Written by: Corey Meaux
The Times They Are A-Changing
I know Bob Dylan did not write his popular song because of changes being made in Louisiana workers’ compensation, but the times are changing, nonetheless. This year, numerous new Acts were passed by the Louisiana Legislature and signed into law by Governor Landry. Typically, new laws go into effect on August 1 each year. However, keep in mind that there is always going to be a fight as to whether these apply retroactively are not. We are taking the position that because most of the new laws are procedural changes, they should be applied retroactively. So, if the accident occurs on July 31, 2026, but the 1002 is filed on August 2, 2026, then these new rules should apply. Secondly, some of these requirements are vague, so we expect there to be fights in the future interpreting these new changes.
Preliminary Determination Process
First and foremost, the rule requiring that the adjuster must have “initially accept the claim as compensable” remains in effect with the changes. Unless there is absolutely no reason why a claim should be accepted, or if the customer is demanding that it not be accepted, then I would suggest that if there is any benefit of the doubt, the claim be “initially accepted as compensable, pending further investigation.” That does not guarantee that you will continue to pay, but it at least buys you into the 1002 process now that it is useful.
As with the current rules, upon the first payment of indemnity, the adjuster needs to prepare the 1002. The following rules apply to the initial payment 1002:
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That initial 1002 must go out within “three business days of the effective date of the 1002” and sent by (1) certified mail, (2) commercial carrier – UPS, FedEx, etc., (3) email to the claimant, or (4) hand delivery.
a. Faxing is not an option to the claimant.b. The law is unclear about how to calculate the three-day window. Must the 1002 to be mailed within three days in advance of the initial payment, or can it be filed up to three days after the change. This will likely be fought over in time, but I would be going with the cautious route of mailing the 1002 within three days in advance of the initial payment until we get more clarity from the courts. -
If represented, a copy must go to the attorney by one of the same methods above or by fax.
a. The amendments are unclear whether the attorney needs to receive it by the same method as the claimant. Simply to avoid any potential risk, I would recommend that they go out by the same method.b. While it may be cheaper to just throw it in the mail, you would always want to have some method to prove the date that it was sent. That can be had by certified mail, an email with a read receipt, or commercial carrier tracking. The other side is not obligated to save any envelopes, so sending it out by regular mail is always problematic if you anticipate a fight over timely mailing.
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A copy of the 1002 must be sent to the OWC on the same date that the original was sent to the claimant.a. That is a specific rule, so compliance requires absolute precision.
With any 1002 other than the initial payment, the rules change slightly:
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Prepare the 1002 as before, and the same three-day business window applies.a. I would recommend that it go out before the effective date.
- Send a copy of the 1002 to the OWC on the same date that it was sent to the employee preferably by the same method.
- The law does not specify how to transmit it to the attorney with anything other than the initial 1002, but I would recommend that it be sent by the same method as with the initial 1002.
If the claimant or the attorney disputes the amount and files a letter of amicable demand, or any written communication that disputes the amount or the basis for the decision, the adjuster has ten (10) business days from the receipt of the demand (you do not count the day that it is received) to accept the challenge and pay any differences or change your position. If this is done within that 10-day window, then you will avoid any penalty and attorney’s fee claim related to that action, assuming that you have done everything properly above including initially accepting the claim as compensable.
If a 1008 has already been filed when an issue arises from a subsequent 1002, then the claimant must amend the 1008 to allege the issue, and the deadline to pay and avoid penalties and attorney’s fees is extended to 15 calendar days.
Should that matter be challenged, and a preliminary hearing be made to challenge whether we have the protections or whether the payments were timely, then there are new rules on our end to produce information to document the position.
Filing of 1008s by Employers/Insurers
Governor Landry also signed HB 456, which clarifies pleading requirements for 1008s and allows employers to file disputes “to controvert benefits or concerning any other dispute arising pursuant to this Chapter.” That will allow payors to continue paying benefits to avoid potential penalties and attorney fees, while they use judicial discovery processes to fully investigate prior accidents, injuries, fraud, etc., topics where trial lawyers are often less than forthcoming. Also, this now allows us to file a 1008 for a petition to the Court for an 1124.1 IME. Ultimately, this opens the door for many, many circumstances where we can now file 1008s.
Updates to the Medical Fee Schedule
Governor Landry also signed SB 408, which creates a pathway to gather data and update the workers’ compensation medical fee schedule over the next three years. With Louisiana paying the second highest average cost in medical benefits per claim in the country, this is a big welcome and will hopefully address an outdated fee schedule.
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