Workers' Compensation and General Liability Defense Attorneys

Louisiana Workers' Compensation Act - Safe Harbor Provisions

February 19, 2014

2013 La. Acts 337 amended or enacted the following statutes:

La. R.S. 23:1021 - Terms defined

La. R.S. 23:1121 - Examination of injured employee

La. R.S. 23:1124 - Refusal to Submit to examination; effect on right to compensation

La. R.S. 23:1201 - Time and place of payment; failure to pay timely; failure to authorize; penalties and attorney’s fees

La. R.S. 23:1201.1 - Controversion of compensation and medical benefits[FN1]

La. R.S. 23:1208 - Misrepresentations concerning benefit payments; penalties

La. R.S. 23:1226 - Rehabilitation of injured employee

La. R.S. 23:1310.8 - Jurisdiction continuing; determining as to final settlement           

La. R.S. 23:1314 -  Necessary allegations; dismissal of premature petition; dispute of benefits

The amendments went into effect on August 31, 2013.

The relevant portions of the statutes, as amended, are reproduced below.  Language added by Act 337 appears in bold print.  Our comments appear in italicized notes preceding the statute.

The following paragraph was added to La. R.S. 23:1021:

La. R.S. 23:1021.  Terms Defined

(13) Payor means the entity responsible, whether by law or contract, for the payment of benefits incurred by a claimant as a result of a work related injury.

The most significant change in La. R.S. 23:1121 concerns the suspension of medical benefits.  The employer now may suspend medical benefits without court approval if the employee refuses to sign a Choice of Physician form.  Under the provisions of newly enacted La. R.S. 23:1201.1, which is discussed more fully below, the employer’s only obligation is to provide notice of the suspension on LCW-WC-1002, “Notice of Payment, Modification Suspension, Termination or Controversion of Compensation or Medical Benefits.”  An employee that contests a suspension of medical benefits is entitled to an expedited hearing.  (La. R.S. 23:1201.1(8)(a)(iii)).

La. R.S. 23:1121.  Examination of injured employee

A. An injured employee shall submit himself to an examination by a duly qualified medical practitioner provided and paid for by the employer, as soon after the accident as demanded, and from time to time thereafter as often as may be reasonably necessary and at reasonable hours and places, during the pendency of his claim for compensation or during the receipt by him of payments under this Chapter. The employer or his worker's compensation carrier shall not require the employee to be examined by more than one duly qualified medical practitioner in any one field or specialty unless prior consent has been obtained from the employee.

B. (1) The employee shall have the right to select one treating physician in any field or specialty. The employee shall have a right to an expedited summary proceeding pursuant to R.S. 23:1201.1(K)(8) when denied his right to an initial physician of his choice. The workers’ compensation judge shall set the hearing date for the matter within three days of receiving the employee’s motion for the expedited hearing.  The hearing shall be held not less than ten nor more than thirty days after the employee or his attorney files the motion for an expedited hearing.  The worker’s compensation judge shall provide notice of the hearing date to the employer and insurer and the same time and in the same manner that notice of the hearing date is provided to the employee or his attorney.  For the purposes of this Section, an employee shall not be required to submit the dispute to mediation nor go through a pretrial conference before obtaining a hearing.  The hearing shall be conducted as a rule to show cause.  The workers’ compensation judge shall order the employer or payor to authorize the claimant’s choice of physician unless the employer or payor can show good cause for is refusal.  After his initial choice the employee shall obtain prior consent from the employer or his workers' compensation carrier for a change of treating physician within that same field or specialty. The employee, however, is not required to obtain approval for change to a treating physician in another field or specialty.

(2) (a) If the employee is treated by any physician to whom he is not specifically directed by the employer or insurer, that physician shall be regarded as his choice of treating physician.

(b) When the employee is specifically directed to a physician by the employer or insurer, that physician may also be deemed as the employee's choice of physician, if the employee has received written notice of his right to select one treating physician in any field or specialty, and then chooses to select the employer's referral as his treating specialist after the initial medical examination as signified by his signature on a choice of physician form. The notice required by this Subparagraph shall be on a choice of physician form promulgated by the director of the office of workers' compensation and shall contain the notice of the employee's rights provided under R.S. 23:1121(B)(1). Such form shall be provided to the employee either in person or by certified mail.

(3) Paragraph (2) of this Subsection shall not apply to other physicians to whom the employee is referred by the physician selected by the employer unless the employer or insurer has obtained the choice of physician form provided for under Subparagraph (2)(b) separately for any such physician after the initial medical examination with that physician.

(4) In instances where the employee is illiterate or has a language barrier, an authorized representative of the employer or insurer shall attest by his signature on the form that he has reasonably read and explained the form to such employee prior to their signatures.

(5) If the employee fails or refuses to sign the form as provided in Subparagraph (2)(b) and Paragraph (3) of this Subsection, the employer or payor may suspend medical benefits until such time as the employee complies with Subparagraph (2)(b) and Paragraph (3) of this Subsection.  Suspension of medical benefits by the employer or payor shall be made in accordance with the provisions of R.S. 23:1201.1(A)(4) and (5).  When the employee has filed a disputed claim, the employer or payor may move for an order to compel the employee to return the form.

C. Repealed by Acts 2003, No. 1204, § 2.

D. After all examinations have been conducted but prior to any order directing the injured employee to return to work, the employee shall be permitted, at his own expense, to consult with and be examined by a physician of his own choosing. Such report shall be considered in addition to all other medical reports in determining the injured employee's fitness to return to work. Should disagreement exist, after such consultation and examination, as to the fitness of the employee to return to work, the provisions of R.S. 23:1123 shall be followed.

E. Nothing in this Section shall be construed so as to provide that a physician who, regarding the work-related injury, administered emergency treatment only shall be the physician of choice of either the employee or the employer.

The amendment to La. R.S. 23:1124 makes two significant changes to prior law.  First, the employer may suspend all benefits unilaterally if the employee fails to appear for a Second Medical Opinion. Under prior law, court approval was required to suspend benefits.  (As with the suspension of medical benefits, which was discussed above, the employer is required to notify the employee of the suspension of benefits by preparing and forwarding to the employee an LWC-WC-1002 form).  Second, because the employer may suspend benefits unilaterally, the employer may not file a Motion to Compel Medical Examination unless the claim is already in litigation.  If the case is not in litigation, the burden falls on the employee to contest the suspension by following the procedures set forth in La. R.S. 23:1201.1, which are discussed below.  An employee that contests a suspension of benefits under La. R.S. 23:1124 is entitled to an expedited hearing.  (La. R.S. 23:1201.1(8)(a)(iv)).

La. R.S. 23:1124.  Refusal to submit to examination; effect on right to compensation

If the employee refuses to submit himself to a medical examination at the behest of the employer or an examination conducted pursuant to R.S. 23:1123, or in anywise obstructs the same, his right to compensation and to take or prosecute any further proceedings under this Chapter may be suspended by the employer or payor until the examination takes place. Such suspension of benefits by the employer or payor shall be made in accordance with the provisions of R.S. 23:1201.1(A)(4) and (5). When the employee has filed a disputed claim, the employer or payor may move for an order to compel the employee to appear for an examination. The employee shall receive at least fourteen days written notice prior to the examination. When a right to compensation is suspended no compensation shall be payable in respect to the period of suspension.

The changes to La. R.S. 23:1201 consist entirely of deletions.  The deleted provisions are replaced by newly enacted La. R.S. 23:1201.1.

La. R.S. 23:1201.  Time and place of payment; failure to pay timely; failure to authorize; penalties and attorney fees

A. (1) Payments of compensation under this Chapter shall be paid as near as may be possible, at the same time and place as wages were payable to the employee before the accident; however, when the employee is not living at the place where the wages were paid, or is absent therefrom, such payments shall be made by mail, upon the employee giving to the employer a sufficient mailing address. However, a longer interval, not to exceed one month, may be substituted by agreement without approval of the director. An interval of more than one month must be approved by the director.

(2) Notwithstanding the requirement to make payments by mail in Paragraph (1) of this Subsection, electronic transfer of funds, including but not limited to direct deposit or use of a debit card, is an appropriate method of payment of compensation under this Chapter. Where a payor or insurer elects to issue debit cards and makes weekly payments by way of electronic funds transfers, an injured worker represented by an attorney may elect to have his weekly indemnity check deposited directly into his attorney's trust account. Where such an election is made, the payor or insurer shall provide notice by way of email only to the injured worker's attorney containing a list of all claims and amounts included in the direct deposit within forty-eight hours of the direct deposit.

B. The first installment of compensation payable for temporary total disability, permanent total disability, or death shall become due on the fourteenth day after the employer or insurer has knowledge of the injury or death, on which date all such compensation then due shall be paid.

C. Installment benefits payable pursuant to R.S. 23:1221(3) shall become due on the fourteenth day after the employer or insurer has knowledge of the compensable supplemental earnings benefits on which date all such compensation then due shall be paid.

D. Installment benefits payable pursuant to R.S. 23:1221(4) shall become due on the thirtieth day after the employer or insurer receives a medical report giving notice of the permanent partial disability on which date all such compensation then due shall be paid.

E. (1) Medical benefits payable under this Chapter shall be paid within sixty days after the employer or insurer receives written notice thereof, if the provider of medical services is not utilizing the electronic billing rules and regulations provided for in R.S. 23:1203.2.

(2) For those providers of medical services who utilize the electronic billing rules and regulations provided for in R.S. 23:1203.2, medical benefits payable under this Chapter shall be paid within thirty days after the employer or insurer receives a complete electronic medical bill, as defined by rules promulgated by the Louisiana Workforce Commission.

F. Except as otherwise provided in this Chapter, failure to provide payment in accordance with this Section or failure to consent to the employee's request to select a treating physician or change physicians when such consent is required by R.S. 23:1121 shall result in the assessment of a penalty in an amount up to the greater of twelve percent of any unpaid compensation or medical benefits, or fifty dollars per calendar day for each day in which any and all compensation or medical benefits remain unpaid or such consent is withheld, together with reasonable attorney fees for each disputed claim; however, the fifty dollars per calendar day penalty shall not exceed a maximum of two thousand dollars in the aggregate for any claim. The maximum amount of penalties which may be imposed at a hearing on the merits regardless of the number of penalties which might be imposed under this Section is eight thousand dollars. An award of penalties and attorney fees at any hearing on the merits shall be res judicata as to any and all claims for which penalties may be imposed under this Section which precedes the date of the hearing. Penalties shall be assessed in the following manner:

(1) Such penalty and attorney fees shall be assessed against either the employer or the insurer, depending upon fault. No workers' compensation insurance policy shall provide that these sums shall be paid by the insurer if the workers' compensation judge determines that the penalty and attorney fees are to be paid by the employer rather than the insurer.

(2) This Subsection shall not apply if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control.

(3) Except as provided in Paragraph (4) of this Subsection, any additional compensation paid by the employer or insurer pursuant to this Section shall be paid directly to the employee.

(4) In the event that the health care provider prevails on a claim for payment of his fee, penalties as provided in this Section and reasonable attorney fees based upon actual hours worked may be awarded and paid directly to the health care provider. This Subsection shall not be construed to provide for recovery of more than one penalty or attorney fee.

(5) No amount paid as a penalty or attorney fee under this Subsection shall be included in any formula utilized to establish premium rates for workers' compensation insurance.

G. If any award payable under the terms of a final, nonappealable judgment is not paid within thirty days after it becomes due, there shall be added to such award an amount equal to twenty-four percent thereof or one hundred dollars per day together with reasonable attorney fees, for each calendar day after thirty days it remains unpaid, whichever is greater, which shall be paid at the same time as, and in addition to, such award, unless such nonpayment results from conditions over which the employer had no control. No amount paid as a penalty under this Subsection shall be included in any formula utilized to establish premium rates for workers' compensation insurance. The total one hundred dollar per calendar day penalty provided for in this Subsection shall not exceed three thousand dollars in the aggregate.

H. Within fourteen days after the final payment of compensation has been made, the employer or insurer shall send a notice to the office, in the manner prescribed by the rules of the director, stating:

(a) The name of the injured employee or any other person to whom compensation has been paid, or both.

(b) The date of injury or death.

(c) The dates on which compensation has been paid.

(d) The total amount of compensation paid.

(e) The fact that final payment has been made.

I. 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 provisions as set forth in R.S. 23:1141 limiting the amount of attorney fees shall not apply to cases where the employer or insurer is found liable for attorney fees under this Section. The provisions as set forth in R.S. 22:1892(C) shall be applicable to claims arising under this Chapter.

J. Notwithstanding the fact that more than one violation in this Section which provides for an award of attorney fees may be applicable, only one reasonable attorney fee may be awarded against the employer or insurer in connection with any hearing on the merits of any disputed claim filed pursuant to this Section, and an award of such single attorney fee shall be res judicata as to any and all conduct for which penalties may be imposed under this Section which precedes the date of the hearing.

La. R.S. 23:1201.1 is the centerpiece of Act 337, and the following is a summary of the statute.  (The full text of the statute is included after the summary). The most significant portions of La. R.S. 23:1201.1, from a claims handling perspective, may be divided into “Notice” provisions and “Safe Harbor” provisions.  Both are summarized below.

1.  Notice Provisions

A.  Upon the initial payment of Compensation, the payor must:

i.  Notify the employee of the payment by completing and forwarding LCW-WC-1002 on the day of the payment.  (La. R.S. 23:1201.1(A)(2)).

ii.  Notify the OWC of the payment by forwarding the completed LCW-WC-1002 within ten days of the payment.  (La. R.S. 23:1201.1(A)(3)).

iii. If the Employee is represented, notify the employee’s attorney by forwarding the completed LCW-WC-1002 via facsimile and on the same date that it is mailed to the employee.  (La. R.S. 23:1201.1(D)).

B.  Upon modification, suspension, termination or controversion of benefits, the payor must:

i.  Notify the employee of the action by completing and forwarding by certified mail an LCW-WC-1002 on or before the effective date of the action.  (La. R.S. 23:1201.1(A)(4)).

ii. Notify the OWC of the action by forwarding the completed LCW-WC-1002 on the same day that it is sent to the employee.  (La. R.S. 23:1201.1(A)(5)).

iii. If the Employee is represented, notify the employee’s attorney by forwarding the completed LCW-WC-1002 via facsimile and on the same date that it is mailed to the employee.  (La. R.S. 23:1201.1(D)).

An employer that fails to comply with the notice provisions is not entitled to the benefits of the safe harbor provisions.  For that reason, strict compliance with the notice provisions is critical.  When an employee is represented, the 1002 should be sent to both the employee and the attorney even though some parts of the statute suggest that notice may be sent to the attorney only.  The 1002 should be sent to the employee by certified mail and to the attorney by facsimile.  Proving that the employee or the attorney actually received the 1002 may not be enough if the 1002 was not transmitted in the manner prescribed by the statute.  Benefits should not be modified in any way before the date that the 1002 is sent to the employee, the OWC and, if represented, the attorney.

2.  Safe Harbor Provisions

A.  An employee may not file a Disputed Claim for Compensation unless, in response to a 1002 filed by the payor, the employee has advised the payor in writing of the disagreement. (La. R.S. 23:1201.1(F)(2)).[FN2]

If the employee disagrees with a 1002 prepared by the payor, the employee must:

i.  Notify the payor of the disagreement in writing (by completing the “Notice of Disagreement” portion of the 1002 or by amicable demand via correspondence); and

ii. Notify the payor of the benefits that the employee believes are due. (La. R.S. 23:1201.1(F)(1)).

B.  If, within seven days of receiving the employee’s Notice of Disagreement or amicable demand, the payor complies with the employee’s demand, no penalties or attorney’s fees may be awarded regarding the dispute set forth in the 1002.  (La. R.S. 23:1201.1(G)(1)).  (To comply with the demand, the payor must make the disputed payment within the seven day period; simply agreeing to make the payment is not enough).[FN3]

C.  If the payor rejects the employee’s demand, and the employee files a Disputed Claim for Compensation, the payor may, in its  Answer[FN4] to the Disputed Claim for Compensation, request a preliminary determination of the dispute set forth in the 1002.  (La. R.S. 23:1201.1(H)).

D.  If, within ten days of the mailing of the workers’ compensation judge’s preliminary determination, the payor accepts and complies with the preliminary determination, no penalties or attorney’s fees may be awarded regarding the dispute set forth in the 1002.  (La. R.S. 23:1201.1(K)(2)).

The preliminary determination is not a judgment.  A payor may accept and comply with a preliminary determination but still contest the issue at trial.  By accepting and complying with the preliminary determination, the payor would avoid the possibility of penalties and attorney’s fees, but it could still contest the issue, both at trial and on appeal.

The payor has three options in response to a preliminary determination: 

1.  Accept and comply with the preliminary determination;

2.  Accept and comply with the preliminary determination, but notify the court of its intention to proceed to trial on the dispute set forth in the 1002; or

3.  Notify the employee or the employee’s attorney, in writing, that it does not accept the preliminary determination.

Whichever option the payor chooses, it must do so within ten days of the mailing of the preliminary determination.  If the payor does not comply with the preliminary determination within the ten day period, or advise the court within the ten day period of its intention to proceed to trial, the payor would lose the protection afforded by the statute.

Rejection of the preliminary determination may not be the basis for an award of penalties and attorney’s fees.  Attorney’s fees may be awarded only if the payor fails to reasonably controvert a claim or discontinues benefits arbitrarily, capriciously or without probable cause.  If the payor rejects the preliminary determination, the payor loses the protection of the safe harbor provision, but penalties and attorney’s fees are assessed only if the court finds that the payor violated La. R.S. 23:1201.  (La. R.S. 23:1201.1(L)).

La. R.S. 23: 1201.1  Controversion of compensation and medical benefits

A. Upon the first payment of compensation or upon any modification, suspension, termination, or controversion of compensation or medical benefits for any reason, including but not limited to issues of medical causation, compensability of the claim, or issues arising out of R.S. 23:1121, 1124, 1208, and 1226, the employer or payor who has been notified of the claim, shall do all of the following:

(1) Prepare a "Notice of Modification, Suspension, Termination, or Controversion of Compensation and/or Medical Benefits".

(2) Send the notice of the initial indemnity payment to the injured employee on the same day as the first payment of compensation is made by the payor after the payor has received notice of the claim from the employer.

(3) Send a copy of the notice of the initial payment of indemnity to the office within ten days from the date the original notice was sent to the injured employee or by facsimile to the injured employee's representative.

(4) Send the "Notice of Payment, Modification, Suspension, Termination, or Controversion of Compensation and/or Medical Benefits" to the injured employee by certified mail, to the address at which the employee is receiving payments of compensation, on or before the effective date of a modification, suspension, termination, or controversion.

(5) Send a copy of the "Notice of Payment, Modification, Suspension, Termination, or Controversion of Compensation and/or Medical Benefits" to the office on the same business day as sent to the employee or to his representative.

B. The form of the "Notice of Payment, Modification, Suspension, Termination, or Controversion of Compensation and/or Medical Benefits" shall be promulgated by the office.

C. The director shall make the notice available upon request by the employee and the employee's representative.

D. If the injured employee is represented by an attorney, the notice shall also be provided to the employee's representative by facsimile. Proof that the notice was sent to the employee's representative by facsimile shall be prima facie evidence of compliance with Subsection A of this Section.

E. The provisions of this Section shall not apply to questions of medical necessity as provided by R.S. 23:1203.1.

F.(1) Any injured employee or his representative who disagrees with any information provided on the notice form sent by the employer or payor, shall notify the employer or payor of the basis for disagreement by returning the form to the employer or payor as provided on the form, or by letter of amicable demand, and provide any amounts of compensation he believes appropriate.

(2) No disputed claim shall be filed regarding any such disagreement unless the notice required by this Section has been sent to the employer or payor who initially sent the notice.

G.(1) If the employer or the payor provides the benefit that the employee claims is due, including any arrearage, on the returned form or letter of amicable demand within seven business days of receipt of the employee's demand, the employer or payor shall not be subject to any claim for any penalties or attorney fees arising from the disputed payment, modification, suspension, termination, or controversion.

(2) If the employer or payor does not provide the benefit that the employee claims is due, the employee may file a disputed claim for benefit provided it is filed within the prescriptive period established under R.S. 23:1209. If the prescription date of the claim occurs within the seven-day waiting period, the employee will be allowed to file a disputed claim without waiting the seven business days as provided in Paragraph (1) of this Subsection. However, the employer or payor shall still be allowed seven business days to provide the benefit that the employee claims is due, and if the employer does provide the benefit, the disputed claim will be moot regarding the issues arising out of the payment, suspension, modification, termination, or controversion of benefits. All other issues alleged in the disputed claim will be unaffected by the payment.

H. The employer or the payor who wishes to have a preliminary determination hearing shall request the hearing in his answer to the disputed claim arising from the notice of initial payment or any subsequent modification, suspension, termination, or notice of controversion. In cases where a disputed claim is already pending when an issue arises from a subsequent notice of payment, modification, suspension, termination, or controversion of benefits, such request shall be made in an amended pleading filed within fifteen days of the expiration of the seven-day period set forth in Paragraph (G)(1) of this Section.

I.(1) An employer or payor who has not complied with the requirements set forth in Subsection A through E of this Section or has not initially accepted the claim as compensable, subject to further investigation and subsequent controversion shall not be entitled to a preliminary determination. An employer or payor who is not entitled to a preliminary determination or who is so entitled but fails to request a preliminary determination may be subject to penalties and attorney fees pursuant to R.S. 23:1201 at a trial on the merits or hearing held pursuant to Paragraph (K)(8) of this Section.

(2) If disputed by the parties, upon a rule to show cause held prior to the preliminary determination or any hearing held pursuant to this Section, the workers' compensation judge shall determine whether the employer is in compliance.

J.(1) Upon the filing of the request for a preliminary determination hearing, the workers' compensation judge shall initiate a telephone status conference with the parties to schedule the discovery deadlines and to facilitate the exchange of documents. The scope of the discovery will be limited to the issues raised in the disputed payment, suspension, modification, termination, or controversion of benefits. The preliminary determination hearing shall be a contradictory hearing at which all parties shall have the opportunity to introduce evidence.

(2) The testimony of physicians may be introduced by certified records or deposition. The parties may agree to allow uncertified medical records and physician reports to be introduced into evidence. Witnesses may testify at the hearing or, if agreed on by the parties, may offer testimony by introduction of a deposition.

(3) The preliminary determination hearing shall be held no later than ninety days from the scheduling conference. However, upon a showing of good cause, one extension of an additional thirty days is permitted upon approval by the workers' compensation judge. The workers' compensation judge shall issue a preliminary determination no later than thirty days after the hearing.

(4) Any employer or payor requesting a preliminary determination hearing shall produce all documentation relied on by the employer or payor in calculating, modifying, suspending, terminating, or controverting the employee's benefits. These documents shall be disclosed to the employee or the employee's representative within ten days of the request for the preliminary determination hearing.

K.(1) The employer or payor shall, within ten calendar days of the mailing of the determination from the workers' compensation judge, do either of the following:

(a) Accept and comply with preliminary determination of the workers' compensation judge regarding the payment, suspension, modification, termination, or controversion of benefits and mail a revised "Notice of Modification, Suspension, Termination, or Controversion of Compensation and/or Medical Benefits" to the injured employee or employee's representative, along with any payment amount determined, and any arrearage due.

(b) Notify the injured employee or his representative in writing that the employer or payor does not accept the determination.

(2) Any employer or payor who accepts and complies with the workers' compensation judge's determination within ten calendar days, shall not be subject to any penalty or attorney fees arising out of the original notice which was the subject of the preliminary hearing.

(3) Any employer or payor who accepts and complies with the workers' compensation judge's determination, but who disagrees with such preliminary determination, shall notify the court within ten days of receipt of the preliminary determination of his desire to proceed to a trial on the merits of the matters that were the subject of the preliminary hearing.

(4) Any employer or payor who does not accept the workers' compensation judge's determination or fails to comply with the determination within ten calendar days, may, at the trial on the merits, be subject to penalties and attorney fees pursuant to R.S. 23:1201, arising out of the issues raised in the original notice of payment, modification, suspension, termination, or controversion of benefits, which was the subject of the preliminary hearing.

(5) Any injured employee who disagrees with the preliminary determination shall notify the court within ten days of the receipt of such preliminary determination of his desire to proceed to a trial on the merits of the matters that were the subject of the preliminary hearing. If the employer or payor has accepted and complied with the preliminary hearing determination, the employer or payor shall also be entitled to litigate all issues including those issues presented at the preliminary determination hearing.

(6) Any employer or payor who accepts and complies with the determination of the workers' compensation judge, and who does not request to proceed to trial on the merits of the matters that were the subject of the preliminary hearing, shall retain the right to further controvert future matters. The workers' compensation judge's determination shall not be considered an order concerning benefits due requiring modification, nor shall the determination be considered res judicata of any matters which were the subject of the preliminary hearing. The acceptance of the preliminary determination by the employer or payor shall not be considered an admission.

(7) In matters where the employee has filed a disputed claim and the employer or payor is not entitled to a preliminary determination, the matter shall proceed to trial on the merits.

(8)(a) Upon motion of either party, whether or not the employer or payor is entitled to a preliminary determination, the workers' compensation judge's ruling in a hearing shall be conducted as an expedited summary proceeding and shall be considered an order of the court and not requiring a further trial on the merits, if it concerns any of the following matters:

(i) The employee has sought choice of physician pursuant to R.S. 23:1121(B)(1).

(ii) The employee has filed a claim pursuant to R.S. 23:1226(B)(3)(a).

(iii) The employer or payor seeks to compel the employee to sign the choice of physician form pursuant to R.S. 23:1121(B)(5).

(iv) The employer or payor seeks to compel the employee's submission to a medical examination pursuant to R.S. 23:1124.

(v) The employer seeks to require the employee to return form LWC-1025 or LWC-1020.

(vi) The employee seeks to have a suspension of benefits for failure to comply with R.S. 23:1121(B)(1) lifted.

(vii) The employee seeks to have a suspension of benefits for failure to submit to a medical examination lifted.

(viii) The employee seeks to have a suspension of benefits for failure to comply with R.S. 23:1208(H) lifted.

(ix) The employee seeks to have a reduction in benefits for failure to cooperate with vocational rehabilitation lifted.

(b)(i) The workers' compensation judge shall set the expedited summary proceeding hearing date pursuant to R.S. 23:1201.1(K)(8)(a)(iii), (iv), and (v) within three days of receiving the employer's motion for the expedited hearing. The hearing shall be held not less than ten nor more than thirty days after the motion has been filed.

(ii) The workers' compensation judge shall provide the notice of the hearing date to the employee or his attorney at the same time and in the same manner that the notice of the hearing date is provided to the employer or payor.

(iii) For the purposes of this Section, the party seeking an expedited hearing shall not be required to submit the dispute to mediation or go through a pretrial conference before obtaining a hearing. The hearing shall be conducted as a rule to show cause.

(c) The workers' compensation judge shall order the employee to sign the choice of physician form, enforce the employee's submission to the medical examination, or provide the LWC-1020 or LWC-1025 form as applicable unless the employee can show good cause for his refusal.

(d) If the employee seeking relief pursuant to this Paragraph can show good cause for his refusal, the workers' compensation judge shall order the suspension or reduction in benefits lifted and the payment of any arrearage due. If the employee fails to show good cause for refusal, the workers' compensation judge shall order the suspension or reduction in benefits to continue until the employee complies.

(e) An employer or payor who is entitled to a preliminary determination and who complies with an order of the court issued pursuant to a hearing held in accordance with Paragraph (K)(8) of this Section within ten calendar days shall not be subject to any penalty or attorney fees arising out of the original notice which was the subject of the hearing.

L. Notwithstanding any provision in this Section to the contrary, the failure to comply with any provision of this Section shall not itself be considered a failure to reasonably controvert benefits; however, failure of the employer or payor to comply shall result in loss of penalty and attorney fee protections provided in this Section.

The only substantive change in La. R.S. 23:1208 concerns the suspension of benefits for the failure to complete and return the Employee’s Certificate of Compliance form.  The employer now may suspend benefits without court approval if the employee fails to return the form.  An employee that contests a suspension of benefits is entitled to an expedited hearing.  (La. R.S. 23:1201.1(8)(a)(viii)).

La. R.S. 23:1208  Misrepresentations concerning benefit payments; penalty

A. It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.

B. It shall be unlawful for any person, whether present or absent, directly or indirectly, to aid and abet an employer or claimant, or directly or indirectly, counsel an employer or claimant to willfully make a false statement or representation.

C. (1) Whoever violates any provision of this Section, when the benefits claimed or payments obtained have a value of ten thousand dollars or more, shall be imprisoned, with or without hard labor, for not more than ten years, or fined not more than ten thousand dollars, or both.

(2) Whoever violates any provision of this Section, when the benefits claimed or payments obtained have a value of two thousand five hundred dollars or more, but less than a value of ten thousand dollars shall be imprisoned, with or without hard labor, for not more than five years, or fined not more than five thousand dollars, or both.

(3) Whoever violates any provision of this Section, when the benefits claimed or payments obtained have a value of less than two thousand five hundred dollars, shall be imprisoned for not more than six months or fined not more than five hundred dollars, or both.

(4) Notwithstanding any provision of law to the contrary which defines "benefits claimed or payments obtained", for purposes of Subsection C of this Section, the definition of "benefits claimed or payments obtained" shall include the cost or value of indemnity benefits, and the cost or value of health care, medical case management, vocational rehabilitation, transportation expense, and the reasonable costs of investigation and litigation.

D. In addition to the criminal penalties provided for in Subsection C of this Section, any person violating the provisions of this Section may be assessed civil penalties by the workers' compensation judge of not less than five hundred dollars nor more than five thousand dollars payable to the Kids Chance Scholarship Fund, Louisiana Bar Foundation, and may be ordered to make restitution. Restitution may only be ordered for benefits claimed or payments obtained through fraud and only up to the time the employer became aware of the fraudulent conduct.

E. Any employee violating this Section shall, upon determination by workers' compensation judge, forfeit any right to compensation benefits under this Chapter.

F. Whenever the employer reports an injury to the office pursuant to R.S. 23:1306, the employer and employee shall certify their compliance with this Chapter to the employer's payor on a form prescribed by the director, which form shall include all of the following information:

(1) A summary of the fines and penalties for workers' compensation fraud.

(2) The names, addresses, phone numbers, and signatures of the employee and the employer.

(3) The fine or penalty that may be imposed for failure to report to the payor as required by this Section.

G. Whenever an employee receives benefits pursuant to this Chapter for more than thirty days, the employee shall upon reasonable request report his other earnings to his employer's payor on a form prescribed by the director and signed by the employee.

H. (1) Whenever an employee fails to report to his employer's payor as required by this Section within fourteen days of his receipt of the appropriate form, employer or payor may suspend the employee’s right to benefits as provided in this Chapter. If otherwise eligible for benefits, the employee shall be entitled to all of the suspended benefits after the form has been provided to the payorSuspension of benefits by the employer or payor shall be made in accordance with the provisions of R.S. 23:1201.1(A) through (E). The employer or payor may move for an order to compel the employee to return the form.

(2) Whenever an employer fails to report to its payor as required by this Section, the employer may be subject to a penalty of five hundred dollars, payable to the payor.

(3) The payor may request an assessment of a penalty for the employer’s failure to report as provided in this Subsection by filing a form LDOL-WC-1008 with the director.

I. (1) No person acting gratuitously and without malice, fraudulent intent, or bad faith, shall be subject to civil liability for libel, slander, or any other relevant tort, and no civil cause of action of any nature shall exist against such person or entity by virtue of the filing of reports or furnishing of other information, either orally or in writing, relative to a violation by any person of the provisions of this Section.

(2) The grant of immunity provided by this Subsection shall not abrogate or modify in any way any statutory or other privilege or immunity otherwise enjoyed by such person or entity.

The most significant change La. R.S. 23:1226 concerns the reduction of benefits for the failure to cooperate with vocational rehabilitation.  The employer now may suspend benefits without court approval if the employee fails to cooperate with vocational rehabilitation.  An employee that contests a suspension of benefits is entitled to an expedited hearing.  (La. R.S. 23:1201.1(8)(a)(ix)).

La. R.S. 23:1226.  Rehabilitation of injured employees

A. When an employee has suffered an injury covered by this Chapter which precludes the employee from earning wages equal to wages earned prior to the injury, the employee shall be entitled to prompt rehabilitation services. Vocational rehabilitation services shall be provided by a licensed professional vocational rehabilitation counselor, and all such services provided shall be compliant with the Code of Professional Ethics for Licensed Rehabilitation Counselors as established by R.S. 37:3441 et seq.

B. (1) The goal of rehabilitation services is to return a disabled worker to work, with a minimum of retraining, as soon as possible after an injury occurs. The first appropriate option among the following must be chosen for the worker:

(a) Return to the same position.

(b) Return to a modified position.

(c) Return to a related occupation suited to the claimant's education and marketable skills.

(d) On-the-job training.

(e) Short-term retraining program (less than twenty-six weeks).

(f) Long-term retraining program (more than twenty-six weeks but not more than one year).

(g) Self-employment.

(2) Whenever possible, employment in a worker's local job pool must be considered and selected prior to consideration of employment in a worker's statewide job pool.

(3) (a) The employer shall be responsible for the selection of a licensed professional vocational rehabilitation counselor to evaluate and assist the employee in his job placement or vocational training. Should the employer refuse to provide these services, or a dispute arises concerning the work of the vocational counselor, the employee may file a claim with the office to review the need for such services or the quality of services being provided. The employee shall have a right to an expedited summary proceeding pursuant to R.S. 23:1201.1(K)(8). The workers' compensation judge shall set a hearing date within three days of receiving the motion. The hearing shall be held not less than ten, nor more than thirty days, after the employer or payor receives notice, delivered by certified or registered mail, of the employee's motion. The workers' compensation judge shall provide notice of the hearing date to the employer and payor at the same time and in the same manner that notice of the hearing date is provided to the employee or his attorney. For the purposes of this Section, an employee shall not be required to submit the dispute on the issue of vocational services to mediation or go through a pretrial conference before obtaining a hearing. The hearing shall be conducted as a rule to show cause.

(b) An employee shall have no right of action against a vocational counselor for tort damages related to the performance of vocational services unless and until he has exhausted the administrative remedy provided for in Subparagraph (a) of this Paragraph. The running of prescription shall be suspended during the pendency of the administrative proceedings provided for in this Paragraph.

(c) Upon refusal by the employee, the employer or payor may reduce weekly compensation, including supplemental earnings benefits pursuant to R.S. 23:1221(3), by fifty percent for each week of the period of refusal.  Reduction of benefits by the employer or payor shall be made in accordance with the provisions of R.S. 23:1201.1(A) through (E).

C. (1) Rehabilitation services required for disabled workers may be initiated by:

(a) An insurer or self-insured employer by designating a rehabilitation provider and notifying the office.

(b) The office by requiring the insurer or self-insured employer to designate a rehabilitation provider.

(c) The employee, through a request to the office. The office shall then require the insurer to designate a rehabilitation provider.

(2) Rehabilitation services provided under this Part must be delivered through a rehabilitation counselor approved by the office.

D. Prior to the workers' compensation judge adjudicating an injured employee to be permanently and totally disabled, the workers' compensation judge shall determine whether there is reasonable probability that, with appropriate training or education, the injured employee may be rehabilitated to the extent that such employee can achieve suitable gainful employment and whether it is in the best interest of such individual to undertake such training or education.

E. When it appears that a retraining program is necessary and desirable to restore the injured employee to suitable gainful employment, the employee shall be entitled to a reasonable and proper retraining program for a period not to exceed twenty-six weeks, which period may be extended for an additional period not to exceed twenty-six additional weeks if such extended period is determined to be necessary and proper by the workers' compensation judge. However, no employer or insurer shall be precluded from continuing such retraining beyond such period on a voluntary basis. An injured employee must request and begin retraining within two years from the date of the termination of temporary total disability as determined by the treating physician. If a retraining program requires residence at or near the facility or institution and away from the employee's customary residence, reasonable cost of board, lodging, or travel shall be borne by the employer or insurer. A retraining program shall be performed at facilities within the state when such facilities are available.

F. Temporary disability benefits paid pursuant to R.S. 23:1221(1) shall include such period as may be reasonably required for training in the use of artificial members and appliances and shall include such period as the employee may be receiving training or education under a retraining program pursuant to this Section.

G. The permanency of the employee's total disability under R.S. 23:1221(2) cannot be established, determined, or adjudicated while the employee is employed pursuant to an on-the-job training or a retraining program as provided in Subsections B and E of this Section.

The amendment to La. R.S. 23:1310.8 contains one technical change.  In paragraph B, concerning modification of a judgment, the word “application” was changed to “motion.”

La. R.S. 23:1310.8.  Jurisdiction continuing; determining as to final settlement 

A. (1) The power and jurisdiction of the workers' compensation judge over each case shall be continuing and he may, upon application by a party and after a contradictory hearing, make such modifications or changes with respect to former findings or orders relating thereto if, in his opinion, it may be justified, including the right to require physical examinations as provided for in R.S. 23:1123; however, upon petition filed by the employer or insurance carrier and the injured employee or other person entitled to compensation under the Worker's Compensation Act, a workers' compensation judge shall have jurisdiction to consider the proposition of whether or not a final settlement may be had between the parties presenting such petition, subject to the provisions of law relating to settlements in workers' compensation cases.

(2) The workers' compensation judge may have a full hearing on the petition, and take testimony of physicians and others relating to the permanency or probable permanency of the injury, and take such other testimony relevant to the subject matter of such petition as the workers' compensation judge may require. The workers' compensation judge may consider such petition and dismiss the same without a hearing if in his judgment the same shall not be set for a hearing.

(3) The expenses of such hearing or investigation, including necessary medical examinations, shall be paid by the employer or insurance carrier, and such expenses may be included in the final award. If the workers' compensation judge decides it is in the best interest of both parties to said petition that a final award be made, a decision shall be rendered accordingly and the workers' compensation judge may make an award that shall be final as to the rights of all parties to said petition and thereafter the workers' compensation judge shall have no jurisdiction over any claim for the injury or any results arising from same. If the workers' compensation judge should decide the case should not be finally settled at the time of the hearing, the petition shall be dismissed without prejudice to either party, and the workers' compensation judge shall have the same jurisdiction over the matter as if said petition had not been filed.

B. Upon the motion of any party in interest, on the ground of a change in conditions, the workers' compensation judge may, after a contradictory hearing, review any award, and, on such review, may make an award ending, diminishing, or increasing the compensation previously awarded, subject to the maximum or minimum provided in the Worker's Compensation Act, and shall state his conclusions of fact and rulings of law, and the director shall immediately send to the parties a copy of the award.

C. This Section shall not apply to the calculation of the monthly benefit amount pursuant to R.S. 23:1221(3).

D. A petition to modify a judgment awarding benefits shall be subject to the prescriptive limitations established in R.S. 23:1209.

E. A judgment denying benefits is res judicata after the claimant has exhausted his rights of appeal.

F. An award of temporary total disability benefits may be modified by the filing of a motion for modification with the same court that awarded the benefits and under the same caption and docket number without the necessity of filing a new dispute and appearing at a mediation conference. The court shall expedite the hearing on the modification proceedings in accordance with the procedure established in R.S. 23:1124(B).

The amendment to La. R.S. 23:1314 limits the payor’s right to file a Disputed Claim for Compensation to claims involving a violation of La. R.S. 23:1208 and appeals of a ruling by the medical director concerning medical necessity.  The new procedures set forth in La. R.S. 23:1201.1 eliminate the need in most cases for the payor to file a Disputed Claim for Compensation.

La R.S. 23:1314.  Necessary allegations; dismissal of premature petition; dispute of benefits

A. The presentation and filing of the petition under R.S. 23:1310.3 shall be premature unless it is alleged in the petition that:

(1) The employee or dependent is not being or has not been paid, and the employer has refused to pay, the maximum percentage of wages to which the petitioner is entitled under this Chapter; or

(2) The employee has not been furnished the proper medical attention, or the employer or insurer has not paid for medical attention furnished; or

(3) The employee has not been furnished copies of the reports of examination made by the employer's medical practitioners after written request therefor has been made under this Chapter; or

(4) The employer or insurer has not paid penalties or attorney's fees to which the employee or his dependent is entitled.

B. The petition shall be dismissed when the allegations in Subsection (A) of this Section are denied by the employer and are shown at a time fixed by the workers' compensation judge to be without reasonable cause or foundation in fact.

C. The workers' compensation judge shall determine whether the petition is premature and must be dismissed before proceeding with the hearing of the other issues involved with the claim.

D. Disputes over medical treatment pursuant to the medical treatment schedule shall be premature unless a decision of the medical director has been obtained in accordance with R.S. 23:1203.1(J).

E.  (1) Notwithstanding any other provision of this Section, the employer or payor shall be permitted to file a disputed claim against an employee, his dependent, or beneficiary only when the employer or payor alleges the employee, his dependant, or beneficiary has committed fraud as provided in R.S. 23:1208 which caused the employer or payor to pay a benefit which was not due to the employee, his dependant, or beneficiary; or when the employer or payor is an aggrieved party appealing a decision of the medical director pursuant to R.S. 23:1203.1(K).

(2) Notwithstanding any other provision of this Section, the employer or payor shall be permitted to file a disputed claim against a person or entity other than an injured employee, his dependent, or beneficiary concerning any other dispute arising under this Chapter.

The Louisiana legislature intends for the provisions of Act 337 to apply as of August 1, 2013, to all disputed claims, even if the disputes arise out of accidents that occurred before August 1, 2013.  If a court finds that any provision of the Act deprives a party of a substantive right, and, therefore, may only be applied to claims arising after August 1, 2013, however, then the entire Act will apply only to claims arising after August 1, 2013.  The fall back provision eliminates the possibility that a party could lose a remedy established by Act 337 but also be limited to the new procedures established in Act 337 for insuring compliance.  For example, if a court declined to enforce retroactively the provision of La. R.S. 23:1124 that allows a payor to unilaterally suspend benefits for failure to attend a medical examination, then the payor would be allowed to file a Motion to Compel the examination, as allowed under previous law, regardless of whether the matter was already in litigation.

Retroactive Application of Act 337

Section 2. This Act is declared to be remedial, curative, and procedural and therefore is to be applied retroactively as well as prospectively. However, should any provision of this Act be declared to apply prospectively only, all provisions of this Act shall be applied prospectively only.

 


[FN1] La. R.S. 23:1201.1 is entirely new.  It contains the Safe Harbor provisions and sets forth the requirements for a payor to avoid penalties and attorney’s fees under those provisions.

[FN2] Unless the claim would prescribe (be untimely) within seven day of the date of the employee’s demand, the employee must wait seven days after the date of the demand before filing a Disputed Claim for Compensation.

[FN3] The payor gets safe harbor if it “provides the benefit” within seven days.  (La. R.S. 23:1201.1(G)(1).

[FN4] If a Disputed Claim for Compensation was already pending when the 1002 was filed, the payor may request a preliminary determination in amended pleadings.  Pleadings must be amended within fifteen days of the date that the period for accepting the amicable demand expires.

 

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