Questions and Answers
Questions and Answers
What is worker's compensation?
Worker’s compensation refers to the benefits that employees are entitled to receive when they are injured at work. This system is set by state law and varies from state to state. For example, the laws in Louisiana and Texas are very different. Federal employees, such as postal workers, have their system. In Louisiana, if there is a dispute between an injured worker and their employer over the number of benefits, or if the claim is denied, then the injured worker can file suit with the Office of Worker’s Comp. These matters are heard in an administrative law system that is separate from the Judicial District Courts that handle auto accident claims, divorces, and criminal cases. An Administrative Law Judge decides of the dispute; there are no jury trials. Either the injured worker or the employer can appeal their case to the Second Circuit Court of Appeal, which also hears the appeals from the Judicial District Courts.
What am I entitled to under worker's compensation?
In Louisiana, an injured worker is entitled to indemnity benefits and medical benefits. Indemnity benefits are two-thirds of the employee’s wages before his or her injury, but this is subject to a cap. These benefits are paid in the same manner in which the injured worker was paid. For example, if the injured worker was paid weekly, then the benefits shall be paid weekly. Medical benefits are governed by the Medical Treatment Guidelines. If the insurance company denies medical care, then the injured worker can appeal this denial to the office of the Medical Director, a physician who works for the state, not for the injured worker or the insurance company. If the Medical Director denies the care, the injured worker can file suit with the Office of Worker’s Compensation.
Can I choose my own physician?
Yes. An injured worker can choose their physician in each medical field. For example, if an injured worker suffers an injury to his head, and to his elbow, that injured worker can choose a neurologist or other specialist to treat the head injury, and also an orthopedist to treat the elbow injury. Also, because orthopedists specialize in certain areas of the body, an injured worker can choose two different orthopedists. For example, if the injured worker suffers an injury to his back and shoulder, that injured worker can choose both a spine specialist and a shoulder specialist. Once the employee makes this choice, it cannot be undone without court approval.
What do I pay my lawyer?
In worker’s comp cases, an injured worker does not have to pay their lawyer a retainer or any up-front money. The lawyer and injured worker can agree upon a Contingent Fee. This means that the lawyer’s fee is contingent, or depends upon, the outcome of the case. If the injured worker receives any recovery, then under a contingent fee contract, the employee gives a certain percentage of his recovery to their attorney, as stated in the contract. Louisiana provides for a 20% contingent fee, which means that the client owes 20% of their recovery to their attorney. However, if there is no recovery, then the injured worker owes nothing to the lawyer. In addition, a lawyer can pay for certain expenses, and be reimbursed for these expenses out of the settlement.
Can I sue my employer if I have been hurt at work?
No. An injured worker cannot sue their employer for lost wages, future medical care, or general damages (for pain and suffering), in a Judicial District Court. However, an injured worker can sue for unpaid benefits, late payment of benefits, or denial of medical care, in the Office of Worker’s Compensation. The Administrative Law Judge can also award penalties and attorney fees to the injured worker if the insurance company cannot show any good reason why it did not pay benefits.
What happens if I get into an auto accident while driving for my employer?
If the other driver was at fault in the auto accident, then the employee can claim the worker’s comp benefits against their employer, but can also make a civil claim for lost wages, general damages, and medical care against the other driver. If the injured worker receives the worker’s comp benefits (medical or indemnity), then the employer has the right to reimbursement for these benefits out of the civil claim against the other driver. If the injured worker’s co-employee is at fault, the injured worker cannot bring a civil claim against them. An injured worker cannot sue their employer or co-worker in a Judicial District Court.
What happens if I get injured at an oil rig site?
The injured worker can make a claim for workers’ comp benefits against their employer. However, at a rig site, there may be employees of different companies at work. If the accident at the rig site was caused by an employee from a different company, then the injured worker can also make a civil claim for lost wages, general damages, and medical care against that other company. If the injured worker receives worker’s comp benefits (medical or indemnity), then the employer has the right to reimbursement for these benefits out of the civil claim against the other company. If the injured worker’s co-employee is at fault, the injured worker cannot bring a civil claim against them. An injured worker cannot sue their employer or co-worker in a Judicial District Court.
What if I'm not sure who was at fault in the accident?
In Louisiana, the fault is not an issue for worker’s comp cases. The injured worker does not have to prove fault. In other words, the employee does not have to show that the accident was caused by the employer or a co-worker. Even if the injured worker caused their accident, then they can still recover worker’s compensation benefits. The injured worker must show that they were involved in an accident while working and that this accident caused their injuries, and further that these injuries prevent them from working. This can be shown by the medical records, and if necessary, the deposition of the treating physician.
Can I settle my worker's comp claim?
Yes. In Louisiana, an injured worker is entitled to indemnity benefits while they are disabled. In many cases after an injury, an employee can return to a lighter duty job, but not to the same work they were doing before. In this situation, an injured worker is still entitled to indemnity benefits, but in a lesser amount. In addition, an injured worker is also entitled to medical benefits for life for their injury, subject to limitations. Rather than pay indemnity and medical benefits for years into the future, the insurance company can settle the claim with the injured worker by paying a lump sum of money now. By accepting this lump sum, the employee gives up their rights to any future indemnity or medical benefits. An injured worker cannot sue the employer for a settlement; this can only be achieved by an agreement of the parties. A formal mediation process can be used to settle.
Can I get worker's comp and disability?
Yes. An injured worker should consult with an attorney before filing for disability (Social Security Disability Insurance, or “SSDI”). If an injured worker is receiving worker’s comp indemnity benefits, then their SSDI benefits may be lower than they normally would be. This is called the worker’s comp “offset.” If an injured worker is accepted for SSDI, then they will generally be entitled to Medicare two years after their acceptance. If an injured worker has been accepted for SSDI or has an application pending, then a Medicare Set Aside (“MSA”) must be established before any settlement. An MSA is an allocation for future medical care so that the full burden of this cost does not fall upon Medicare.
What do I do if I've been injured at work?
- Immediately report the injury to your supervisor and provide accurate details of the situation that led up to the accident and thereafter.
- Visit a physician who can diagnose and treat any injuries that may have beean sustained due to the accident.
- Keep a log of your injuries and how it is affecting your life in order to develop material evidence for a workers’ compensation claim.
- Seek professional legal representation from experienced attorneys who know workers’ compensation claim procedures and are willing to protect your rights under Louisiana’s workers’ compensation system.
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