FAQs About Workers’ CompensationGet Help Now
Neblett, Beard & Arsenault knows you have questions about filing or appealing a workers’ compensation claim. Our website provides answers to your most critical questions about how to receive financial support.
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What is a workers' compensation lien?
Louisiana's workers' compensation law protects most full-time, part-time, temporary, and seasonal workers beginning on their first day of employment. However, if you are eligible to file both a personal injury claim and workers' compensation claim for your work-related injury, there may be a lien on a portion of the personal injury settlement you receive.
About Workers' Compensation Lien s
Typically, you are not allowed to file a personal injury claim and a workers' compensation claim for the same injury. However, if the personal injury claim is against a third party involved in your accident, you may be able to take both types of action.
Some examples of cases where a workers' compensation lien may be involved include:
- You are injured in a work-related car accident that is the fault of a third party driver.
- You are a delivery person or contractor who is bit by a dog while working on a private party's property.
- You are visiting a client and sustain injuries in a slip and fall accident caused by a building code violation or an improperly cleaned spill on the floor.
Since you're not allowed to profit from seeking workers' compensation benefits, the workers’ compensation insurer may place a lien on a portion of your personal injury settlement, so the company can be reimbursed for expenses previously paid on your behalf. For example, if you break your arm and require surgery that the workers' compensation insurer paid for, the company may require reimbursement for this expense from any personal injury settlement you eventually receive. This prevents what is referred to as a double recovery.
The legal process of allowing an insurance company to make a claim against a third party to recover benefits it paid to the insured party is known as subrogation.
Compensation for Pain and Suffering
The primary benefit of pursuing both types of legal claims is that a personal injury claim can include compensation for your pain and suffering damages—including both physical pain and emotional trauma. Workers' compensation only pays for medical expenses and lost wages.
A workers' compensation lien will not affect any pain and suffering compensation you are eligible to receive. Since pain and suffering is most often calculated using a multiplier method that increases with the severity of your injuries, this can be a significant portion of the settlement if you've been left with some form of permanent disability.
Sharing Legal Fees and Negotiating Lien Amounts
If there is a workers' compensation lien on a portion of the pending personal injury settlement, the insurance company will be required to share in a portion of your legal expenses. A personal injury attorney typically works on a contingency fee basis, requiring a percentage of the final settlement as the fee for service. To take this into consideration, the insurer will often ask for two-thirds of the value of their payment to account for your legal fees.
In some cases, a worker's compensation lien may be high enough that your third-party personal injury claim would result in little benefit to you even after legal fees are taken into consideration. To avoid providing a disincentive to litigate, insurers will sometimes negotiate the amount of the lien to require less than the full value they'd otherwise be entitled to receive.
How a Lien Affects Your Ability to Settle a Personal Injury Claim
When there is a workers' compensation lien on your pending personal injury claim, Louisiana law does not allow you to accept a settlement without the insurer's approval. If you do so, you may be forfeiting rights to future benefits.
How Neblett, Beard & Arsenault Can Help
Although you are entitled to workers' compensation benefits even if you choose to forgo legal representation, hiring an experienced workers' compensation attorney is the best way to protect your right to fair compensation. Louisiana workers' compensation law is quite complex, especially when your case involves a lien against a future personal injury settlement.
The dedicated legal team at Neblett, Beard & Arsenault provides injured Louisiana workers with effective and aggressive representation—advocating for your interests throughout the process of settling your claim. Our firm is also equipped to handle any personal injury action you may wish to pursue. Contact us online or call our office directly at 318.588.6303 to schedule a free, no-obligation initial case review.
What happens if a dog bites me while I am working on someone else’s property?
It's estimated that 4.7 million Americans suffer dog bite injuries each year. The majority of these victims are young children, but people who frequently travel to private residences while doing business are also vulnerable to dog bite attacks.
If you've suffered dog bite injuries, it's important to understand your legal options and compensation for accident-related expenses.
Dog Bite Dangers
A number of Louisiana workers are vulnerable to dog bite injuries including:
- Postal workers and delivery people
- Door-to-door salespeople
- Home healthcare workers
- Electricians, plumbers, carpenters, and others who do home repair
Dog bites can cause severe bleeding and pain, as well as nerve damage, scarring, and infection. The risk of complications is higher if you have diabetes, liver disease, or any medical condition that suppresses the immune system.
Dog bite attacks can also result in secondary injuries such as a concussion if you fall and hit your head or a broken ankle if you trip while trying to escape the animal.
Filing for Workers' Compensation
If you suffer a dog bite while performing duties for your employer, this injury should be covered by workers' compensation. Louisiana's workers' compensation system covers most full-time, part-time, temporary, and seasonal workers from the first day of employment. Since workers' compensation is a no-fault system, you can still receive benefits even if you somehow provoked the animal.
Medical benefits pay the cost of reasonable and necessary medical care related to your dog bite injury such as immediate emergency care, diagnostic tests, surgeries, follow-up visits, and prescriptions. Indemnity benefits pay a portion of your lost wages for the time you are unable to work due to the dog bite injury.
To protect your right to compensation, it's important to report the dog bite injury to your supervisor as soon as possible. Although superficial bites can be cleaned and covered with an antibiotic ointment at home, there is still the possibility of infection and complications in the healing process. If you don't report the injury within 30 days, you can lose your right to benefits.
Potential Civil Claims
When you enter someone's property to perform work, the property owner is legally responsible for taking precautions to prevent you from becoming injured. If the property owner acted negligently in failing to restrain or otherwise secure the dog that bit you, you may also have a civil claim for your accident-related expenses.
A civil personal injury claim can include compensation for:
- Medical expenses, including anticipated future medical costs due to disability caused by your injuries
- Lost wages, including anticipated loss of future earning potential due to disability caused by your injuries
- Pain and suffering, including both physical pain and mental trauma
If you have the option of filing both types of claims, you should take this approach to maximize your compensation. Workers' compensation does not include payment for pain and suffering, so filing both types of claims will be financially beneficial. However, when you do receive a personal injury settlement, the workers' compensation insurer will have a lien on a portion of the funds. You are not allowed to receive benefits from a personal injury claim that duplicate the medical care and wage benefits already paid by your workers' compensation insurer.
There is a one-year statute of limitations for filing personal injury claims in the state of Louisiana. However, since valuable evidence can be lost as time passes, it's best to start the process as soon as you are able.
Protecting Your Right to Compensation
A dog bite attack can create a significant financial burden, especially if you're left with permanent disfigurement or nerve damage. Since you may be eligible for both workers' compensation benefits and a personal injury settlement, it's important to protect your rights by retaining an attorney who can advocate for your interests.
The dedicated legal team at Neblett, Beard & Arsenault provides injured Louisiana workers with effective and aggressive representation. Contact us online or call our office directly at 318.541.8188 to schedule a free, no-obligation initial consultation to discuss your legal options.
What is considered a catastrophic injury in a Louisiana workers' compensation claim?
Although most people will eventually recover from their work-related injuries, some types of accidents can result in permanently disabling conditions. These injuries may be considered catastrophic under Louisiana law.
About Catastrophic Injuries and Workers' Compensation
Most Louisiana workers, including full-time, part-time, temporary, and seasonal workers, are covered by workers' compensation on their first day of employment. Claims must be paid for on-the-job injuries, even if the employee's inexperience or actions caused the accident. However, injuries resulting from intoxication or a deliberate attempt at self-harm are not eligible for benefits.
Catastrophic injuries are those which will result in significant medical costs and dramatically alter an injured worker's quality of life. Only the following types of injuries are considered catastrophic under Louisiana law:
- Paraplegia, which is a type of paralysis affecting bodily function from the waist down
- Quadriplegia, which is a type of paralysis resulting in the partial or total loss of use of all four limbs and the torso
- Amputation of hands or arms
- Amputation of feet or legs
- Physical loss of both eyes
Although other conditions may result in high medical expenses, reduced earning potential, and changes in quality of life, only paralysis and physical loss of a body part are considered catastrophic injury. Functional loss or loss of use of the hands, arms, feet, or legs does not constitute anatomical loss.
Benefits for Catastrophic Injuries
If your injury is considered a catastrophic injury, you are eligible for a one-time award of $50,000. This is in addition to other workers' compensation benefits such as:
Workers’ compensation must pay for reasonable and necessary medical treatment related to your work injury. This includes hospital bills, doctor visits, prescription medications, and any applicable prosthetic devices.
You are entitled to be reimbursed for mileage for travel to and from doctor appointments.
Temporary Total Disability
TTD benefits replace two-thirds of your average weekly wage, up to a state approved maximum, until you've reached maximum medical improvement (MMI).
Permanent Total Disability
PTD benefits also replace two-thirds of your average weekly wages, subject to the same maximum as TTD benefits. These benefits can be paid for as long as the disability continues. You are considered totally disabled only if you cannot earn any wages in the same job or another job.
Permanent Partial Disability
PPD benefits replace two-thirds of your average weekly wages, subject to the state maximum, for a length of time that depends on the part of the body injured. For example, someone with 100% loss of use of an arm can receive benefits for up to 200 weeks.
If you are unable to return to your normal job due to your disability but still have the ability to perform some type of labor, you can receive applicable placement services to help find suitable employment.
In some cases, your employer may offer you a lump sum settlement in exchange for a release of further obligations. While receiving a large settlement upfront may seem appealing at first, it is important not to accept the offer until you've determined that it adequately compensates you for your injuries. If you accept a lump sum settlement, you could be in financial peril if you later discover your expenses are higher than you anticipated.
Protecting Your Legal Rights
A catastrophic injury can dramatically alter the course of your life. Hiring a workers' compensation attorney to handle your claim is the best way to ensure that you receive the full benefits you deserve after suffering a serious work-related injury.
An attorney can advocate for your right to full benefits and handle any claim denials that you may encounter. When your workers’ compensation claim is denied, or any portion of the claim is disputed, you have the legal right to a hearing before a workers’ compensation judge. If the judge does not rule in your favor, your attorney can file an appeal with the Circuit Court of Appeals.
The award-winning legal team at Neblett, Beard & Arsenault is dedicated to providing injured Louisiana workers effective and aggressive representation for their workers' compensation claims. Contact us online or call our office directly at 318.541.8188 to schedule a free, no-obligation initial consultation.
What are indemnity benefits in a workers' compensation claim?
When you suffer an on-the-job injury, you may encounter a number of unfamiliar terms as you seek workers' compensation benefits. For example, a portion of the benefits you receive will be referred to as indemnity benefits.
About Indemnity Benefits
Indemnity benefits are benefits that are intended to pay a portion of your lost wages because you are unable to work due to an on-the-job injury. Although these benefits aren't intended to cover the full value of your losses, they provide a crucial economic safety net when you've suffered an on-the-job injury.
Types Of Indemnity Benefits Offered By Louisiana
Temporary Total Disability
You become eligible to receive TTD benefits after you have missed seven days of work due to your on-the-job injury. TTD benefits replace two-thirds of your average weekly wage, up to a state approved maximum, until you've reached maximum medical improvement (MMI). The maximum benefit amount changes each year. For the period of September 1, 2017 through August 31, 2018, the maximum benefit was $653. Injured workers earning more than $870 a week will only receive the maximum state-allowed benefit.
Supplemental Earnings Benefits
SEB benefits help make up the difference in wages if you are able to work but are earning less than you did before you were injured. These benefits are paid at a rate of two-thirds the difference between what your wage was before the accident and what you are currently earning. SEB benefits can be paid for a maximum of 520 weeks.
Permanent Total Disability
When your medical treatment is complete, you will be evaluated for PTD benefits. To qualify as totally disabled, your injuries must be so severe that you cannot earn any wages in the same job or another job. PTD benefits also replace two-thirds of your average weekly wages, subject to the same maximum as TTD benefits.
Permanent Partial Disability
PPD benefits replace two-thirds of your average weekly wages, subject to the state maximum, for a length of time that depends on the part of the body injured. For example, someone with a permanent loss of hearing due to a work accident can receive benefits for up to 100 weeks.
Sometimes, in the case of severe injuries, an employer will offer a lump sum settlement in exchange for a release of further obligations. Accepting this type of offer should done with extreme caution. If you accept a settlement that does not adequately compensate you for your injuries, you could face a significant future financial burden.
Other Types of Benefits
Although wage replacement benefits are what most people first think of when discussing workers' compensation benefits, medical benefits are also provided. The insurer must pay the cost of reasonable and necessary medical care related to your condition until you've reached maximum medical improvement (MMI). This includes immediate emergency care as well as diagnostic tests, surgeries, follow-up visits, and prescriptions.
When receiving medical care, you should keep a careful log of your travels to and from doctor appointments. The insurer is required to reimburse mileage expenses.
Vocational rehabilitation benefits are a type of service offered to workers who are unable to return to their previous job but are still able to work in another area. If you qualify for vocational rehabilitation, you'll receive appropriate placement services and assistance finding suitable employment.
The Relationship Between Workers' Compensation and Unemployment Benefits
Like the indemnity benefits that are part of workers' compensation, unemployment benefits replace lost wages when you are not working. However, it is generally not possible to collect both types of benefits because you must be physically able to work and actively looking for work to be eligible for unemployment benefits. The only way you may be eligible for both types of assistance is if you are receiving PPD benefits and hunting for a position that would be better suited for your disability-related limitations.
Protecting Your Legal Rights
On-the-job injuries can result in significant financial burdens, which is why it's important to have someone available to advocate for your rights. The insurer is focused on making a profit, not on helping make sure your expenses are paid until you are able to return to work.
The dedicated legal team at Neblett, Beard & Arsenault provides injured Louisiana workers with effective and aggressive representation for their workers' compensation claims. Contact us online or call us directly at 318.541.8188 to schedule a free, no-obligation case review.
Can I receive both workers' compensation and unemployment benefits at the same time?
If you're unable to work after suffering an on-the-job injury, it makes sense to see what type of compensation you're entitled to receive. However, it's important to note that most Louisiana residents can't legally collect workers' compensation benefits and unemployment benefits at the same time.
About Workers' Compensation Benefits
Workers' compensation benefits provide financial support to employees who suffer on-the-job injuries. Benefits pay for medical care related to the injury as well as replacement of a portion of the lost wages.
Temporary Total Disability (TTD) benefits for injured Louisiana workers are paid at a rate that is two-thirds of their average weekly wage but subject to minimum and maximum rates that change each year. As of September 1, 2017, the minimum benefit is $174 per week, and the maximum benefit is $653 per week.
There is no limit on the length of time you can receive TTD benefits. However, payments end when you are able to return to work or have reached maximum medical improvement (MMI).
About Unemployment Benefits
Unemployment benefits are intended to provide support if you've involuntarily lost your job or are involuntarily working reduced hours through no fault of your own. To be eligible for unemployment benefits, you must be actively looking for work from at least three different employers each week and able to accept a position when it is offered.
Unemployment benefits are awarded regardless of financial need, but the amount you receive is based on your work history and past earnings. The current minimum benefit payment in Louisiana is $10 per week, while the maximum payment is $247 per week. Claimants can receive benefits for a maximum of 26 weeks, as long as they continue to look for work. However, in times where there are very high unemployment rates throughout the state, claimants may gain special access to additional weeks of benefit payments.
The Relationship Between Workers' Compensation and Unemployment Benefits
Unemployment benefits provide substantially less support than workers' compensation benefits because unemployed workers with no physical limitations are expected to find new jobs as soon as possible. Injured workers receive higher benefits because their medical condition limits their ability to work. They're not expected to look for work because they typically already have a position to return to when they've recovered from their injury.
Receiving Both Unemployment and Workers' Compensation Benefits
In most cases, you cannot receive both unemployment benefits and workers' compensation benefits at the same time.
If you are unable to work because of an on-the-job injury, you do not qualify for unemployment benefits because your injury makes you medically unfit for work. Additionally, your current employer is holding your job until you are able to return to work.
Attempting to receive both unemployment and workers' compensation benefits when you are not eligible is considered fraud. You will likely be subjected to potential criminal and/or civil penalties.
One of the questions asked each week when applicants report their work search is "Did you receive or apply for workers' compensation during this week?" This question is specifically asked to identify cases of potential fraud.
The only way it may be possible to receive both unemployment benefits and workers' compensation benefits is if you are currently receiving permanent partial disability (PPD) payments under the workers' compensation program. PPD benefits are awarded for serious injuries such as amputations, disfigurement, and permanent hearing loss. If you're receiving PPD benefits and actively looking for new work that is better suited to your physical limitations, you may be eligible for both types of assistance.
Protecting Your Right to Compensation
State laws regarding unemployment and workers' comp can be complicated, which is why working with an attorney is often the best way to protect your right to compensation. Neblett, Beard & Arsenault's legal team is dedicated to helping Louisiana workers access the benefits they need to recover from on-the-job injuries. To learn more about how we can help with your claim, contact us online or call us directly at 318.588.6303 today to schedule a free, no-obligation case review.
Can my workers' compensation claim be denied if I test positive for drugs or alcohol?
Workers' compensation benefits provide a valuable safety net for employees who are injured on the job. However, if you fail a post-accident drug or alcohol test, collecting benefits will become much more complicated.
About Post-Accident Drug or Alcohol Screenings
Workers' compensation is a considered a no-fault system, which means you can still receive benefits even if your own inexperience or carelessness caused your injury. However, the no-fault presumption doesn't apply to drug and alcohol use on the job.
Many people mistakenly assume that post-accident screenings are only looking for alcohol and illicit drugs. However, you will be considered to have failed the test if you test positive for prescription drugs that were not prescribed to you by a healthcare provider. This includes opioid pain medications such as OxyContin, Vicodin, and Percocet.
For alcohol use, a BAC of 0.08 or more creates the assumption that you were intoxicated. A BAC in excess of 0.05 but less than 0.08 may be considered with other evidence to determine whether you were intoxicated at the time of the accident.
Refusing to take a drug or an alcohol test after suffering injuries in a work-related accident creates the presumption that you were intoxicated at the time of the incident.
Collecting Benefits After a Failed Drug or Alcohol Test
Emergency treatment will still be provided after a failed drug or alcohol test, but receiving further workers' compensation benefits will become much more difficult. To continue receiving benefits, you'll need to provide that your case falls into one of the limited exemptions.
Reasons you may still be able to collect benefits in Louisiana despite a failed drug or alcohol test include:
- There was no written policy prohibiting drug or alcohol use. To use intoxication to avoid paying benefits, the employer needs to prove there was a formal policy banning drug or alcohol use in the workplace and stating consequences such as denial of workers' compensation benefits and termination of employment.
- The drug and alcohol use policy wasn't communicated to employees. It's not enough to simply make a policy banning drug and alcohol use in the workplace. Employees must receive a copy of the policy, so they know the consequences of failing a drug or an alcohol test.
- The results are excluded due to a failure to use uniform chain of custody procedures. When the sample isn't handled property, the results are inadmissible.
- Your drug or alcohol use was not the cause of the accident. If you fail a drug or an alcohol test, this creates the presumption that your intoxication caused the accident. However, this may not actually be the case. For example, if you were retrieving boxes from a shelf in a warehouse and a fellow employee ran a forklift into the shelf and caused the boxes to fall on top of you, the injuries you received would likely be considered the fault of the forklift driver. In this case, whether or not you were intoxicated is irrelevant.
- Your employer provided intoxicating substances or encouraged substance use. This defense is rarely used, but Louisiana law exempts intoxication from being used to avoid paying workers' compensation claims if the employee's intoxication is the result of activities in pursuit of the employer's interests or if the employer provided the intoxicating beverage or substance and encouraged its use during work hours.
Failing a Return-to-Work Drug Test
Drug tests are often required when you return to work after suffering an on-the-job injury. If you fail this test, your income benefits can be terminated and your claim for Supplemental Earning Benefits will likely be denied. However, your employer will still be required to provide reasonable and necessary medical treatment.
Louisiana law RS 23:1221 states: "When an injured employee has been released to return to work with or without restrictions, and the employer maintains an established written and promulgated substance abuse policy which requires employer-administered drug testing prior to employment or return to work, upon the employee's failure to meet the requirements of such employer's established policy and inability to qualify for the position for that reason, the obligation for all benefits pursuant to this Chapter, with the sole exception of the obligation to provide reasonable and necessary medical treatment, shall be terminated and the employee shall be subject to the terms and conditions established in the employer's promulgated drug testing policy and program. The provisions of this Subparagraph shall not apply to prescription medication prescribed for the employee in the dosages so prescribed by a physician."
How Neblett, Beard & Arsenault Can Help
Neblett, Beard & Arsenault's dedicated attorneys are committed to helping Louisiana workers access the workers' compensation benefits they need after on-the-job injuries. To learn more about how we can help with your claim, contact us online or call us directly at 318.588.6303 to schedule a free, no-obligation initial consultation.
If I'm injured in a work-related car accident, can I receive workers' compensation benefits?
When you're involved in a car accident at work, it can sometimes be difficult to determine what compensation you may be eligible to receive. Depending on the circumstances, you may be able to receive both workers' compensation benefits and a civil settlement from the driver at fault.
Requirements to Receive Workers' Compensation Benefits
Workers' compensation benefits cover most Louisiana workers, including part-time, full-time, temporary, and seasonal employees. Coverage starts on the first day of employment, even if the worker is a minor. Notable exceptions to workers' compensation coverage include domestic employees, the majority of real estate salespeople, uncompensated officers and directors of selected non-profit organizations, and public officials.
Workers' compensation benefits cover all work-related duties. If you were involved in a car accident, this includes activities such as:
- Running an errand requested by your boss or employer
- Transporting another employee to a meeting or other work task
- Making deliveries of supplies or products
- Traveling to attend a work-related conference or meeting with a client
- Performing a job that involves driving for a living
- Performing a job that involves traveling for work and has no fixed office location
Typically, you can't receive workers' compensation benefits if the accident occurred during your commute. However, if you were running an errand for your boss or employer before heading into the office and were involved in a car accident, you might be considered eligible for benefits.
Receiving workers' compensation benefits only requires that you be performing job-related tasks at the time of your injury. Therefore, it does not matter whether you were driving a company car or your own personal vehicle at the time of the accident.
Fault is irrelevant in a worker's compensation claim, so you can still receive benefits even if the accident that caused your injuries was the result of your inattentiveness or carelessness. However, you may lose your right to benefits if you don't report the incident to your employer within 30 days. Your employer will complete Louisiana Department of Labor Form 1007 (Employer Report of Injury or Illness) to submit to the Office of Workers' Compensation. You should request a copy of this report for your own records.
Workers' compensation benefits include necessary medical care from the doctor of your choice, indemnity wage benefits, and vocational rehabilitation services if you've suffered an injury that will prevent you from returning to the work you previously performed. Death benefits are paid to spouses and children in the event of a fatal car accident.
Your employer is not allowed to terminate your employment because you've filed for workers' compensation benefits. However, in certain circumstances, your employer may not be required to hold your position open until you are ready to return to work.
Civil Claims for Car Accident Injuries
If you were performing job-related tasks for your employer and the accident was not your fault, you may also have a civil claim against the driver responsible for the incident. If you were partially at fault, you can file a claim for damages, and your settlement will be reduced by your assigned percentage of fault to reflect your own responsibility for your injuries.
If you are eligible to pursue both workers' compensation benefits and a civil claim, it's in your interest to take both types of action. Civil claims can provide payment for property damage, including repairs necessary if you were driving your personal vehicle. Civil claims also provide payment for pain and suffering damages, which can be significant if your injuries resulted in the need for extensive medical treatment and time away from work.
Civil claims can take several months or even years to resolve. Once you receive a settlement, the workers' compensation insurer will have a lien on the funds to seek repayment of the benefits you received for medical care and lost wages. The funds covering other damages are yours to keep.
The Value of Skilled Representation
An experienced workers' compensation attorney can help evaluate the circumstances surrounding your car accident to determine what benefits you may be eligible to receive. Please call the legal team of Neblett, Beard & Arsenault at 318.588.6303 to schedule a free, no-obligation case review. You can also contact us online for more information.
What are the rules for firing employees who are on workers' compensation?
If you're seeking workers' compensation benefits, you may be wondering if this will affect your employment. Although employers aren't allowed to fire you simply because you've filed for workers' compensation, you can still be legally terminated under certain circumstances.
Retaliatory termination means that your employer has fired you as punishment for seeking workers' compensation benefits. Retaliatory termination is illegal under Louisiana law. Your workers' compensation benefits are a legal entitlement for any workplace injury, even if your own inexperience or carelessness caused the accident.
If you are the victim of a retaliation, you can file a wrongful discharge lawsuit against your employer. However, you must file your claim within one year of the retaliatory action. A wrongful discharge suit can allow you to recover up to one year's worth of lost wages.
Valid Reasons for Termination
Most workers in Louisiana are classified as at-will employees, which means they can quit or be terminated at any time. Some examples of valid reasons your position could be terminated as an at-will employee include:
- There were previous issues with poor performance before your injury.
- You violated an established company policy, such as mishandling confidential information.
- You engaged in misconduct, such as theft or failing a workplace drug screening.
- The company is having financial problems and needs to cut staff.
- The company is being restructured and your position is being eliminated.
If you belong to a labor union, there may be a collective bargaining agreement that specifically outlines the reasons you can be terminated.
If you're a contract employee, you can only be terminated for the reasons listed in your contract. For example, it's common for workers to have a clause in their contract saying they can be terminated if they're unable to work for an extended period of type—such as three to six months. In this case, the employer generally has a legal reason to terminate the contract even if the worker isn't able to return to work due to an injury.
Termination Related to Work Restrictions
Some types of injuries will come with permanent work restrictions. If you have permanent restrictions, the Americans with Disabilities Act requires your employer to make reasonable accommodations to allow you to continue your employment. Examples might include allowing you extra breaks or having an ergonomic workstation that limits the time spent sitting or standing.
If your restrictions prevent you from performing your job entirely, you can be terminated. For example, if your job involves a great deal of heavy lifting and you can no longer lift more than 10 pounds, there is no way to reasonably accommodate your needs. In this case, your termination would make you eligible for vocational retraining and permanent disability payments.
What to Do After a Termination
If you are fired after seeking workers' compensation benefits, you should:
- Inquire about the specific reasons for your termination.
- Ask who made the decision to fire you.
- Request to review your personnel file.
- Negotiate for the highest possible severance package, including the continuation of medical and dental benefits.
- Confirm all promises regarding your severance package in writing.
- Decline any offer that you resign instead of being terminated
It is understandable to be angry about a termination, but it's important to keep calm. Do not act on any negative impulses regarding your employer. Verbal outbursts, physical aggression, or damage caused to company property will only limit your options for legal action against the company.
How Neblett, Beard & Arsenault Can Help
Being fired after filing a workers' compensation claim isn't necessarily illegal, but a termination that occurs shortly after your injury should be viewed with suspicion. If you believe you've been fired in retaliation for accessing your legally entitled workers' compensation benefits, it's in your best interests to consult an experienced attorney immediately.
Please call the experienced legal team of Neblett, Beard & Arsenault at 318.588.6303 to schedule a free, no-obligation case review. Appointments are available at one of six locations throughout the state. You can also contact us online and we will be certain to be in contact.
What happens if my employer inaccurately claims I’m an independent contractor?
In Louisiana, most employers are protected by workers' compensation law. However, if you are employed as an independent contractor, you are not entitled to workers' compensation benefits.
The law does not protect independent contractors because many of them are self-employed small business owners who work for several different businesses at once. Consequently, some companies intentionally misclassify workers to avoid paying legally required benefits, and it’s become a growing problem in recent years.
Difference Between an Employee and an Independent Contractor
The most obvious difference between an independent contractor and an employee is that an independent contractor does not have taxes taken out of his paycheck and has no access to employer-provided benefits such as retirement plans or health insurance. However, a business can't decide on its own that you are an independent contractor. This is a legal term that has a specific definition based on the nature of your relationship.
You are likely an employee if:
- You have a supervisor who decides when, where, and how you must perform your work.
- You are provided with the tools and supplies necessary to do your work.
- You are provided with training to help you perform your job in a specific way.
- You perform tasks that are a key part of the business, such as being a cook in a restaurant.
- You are evaluated based on how your work is performed.
- You receive a fixed hourly rate or salary for your work.
- Your work is performed on an ongoing basis.
- You have an exclusive relationship with one business.
You are likely an independent contractor if:
- You work with minimal supervision.
- You are expected to provide your own tools and supplies.
- Training is not provided because it is assumed that you either have the necessary skills to do your job or will independently seek out any necessary training.
- Your tasks are not a key part of the core business mission.
- Your performance is measured solely by the quality of your work.
- Your payments are based on your performance, such as being paid a commission for each product sold.
- You were hired for a particular task or project that is temporary in nature.
- You regularly work with more than one business at a time.
Generally, it is assumed that workers are employees unless there is evidence to suggest otherwise. If your employer is trying to inaccurately classify you as an independent contractor to deny access to workers' compensation benefits, you will need to provide any documentation you can find to establish three key elements:
- Financial control. Your employer maintains control over how you are paid and the purchasing of resources necessary to do your job.
- Behavioral control. Your employer controls when you work and how you do your job.
- Nature of relationship. Your relationship is ongoing, and the work you perform is a key part of your employer's business.
Evidence relating to financial control, behavioral control, and the nature of your relationship is looked at as a whole. No one factor is considered more important than the others in determining if you are an employee or an independent contractor.
The Louisiana Workforce Commission has a task force that targets employers who misclassify workers: GAME ON. This acronym stands for Government Against Misclassified Employees Operational Network. Targeted industries include construction, health care, hospitality, personal services, and staffing companies, but all employers who willfully misclassify workers can be fined $1,000 per offense in addition to being forced to provide misclassified workers with their legally required benefits. Employers who misclassify large numbers of employees also risk imprisonment.
The Value of Legal Representation
Although contested minor work related injuries can often be handled without an experienced workers' compensation attorney, any case involving misclassification will require legal representation to protect your rights. Without someone to advocate for your needs, you may end up responsible for your own medical expenses and lost wages.
The legal team at Neblett, Beard & Arsenault is committed to maximizing the workers' comp benefits of Louisiana residents who've been hurt on the job. Contact us online or call us directly at 318.541.8188 to schedule a free, no-obligation case review. Appointments are available at one of six locations throughout the state.
How do I obtain workers' compensation benefits after a heavy lifting injury?
Injuries related to heavy lifting are a primary cause of workers' compensation claims and can affect workers in a wide range of industries. If you've been injured in a heavy lifting accident, it's vital that you understand your right to compensation.
Who Is Vulnerable to Heavy Lifting Accidents?
Lifting injuries can occur in almost every type of occupation. Construction workers often sustain lifting injuries while transporting building materials. Nurses and other healthcare professionals may be hurt trying to lift or reposition immobilized patients. A daycare worker might be injured while pushing a stroller or lifting a child up to wash his hands. A cook might be injured grabbing ingredients from a pantry shelf.
Some of the noted risk factors for heavy lifting injuries include:
- Carrying an object in a way that creates uneven pressure on the spine such as in one hand, on one shoulder, or under one arm
- Not taking adequate rest breaks
- Holding items for a long period of time
- Working in extreme heat or cold, which can induce fatigue
How Much Weight Is Considered Too Heavy for a Worker?
Obviously, people have different levels of physical strength. However, for the purpose of discussing employment-related injury, heavy lifting is defined as a single person lifting an object weighing more than 50 pounds.
A single person should be able to lift an object that weighs less than this amount if it meets all of the following criteria:
- No twisting motion is needed to lift.
- It's at waist height and directly in front of the person doing the lifting.
- It's within seven inches from the front of the person's body.
- The load won’t shift after it's lifted.
- There's a handle on the object.
When an object doesn't meet these criteria, it's recommended that the weight be decreased into several trips or mechanical assistance such as a moving dolly be used for transport. Alternatively, two people could work together to lift the object.
The Most Common Types of Heavy Lifting Injuries
Heavy lifting injuries can vary in severity but may include:
- Back sprains and strains
- Herniated disk
- Patellar tendonitis
- Rotator cuff tear
- Shoulder impingement syndrome
Most injuries are diagnosed by listening to a patient's description of symptoms, conducting a physical examination, and looking at the results of diagnostic tests such as X-rays, MRIs, or an ultrasound.
Physical therapy, braces, and pain-relieving medications may be recommended. Surgery can be required if the pain persists for an extended period of time.
Filing a Workers' Compensation Claim
Most part-time, full-time, seasonal, and temporary workers are covered by workers’ compensation benefits from the first day of their employment. If you've been injured, you should report the incident to a supervisor immediately. Although the law allows you 30 days to report your injury, it's best to file the necessary paperwork as soon as possible. This helps ensure that evidence linking your injury to your place of employment is preserved.
Your notice to your employer should be a written statement outlining the time, date, circumstances, and specific symptoms related to the incident. It should be signed, and you'll want to make a copy for your own records.
Your employer must send a First Report of Injury (LWC-WCIA-1) to its insurance company within 10 days from the time you provide notice of your injury. This form officially begins your claim, which may include medical treatment benefits, temporary total disability benefits, permanent disability benefits, catastrophic injury benefits, and/or vocational assistance.
You are not required to retain an attorney to receive workers' compensation benefits. However, if you are having difficulty accessing your benefits in a timely fashion, an attorney can advocate for your needs and help ensure you receive the compensation necessary to recover from your injuries.
Neblett, Beard & Arsenault’s experienced legal team is dedicated to helping Louisiana residents access their workers' compensation benefits. Contact us online or call us directly at 318.588.6303 to schedule a free, no-obligation consultation.