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Frequently Asked Questions

Useful Information from Our Baton Rouge Workers’ Compensation Lawyer

Don’t let the stress of an injury create additional anxiety. Below are answers to some frequently asked questions. However, because each case is unique, we invite you to call the office of J. David Smith, Attorney at Law at (855) 973-1098 to schedule your free initial consultation to discuss your unique situation.

Our firm proudly serves individuals throughout Louisiana. Call us today to get the help you need.

When am I supposed to get my first workers’ comp check?

The first payment of workers’ compensation indemnity is due 14 days after the date of injury, if the injury resulted in disability. Follow this link http://www.laworks.net/FAQs/FAQ_WorkComp_RightsAndResponsibilities.asp for a good FAQ regarding rights and responsibilities of employees under the Louisiana Workers’ Compensation Act.

Why is my first check only for one week, when I have been off of work for two?

There is a one week waiting period before workers’ compensation indemnity benefits begin. The waiting period is waived if you remain disabled for at least 6 weeks, at which time you should receive payment for the first week.

Do I have to go to the company’s doctor?

No. You have the right to select a treating physician of your choice. However, you do have to submit to an examination by the company doctor on a reasonable basis. Download free choice of physician form.

Do I have to return to work if my employer provides a job within my doctor’s restrictions?

You cannot be forced to return to work. But if you refuse to return to work after you doctor has released you or given restrictions that your employer is willing to accommodate, then you will not be eligible for workers’ compensation indemnity benefits.

Can I receive unemployment benefits and workers’ comp?

No. For any week that you receive unemployment benefits you forfeit that week of workers’ compensation.

How is my workers’ compensation benefit amount calculated?

Your workers’ comp indemnity benefit is equal to 2/3 of your average weekly wage for the four full weeks prior to your injury, subject to a maximum compensation rate cap which is currently $653. You can find up to date minimum and maximum comp rates at http://www.laworks.net under information for injured workers.

What if I work less than 40 hours per week?

If an employee takes a job with the understanding that the position is full time, he or she may be entitled to a presumption for purposes of calculating average weekly wage that he or she is working 40 hours. If the job was actually part time and you know that when you were hired then your indemnity benefits will be calculated using your part time hours.

Where is my local Office of Workers’ Compensation?

Click here for hearing offices.

What if I tested positive for alcohol or drugs after the accident?

If your employer has in place a written drug policy and you test positive for illicit drugs, drugs for which you do not have a prescription, or alcohol after the accident it is presumed that you were intoxicated at the time of the accident and that the intoxication caused the accident. These presumptions can be defeated, but it is difficult. Please contact Baton Rouge workers’ compensation attorney J. David Smith for more information if you have found yourself in this situation.

What should I do if my adjuster wants to settle?

Settlement is usually a good thing, if you are able to recover in a lump sum, an amount that fairly compensates you for the workers’ compensation wage and medical benefits that would be payable over the life of the claim. See the settlement page for more information.

Can my employer fire me because I was hurt on the job?

In Louisiana, you have no right to work for any particular employer. Unless, you have an employment contract or are a member of a union of some sort, then your employer can hire or fire at will (barring some discriminatory practice). However, your employer cannot fire you because you filed a workers’ compensation claim. If they do, and you can prove it, then you may have a claim for retaliatory discharge. If proven, employers guilty of retaliatory discharge can be ordered to pay a year’s wages, plus attorney fees. If you have been fired because you filed a work comp claim, and think you can prove it, call our firm so that we can speak more about it.

How can I find out if I am being paid the correct work comp benefit?

Your workers’ compensation benefits are calculated by taking an average of the 4 full weeks of earnings before you were injured and then multiplying that average by .667. You do not count the week of the accident. The resulting number, should be your comp rate; however, you will be subject to the maximum comp rate. Click here for the current workers’ compensation indemnity table to see if you are being paid correctly. There are some subtle issues about fringe benefits, per diem pay, and other reimbursements that may or may not be included in your average weekly wage. Please call J. David Smith, Attorney at Law for further information.

Where can I find a complete copy of the Louisiana Workers’ Comp Act?

You can view the Louisiana Workers’ Compensation Act.

What are my rights if the insurer refuses to approve a test or procedure that my doctor recommends?

You are entitled to all treatment that is medically necessary to treat your work related injury or condition. Many times the insurance company or employer refuses to pay for treatment or tests your doctor feels are medically necessary. If the insurance company denies medical treatment, you and/or your doctor can file request for review with the Louisiana Workforce Commission’s Medical Services Division. The OWCA Medical Director will determine whether the treatment recommended is in accordance with the Louisiana Medical Treatment Guidelines, and render a decision within 30 days of submission of the request for review. Follow this link http://www.laworks.net/FAQs/FAQ_WorkComp_RightsAndResponsibilities.asp for a good FAQ regarding rights and responsibilities of employees under the Louisiana Workers’ Compensation Act. If this is the case, then the insurance company is supposed to document and support their position with a second medical opinion by a physician chosen by them. However, many times the insurance company fails to take this step and could be liable to you for penalties. Many unrepresented claimants miss these opportunities. If your doctor is requested a test or some treatment and the insurance company is refusing to pay, please call our office at (855) 973-1098 so that we can discuss the situation further.

How can I recover mileage reimbursement?

In order to be reimbursed for mileage, you must submit a claim to the insurance company. Download or print a free mileage log.

How do I prove my entitlement to supplemental earnings benefits?

If you have returned to work, but are still unable to earn at least 90% of your pre-injury average weekly wage, then you need to make a claim for supplemental earnings benefits. The Louisiana Department of Labor provides a form, which you can download here - LDOL 1020. It is important that you have accurately determined your pre-injury average weekly wage and your post injury earning capacity to maximize your SEB claim. If you need help please contact me. Follow this link http://www.laworks.net/FAQs/FAQ_WorkComp_RightsAndResponsibilities.asp for a good FAQ regarding rights and responsibilities of employees under the Louisiana Workers’ Compensation Act.

I am a survivor of someone who died on the job, what am I entitled to?

If you are the surviving spouse of the decedent you will be entitled to a percentage of his workers’ compensation benefits until you die or are remarried. If you have minor children who were dependent on the decedent that are now dependent on you, you will be eligible for an increased percentage of the benefits. If you have a claim for death benefits you need to contact a Baton Rouge workers’ comp attorney.

I am the surviving parent of someone who died on the job, who had no children?

Each surviving parent of a decedent who had no descendants or surviving spouse, is entitled to $75,000 in lump sum death benefits from the employer.

Are funeral expenses the responsibility of the employer?

The employer or workers’ compensation insurance company is liable for a $7,500 funeral expense regardless of the amount actually spent.

I am receiving social security benefits and workers’ compensation, should I worry?

You should not worry, but you should get more information.

I am a Medicare beneficiary and I want to settle my workers’ compensation case, should I worry?

You should not worry, but you should get more information.

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What J. David Smith, Attorney at Law Can Do for You

  1. Handles all communication with your employer and the insurance company right away
  2. Trusted by other law firms in our area and we often get referrals from other attorneys
  3. Named as one of the top 100 Injured Workers’ Advocates nationally by WILG
  4. Serves as Bar Examiner for the Louisiana Supreme Court’s Committee on Bar Admissions
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