By: Meghan Gomez
There are many things in the law that sit within a sort of gray area—especially in Louisiana workers’ compensation. Often times, the questions you pose to us are met with responses like, “It depends” or “If the court would interpret the law this way, then….”. The issues of prescription (i.e., the timeframe in which a claimant has to file an LWC-WC-1008 Disputed Claim for Compensation) and preemption (i.e. the point at which a claimant’s cause of action is completely extinguished) are no different.
So, how late is too late for a claimant to file suit in Louisiana workers’ compensation? Well, it depends.
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If no benefits (medical and/or indemnity) have been paid, a workers’ compensation claimant has one (1) year from the date of the accident to file a claim for those benefits unless:
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The injury is a developmental injury, in which case the claimant has one (1) year from the date he/she knew (or should have known) that the injury and resulting disability are work-related to file suit for benefits. However, the claimant’s right to file suit is also limited to a maximum of three (3) years from the date of the accident. This 3-year period is a peremptive period;
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The injury resulted from an occupational disease, in which case the claimant must file suit for benefits no more than one (1) year from the date the disease manifests itself, the claimant is disabled from working as a result of the disease, and the claimant knows, or has reasonable grounds to believe, the disease is occupationally related; or
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The claim for benefits is for death benefits, in which case the claimant has one (1) year from the date of the deceased employee’s death to file suit for death benefits;
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If indemnity benefits have been paid, a claimant has one (1) year from the date of the last payment of indemnity benefits to file a claim for indemnity benefits unless:
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The benefits paid are Supplemental Earnings Benefits (“SEB”), in which case the claimant has three (3) years from the last payment of SEB to file a claim for SEB, or
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The claimant has received Temporary Total Disability Benefits (“TTD”), was subsequently released to work with restrictions, but has not received thirteen (13) consecutive weeks of SEB payments within a two-year period. In that case, the claimant’s right to SEB would terminate at the end of that two (2) year period.
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If medical benefits have been paid, a claimant must file suit for medical benefits within three (3) years of the date of the last payment of medical benefits.
Notably, the payment of indemnity benefits does not interrupt prescription for a claim for medical benefits and vice versa. They are said to run on “separate tracks.”
If one or more aspects of a claimant’s claims are prescribed (or perempted), it will significantly affect the value of the claim and your exposure going forward. We always recommend verifying (or consulting an attorney to verify) this prior to paying on or deciding to settle a claim. It may be in your benefit to simply wait it out.
