Many Louisiana work injuries are covered by workers compensation insurance under the Louisiana Workers Compensation Act. In these cases, regardless of fault, the employer is responsible for limited payment of weekly benefits during the time the employee is medically unable to return to her position. The employer is also responsible for payment of related medical bills, mileage and, if necessary, certain vocational rehabilitation benefits.
Just about every week, I speak with injured workers who are surprised when they discover how limited their benefits are under the Louisiana Workers Compensation system. Even a physician making $350,000 a year, who is not capable of returning to her former employment due to a work related injury sustained on this date in 2010, will receive a maximum payment of $577 per week under the Louisiana Workers Compensation Act. Some injured employees who earn less, may recive as little as $154 per week.
However, there are some instances where the Louisiana Workers Compensation Act does not apply and the injured employee may be able to recover in tort under his employer’s Employers Liability Insurance policy or other policy. In these cases, the employee must prove employer fault and damages to recover pain and suffering, lost wages and similar damages. Employers Liability Insurance, other liability insurance and/or the employer may be responsible for tort liability and damages in the following situations:
- An injured worker is excluded from workers’ compensation coverage as an independent contractor. See, LA-R.S. 23:1021(7) and LA-R.S. 23:1061.
- An employee of less than twelve months sustains an occupational disease and fails to prove causation of the occupational disease under the Louisiana Workers Compensation Act by an “overwhelming preponderance of the evidence” . See LA-R.S. 23:1031.1D.
- An employee who under the Louisiana Workers Compensation Act is unable to prove the compensability of heart-related or perivascular injuries caused by or aggravated by emotional stress at work; See, Thomas v. Conco Food Distributors, 702 So.2d 944, 97-426 (La. App. 3 Cir. 10/22/97).
- An employee is the victim of an work related Intentional Act (i.e. the employer consciously desires the physical results of his act, whatever the likelihood of that result happening from his conduct or, knows that the result is substantially certain to follow from his conduct, what ever his desire may be as to that result). See LA-R.S. 23:1032.
- An employee is injured as a result of engaging in horseplay at work and is therefore denied benefits under the Louisiana Workers Compensation Act. See, LA-R.S. 23:1031 D.
- An employee is injured at work as a result of a personal dispute with either an employee or third party and is therefore denied workers compensation benefits under the Louisiana Workers Compensation Act; See, Holiday v. State, 747 So.2d 755, 98-2196 (La.App. 1 Cir. 12/28/99); LA-R.S. 23:1031E.
- An employee sustains work related hearing loss that is not caused by a sudden event; See, LA-R.S. 23:1221(4)p.
- A clerical employee sustains injuries relating to exposure to mold in the workplace since the exposure is not an accident, not an occupational disease, and not peculiar to or characteristic of clerical employment. See, Watters v. Department of Social Services, 2008-0977 (La.App. 4 Cir. 6/17/09) .
- A domestic worker such as a maid, housekeeper, sitter, nanny, chauffeur, care giver, nurse or cook who works for a private residential householder and sustains an injury relating to that residence. See, LA-R.S. 23:1035(B)(1) .
- Work injuries involve an employer who through a deliberate pattern of behavior avoids responsibility towards its employee and the public at large. For example, the employer pays only in cash, pays less than minimum wage, does not pay overtime owed and has the employee conduct his work in such a way as to put all liability for work related auto accidents on the employee so as to shield the employer from liability; yet, when the employee is injured or killed in a job accident, the employer claims that the worker is really its employee to attempt to use the workers compensation system to shield the employer from tort liability. See, Prejean v. The Original Kevin Guidry Produce Market, 2007-0138 (La. App. 3 Cir. 11/21/07) .
- The employer fails to secure workers compensation insurance or qualify as a self insured and fails to pay a final judgment awarding the employee workers compensation benefits; See, LA-R.S. 23:1032.1
Of course, there are other situations where the injured employee’s classification determines the applicable legal remedy and insurance policy. Classification is necessary under the Jones Act (applies to seaman), Longshore and Harbor Workers’ Compensation Act (applies to employees who loads and unloads boats, build boats etc; employee must meet both the Situs and Status test of the LHWCA), Defense Base Act (DBA applies to US Government Contractors who perform work overseas) and Federal Employers Liability Act (FELA applies to Railroad workers). An injured employee should speak with his job injury attorney to determine employee classification.