When Workers Compensation Benefits Should Start
In most cases, an injured employee's Louisiana workers compensation indemnity (lost wage) benefits should be paid no later than the fourteenth day after the employer or their insurance company is notified of the employee's injury.
This 14 day rule applies to both Temporary Total Disability Benefits (TTD), Permanent Total Disability Benefits (PTD), and Supplemental Earnings Benefits (SEBs). Again, all these types of indemnity benefits should start being paid by the fourteenth day after the insurer finds out about the employee's injury.
Once the indemnity benefits begin, the injured employee should regularly receive indemnity checks until he or she can return to some type of work.
Why Workers Compensation Benefits May Be Delayed
The first payment of an injured employee's indemnity benefits is regularly and wrongly delayed. In fact, a primary tactic of most workers compensation insurers is to delay, delay, delay.
Typical reasons for delay include the following:
- The employer never reported the injury to its workers compensation insurer. Once the employer is notified of the injured employee's injury, the employer has 10 days to notify its workers compensation insurance company. In fact, the employer must file a form called the First Report of Injury or Illness with the insurance company within 10 days. If the employer is self-insured, it must file the First Report of Injury or Illness with the Office of Workers Compensation. Failure of the employer to notify the insurer or file a First Report of Injury or Illness will delay the employee's benefits.
- The employer did not report the injury to the workers compensation insurer within the proper time limit. Failure of the employer to notify the insurer or file a First Report of Injury or Illness within 10 days will delay the employee's benefits. However, it is not a valid excuse for a delayed payment.
- The employer does not have the required workers compensation insurance. Despite the fact that all employers are required to have workers compensation insurance or be self-insured, some employers either let their coverage lapse, have improper coverage, or even just outright ignore their legal responsibilities and requirements. If the employer does not have workers compensation insurance, it can and should be sued directly, not only for the workers comp benefits which the employee is typically entitled, but also for the penalties and attorneys fees due to the fact that it failed to maintain the required workers compensation insurance. Typically, if the employer does not have the proper insurance, then it does not understand the proper way to handle a claim, including when and how payments must begin.
- The workers compensation insurer's claim file got misplaced or forgotten. Workers compensation insurance companies often claim that they lost a file, or misplaced claim file, or forgot about it. Whether these excuses are true or not is irrelevant. Again, indemnity benefits should be paid no later than the fourteenth day after the employer or their insurance company is notified of the employee's injury.
- The workers compensation insurer is still processing the claim. Workers compensation insurance companies love to remark that they are "processing" an injured employee's claim. But again, this is no excuse. Lost wage benefits should be paid no later than the fourteenth day after the employer or their insurance company is notified of the employee's injury.
- The workers compensation insurer is conducting an investigation of the claim. The workers compensation insurance company often claim that it has not issued a payment due to the fact that it is "investigating" the claim of an injured employee. Typically, this means witness statements, medical records, and employment records. Like its explanation of claim "processing," this is not a valid excuse. The insurer can investigate all it wants, but it must issue the payment within 14 days of notification unless there is a valid reason otherwise.
- The workers compensation insurer denied the claim, but the employee was not notified about the denial. Sometimes, an injured employee is simply not notified of a claim denial. This is typically the fault of the insurer. However, such an error is important, and must be handled appropriately by the employee or the employee's legal representative, since the employee will want to maintain all legal rights to file an appeal of a claim denial.
- The employee missed the deadline for filing a claim. Under Louisiana law, the employee must report his or her injury to the employer within 30 days. Though in practice, a good attorney can get around this deadline, an employee should report the injury right away. Otherwise, the insurer will likely delay or deny the claim, especially if it was reported over 30 days after the injury. Also, at the time the injury is reported to the employer, the employee should request from the employer some written proof that the injury was in fact reported, such as a written accident report or injury report or simply an email.
- The employee failed to file an Employee's Monthly Report of Earnings. When an injured worker in Louisiana is entitled to Supplemental Earnings Benefits (SEBs), the worker must file every month a Form 1020 - Employee's Monthly Report of Earnings. The purpose of this Form 1020 is to report to the insurance company whether the employee had income during the month, so that the insurer can reduce indemnity by that amount. The insurance company will typically delay any indemnity payments until it receives a completed Form 1020 each month.
Penalties and Attorneys Fees
If an injured employee's benefits are delayed, the employee may file a claim with the Office of Workers Compensation. The claim is initiated by filing a Form 1008 - Disputed Claim for Compensation. Within this Disputed Claim for Compensation, the injured employee may request penalties and attorneys fees in addition to the regular workers compensation benefits.
Under Louisiana law, the employer or the workers compensation insurer will not owe penalties and attorneys fees "if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control."
Does the Insurance Company Have A Valid Reason for Its Denial of Benefits?
Additionally, if the employer or the workers compensation insurance company stops paying the indemnity benefits without a valid reason, then the injured employee may be entitled to penalties and attorneys fees in addition to the regular workers compensation benefits.
Specifically, according to Louisiana law, "Any employer or insurer who at any time discontinues payment of claims due and arising under this Chapter, when such discontinuance is found to be arbitrary, capricious, or without probable cause, shall be subject to the payment of a penalty not to exceed eight thousand dollars and a reasonable attorney fee for the prosecution and collection of such claims."
The critical determining factor here as to whether penalties and attorneys fees are appropriate, is whether th insurance company's actions were "arbitrary, capricious and without probable cause." In other words, did the insurance company have a good reason to deny the payments? All too often, the answer is NO.
When to Get an Attorney
Sadly, most injured employees wait too long before hiring an attorney.
It is never a good idea for an injured employee to wait until he or she "needs" an attorney, as by that time, the employee's rights have likely already been reduced, and the employee's claim value already diminished.
During the time before an employee hires an attorney, the insurance company is likely devaluing the employee's claim, and on the road to denial by stripping away the rights of the injured employee. For example, besides simply delaying an employee's claim, the insurance company will:
- Send the employee to the doctor of its choice, not of the employee's choice, which can produce medical records that can drastically limit or eliminate the claim.
- Unfairly limit or deny appropriate medical care, often causing permanent negative health and legal effects.
- Improperly calculate the amount of indemnity payments due the employee.
- Wrongly force or pressure the employee to return to work, which will eliminate indemnity payments and limit medical care going forward.
- Insist upon inappropriate vocational rehabilitation, which can irreversibly eliminate indemnity payments to the employee.
- Pressure an injured employee into a low-ball settlement, by leveraging against the employee the present financial and medical stress of the employee.
- Claim falsely that its settlement offer is a take-it-or-leave-it offer, even though it is never a take-it-or-leave-it offer.
In short, if an injured employee is not represented by a skilled Louisiana workers compensation attorney, then the employee is not effectively protected by the Louisiana workers compensation laws.