Workers' Compensation

For almost 100 years, through The Louisiana Workers’ Compensation Act (LWCA), the State of Louisiana has protected its employees who have become disabled as a result of their employment. The LWCA’s primary goals are to guarantee some means to care for themselves while they are recovering and not working, and to provide medical care to that employee for as long as necessary for him to recover.

 

The "Great Compromise"

 

For centuries, the basic concept governing cases where someone was injured by another may still be summarized as follows:

 

"Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it."

 

In layman’s terms: If, through your fault, you injure someone, you are liable to pay that injured person damages for his injuries.

 

The problem with workplace injuries - and this was recognized early-on - is that employees are often injured while working and his employer is not to blame.  An even worse scenario happens when an employee is injured on the job as a result of his fault alone.  A nagging question remained, however: Should an employer benefit from the labor of its employees and not be made to pay for the injuries those employees suffer at work, regardless of who might be to blame for those injuries?  Regardless of how many employees might be injured during any given workyear (excluding, of course, some explosion or fire or building collapse that injures most or all of the workforce), the employer will continue to reap the benefits of the labor of its employees.

 

Louisiana, like most other states with a compensation system, remedied this "problem" by removing the element of fault from the equation.

 

Employers sell goods and services using machinery that breaks down over time where no one is to blame.  Yet, the employer receives something of value out of that machinery and he passes along his cost to repair or replace it to the consumer by determining the price of those goods and services.

 

The same can be said for an employer’s employees.  The employer also receives something of value from his employees - their work - and over time, like machinery, employees are "damaged" or "break".  So it was only fair that the law provided a means of compensating employees whose work provided goods and services for their employers to sell.

 

But when fault was eliminated from the equation, the employer had a legitimate complaint: although his employees may be injured from time to time, they are nevertheless compensated for their work through payment, and it is not fair that they be made to pay "full damages" to an employee where either no one was at fault or the employee himself was at fault in causing his own injuries.

 

Thus, the "great compromise" was born.  In exchange for having to immediately begin paying compensation (in the form of disability and medical benefits) for work-related injuries, regardless of who might be at fault, employers were assured by statute that an injured employee was limited in what he might recover for such injuries.  In the workers’ compensation scheme, employers are not liable for damages traditionally afforded the typical personal injury claimant, such as physical & mental pain and suffering, past and future lost wages, loss of earning capacity, and loss of consortium.  Likewise, in foregoing those elements of damages normally available to him, the employee is assured of receiving some measure of subsistence and medical care during his recovery.

 

The elimination of fault as an issue in workers’ compensation cases only has relevance when an accident involves only employers and employees.  If an employee is injured at work by a person other than his employer (a "third person"), fault is an issue and the employee’s cause of action against that third person is the same as the traditional negligence suit along with all its usual categories of damages.

 

When is an Employee Entitled to Receive Workers’ Compensation Benefits?

 

Simply put, an employee is entitled to workers’ compensation benefits when he is disabled or requires medical treatment, or both.

 

But it is important to understand that in the realm of workers’ compensation, the concept of "disability" is not what most people commonly think.  A person may limp the rest of his life following a work-related injury to his leg, and people seeing him limp would likely conclude he is "disabled".  But in almost all instances, disability is not defined by how someone looks or feels or acts after an accident.  Disability, in the workers' compensation realm, is defined as the inability to earn at least 90% of one’s pre-injury wages.  Once the employee can again earn at least 90% of his pre-injury wages, he is no longer considered disabled.

 

In the preceding paragraph, I prefaced the definition of "disability" by the phrase "in almost all instances".  The one exception to the 90% earnings threshold just discussed, is the category of "permanent partial" disability.  Disability benefits for this category are owed for the loss of (such as amputation), or the loss of use of (such a paralysis), a legislatively defined list of body parts.  Even if an employee can return to work and earn 90% or more of his pre-injury average weekly wage, that employee will nevertheless be entitled to the lump sum spelled out in the LWCA for whatever body part he has suffered a partial or total loss.  For example, if an employee loses a thumb, he will receive 66 2/3 (sixty-six and two-thirds) % of wages during fifty weeks; if he loses an index finger, he will receive 66 2/3 (sixty-six and two-thirds) % of wages during thirty weeks; if he loses any other finger or a big toe, he will receive 66 2/3 (sixty-six and two-thirds) % of wages during twenty weeks; etc.

 

Injuries Caused by Accidents

 

The LWCA has a defined "accident" for workers’ compensation cases as: "[A]n unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration."

 

As first blush, the keen eye will see that the Legislature, in writing this definition, attempted to eliminate those instances where an employee is simply "worn down over time" by his work, as opposed to being crushed by a falling load of pipe or hit by the bucket of a backhoe.  The appellate courts, however, rejected this restrictive attempt and have interpreted "accident" as not only referring to the event or incident that causes injury to an employee - they have actually included the injury itself  as falling within the definition of "unexpected or unforeseen".  Of course, this makes little sense.  Unless you are intentionally trying to injure yourself, aren't all injuries unexpected or unforeseen?  Nevertheless, this "all encompassing" definition was a judicial reaction to a legislative attempt to limit compensable incidents at work.

 

So if one’s job requires the lifting of objects every day, on a regular basis, that person will be considered to have had an "accident" if he experiences a herniated disc while lifting.  The courts have deemed the herniation to be the "unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently".  By the courts’ reasoning, the herniation was unexpected or unforeseen, it is identifiable (by way of CT or MRI), and it happened "suddenly" because a herniation usually occurs immediately.

 

Thus, whether one is employer or employee, if a worker is injured on the job, that worker will likely be found to have had an "accident" and that accident will also likely be deemed compensable.  Fighting over whether an employee’s action at the time of his injury rise to the level of "accident" will probably be a waste time and money.

 

I was the attorney in a published case that dealt with this exact issue.  During the deposition of an employee's treating orthopedist, I was able to secure the testimony from that orthopedist in which he stated that the incident that led to the employee’s injury as one that was neither unexpected or unforeseen, and it had been clearly caused by a gradual deterioration and progressive degeneration.  In other words, I actually had the orthopedist on record testifying and using the exact wording from the "accident" definition statute.  We won at the trial court, but the court of appeal reversed. 

 

Occupational Diseases



The LWCA also provides compensation coverage for illnesses and diseases caused by employment the same as it does for injuries caused by employment.  It defines an occupational disease as "only that disease or illness that is due to causes and conditions characteristic of and peculiar to the particular trade, occupation, process, or employment in which the employee is exposed to such disease."  Carpal tunnel syndrome is specifically covered if diagnosed as caused by work.  But degenerative disc disease, spinal stenosis, arthritis of any type, mental illness, and heart-related or perivascular disease are specifically excluded from the classification of an occupational disease.

 

Despite the law's specific listing for inclusion and exclusion of named and defined illnesses and diseases, an employee should not automatically conclude that he is not entitled to benefits if his illness or disease is among the exclusion list.  Nor should an employer automatically conclude that it does not owe workers’ compensation benefits because its employee has an "excluded" disease or illness.

 

The determination of coverage for an occupational disease or illness is often a complicated one and the decision to proceed with a claim for benefits for such a disease or illness should be made after consulting an attorney and a physician.

 

The pitfall for the employee who believes his illness or disease is not covered and waits too long before filing suit could find himself barred by prescription (that is, the "statute of limitations").  The pitfall for the employer who believes the same thing and does not promptly pay is the possible liability for steep penalties and attorney’s fees.

 

What is an Employee Entitled to if he is Disabled?

 

The LWCA provides that whenever an employee, because of his work-related injury, illness, or disease, cannot earn at least 90% of what he was earning at the time he injured himself or contracted his illness/disease, the employer is obligated to pay to, or on behalf of, that employee:

 

  • Disability benefits calculated (generally) as 2/3 of the employee’s pre-injury average weekly wage, subject to a maximum and minimum determined by statute.  The maximum is calculated at 75% of the average weekly wage paid in all employment subject to the Louisiana Employment Security Law, and the minimum compensation for total disability is calculated at 20% of the average weekly wage paid in all employment under that law.

 

  • All necessary drugs, supplies, hospital care and services, medical and surgical treatment, and any non-medical treatment recognized by the laws of this state as legal.

 

  • The necessary cost of repair to, or the replacement of, any prosthetic device damaged or destroyed by the accident, including but not limited to, damage or destruction of eyeglasses, artificial limbs, hearing aids, and dentures.

 

  • The actual expenses reasonably and necessarily incurred by the employee for mileage traveled by the employee in order to obtain the medical and vocational services, medicines, and prosthetic devices that the employer is required to furnish.

 

  • Vocational rehabilitation services provided by a licensed professional vocational rehabilitation counselor, with the goal to return a disabled worker to work, with a minimum of retraining, as soon as possible after an injury occurs.

 

  • In every case of death, the employer shall pay or cause to be paid, in addition to any other compensation benefits, reasonable expenses of the burial of the employee, not to exceed seven thousand five hundred dollars.

 

The above list is not exclusive, and other benefits may be owed.  But those unlisted are minimal when contrasted with the ones I listed above. 

 

What About an Employee Who is only Partially Disabled?



As explained above, disability is defined as the inability to earn a certain level of wages, and the threshold for workers’ compensation liability is 90% of an employee’s pre-injury average weekly wage.  If an employee cannot earn any amount of wages post-accident, he is considered totally disabled (whether "temporarily" or "permanently" disabled is a different question).

 

But what happens if an employee is able to return to work, earns some level of wages, yet still falls short of the 90% threshold?  In that case, the employee would be entitled to receive what is called "supplemental earnings benefits" (SEB) and would be considered "partially disabled".

 

The calculation of the amount of SEB owed for partial disability is more complicated than the "straight" calculation for total disability.  The amount of SEB owed to an employee who has returned to work, but has yet to earn 90% of his pre-injury average weekly wage, is determined by subtracting the amount he is currently earning (post-accident) per month from the amount he was earning pre-accident per month, and then multiplying that difference by 2/3.

 

For example, suppose an employee had a pre-injury average monthly wage of $1000, but has a post-injury average monthly wage of $750.  As his post-injury wages falls below the 90% threshold (which would be $900 in this example), he would be entitled to SEB in the amount of $166.75 ($1000 minus $750 = $250 x 2/3 = $166.75).

 

Because of the formula used to calculate SEB, an "anamoly" occurs.  Remember that the cutoff for an employer owing a disabled employee disability benefits is 90% of his pre-injury average weekly or monthly wage.  If that employee is able to earn post-injury 90% of pre-injury wages, that employee is not entitled to workers' compensation disability benefits.  But consider what might be characterized as unfair: Employee A and Employee B both earned $1000 per month before their work-related injuries.  After treatment, they both return to work, but Employee A earns exactly $900 and Employee B earns $800.  In that case, Employee A would not be entitled to SEB, but Employee B would.  At first glance, nothing seems amiss.  But when one calculates the amount of SEB the employer must pay to Employee B, one sees what one can legitimately argue is inherently unfair.  Employee B's SEB would be $1000 minus $800 = $200 x 2/3 = $133.40.  Thus, as a result of Employee B earning $800, which is $100 less than Employee A's $900, Employee B will actually collect more than Employee A when one combines Employee B's $800 monthly wage with his SEB payment of $133.40.  Although the difference is not much ($33.40), this example demonstrates how an injured employee can actually collect more (through wages and disability benefits combined) than an injured employee who is back at work but whose earnings are at or above the 90% threshold for determining whether disability benefits are owed.

 

Medical Benefits



The LWCA requires an employer to furnish an injured or ill employee all necessary drugs, supplies, hospital care and services, medical and surgical treatment, and any non-medical treatment recognized by the laws of this state as legal.

 

The Act also requires the employer to furnish to the employee the necessary cost of repair to or the replacement of any prosthetic device damaged or destroyed by accident in the course and scope and arising out of such employment, including but not limited to damage or destruction of eyeglasses, artificial limbs, hearing aids, dentures, or any such prosthetic devices.

 

Finally, the Act requires the employer to pay to the employee all of his actual expenses reasonably and necessarily incurred for mileage reasonably and necessarily traveled by the employee in order to obtain the medical services, medicines, and prosthetic devices, whether that travel was incurred to see the employee’s health care providers or the employer’s.  When the employee uses his own vehicle, he shall be reimbursed at the same rate per mile as established by the state of Louisiana for reimbursement of state employees for use of their personal vehicle on state business.

 

Vocational Rehabilitation Services



When the LWCA speaks of "rehabilitation services", it is not limited to "physical therapy".  It also applies to preparing the injured employee to return to the workforce.

 

Thus, when an injured employee cannot earn wages equal to his pre-injury wages, that employee is entitled to prompt rehabilitation services.  Such services must 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 established by the State of Louisiana.

 

The LWCA states the goal of vocational rehabilitation as an attempt "to return a disabled worker to work, with a minimum of retraining, as soon as possible after an injury occurs."  The Act then goes on to prioritize the objective of the rehabilitation in descending order:

 

(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.

 

To make the transition much less cumbersome on the employee, the employer, whenever possible, must consider employment in the employee’s local job pool prior to considering employment in the employee’s statewide job pool.

 

Emergencies and Non-Emergencies

 

I felt it was important to briefly discuss how the LWCA deals with emergency and non-emergency medical care.  Some employees may work for employers who do not offer health care insurance, and without such insurance, an injured employee may feel constrained in deciding whether to seek treatment for a work-related injury if he does so after-hours and cannot contact his employer to obtain approval.  The LWCA has set forth the following guidelines to deal with such situations (as with all guidelines, a few exceptions apply - but those are not the norm and are therefore not discussed):

 

  • Each health care provider may not incur more than a total of $750 in nonemergency diagnostic testing or treatment without the mutual consent of the payor and the employee.  That portion portion of the fees for nonemergency services of each health care provider in excess of $750 shall not be an enforceable obligation against the employee or the employer or the employer's workers' compensation insurer unless the employee and the payor have agreed upon the diagnostic testing or treatment by the health care provider.

 

  • In no event shall prior consent be required for any emergency procedure or treatment deemed immediately necessary by the treating health care provider.  Any health care provider who authorizes or orders emergency diagnostic testing or treatment, when said diagnostic testing or treatment is held not to have been of an emergency nature, shall be responsible for all of the charges incurred in such diagnostic testing or treatment.  That health care provider shall bear the burden of proving the emergency nature of the diagnostic testing or treatment.  And fees for those services of the health care provider held not to have been of an emergency nature shall not be an enforceable obligation against the employee or the employer or the employer's workers' compensation insurer unless the employee and the payor have agreed upon the treatment or diagnostic testing by the health care provider.

 

  • If the payor has not consented to the request to incur more than a total of $750 for any and all nonemergency diagnostic testing or treatment when such consent was required, and it is determined by a court having jurisdiction in an action brought either by the employee or the health care provider that the withholding of such consent was arbitrary and capricious, or without probable cause, the employer or the insurer shall be liable to the employee or health care provider bringing the action for reasonable attorney fees related to this dispute, and to the employee for any medical expenses so incurred by him for an aggravation of the employee's condition resulting from the withholding of such health care provider services.

 

An employer has one "out" when it comes to emergency medical treatment: In the event that the payor has denied that the employee's injury is compensable, then no approval from the payor is required prior to the provision of any diagnostic testing or treatment for that injury.  But this provision is, in effect, a double-edged sword: If the employer denies the injury is compensable as non work-related and it is found not to be compensable, then the employer was never liable for workers' compensation benefits in any event - emergency or not.  If, however, the employer denies liability for a compensable injury and emergency medical care is rendered, that employer will not only have to pay the full amount of medical bills incurred, he will also be held liable for penalties and attorney's fees.

 

Summary



As the reader can see, an employee who is injured or who becomes ill on the job is afforded a great deal of protection by the LWCA.  It is not simply a matter of going to a doctor after the accident and being paid a small amount until one is recovered.  Time periods for payments and authorizations are crucial, and an employee and an employer must both know their respective responsibilities following a workplace accident or illness.

 

The above-description is a guideline.  It is not a substitute for either an employee or an employer trying to handle a workers’ compensation case without consulting an attorney who is knowledgeable in this area.  Issues will arise such as who is considered the treating physician, does an employer have a right to have an employee examined by its choice of physician, or who is responsible for the medical expenses incurred if an employee goes to an ER the night after an accident earlier that day because he can no longer tolerate the pain, and runs up a large bill because of tests such as a CT scan and an MRI, etc.

 

Both should consult an attorney as soon after an accident or a complaint of illness as possible.