As we enter 2014, the future of Louisiana looks bright.  With continued growth in many areas apart from the traditional oil and gas industry, Louisiana is starting to attract the attention of many companies looking to take advantage of the opportunities offered in a place we are proud to call home.

How Louisiana Workers’ Compensation Stands Out

Employers moving to Louisiana are often familiar with Federal laws and guidelines such as the Americans with Disabilities Act (ADA) or the Occupational Safety and Health Act (OSHA) that govern the way in which you deal with safety and disabled employees, but there are also state specific programs of which employers should be aware.  For instance, how does Louisiana’s Workers’ Compensation compare to other states?   Rather than perform a state-by-state comparison, this article addresses some of the more important differences:

• First, Louisiana requires coverage for all employees regardless of the size of the employer.  Louisiana also limits liability claims by an employee against his employer to intentional torts or situations in which the employer should have foreseen the injury.  The Louisiana Supreme Court has determined that wanton or gross negligence is not sufficient to escape the “exclusive remedy” of workers’ compensation.
• In terms of what constitutes an “accident,” an unwitnessed accident can be found compensable if sufficient facts are present.  Also, Louisiana does not recognize idiopathic injuries as do some other states.  When an accident occurs at work and within the course and scope of employment, it will generally be found compensable.  Louisiana has an intoxication defense, but as opposed to some Federal programs such as the Longshore and Harbor Workers Compensation Act, the intoxication need not be the sole and exclusive cause of the accident; however, employers must have written policies in place to assert the defense.  Your attorney can help you to develop these policies.
• For years, Louisiana did not have a set of developed medical guidelines.  The medical necessity of treatment was usually the outcome of a battle among the various doctors involved in the case.  This was frustrating for many employers who saw Louisiana’s system as one in which an injured employee received any treatment his doctor requested.  In July 2011, the Louisiana Medical Treatment Guidelines came into effect.  These Guidelines create a framework for how treatment is to be requested and provided; and although some issues are still being ironed out, changes seem to be quickly incorporated into the Guidelines.
• Additionally, Louisiana also allows the employee to select their own treating physician, and they are allowed to select any doctor.  There is no list of providers from which an employee must choose as with other states.
• Until recently, the improper calculation of an employee’s Average Weekly Wage and the subsequent underpayment of indemnity resulted in almost automatic penalties, much to the frustration of many carriers and employers.  In response, the Louisiana Legislature recently enacted a series of steps that a carrier can take that provide a safe harbor for the carrier and employer.  As the deadlines that a carrier must meet occur very quickly, you need to be aware that requests by your carrier for wage information to calculate the Average Weekly Wage must be responded to almost immediately to preserve the safe harbor.  This new safe harbor process serves to ensure correct payment of indemnity for the employee and serves to give the carrier a safe harbor for accidental errors, that until recently, almost assuredly came with a $2,000 penalty.
• Moreover, Louisiana follows many states in having a four-tier disability system – Temporary Total Disability (temporary inability to work), Permanent Partial Disability (scheduled loss), Supplemental Earnings Benefits (wage loss benefits), and Permanent and Total Disability (permanent inability to work).  Death benefits are also available.  There is no limit on the duration for Temporary Total Disability benefits.  There is a 520 week limitation for Supplemental Earnings Benefits.  Finally, as opposed to many states, Louisiana does not recognize whole body impairments for the award of Permanent Partial Disability benefits.
• One thing that sets Louisiana apart from many states is our fraud defense.  If you can prove that an employee intentionally misrepresented an element of his claim, he can be ordered to forfeit all of his workers’ compensation benefits.  For example, if your employee lies about his medical history in order to make it appear that all of his complaints are related to his accident, the employee could lose both medical and indemnity benefits.  Restitution can also be had in certain circumstances.  While being successful in a fraud defense can be difficult in all but the most egregious cases, it helps to bring an element of fairness to the system.  Recent changes now allow the employer to file suit to allege fraud.  This could allow you to fully investigate the fraud through discovery, whereas before, discovery could only take place after the employee filed suit.  Also, Louisiana’s Second Injury Fund allows an employee to inquire about an employee’s medical history after the offer of hire is made.  If that employee is not truthful, that could serve as a separate basis for fraud.  However, many forms of fraud require the use of certain forms and/or that notices be given prior to the accident.  Without these forms, you may not be able to assert the defense, or it will severely limit your chances of success.  Your attorney can help ensure that you have the proper forms and utilize them in the most effective fashion to protect your company.
• Finally, one of the most beneficial elements of Louisiana’s compensation system is the ability to fully and finally settle a claim.  Whereas many states prevent you from settling medical benefits or both medical and disability benefits, employers can fully and finally settle both the medical and disability portions of claims in Louisiana.  This allows employers to better control their Experience Modifier.

Of course, there are many more issues that employers in Louisiana need to be aware of.  While your carrier will help you handle your claims, your attorney can help you to develop programs and practices to minimize risk and liability, and make your decision to bring your business to Louisiana one that you will never regret.

Allen & Gooch is providing this legal update for informational purposes only. This article should not be construed as legal advice or a legal opinion as to any specific facts or circumstances. You should consult your own attorney concerning your particular situation and any specific legal questions you may have.