Mitchell APLC News


Employee Angered by Average Weekly Wage

On behalf of Craig Mitchell, Mitchell & Associates, A Professional Law Corporation posted in Mitchell APLC News on Tuesday, August 11, 2015.


The employee in this case (Barbier) was hurt on the job and did not agree with how her average weekly wage (AWW) was calculated. A sales representative with Kraft Foods, Barbier argued she was paid hourly and should have been paid overtime under the Fair Labor Standards Act, but Kraft said she was really paid a salary with bonuses whenever she worked over forty hours a week. Barbier filed a Form 1008/Disputed Claim for Compensation in the Fourth District of the Office of Workers Compensation located in Lafayette arguing that her average weekly wage was calculated wrong based on her overtime argument. In an interesting argument, Barbier pointed out that a non-monetary taxable prize she received valued at $550.50 should have been factored into her AWW. She also went after attorney’s fees.

Kraft disagreed about the Barbier’s status as a salaried worker and argued the hours that Barbier thought were overtime were really bonuses which are treated as “other wages” for purposes of calculating AWW pursuant to La.R.S. 23:1021(13)(d). Kraft introduced evidence of its “salary plus program” which was basically a bonus system that took into account a person’s hours over forty per week. The judge must look at the particular facts and circumstances of the case to determine whether she was in fact an hourly or salary based employee. It also argued that Barbier didn’t put on the right kind of evidence to show the value of the prize should have been included in her AWW.

Judge Adam Johnson ruled in the trial court that Barbier was a salaried employee who was paid bonuses and that the correct corresponding calculation of her average weekly wage was $911.55. He also awarded $10,000.00 in attorney fees. The Third Circuit Court of Appeal upheld Judge Adam Johnson’s ruling.

So why all of the fuss? An injured worker is entitled to receive two-thirds of the average wages he or she made in the four weeks before he or she was hurt. If Barbier were able to show she should have been paid overtime during that period her workers’ compensation checks would have gone up and Kraft would owe her the difference of what she had been paid for workers’ compensation and what she should have been paid. The same thing is true for the prize – if the prize had been factored in her weekly workers’ comp checks would have gone up about $91 per week.
Barbier v. Kraft Foods, 14–872(La.App. 3 Cir. 2/4/15), 158 So.3d 239


Workplace Safety in Louisiana Gets Better

On behalf of Craig Mitchell, Mitchell & Associates, A Professional Law Corporation posted in Mitchell APLC News on Sunday, January 11, 2015.


There is good news for Louisiana workplace safety. According to a recent press release by the Louisiana Workforce Commission (LWC), in 2013 Louisiana private sector employees experienced the lowest rate of non-fatal work-related injuries and illnesses in the past twelve years. Louisiana’s private sector improvement was in line with the national trend towards increased workplace safety and a lower incidence rate, for both private and public employees. Detailed and state-specific data was recently released by the U.S. Bureau of Labor Statistics and is available on their website.

Increased Workplace Safety Across Industries

As a result of this increase in workplace safety, Louisiana qualified as the second safest state in the nation, among the 41 states (and the District of Columbia) surveyed by the U.S. Bureau of Labor Statistics report upon which the LWC’s press release was based. Only the District of Columbia experienced safer rates. The voluntary workplace safety survey found that the national average for non-fatal work-related injuries and illnesses was 3.3 incidents per 100 full-time workers, but that Louisiana’s average was only 2.2, which had decreased from 2.3 in the previous year.

Louisiana’s continued decrease in workplace injury did not apply equally to all industries. Arts, Entertainment, and Recreation improved the most (2.4 incidents less, per 100 employees, than in 2012), and Utilities also saw a significant decrease in incidents (down 0.9 incidents). Transportation and warehousing (-0.7), Construction (-0.5), Manufacturing (-0.4), and Leisure and Hospitality (-0.3) also saw decreases in workplace injuries. This data demonstrates that while improvements in Arts, Entertainment, and Recreation contributed the most to Louisiana’s excellent rating, many industries saw at least some improvement in workplace safety.

Potential Results of Increased Safety

Safer workplaces can mean lower workers’ compensation insurance rates and, potentially, a less contentious claims process. In the past, Louisiana’s nationally low rates of injury and illness led the National Council of Compensation Insurance (NCCI) to recommend a 2.4% reduction in rates in 2015. The Louisiana Department of Insurance, which already reduced rates for 2014 by 5.1% at NCCI’s recommendation, is expected to announce its decision on the recommendation sometime in December.

The LWC concluded its press release by terming Louisiana as “one of the safest states in the nation to work.” These improvements may come as a result of the LWC’s own efforts, as the LWC provides confidential and comprehensive consultation to businesses of all sizes. The LWC’s SHARP program specifically provides tailored worksite safety programs to qualified small businesses. As we noted in a recent post, the LWC recently helped prepare retail employees for Black Friday.

Despite these improvements, the number of workplace injuries remains significant. Given that an estimated 2.1 million civilians are employed in Louisiana, even a 2.2% injury rate per year amounts in a significant number of injuries. Notably, 114 workers died as a result of fatal workplace incidents in 2013.

Under Reporting Is Always a Concern

Any improvement in workplace safety is important. Unfortunately some employers chose not to properly report on the job injuries. As you can see, this can ultimately help keep the employer’s workers’ compensation insurance premiums lower. If you are hurt on the job it is important that you get the treatment and benefits you are entitled to under the Louisiana Workers’ Compensation Act. If your job doesn’t report the accident so they can keep their workplace safety record clean for lowered premiums, you may be sold short.

If you are injured at your workplace, you should immediately report the incident to your supervisor and employer and, especially if the claim is contested by your employer, seek the assistance of your experienced Louisiana workers’ compensation attorney.


Teaching Lawyers About Louisiana Workers Compensation

On behalf of Craig Mitchell, Mitchell & Associates, A Professional Law Corporation posted in Mitchell APLC News on Tuesday, December 9, 2014.


Attorneys Craig Mitchell, Kiana Aaron Mitchell and Michael Rodriguez each had the opportunity to teach fellow lawyers the ins and outs of Louisiana workers compensation recently. They were each featured separately as continuing legal education presenters and got to show off what they know about workers compensation. It goes like this…

As the end of the year nears many lawyers across Louisiana are going back to school. Attorneys in Louisiana have to take 12.5 hours of continuing legal education classes every year. It keeps them up to date with new developments in the law, which is a good thing. The classes have to be approved for credit, and there’s no shortage of topics. There are many opportunities throughout the year for an attorney to “get his hours”, and lawyers sometimes like to take advantage of the opportunity to take a trip somewhere exotic to earn their hours (the Times Picayune did an article about some trips a few judges took to ski resorts, beaches resorts and even Panama). Others will find packages that include tickets to Disney World, Jazzfest and the California wine country. Because of the mandatory requirement good speakers on good topics are in high demand. Workers’ compensation being the unique area of law it is many lawyers look to fulfill their CLE requirements by attending seminars of Louisiana workers compensation.

Workers Compensation Nuts and Bolts

Craig Mitchell was asked to present “Workers Compensation 101” at the Greater New Orleans Martinett Society End of Year CLE: “Nuts and Bolts.” With approximately forty New Orleans area attorneys registered for the event, Craig gave a compelling overview of how the Louisiana Workers Compensation Law was formed, how it is administered and how claims are handled. Many were surprised to hear that workers’ compensation insurance companies brought in nearly $815,000,000 in premiums in 2013.

Another fact that got attention was that in 2012 there were 2,787 trials for workers compensation benefits in Louisiana in 2012. Craig then got into the “nuts and bolts” of workers compensation. He explained what an “accident” and “injury” are under the workers compensation laws. He explained how claims get denied. He explored the different type of benefits that are available, from temporary total disability to death benefits. Finally he walked the attorneys through the various forms that are needed to get workers compensation benefits and to successfully bring a claim.

Social Security and Workers Compensation

Kiana Aaron Mitchell’s presentation was perhaps the most technical of the three. She was asked to present and explain the difficult area of the “Reverse Social Security Offset” to a packed house of Louisiana lawyers attending the 3rd Annual Advanced Workers Compensation Seminar held by Sterling Education Services in the French Quarter. You may be asking yourself “what in the world is a social security offset, and why in the world would you reverse it?” That’s what the lawyers in attendance wanted to know too.

Kiana was able to teach them about the origins of the offset. It was established by the Social Security Administration to allow it to reduce the amount of benefits it paid to injured workers who were also receiving workers compensation benefits. The idea is that the worker might actually get more than they were making when you combined what he or she got from Social Security and workers compensation. To deal with what some thought was “double dipping” social security benefits can be reduced by what the recipient gets for workers compensation as long as they don’t end up getting less than they would otherwise. Whew, that’s a lot to grasp, but Kiana made it all make sense.

How Employers Benefit From Louisiana Workers Compensation

Michael Rodriguez also had an opportunity to teach other lawyers a thing or two at the 3rd Annual Advanced Workers Compensation Seminar. Showing again that the lawyers of Mitchell & Associates understand workers compensation, Michael’s presentation was called “Big Benefits for Employers with the 1002 Process: Exploring the Unforeseen.” Sounds technical, doesn’t it? Well it was. It all started when the Louisiana Legislature decided to change the Louisiana Workers Compensation Law to create a “safe harbor” for employers who may have handled a workers compensation claim wrong. Rather than letting the injured worker go straight to court a series of procedures were put in place. If during these procedures the employer owned up to the mistake they wouldn’t be penalized. It was heady stuff, but the lawyers in the room left that much smarter.

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