Much to the surprise of companies who do not regularly work in Louisiana, and even a few that do, you can inquire into a new employee’s medical background in Louisiana. But, as with everything else in the law, it is never as easy as it first sounds.
Second Injury Fund Provides Employers Reimbursements for Workers’ Compensation Benefits
Louisiana maintains a Second Injury Fund. This fund is set up to encourage the employment of disabled individuals. Very simply stated, if you knowingly employ an individual with a disability, and that employee is later involved in an accident which worsens that disability, you may be able to seek Second Injury Fund (SIF) reimbursement of the workers’ compensation payments made to, or on behalf of the employee. One of the things that you must show or establish when making a claim for SIF recovery is knowledge of the prior disability. Under Louisiana state law, and the American with Disabilities Act (ADA), you can inquire about an employee’s prior medical history only after you have extended the offer of employment. Seeking medical history information before offering to hire an individual could give rise to a discrimination claim under the ADA.
Medical History Questionnaire
Once you have extended the offer of employment, you can request that the employee complete a medical history questionnaire. The employee’s disclosure would provide proof of the knowledge element of an SIF claim. But, what if the employee fails to disclose the prior disability? Well, that failure to disclose could constitute fraud under LSA-R.S. 23:1208.1. This provision of the Workers’ Compensation Act establishes that if an employee fails to disclose a prior injury or disability in an SIF questionnaire after being properly warned of the consequences, the employee could lose his right to all future compensation benefits. While this penalty may be harsh, failure to disclose the disability may result in the employer losing its ability to seek recovery from the SIF because of a failure to establish the knowledge element.
The State of Louisiana does not generate an official medical history inquiry form. However, the above referenced statute requires that the form utilized by the employer contain a notice “…advising the employee that his failure to answer truthfully may result in his forfeiture of worker’s compensation benefits under R.S. 23:1208.1. Such notice shall be prominently displayed in bold faced block lettering of no less than ten point type.” Apart from containing the mandated warning, the form should also set forth numerous questions about prior injuries to ensure sufficient coverage of the knowledge requirement and increase the likelihood of SIF recovery. It should be signed by the employee and maintained in his employee file. If your company or business is in need of such a form, please contact us, and we will be happy to provide you with a form that meets the statutory requirements.
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.