HLS 10RS-1545 ORIGINAL
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Regular Session, 2010
HOUSE BILL NO. 1088
BY REPRESENTATIVE PONTI
WORKERS COMPENSATION: Provides relative to mediations in workers' compensation
claims
AN ACT1
To amend and reenact R.S. 23:1310.3, relative to workers' compensation claims; to provide2
for the initiation of a claim for benefits; to provide for service of process; to provide3
for the filing of an answer; to provide for mediation; to provide for the running of4
prescription; to require mediation to encourage settlement of the case; to provide for5
a dispute open in excess of three hundreds days; to provide for fines and other6
penalties when a party fails to appear; and to provide for related matters.7
Be it enacted by the Legislature of Louisiana:8
Section 1. R.S. 23:1310.3 is hereby amended and reenacted to read as follows: 9
ยง1310.3. Initiation of claims; voluntary mediation; procedure10
A. A claim for benefits, the controversion of entitlement to benefits, or other11
relief under the Workers' Compensation Act shall be initiated by the filing of the12
appropriate form with the office of workers' compensation administration. Mailing,13
facsimile transmission, or electronic transmission of the form and payment of the14
filing fee constitutes the initiation of a claim under R.S. 23:1209.15
B.(1) Upon receipt of the form, the director shall assign the matter to a16
district. Upon the request of the injured employee, the matter shall be set for an17
initial mediation conference within fifteen days of receipt of the form specifying the18
proper parties unless all parties agree to waive the mediation conference. A pretrial19
mediation shall be set not less than thirty days prior to trial. The pretrial mediation20 HLS 10RS-1545 ORIGINAL
HB NO. 1088
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shall not be waived and shall be attended in person. All mediation conferences shall1
be before a workers' compensation mediator who shall mediate and encourage2
settlement of the case or determine issues in dispute. Within five days following the3
conference the workers' compensation mediator shall issue a report stating the results4
of the conference which shall be transmitted to the parties by United States mail,5
electronic transmission, or facsimile transmission. Upon receipt of the form, a6
district office shall effect service of process on any named defendant in any manner7
provided by law or by certified mail. All subsequent pleadings requiring service8
shall also be served in any manner provided by law or by certified mail. A defendant9
shall file an answer within fifteen days of service of the form or within a delay for10
answering granted by the workers' compensation judge not to exceed an additional11
ten days.12
(2) If any party fails to appear at a mediation conference after proper notice,13
the workers' compensation judge, upon report from the workers' compensation14
mediator, may fine the delinquent party an amount not to exceed five hundred15
dollars, which shall be payable to the Office of Workers' Compensation16
Administrative Fund. In addition, the workers' compensation judge may assess17
against the party failing to attend costs and reasonable attorney fees incurred by any18
other party in connection with the conference. If the plaintiff fails to appear after19
proper notice, the workers' compensation judge may dismiss the plaintiff's case20
without prejudice. The penalties provided for in this Subsection shall be assessed by21
the workers' compensation judge only after a contradictory hearing which shall be22
held prior to the hearing on the merits of the dispute.23
C. Upon notice from the workers' compensation mediator that the parties24
were unable to resolve the dispute at the initial mediation or if the initial mediation25
was not requested by the injured worker, service of process shall be effected on any26
named defendant in any manner provided by law or by certified mail. All27
subsequent pleadings requiring service shall also be served in any manner provided28
by law or by certified mail. A defendant shall file an answer within fifteen days of29 HLS 10RS-1545 ORIGINAL
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service of the form or within a delay for answering granted by the workers'1
compensation judge not to exceed an additional ten days.2
D. The filing of the answer shall be deemed timely when the answer is3
mailed, transmitted by facsimile, or electronic transmission on or before the day on4
which said delays run. If the answer is received by mail, facsimile, or electronic5
transmission on or before the first legal day following the expiration of the due date,6
there shall be a rebuttable presumption that the answer was timely filed. In all cases7
where the presumption does not apply, the timeliness of the mailing or transmittal8
shall be shown by an official United States postmark, official receipt of certificate9
from the United States Postal Service, facsimile transmission confirmation, or10
electronic receipt confirmation made at the time of transmission which indicates the11
date thereof.12
D.(1) Upon joint request of the parties, or upon order of the presiding13
workers' compensation judge, the parties shall engage the services of a Louisiana14
Workforce Commission, office of workers' compensation administration mediator15
selected by mutual agreement of the parties. The parties may engage the services of16
a private mediator at any time or when ordered by the judge. The parties shall certify17
to the court when a private mediation has occurred and the results thereof.18
(2) Nothing shall prohibit the parties from requesting a pre-1008 mediation19
conference with a Louisiana Workforce Commission, office of workers'20
compensation administration mediator. The mediation shall not interrupt the running21
of prescription.22
(3) All mediation conferences before a Louisiana Workforce Commission,23
office of workers' compensation administration mediator shall encourage settlement24
of the case or determine issues in dispute. Within five days following the conference25
the Louisiana Workforce Commission, office of workers' compensation26
administration mediator shall issue a report stating the results of the conference27
which shall be transmitted to the parties by United States mail, electronic28
transmission, or facsimile transmission.29 HLS 10RS-1545 ORIGINAL
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(4) Any dispute open in excess of three hundred days shall have a mandatory1
pretrial mediation with a Louisiana Workforce Commission, office of workers'2
compensation administration mediator.3
E. If any party fails to appear at a mediation conference, ordered by the4
judge or requested by the parties, after proper notice, the workers' compensation5
judge, upon report from the workers' compensation mediator, may fine the6
delinquent party an amount not to exceed five hundred dollars, which shall be7
payable to the Office of Workers' Compensation Administrative Fund. In addition,8
the workers' compensation judge may assess against the party failing to attend costs9
and reasonable attorney fees incurred by any other party in connection with the10
conference. The penalties provided for in this Subsection shall be assessed by the11
workers' compensation judge only after a contradictory hearing which shall be held12
prior to the hearing on the merits of the dispute.13
F. Except as otherwise provided by R.S. 23:1101(B), 1361, and 1378(E), the14
workers' compensation judge shall be vested with original, exclusive jurisdiction15
over all claims or disputes arising out of this Chapter, including but not limited to16
workers' compensation insurance coverage disputes, group self-insurance indemnity17
contract disputes, employer demands for recovery for overpayment of benefits, the18
determination and recognition of employe r credits as provided for in this Chapter,19
and cross-claims between employers or workers' compensation insurers or self-20
insurance group funds for indemnification or contribution, concursus proceedings21
pursuant to Louisiana Code of Civil Procedure Articles 4651 et seq. concerning22
entitlement to workers' compensation benefits, payment for medical treatment, or23
attorney fees arising out of an injury subject to this Chapter.24
F.(1) G.(1) Any party challenging the constitutionality of any provision of25
this Chapter shall specially plead such an allegation in the original petition, an26
exception, written motion, or answer, which shall state with particularity the grounds27
for such an allegation.28
(2) Within thirty days of the filing of any pleading raising the issue of29
unconstitutionality, the party making such an allegation must file a petition in a state30 HLS 10RS-1545 ORIGINAL
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district court of proper jurisdiction for purposes of adjudicating the claim of1
unconstitutionality. Said Such filing shall be given priority in hearing such claim not2
more than ten days from being presented to the district court.3
(3) Failure to follow the procedures set forth in this Section shall bar any4
claim as to the unconstitutionality of any provision of this Chapter on appeal.5
DIGEST
The digest printed below was prepared by House Legislative Services. It constitutes no part
of the legislative instrument. The keyword, one-liner, abstract, and digest do not constitute
part of the law or proof or indicia of legislative intent. [R.S. 1:13(B) and 24:177(E)]
Ponti HB No. 1088
Abstract: Provides relative to mediation in a claim for workers' compensation benefits.
Present law requires that a claim for benefits, the controversion of entitlement to benefits,
or other relief under the Workers' Compensation Act shall be initiated by the filing of the
appropriate form with the office of workers' compensation administration.
Present law provides that mailing, facsimile transmission, or electronic transmission of the
form constitutes the initiation of a claim under present law.
Proposed law retains present law but adds payment of the filing fee to the list of
requirements that constitute the initiation of a claim.
Present law provides that, upon receipt of the form, the director shall assign the matter to a
district.
Proposed law retains present law.
Present law provides that, upon the request of the injured employee, the matter shall be set
for an initial mediation conference within 15 days of receipt of the form specifying the
proper parties unless all parties agree to waive the mediation conference.
Present law provides that a pretrial mediation shall be set not less than 30 days prior to trial.
Present law provides that the pretrial mediation shall not be waived and shall be attended in
person.
Proposed law deletes present law.
Present law requires all mediation conferences to be before a workers' compensation
mediator who shall mediate and encourage settlement of the case or determine issues in
dispute.
Proposed law retains present law but specifies that the mediator shall be a Louisiana
Workforce Commission, office of workers' compensation administration mediator.
Present law provides that, within five days following the conference the workers'
compensation mediator shall issue a report stating the results of the conference which shall
be transmitted to the parties by U. S. mail, electronic transmission, or facsimile transmission. HLS 10RS-1545 ORIGINAL
HB NO. 1088
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CODING: Words in struck through type are deletions from existing law; words underscored
are additions.
Proposed law retains present law.
Present law provides that, upon notice from the workers' compensation mediator that the
parties were unable to resolve the dispute at the initial mediation or if the initial mediation
was not requested by the injured worker, service of process shall be effected on any named
defendant in any manner provided by law or by certified mail.
Proposed law provides that, upon receipt of the form, a district office shall effect service of
process on any named defendant in any manner provided by law or by certified mail.
Present law requires all subsequent pleadings requiring service to also be served in any
manner provided by law or by certified mail.
Proposed law retains present law.
Present law requires a defendant to file an answer within 15 days of service of the form or
within a delay for answering granted by the workers' compensation judge not to exceed an
additional 10 days.
Proposed law retains present law.
Present law provides that, if any party fails to appear at a mediation conference after proper
notice, the workers' compensation judge, upon report from the workers' compensation
mediator, may fine the delinquent party an amount not to exceed $500.00, which shall be
payable to the Office of Workers' Compensation Administrative Fund
Proposed law retains present law but deletes the condition that the party failed to appear after
proper notice.
Present law provides that, in addition, the workers' compensation judge may assess against
the party failing to attend costs and reasonable attorney fees incurred by any other party in
connection with the conference.
Proposed law retains present law but clarifies that the costs and fees must have been incurred
in connection with the mediation conference.
Present law provides that, if the plaintiff fails to appear after proper notice, the workers'
compensation judge may dismiss the plaintiff's case without prejudice.
Proposed law deletes present law.
Present law provides that the penalties provided for in present law shall be assessed by the
workers' compensation judge only after a contradictory hearing which shall be held prior to
the hearing on the merits of the dispute.
Proposed law retains present law.
Proposed law provides that, upon joint request of the parties, or upon order of the presiding
workers' compensation judge, the parties shall engage the services of a Louisiana Workforce
Commission, office of workers' compensation administration mediator selected by mutual
agreement of the parties.
Proposed law provides that the parties may engage the services of a private mediator at any
time or when ordered by the judge.
Proposed law requires the parties to certify to the court when a private mediation has
occurred and the results thereof. HLS 10RS-1545 ORIGINAL
HB NO. 1088
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Proposed law provides that nothing shall prohibit the parties from requesting a pre-1008
mediation conference with a Louisiana Workforce Commission, office of workers'
compensation administration mediator.
Proposed law provides that the mediation shall not interrupt the running of prescription.
Proposed law requires any dispute open in excess of 300 days to have a mandatory pretrial
mediation with a Louisiana Workforce Commission, office of workers' compensation
administration mediator.
(Amends R.S. 23:1310.3)