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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 ENGROSSED
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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 ENGROSSED
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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, all parties shall engage the services of either of the14
following:15
(a) A Louisiana Workforce Commission, office of workers' compensation16
administration mediator, and such mediation shall be held in the district office in17
which the selected mediator is assigned.18
(b) A private mediator, and such mediation shall be held at a location19
mutually agreeable to the parties.20
(2) The selection of the mediator shall be by mutual agreement of the parties.21
(3) Each party shall provide a representative, in person or via telephone, to22
participate in the mediation conference, who has been provided with authority to23
enter into negotiations in a good faith effort to resolve the issue in dispute. The24
attorneys for the parties may participate in the mediation conference via telephone25
by mutual consent of the parties.26
(4) Within five days of the conclusion of the mediation conference, the27
parties shall certify to the court, via United States mail, electronic transmission, or28
facsimile transmission, that a mediation conference has occurred and the results29
thereof.30 HLS 10RS-1545 ENGROSSED
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(5) Nothing shall prohibit the parties from requesting a mediation conference1
prior to the filing of a disputed claim for compensation; however, neither the request2
nor participation in the mediation conference shall interrupt the running of3
prescription.4
E. If any party fails to appear at a mediation conference, ordered by the5
judge or requested by the parties, after proper notice, the workers' compensation6
judge, upon request of a party, may fine the delinquent party an amount not to7
exceed five hundred dollars, which shall be payable to the Office of Workers'8
Compensation Administrative Fund. In addition, the workers' compensation judge9
may assess against the party failing to attend costs and reasonable attorney fees10
incurred by any other party in connection with the conference. The penalties11
provided for in this Subsection shall be assessed by the workers' compensation judge12
only after a contradictory hearing which shall be held prior to the hearing on the13
merits of the dispute.14
F. Except as otherwise provided by R.S. 23:1101(B), 1361, and 1378(E), the15
workers' compensation judge shall be vested with original, exclusive jurisdiction16
over all claims or disputes arising out of this Chapter, including but not limited to17
workers' compensation insurance coverage disputes, group self-insurance indemnity18
contract disputes, employer demands for recovery for overpayment of benefits, the19
determination and recognition of employer credits as provided for in this Chapter,20
and cross-claims between employers or workers' compensation insurers or self-21
insurance group funds for indemnification or contribution, concursus proceedings22
pursuant to Louisiana Code of Civil Procedure Articles 4651 et seq. concerning23
entitlement to workers' compensation benefits, payment for medical treatment, or24
attorney fees arising out of an injury subject to this Chapter.25
F.(1) G.(1) Any party challenging the constitutionality of any provision of26
this Chapter shall specially plead such an allegation in the original petition, an27
exception, written motion, or answer, which shall state with particularity the grounds28
for such an allegation.29 HLS 10RS-1545 ENGROSSED
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(2) Within thirty days of the filing of any pleading raising the issue of1
unconstitutionality, the party making such an allegation must file a petition in a state2
district court of proper jurisdiction for purposes of adjudicating the claim of3
unconstitutionality. Said Such filing shall be given priority in hearing such claim not4
more than ten days from being presented to the district court.5
(3) Failure to follow the procedures set forth in this Section shall bar any6
claim as to the unconstitutionality of any provision of this Chapter on appeal.7
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 La. Workforce
Commission, office of workers' compensation administration mediator. HLS 10RS-1545 ENGROSSED
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are additions.
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.
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, 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 La. Workforce
Commission, office of workers' compensation administration mediator selected by mutual
agreement of the parties or a private mediator and such mediation shall be held at a location
mutually agreeable to 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. HLS 10RS-1545 ENGROSSED
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Proposed law requires the parties to certify to the court when a private mediation has
occurred and the results thereof.
Proposed law provides that nothing shall prohibit the parties from requesting a mediation
conference with a La. Workforce Commission, office of workers' compensation
administration mediator.
Proposed law provides that a representative with authority to enter into negotiation for each
party at the mediation must be present either in person or via telephone.
Proposed law provides that the mediation shall not interrupt the running of prescription.
Proposed law provides that should a party fail to appear for a mediation conference the
workers' compensation judge may fine the delinquent party upon request of a party mediator.
Proposed law requires any dispute open in excess of 300 days to have a mandatory pretrial
mediation with a La. Workforce Commission, office of workers' compensation
administration mediator.
(Amends R.S. 23:1310.3)
Summary of Amendments Adopted by House
Committee Amendments Proposed by House Committee on Labor and Industrial
Relations to the original bill.
1. Added a provision that a mediator may be either an office of workers'
compensation administration mediator with the mediation held in the mediator's
district office or a private mediator in which case the mediation will be held in
a location mutually agreeable to both parties.
2. Added a provision that each party shall have a representative present via
telephone or in person at the mediation conference who has authority to enter
into negotiations.
3. Deleted provision that provides a judge may fine a party who fails to appear for
a mediation conference upon report from the workers' compensation mediator
and added that upon the request of a party a judge may issue a fine to a
delinquent party.