Workers' Compensation Frequently Asked Questions

What should I do if I was injured on the job?

Following a workplace accident or learning about a job-related illness, there are three things you should so as soon as possible:

1. Report the accident/injury or illness to your employer. It is preferable you report it to your supervisor (or someone else with management) and do it in writing and make a copy for yourself. You should include at a minimum the date, time and circumstances of your accident, and a listing of all injuries sustained.

2. Seek out medical treatment to determine the extent of your injury and begin treatment. Please make sure to tell your medical provider about the accident that caused your injury (or workplace exposure that you believe caused your illness) and provide details regarding your employer. The medical provider will also create a record of your visit and treatment.

3. Contact an attorney that specializes in workers' compensation cases. An experienced workers' compensation attorney can review what happened to you and determine whether you have a claim and what benefits you should be receiving.

How long do I have to work at my job before I am eligible for workers' compensation benefits?

 You are eligible for workers' compensation on your first day of work.

Can I still collect workers' compensation benefits if I caused my accident?

Workers' compensation benefits are usually recoverable regardless of fault. As long as you were injured while on the job, you are generally covered, no matter what caused the accident that led to your injury or whether the employer, the employee, or a third party was at fault. However, there are some instances in which you would not be entitled to benefits, including: (1) self-inflicted injuries; or (2) the injuries occurred when you were under the influence of alcohol or illegal drugs and the accident was caused by the intoxication.

What benefits can I receive under workers' compensation?

Generally speaking, there are two major forms of benefits you can receive in a workers' compensation claim: medical treatment and a portion of lost wages.

An injured worker is entitled to have his/her medical bills paid with no out of pocket expense to the worker.  This includes expenses related to hospitalizations, prescription medications, medical equipment, surgeries, and more. The injured worker is also entitled to have his/her mileage reimbursed to obtain medical services as well as vocational rehabilitation mileage when the travel is done at the direction of the employer or its workers' compensation insurance carrier.

Can I choose my own doctor if I was injured on the job?

Under Louisiana law, you have the right to select one doctor of your choice in each specialty field for treatment of your work-related injury. After the initial choice, you need to obtain prior consent from the employer or workers' compensation carrier to change treating physician within that same field or specialty.

How much does workers' compensation pay if I have to take time off from work due to my work injury?

Typically, you will be paid two-thirds of your average weekly wage while out on leave due to a work injury.  The calculation of your average weekly wage rate can be confusing as it depends upon the method you are paid (e.g., hourly, monthly, annually or piecework) and also whether you were paid taxable, fringe benefits.

It is also important to note you are not entitled to compensation benefits under Louisiana law for the first seven days you are out due to your work injury. However, if your leave lasts longer than two weeks, you will likely be entitled to those first seven days you were initially unpaid.

If you feel you are being underpaid or are unsure you are being paid the proper compensation rate, I recommend consulting with an experienced workers' compensation attorney who can review your wage records with you. I have met with many clients who felt they were being paid the correct rate only to realize after consulting with me they were paid much less than they should have been.

What if my claim is denied?

Many workers are shocked when their claims are denied by their employer or its insurance company. When you receive your denial letter, the reason(s) for the denial is usually provided in the letter.

There are various reasons why your claim may be denied. Some of the more common reasons for denial include:

• There is not enough evidence the injury was caused by the work accident. In these cases, you may need a medical opinion from your physician opining the injury was caused by your work accident vs. some other condition.

• Your claim was not reported timely. After an injury, you should report it to your employer immediately. If it is not reported immediately, your employer or their insurance company may deny the claim as untimely or question the reason(s) for the delay in reporting.

• Your employer disputes the claim. Your employer may allege the accident occurred outside of work hours or did not occur at all.

• You were intoxicated at the time of the accident.

If your claim is denied, one option is to file a Disputed Claim for Compensation with the Office of Workers' Compensation.  This process typically takes six to nine months, but could be longer if the case is appealed.

If your claim is denied, I recommend consulting with an experienced workers' compensation attorney to review your case and the reason(s) for the denial as soon as possible. The attorney can also come up with a plan for addressing any denial.

Can I sue someone other than my employer if I am injured on the job?

In Louisiana and most other states, workers' compensation is considered the “exclusive remedy” for on-the-job injuries. This means you are generally prohibited from suing your employer after a workplace accident. Employers are granted legal immunity in exchange for providing workers' compensation benefits.

There are some instances, however, you can sue parties other than your employer for their role in causing the accident or your injuries, which are known as third-party liability claims. In those instances, you may have both a workers' compensation case (against your employer) and personal injury case (against the at fault third party). Some common scenarios for third-party liability include:

• Motor vehicle accidents: If you drive as part of your job, a car accident is also a workplace accident. For example, if you are making a delivery and rear ended by another vehicle, you could pursue workers' compensation benefits for your injuries against your employer as well as a separate lawsuit against the driver that rear ended you.

• Premises liability claims: For example, if you are a delivery person and injured by a slip-and-fall accident or another hazardous condition on private property, you could claim workers' compensation benefits against your employer and sue for premises liability against the owner of the premises.

• Injuries caused by faulty products: For example, if you are a construction worker and were injured by a faulty piece of equipment, you could potentially file a workers' compensation claim against your employer and a products liability claim against the equipment manufacturer.

            If you were injured on the job and feel you might have a third party claim, it is important you talk to an attorney who can review your claim and advise you of your rights.

Can I settle my claim?

You may enter into a lump sum or compromise settlement upon agreement of all of the parties and with the approval of the Office of Workers' Compensation Judge. If you are unrepresented, you must appear before the Office of Workers' Compensation judge to have the settlement approved.

When is the Right Time to Settle my workers' compensation claim?

There is no simple, easy answer as to when the right time to settle a workers' compensation case. There are, however, some times it may be better to consider settling your case.

If your case has been accepted and you are receiving medical treatment and compensation benefits, I would typically recommend you wait until you reach “maximum medical improvement” (MMI) prior to settling the case. MMI is the point at no further recovery or improvement is expected even with additional medical care. It does not mean you do not need additional medical care, just that your condition is not expected to improve with additional medical care.

The reason to wait to reach MMI is I believe your health is the most important factor to consider. Choosing to settle before reaching MMI is dangerous because it is not yet known how severe the injuries are and what treatment might be needed. Once you reach MMI, you often have a good idea of what future treatment you will require and how the injury will affect you in the future.

On the other hand, if you are unhappy with the medical treatment you are receiving from your workers' compensation doctors or your employer or its carrier is denying your medical treatment, it might serve you better to pursue a lump sum settlement that enables you to take better control of your medical needs.

Before considering settlement, you should consult with your treating physician(s) to determine: (1) what future medical treatment you will require; (2) the cost of the medical treatment you will require; and (3) whether you will be able to return to work; and if so, in what capacity.

In some cases, it might also be a good idea to undergo a functional capacity evaluation (FCE) to determine your level of functioning and what restrictions you might have. The FCE consists of various performance based tests which are used to determine your ability to perform certain occupational duties. An FCE can also assist in evaluating a case for settlement.

Before considering any settlement, I would highly recommend consulting with an experienced workers' compensation attorney who can evaluate your case and determine your rights under the law. There is no exact formula to calculating the value of a claim. However, the settlement value of a claim may be maximized by working with an attorney who is familiar with the evaluation of workers' compensation claims. I have had countless clients who were eager to accept a far lower payout than what they deserved, until I showed them how much they could be entitled to. Don't make the mistake of accepting less than you deserve – contact me for a free consultation.

How much is my case worth?

One of the most common questions asked during an initial consultation is how much is my case is worth. There is no easy answer to this question as the value of a case is dependent upon many factors, including: has the claim been accepted, are there any current disputes, the nature and extent of the injuries sustained, whether there are work restrictions and if they are temporary or permanent, the injured workers' job duties, the injured workers' rate of pay, the availability of modified work, the background and qualifications of the injured employee, as well as many other factors.

If you are considering settling your workers' compensation claim, don't go at it alone.  Contact me for a free and confidential consultation. I can assist you in evaluating your claim to determine how much your claim is worth in order to maximize your settlement. I can also discuss with you how a settlement will impact your ability to seek future medical treatment or return to work.

Do I need a workers' compensation attorney?

One of the most common questions I find workers' compensation claimants struggle with is whether they even need a workers' compensation attorney for their claim. Some people may say you don't need a lawyer if you have a workers' compensation claim, especially if you are already receiving benefits. Some people feel they don't need an attorney because they have been an employed for years and are a good and valued employee and their employer will certainly take care of them.

In a perfect world, you wouldn't need a lawyer if you are hurt on the job or suffer negative effects from long-term exposure to hazardous conditions. You would simply file a claim and receive your correct compensation benefits and be provided medical treatment.

However, the reality is the employer or insurance company are motivated to pay you as little as possible. Employer and workers' compensation insurance companies want to protect their bottom line and because of this, they may try to delay or deny your benefits in order to minimize the payout and increase their own profits. They may try to force you to return to work before you have been released by your doctor, thus putting your own health at risk of further injury.

Whether you ultimately need an attorney depends upon the facts of each case. In most cases, I feel it is a good idea to at least discuss your workers' compensation claim with an experienced workers' compensation attorney so he/she can evaluate your case to determine if you are receiving the benefits you are entitled to. After you consult with an attorney, you then will be in a better position to determine if you do need an attorney. Call me for a free and confidential consultation so I can review your case and determine if I can be of some assistance to you.