.

Last, if the employee institutes suit for workers compensation benefits, and it is determined that his disability was temporary only and has terminated by the time of trial, this finding is not conclusive in the employee's subsequent tort claim against a third party for damages for the same injury.

The Rights of the Employer and Its Workers Compensation Insurance Company Against Third Parties in Louisiana Workers Compensation

Under Louisiana law, the employee is entitled to proceed both by claiming workers compensation benefits from the employer and its workers compensation insurance company, while at the same time filing a claim or lawsuit for damages against a third-party wrongdoer.

However, the employee will not be able to recover for the same damages twice - otherwise known as "double recovery" - because the employer and its workers compensation insurance company are entitled to "intervene" in the employee's third-party lawsuit and require that the judgment be in favor of the employer to the extent required to reimburse or indemnify the employer and its workers compensation insurance company.

In other words, the employer and its workers compensation insurance company will be reimbursed for what they have to pay in workers compensation benefits, and only the excess amount will go to the employee.

In some cases, the “recovery” of the employer and its workers compensation insurance company takes the form of a credit against future workers compensation benefits owed, which then permits the suspension of those future payments.

Also, the employer or its workers compensation insurance company may institute its own lawsuit against the third-party wrongdoer (otherwise known as the tortfeasor), in which case the employee is allowed to intervene in order to ensure that the employee receives the maximum amount of money that the employee may be entitled.

So, Louisiana law gives the employer and its workers compensation insurance company two methods of proceeding to enforce its substantive rights:

    1. The employer and its workers compensation insurance company can bring a separate suit against the third person, without regard to whether the employee has brought suit, or is planning to do so; and 
    2. The employer and its workers compensation insurance company can assert its rights using an incidental demand - typically known as an intervention - in the employee's suit against the same third person.

However, even though Louisiana law gives the employer and its workers compensation insurance company the right to proceed against a third person for reimbursement of the amount of compensation “actually paid” to an injured employee, the employer or its workers compensation insurance company may validly waive its right of reimbursement if it chooses to do so, and this waiver is often called a “waiver of subrogation.”

Ways in Which the Workers Compensation Insurance Company Can Recover in a Third-Party Lawsuit in Louisiana Workers Compensation

Generally speaking an employer and its workers compensation insurance company can recover in the following ways in a lawsuit against a third party:

    1. A reimbursement of workers compensation benefits already paid;
    2. A credit against its future workers compensation obligations; and
    3. Judicial interest on the amounts that it recovers.

Reimbursements of Workers Compensation Benefits Already Paid

Concerning the reimbursement of workers compensation benefits that have already been paid, if the employer or its workers compensation insurance company is a party in a lawsuit against a third party, any amounts that are recovered against the third party are apportioned so that the claim of the employer or its workers compensation insurance company for reimbursement of workers compensation benefits actually paid get priority over the claim of the injured employee. 

In other words, if the recovery from the third party is only enough to cover the reimbursement of workers compensation benefits already paid, then the employer or its workers compensation insurance company will get paid while the injured employee will get nothing.

This is because Louisiana law provides the employer and its workers compensation insurance company with “first dollar” rights to and a lien upon tort recovery, which means that only after the intervenor has recovered what it is due is any excess apportioned to the plaintiff.

And, the employer and its workers compensation insurance company are entitled to reimbursement out of the total amount of damages awarded, regardless of whether those damages are calculated as weekly lost wage (indemnity) benefits paid to the employee or medical expenses paid on behalf of the employee.

Credits Against Future Workers Compensation Obligations

In addition to reimbursement for the amounts actually paid to the employee or on his behalf up to the date of trial, the employer and its workers compensation insurance company are often entitled to a credit against the tort recovery for amounts for future workers compensation payments or medical expenses to be undertaken.

In other words, the employer and its workers compensation insurance company are entitled to reimbursement for not only those amounts already paid, but those amounts it will become obligated to pay in the future.

So if the damages awarded in a third-party lawsuit are greater than the amount of the lien of the employer or its workers compensation insurance company, the employer or its workers compensation insurance company is entitled to a credit against its future workers compensation obligation in the amount of the plaintiff's net recovery - which mean the recovery after attorney's fees and court costs are deducted - discounted at 6%.

But, if the plaintiff's recovery is reduced in percentage by application of comparative negligence or comparative fault, then the intervenor is to recover on its lien in the same percentage.

So, for example, if the plaintiff employee is awarded 80% of his damages because of the plaintiff's 20% comparative negligence, then the workers compensation insurance company would only recover 80% of its lien.

The Effect of Employee Fault Versus the Effect of Employer Fault in Third-Party Claims in Louisiana Workers Compensation

Again, when the recovery of the injured employee is decreased as a result of comparative negligence, the recovery of the employer or carrier shall be reduced by the same percentage.

Employee Fault

The recovery of the employer or its workers compensation insurance company is identical in percentage to the recovery of the employee. 

So if the employee's recovery is reduced because of comparative negligence, then the recovery of the employer or its workers compensation insurance company is reduced by the same percentage.

So, for example, say the workers compensation insurance company pays $100,000 in workers compensation benefits to an employee who is injured in a work accident caused, in part, by a third party.

If at trial, 60% of fault is attributed to the third party, and 40% of fault is attributed to the injured employee, then the recovery of the workers compensation insurance company from the third party is reduced to $60,000 (60% of $100,000) due to the employee's fault.

Fault of the Employer or Other Immune Party

The comparative fault of an employer (or any other party immune from tort liability) shall be assessed as a percentage of total fault of all persons causing or contributing to the employee's injury, and the fault so assessed shall not be reallocated to any other person or party. 

The recovery of the employer or its workers compensation insurance company is reduced by the percentage of the fault so assessed. 

So, for example, say the workers compensation insurance company pays $100,000 in workers compensation benefits to an employee who is injured in a work accident caused, in part, by a third party.

Then at trial, fault is allocated as follows: 

    1. 50% of fault is attributed to the third party;
    2. 20% of fault is attributed to the employer; and
    3. 30% of fault is attributed to the statutory employer.

The workers compensation insurance company's recovery is reduced by the fault of the employer and the fault of the statutory employer (who also is immune from tort liability) combined.

In other words, the workers compensation insurance company's recovery is reduced by $50,000 (which is 50% of $100,000), and thus the workers compensation insurance company's recovery is reduced from $100,000 to $50,000.

Thus, the third party pays only that percentage (50% in this example) of the workers compensation insurance company's recovery lien that corresponds to the third party's fault, or $50,000 in this example.

Unapproved Settlements in Third-Party Claims in Louisiana Workers Compensation

Louisiana law requires that an employee notify the employer or its workers compensation insurance company if the employee files a lawsuit against a third party in order to recover damages related to the employee's workplace injury. 

Louisiana law requires that the employer or its workers compensation insurance company notify the employee in writing if the employer or its workers compensation insurance company files a lawsuit against a third party in order to recover damages related to the employee's workplace injury. 

Remedies Against the Employee for Failure to Approve a Third-Party Settlement

If the employee settles his or her third-party lawsuit without the written approval from the employer or its workers compensation insurance company at the time of or before the settlement, then the employee forfeits his or her right to future workers compensation benefits, including even medical benefits. 

However, the employee may "buy back" the right to workers compensation benefits by paying to the employer or its workers compensation insurance company the lesser of: 

    1. The total amount of workers compensation benefits, including medical benefits, previously paid to or on behalf of the employee, exclusive of attorney fees arising out of the compromise; or
    2. Fifty percent of the total amount that has been recovered in the settlement.

But if the employee buys back the right to workers compensation benefits, the employer or its workers compensation insurance company still receives a dollar for dollar credit against the full amount paid in compromise, less attorney fees and costs paid by the employee in prosecution of the third party claim, and this credit is not reduced by the amount that the employee paid to buy back the right to the workers compensation benefits.

Remedies Against a Third-Party for Failure to Approve a Settlement with the Employee

The rights of the employer and its workers compensation insurance company against a third party that settles a lawsuit with the employee without approval depends on:

    1. The timing of the settlement;
    2. The timing of any invention by the employer or its workers compensation insurance company; and
    3. The third party's notice of the claim of the employer or its workers compensation insurance company.

When a lawsuit has been filed against a third party, and the employer and its workers compensation insurance company have intervened, the third party must have the consent of the employer and its workers compensation insurance company in writing to settle the claim. 

If - after the intervention of the employer and its workers compensation insurance company - the third party settles the claim without written approval of the employer and its workers compensation insurance company, the third party is liable to the employer or insurer for the full amount of the lien of the employer and its workers compensation insurance company, without needing to prove that the third party was responsible for the employee's injury.

If - after the third party has adequate notice of the claim of the employer and its workers compensation insurance company, but before the intervention of the employer and its workers compensation insurance company - the third party settles with the employee without the approval of the employer and its workers compensation insurance company, the employer and its workers compensation insurance company can still seek reimbursement from the third party, but (unlike the situation where the employer or its insurance company has already intervened) the employer and its workers compensation insurance company must still prove that the third party is responsible for the employee's injury.

Finally, if a third party does not have adequate notice of the claim of the employer or its workers compensation insurance company, and the third party settles with the injured employee, neither the employer nor its workers compensation insurance company is entitled to reimbursement from the third party.   

The Louisiana Statutes for Third-Party Claims in Louisiana Workers Compensation

The primary Louisiana statutes regarding third-party claim in workers compensation are La. R.S. 23:1101, La. R.S. 23:1102, La. R.S. 23:1103, La. R.S. 23:1104, La. R.S. 23:1032,  and La. R.S. 23:1205, which read as follows:

§1101.  Employee and employer suits against third persons; effect on right to compensation

A.  When an injury or compensable sickness or disease for which compensation is payable under this Chapter has occurred under circumstances creating in some person (in this Section referred to as "third person") other than those persons against whom the said employee's rights and remedies are limited in R.S. 23:1032, a legal liability to pay damages in respect thereto, the aforesaid employee or his dependents may claim compensation under this Chapter and the payment or award of compensation hereunder shall not affect the claim or right of action of the said employee or his dependents, relations, or personal representatives against such third person, nor be regarded as establishing a measure of damages for the claim; and such employee or his dependents, relations, or personal representatives may obtain damages from or proceed at law against such third person to recover damages for the injury, or compensable sickness or disease.

B.  Any person having paid or having become obligated to pay compensation under the provisions of this Chapter may bring suit in district court against such third person to recover any amount which he has paid or becomes obligated to pay as compensation to such employee or his dependents.  The recovery allowed herein shall be identical in percentage to the recovery of the employee or his dependents against the third person, and where the recovery of the employee is decreased as a result of comparative negligence, the recovery of the person who has paid compensation or has become obligated to pay compensation shall be reduced by the same percentage.  The amount of any credit due the employer may be set in the judgment of the district court if agreed to by the parties; otherwise, it will be determined pursuant to the provisions of R.S. 23:1102(A).

C.  For purposes of this Section, "third person" shall include any party who causes injury to an employee at the time of his employment or at any time thereafter provided the employer is obligated to pay benefits under this Chapter because the injury by the third party has aggravated the employment related injury.

D.  Repealed by Acts 2005, No. 267, §2.

Acts 1976, No. 147, §2; Acts 1985, No. 931, §1; Acts 1989, No. 454, §4, eff. Jan. 1, 1990; Acts 1990, No. 973, §1; Acts 1997, No. 1354, §1, eff. July 15, 1997; Acts 2005, No. 257, §§1, 2.

§1102.  Employee or employer suits against third persons causing injury; notice of filing

A.(1)  If either the employee or his dependent or the employer or insurer brings suit against a third person as provided in R.S. 23:1101, he shall forthwith notify the other in writing of such fact and of the name of the court in which the suit is filed, and such other may intervene as party plaintiff in the suit.

(2)  Any dispute between the employer and the employee regarding the calculation of the employer's credit may be filed with the office of workers' compensation and tried before a workers' compensation judge.  However, any determination of the employer's credit shall not affect any rights granted to the employer or the employee pursuant to R.S. 23:1103(C).

B.  If a compromise with such third person is made by the employee or his dependents, the employer or insurer shall be liable to the employee or his dependents for any benefits under this Chapter which are in excess of the full amount paid by such third person, only after the employer or the insurer receives a dollar for dollar credit against the full amount paid in compromise, less attorney fees and costs paid by the employee in prosecution of the third party claim and only if written approval of such compromise is obtained from the employer or insurer by the employee or his dependent, at the time of or prior to such compromise.  Written approval of the compromise must be obtained from the employer if the employer is self-insured, either in whole or in part.  If the employee or his dependent fails to notify the employer or insurer of the suit against the third person or fails to obtain written approval of the compromise from the employer and insurer at the time of or prior to such compromise, the employee or his dependent shall forfeit the right to future compensation, including medical expenses.  Notwithstanding the failure of the employer to approve such compromise, the employee's or dependent's right to future compensation in excess of the amount recovered from the compromise shall be reserved upon payment to the employer or insurer of the total amount of compensation benefits, and medical benefits, previously paid to or on behalf of the employee, exclusive of attorney fees arising out of the compromise; except in no event shall the amount paid to the employer or insurer exceed fifty percent of the total amount recovered from the compromise.  Such reservation shall only apply after the employer or insurer receives a dollar for dollar credit against the full amount paid in compromise, less attorney fees and costs paid by the employee in prosecution of the third party claim.

C.(1)  When a suit has been filed against a third party defendant in which the employer or his insurer has intervened, if the third party defendant or his insurer fails to obtain written approval of the compromise from the employer or his insurer at the time of or prior to such compromise and the employee fails to pay to the employer or his insurer the total amount of compensation benefits and medical benefits out of the funds received as a result of the compromise, the third party defendant or his insurer shall be required to reimburse the employer or his insurer to the extent of the total amount of compensation benefits and medical benefits previously paid to or on behalf of the employee to the extent said amounts have not been previously paid to the employer or his insurer by the employee pursuant to the provisions of Subsection B of this Section.  Notwithstanding such payment, all rights of the employer or his insurer to assert the defense provided herein against the employee's claim for future compensation or medical benefits shall be reserved.

(2)  Nothing herein shall be interpreted to affect the rights of the employer or his insurer to otherwise seek reimbursement for past or future compensation benefits and medical benefits against a third party defendant or his insurer without regard to the actions of the employee on whose behalf said compensation and medical benefits were paid.

(3)  Repealed by Acts 1989, No. 454, §10, eff. Jan. 1, 1990.

Amended by Acts 1983, 1st Ex. Sess., No. 1, §1, eff. July 1, 1983.  Acts 1984, No. 852, §1; Acts 1985, No. 926, §1, eff. Jan. 1, 1986; Acts 1989, No. 454, §§4, 10, eff. Jan. 1, 1990; Acts 1997, No. 1354, §1, eff. July 15, 1997; Acts 2005, No. 257, §1.

§1103. Damages; apportionment of between employer and employee in suits against third persons; compromise of claims; credit

A.(1) In the event that the employer or the employee or his dependent becomes party plaintiff in a suit against a third person, as provided in R.S. 23:1102, and damages are recovered, such damages shall be so apportioned in the judgment that the claim of the employer for the compensation actually paid shall take precedence over that of the injured employee or his dependent; and if the damages are not sufficient or are sufficient only to reimburse the employer for the compensation which he has actually paid, such damages shall be assessed solely in his favor; but if the damages are more than sufficient to so reimburse the employer, the excess shall be assessed in favor of the injured employee or his dependent, and upon payment thereof to the employee or his dependent, the liability of the employer for compensation shall cease for such part of the compensation due, computed at six percent per annum, and shall be satisfied by such payment. The employer's credit against its future compensation obligation shall be reduced by the amount of attorney fees and court costs paid by the employee in the third party suit.

(2) No compromise with such third person by either the employer or the injured employee or his dependent shall be binding upon or affect the rights of the others unless assented to by him.

(3) Any dispute between the employer and the employee regarding the calculation of the employer's credit may be filed with the office of workers' compensation and tried before a workers' compensation judge. If a third party action has been filed in a district court, such dispute shall be filed in the district court and tried before a district judge unless the parties agree otherwise. However, any determination of the employer's credit shall not affect any rights granted to the employer or the employee pursuant to R.S. 23:1103(C).

B. The claim of the employer shall be satisfied in the manner described above from the first dollar of the judgment without regard to how the damages have been itemized or classified by the judge or jury. Such first dollar satisfaction shall be paid from the entire judgment, regardless of whether the judgment includes compensation for losses other than medical expenses and lost wages.

C.(1) If either the employer or employee intervenes in the third party suit filed by the other, the intervenor shall only be responsible for a share of the reasonable legal fees and costs incurred by the attorney retained by the plaintiff, which portion shall not exceed one-third of the intervenor's recovery for prejudgment payments or prejudgment damages. The amount of the portion of attorney fees shall be determined by the district court based on the proportionate services of the attorneys which benefitted or augmented the recovery from the third party. The employee as intervenor shall not be responsible for the employer's attorney fees attributable to postjudgment damages nor will the employer as intervenor be responsible for the attorney fees attributable to the credit given to the employer under Subsection A of this Section. Costs shall include taxable court costs as well as the fees of experts retained by the plaintiff. The pro rata share of the intervenor's costs shall be based on intervenor's recovery of prejudgment payments or prejudgment damages.

(2) When recovery of damages from a third party is made without filing of a suit, the employer shall be responsible for an amount, not to exceed one-third of his recovery on pre-compromise payments, for reasonable legal fees and costs incurred by the attorney retained by the employee or his dependent in pursuit of the third party matter. The responsibility for payment of this amount shall exist only if there is written approval of the compromise by the employer, his compensation carrier, or the compensation payor.

D. An insurer shall grant its insured a dollar-for-dollar credit for any amount on any claim paid pursuant to this Chapter on the employer's behalf and recovered in the current year, less any reasonable expenses incurred in the recovery by the insurer, in an action or compromise pursuant to this Section and R.S. 23:1102. The credit shall be used by the insurer in the calculation of the loss experience modifier promulgated by and in accordance with the rules of the National Council on Compensation Insurance, to be applied in determining the annual premium paid by the employer for workers' compensation insurance under this Chapter. The group self-insurance fund shall apply the loss experience modifier authorized by R.S. 23:1196.

Amended by Acts 1958, No. 109, §1; Acts 1989, No. 454, §4, eff. Jan. 1, 1990; Acts 1997, No. 53, §1; Acts 1997, No. 59, §1; Acts 1997, No. 1354, §1, eff. July 15, 1997; Acts 2016, No. 470, §1.

§1104.  Quantification of employer fault

In a suit brought pursuant to R.S. 23:1101, the fault of persons immune from suit in tort under R.S. 23:1032 shall be assessed as a percentage of the aggregate fault of all persons causing or contributing to the employee's injury, and the fault so assessed shall not be reallocated to any other person or party.  The recovery had in such a suit by the employer or any other person having paid or having become obligated to pay compensation shall be reduced by the fault so assessed.  This reduction is in addition to but not duplicative of any reduction made pursuant to Civil Code Articles 2323, 2324, and 2324.2 and R.S. 23:1101(B).

Acts 1996, 1st Ex. Sess., No. 15, §1.

§1032.  Exclusiveness of rights and remedies; employer's liability to prosecution under other laws

A.(1)(a)  Except for intentional acts provided for in Subsection B, the rights and remedies herein granted to an employee or his dependent on account of an injury, or compensable sickness or disease for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights, remedies, and claims for damages, including but not limited to punitive or exemplary damages, unless such rights, remedies, and damages are created by a statute, whether now existing or created in the future, expressly establishing same as available to such employee, his personal representatives, dependents, or relations, as against his employer, or any principal or any officer, director, stockholder, partner, or employee of such employer or principal, for said injury, or compensable sickness or disease.

(b)  This exclusive remedy is exclusive of all claims, including any claims that might arise against his employer, or any principal or any officer, director, stockholder, partner, or employee of such employer or principal under any dual capacity theory or doctrine.

(2)  For purposes of this Section, the word "principal" shall be defined as any person who undertakes to execute any work which is a part of his trade, business, or occupation in which he was engaged at the time of the injury, or which he had contracted to perform and contracts with any person for the execution thereof.

B.  Nothing in this Chapter shall affect the liability of the employer, or any officer, director, stockholder, partner, or employee of such employer or principal to a fine or penalty under any other statute or the liability, civil or criminal, resulting from an intentional act.

C.  The immunity from civil liability provided by this Section shall not extend to:

(1)  Any officer, director, stockholder, partner, or employee of such employer or principal who is not engaged at the time of the injury in the normal course and scope of his employment; and

(2)  To the liability of any partner in a partnership which has been formed for the purpose of evading any of the provisions of this Section.

Amended by Acts 1976, No. 147, §1; Acts 1989, No. 454, §2, eff. Jan. 1, 1990; Acts 1995, No. 432, §1, eff. June 17, 1995.

§1205.  Claim for payments; privilege of employee; non-assignability; exemption from seizure; payment of denied medical expenses

A.  Claims or payments due under this Chapter shall have the same preference and priority for the whole thereof against the assets of the employer as is allowed by law for any unpaid wages of the laborer; and shall not be assignable, and shall be exempt from all claims of creditors and from levy or execution or attachment or garnishment, except under a judgment for alimony in favor of a wife, or an ascendant or descendant.

B.  Any company which contracts for health care benefits for an employee shall have a right of reimbursement against the entity responsible for the payment of workers' compensation benefits for such employee if the company paid health care benefits for which such entity is liable.  The amount of reimbursement shall not exceed the amount of the entity's liability for the workers' compensation benefit.  In the event the company seeks recovery for such in conjunction with a claim against any other party brought by the employee, the company may be charged with a proportionate share of the reasonable and necessary costs, including attorney fees, incurred by the employee in the advancement of his claim or suit.

C.(1)  In the event that the workers' compensation payor has denied that the employee's injury is compensable under this Chapter, then any health insurer which contracts to provide health care benefits for an employee shall be responsible for the payment of all medical benefits pursuant to the terms of the health insurer's policy.  Any health insurer which contracts to provide health care benefits for an employee who violates the provisions of this Subsection shall be liable to the employee or health care provider for reasonable attorney fees and costs related to the dispute and to the employee for any health benefits payable.

(2)  The payment of medical expenses shall be recoverable pursuant to and in accordance with Subsection B of this Section.  However, if it is determined that the worker's compensation payor was responsible for payment of medical benefits that have been paid by the health insurer, the obligation of the worker's compensation payor for such benefits shall be to reimburse the health insurer one hundred percent of the benefits it paid.  If it is determined that the worker's compensation payor was responsible for payment of benefits and its denial of responsibility is determined to be arbitrary and capricious, then the health insurer shall also be entitled to recover legal interest on any benefits it paid, calculated from the date such benefits were due.

(3)  Any claim filed against the worker's compensation carrier by the health insurer or health providers in accordance with this provision shall not be subject to timely filing requirements, nor does prescription run until such time as the workers' compensation claim reaches a resolution by final judgment or settlement.

(4)  Any claim filed by a health care provider against a health insurer pursuant to this Section shall be filed no later than one hundred eighty days after the denial by the worker's compensation payor.

Acts 1995, No. 449, §1; Acts 2004, No. 554, §1. 

Putting Our Clients First

Our clients always come first. Putting our clients first means we always offer free consultations, and free off-street parking, just one block off the highway in New Orleans. Putting our clients first also means we have a strict 24-hour communications policy, wherein our clients’ phone calls are always returned within 24 hours, if not sooner. That also means that our clients never have an issue getting through to their attorney, whether on the phone or in person.

A Proven Track Record of Success

We have successfully recovered millions of dollars in settlements for our clients in personal injury claims, auto accidents, and insurance claims. The reason that our opponents settle our clients’ cases for full value is because they know we prepare all our clients’ cases for trial from the start. In fact, we are known for not being afraid to take cases to trial, and thus our opponents know they are in for a fight when going against our clients.

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