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Workers’ Compensation Legislative Update: COVID-19 & Legislative Session Recap

Governor John Bel Edwards issued multiple orders over the past several months due to COVID-19, that affected workers’ compensation in Louisiana. All legal deadlines were suspended from March 17, 2020 until June 15, 2020, and liberative and peremptive prescription delays were suspended from March 17, 2020 until July 5, 2020. All legal delays, including prescription, are now back in effect.
Similarly, the Governor issued proclamations that continued the suspension of the following provisions related to workers’ compensation until July 24, 2020:

  • Employer’s right to suspend benefits for an employee’s failure to attend an Independent Medical Examination or Second Medical Opinion; and
  • Employer’s right to request a hearing for the suspension or termination of compensation benefits due to an employee’s failure to attend the Independent Medical Examination or Second Medical Opinion.

Employers may now resume exercising the provision below, as it was in effect from March 17, 2020 until June 26, 2020.

  • Employer’s right to seek an Independent Medical Examination from the state (all previously scheduled examinations were nullified and required to be rescheduled);

Legislative Session

 The 2020 Louisiana Regular Legislative Session convened on Monday, March 9, 2020 and formally adjourned on Monday, June 1, 2020. The 2020 First Extraordinary Session convened on Monday, June 1, 2020 and formally adjourned on Tuesday, June 20, 2020. The bills listed below illustrate changes in the law related to workers’ compensation.
Act 336
House Bill 826 was signed into law by the Governor on June 13, 2020 as Act 336 of the regular session. This law enacts R.S. 9:2800.25 which provides that no person, state or local government, or political subdivision, will be held liable for any civil damages for injury or death resulting from exposure to COVID-19 through the performance of their business operations. However, an exception applies if they fail to substantially comply with procedures established by federal, state, or local agencies that govern the business operations, and if the injury or death was caused by their gross negligence or reckless misconduct. In this case, the exception would apply and they would be held liable for damages sustained.
Further, no person, government agency, or business shall be liable for civil damages for injury or death resulting from COVID-19 exposure due to the performance of planning/hosting an event, convention, meeting, corporate event, sporting event, exhibition, etc. This provision contains the same exception as the above section.
This law goes on to provide that no employee shall have a remedy against their employer for contraction of COVID-19, unless the exposure was caused by an intentional act. This law became effective June 13, 2020.
Act 364
Senate Bill 517 was signed into law by the Governor on June 12, 2020 as Act 364 of the regular session. This law amends R.S. 23:1233 which provides for the weekly death benefits of the surviving spouse of a law enforcement officer. The current law allows weekly payments to be made to the surviving spouse until the death or remarriage of the surviving spouse. This Act amends the law to allow the surviving spouse of an officer killed in the line of duty, to receive weekly payments until the death of the surviving spouse. This law will become effective August 1, 2020.
Act 37
House Bill 57 was signed into law by the Governor on July 13, 2020 as Act 37 of the extraordinary session. This law is known as the “Civil Justice Reform Act of 2020.” This law amended Code of Civil Procedure Article 1732, lowering the amount of damages necessary for a jury trial to $10,000.00. This is a substantial change from the existing law that requires $50,000.00 for a jury trial. This law also amended Code of Civil Procedure Article 1733 to add a provision which requires a cash deposit of $5,000.00 no later than 60 days after filing a jury trial request, when the amount of damages exceeds $10,000.00, but is less than $50.000.00. Failure to provide the deposit will waive your request for a jury trial.
Further, the law amended Code of Evidence Article 411 to provide that the existence of insurance coverage cannot be communicated to the jury unless one of the following apply:

  1. A factual dispute related to an issue of coverage is an issue which the jury will decide;
  2. The existence of insurance coverage would be admissible to attack the credibility of a witness pursuant to Article 607; or
  3. The cause of action is brought against the insurer pursuant to R.S. 19 22:1973 or against the insurer alone pursuant to R.S. 22:1269(B)(1)(a) through (f).

This article was further amended providing that the identity of an insurer cannot be communicated to the jury, unless the insurer’s identity would be admissible to attack the credibility of a witness pursuant to Article 607. Further, the court must read jury instructions informing the jurors of insurance coverage at the opening and closing of the trial, in all cases brought against an insurer pursuant to R.S. 22:1269 or 1973.
This law also enacted R.S. 9:2800.27 which provides that when an employee’s medical bills are paid by a health insurance issuer, Medicare, or Medicaid, they can only recover the medical expenses actually paid to the medical provider, and any applicable cost sharing amounts paid or owed by the employee, and not the amount billed.
Further, when an employee’s medical expenses are paid pursuant to the Louisiana Workers’ Compensation Law as provided in R.S. 23:1020.1 et seq., an employee’s recovery of medical expenses is limited to the amount paid under the medical payment fee schedule of the Louisiana Workers’ Compensation Law.
Additionally, in a jury trial, only after a jury verdict is rendered, may the court receive evidence related to the limitations of recoverable past medical expenses. The jury shall be informed only of the amount billed by a medical provider for medical treatment. Whether any person, health insurance issuer, or Medicare has paid or has agreed to pay, any of an employee’s medical expenses, shall not be disclosed to the jury. In trial to the court alone, the court may consider such evidence. These provisions do not apply in cases brought pursuant to R.S. 40:1231.1et seq., R.S. 40:1237.1 et seq., or R.S. 13:5101 et seq. This law will become effective January 1, 2021.
There were also several bills that would have impacted the field of workers’ compensation, but either did not pass through both legislative houses or were vetoed by the Governor. A list of those bills are as follows:
Senate Bill 418
Senate Bill 418 was passed by both houses and sent to the Governor for signature on June 2, 2020. The Governor vetoed the bill on June 14, 2020. The bill was known as the “Omnibus Premium Reduction Act of 2020.” This bill proposed the following changes:

  1. To change the prescription deadline to file a lawsuit for a motor vehicle accident from one year to two years;
  2. To change the amount of damages necessary for a jury trial to $35,000.00;
  3. To limit the medical expenses recovered to the actual payments made, rather than what a health care provider charges;
  4. To require lawsuits be filed against the other driver, rather than the insurance company; and
  5. To allow judges and juries to know if the insured plaintiff was not wearing a seatbelt, which would also allow for a reduction in their awarded damages.

*House Bill 57 that was signed into law by the Governor, accomplished points 2 and 3 of this proposed bill, with limited variation.
Senate Bill 475
Senate Bill No. 475 failed to pass through the Senate committee in which it was assigned. This bill proposed to enact La. R.S. 23:1031.2 which aimed to provide workers’ compensation benefits to essential workers who are disabled because of the contraction of COVID-19. The statute provided a prescriptive period of one year from the date the disease manifested itself or the essential worker became disabled from working as a result of the disease. If the essential employee died as a result of COVID-19, then prescription would have occurred one year from the date the employee had reasonable grounds to believe the death was caused by COVID-19.

The statute further required notice of these time requirements be posted by the employer in a convenient and conspicuous point. Absent such notice, the prescriptive period would have been extended by six months. This statute defined an essential worker as those persons working in public safety, government, disaster response, health care or private business as designated and deemed necessary, or critical for response to the COVID-19 pandemic, by their employer.
House Bill 793
House Bill 793 failed to pass through the House committee in which it was assigned. Louisiana Revised Statute 23:1204 currently provides that the payment of medical and/or indemnity benefits by an employer or the employer’s workers’ compensation insurer does not constitute an admission of liability on behalf of the payor. This bill sought to amend the statute to provide that despite the provisions of the present law, there is a rebuttable presumption of compensability to attach ninety [90] days following a work-related accident. If passed, a claim would be presumed compensable unless and until the payor can provide competent evidence to refute it. 

Note from Michael Parker: This was a very dangerous proposal as there are many times when the employer is not made aware of an accident until after this ninety-day presumption period. Yet, under this bill the employer would have been required to pay the claim or risk being cast with penalties and attorney fees.
House Bill 217
House Bill 217 failed to pass through the House after making it through the committee in which it was assigned. This bill proposed to amend R.S. 23:1121(B)(1) to provide that when the compensability of a claim, specific body part or condition has been denied, neither the employer nor insurer is obligated to authorize or pay for an initial evaluation in regard to the employee’s choice of physician, until the trial court considers and rules on the issue of compensability.
House Bill 218
House Bill 218 passed through the House, but failed to pass through the Senate committee in which it was assigned. This bill proposed to amend R.S. 23:1317.1(A) to provide that the request seeking an Independent Medical Examination, must be made at or before the scheduling conference. After the timely request was made, the judge would have only been able to cancel the request if the objecting party proved by clear and convincing evidence, that the criteria for a medical exam pursuant to R.S. 23:1123 had not been met. Untimely requests would also have been denied unless good cause was shown or found to be in the best interest of justice.
House Bill 597
House Bill 597 was passed by both houses and sent to the Governor for signature on June 3, 2020. The Governor vetoed the bill on June 12, 2020. This bill proposed to enact Civil Code Article 2315.11, which would have provided in personal injury claims, not raised pursuant to Louisiana Workers’ Compensation Law, the lack of prior history of an illness, injury or condition would not create a presumption that the illness, injury or condition was caused by the act that was subject of the claim.

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.