A recent amendment to La. R.S. 23:1201(H) established a procedure for an employer/insurer to send a notice of payment form to the employee or his representative (as well as the Office of Workers’ Compensation – OWC) declaring the amount of the average weekly wage and compensation rate. The claimant/employee then has an opportunity to notify the employer that he disputes this amount.

Upon receipt of a written notice from the claimant/employee that the compensation rate is wrong, the employer/insurer has five business days to either send the correct amount or file a request for a preliminary determination by the workers’ compensation judge. The preliminary determination hearing must occur within 15 days of the request. The hearing is by telephone and the judge may order the parties to produce relevant records (such as wages and records of hours worked).

No later than 30 days from the filing of the request for the preliminary determination, the judge is to render a recommendation. The employer/insurer is then given 10 calendar days from receipt of the recommendation to either pay the recommended amount or notify the employee and his representative in writing that it does not accept the recommendation.

At that point litigation can be filed on the AWW issue, and if the employer/insurer is found to have made an error in the calculation, penalties and attorney fees may be awarded. However, an employer/insurer who accepts the recommendation or agrees to pay in accordance with the recommendation, but files a dispute with the OWC to controvert the recommendation will not be subject to penalties or attorney fees on that issue alone.

Plauché, Smith & Nieset is engaged in the insurance defense practice, concentrating on insurance defense litigation and business litigation in Calcasieu Parish, Cameron Parish, Jefferson Davis Parish, Allen Parish, and Beauregard Parish.  Plauché, Smith & Nieset also engages in the insurance defense practice throughout the state of Louisiana.