§ 23:1021 — Terms defined

Louisiana § 23:1021

• Jurisdiction: Louisiana
• Title 23: Labor and Workers' Compensation

Text

§1021. Terms defined
As used in this Chapter, unless the context clearly indicates otherwise, the following
terms shall be given the meaning ascribed to them in this Section:
(1) "Accident" means an unexpected or unforeseen actual, identifiable, precipitous
event happening suddenly or violently, with or without human fault, and directly producing
at the time objective findings of an injury which is more than simply a gradual deterioration
or progressive degeneration.
(2) "Brother" and "sister" includes step-brothers and step-sisters, and brothers and
sisters by adoption.
(3) "Child" or "children" covers only children born of marriage, step-children,
posthumous children, adopted children, and children born outside of marriage who have been
acknowledged under the provisions of the Civil Code.
(4) "Dependent" means the person or persons to whom, under the provisions of Part
II of this Chapter, compensation shall be paid upon the death of the injured employee.
(5) " Assistant secretary" means the assistant secretary of the office of workers'
compensation administration.
(6) "Health care provider" means a hospital, a person, corporation, facility, or
institution licensed by the state to provide health care or professional services as a physician,
hospital, dentist, registered or licensed practical nurse, pharmacist, optometrist, podiatrist,
chiropractor, physical therapist, occupational therapist, psychologist, graduate social worker
or licensed clinical social worker, psychiatrist, or licensed professional counselor, and any
officer, employee, or agent thereby acting in the course and scope of his employment.
(7) "Independent contractor" means any person who renders service, other than
manual labor, for a specified recompense for a specified result either as a unit or as a whole,
under the control of his principal as to results of his work only, and not as to the means by
which such result is accomplished, and are expressly excluded from the provisions of this
Chapter unless a substantial part of the work time of an independent contractor is spent in
manual labor by him in carrying out the terms of the contract, in which case the independent
contractor is expressly covered by the provisions of this Chapter. The operation of a truck
tractor or truck tractor trailer, including fueling, driving, connecting and disconnecting
electrical lines and air hoses, hooking and unhooking trailers, and vehicle inspections are not
manual labor within the meaning of this Chapter.
(8)(a) "Injury" and "personal injuries" include only injuries by violence to the
physical structure of the body and such disease or infections as naturally result therefrom.
These terms shall in no case be construed to include any other form of disease or
derangement, however caused or contracted.
(b) Mental injury caused by mental stress. Mental injury or illness resulting from
work-related stress shall not be considered a personal injury by accident arising out of and
in the course of employment and is not compensable pursuant to this Chapter, unless the
mental injury was the result of a sudden, unexpected, and extraordinary stress related to the
employment and is demonstrated by clear and convincing evidence.
(c) Mental injury caused by physical injury. A mental injury or illness caused by a
physical injury to the employee's body shall not be considered a personal injury by accident
arising out of and in the course of employment and is not compensable pursuant to this
Chapter unless it is demonstrated by clear and convincing evidence.
(d) No mental injury or illness shall be compensable under either Subparagraph (b)
or (c) unless the mental injury or illness is diagnosed by a licensed psychiatrist or
psychologist and the diagnosis of the condition meets the criteria as established in the most
current issue of the Diagnostic and Statistical Manual of Mental Disorders presented by the
American Psychiatric Association.
(e) Heart-related or perivascular injuries. A heart-related or perivascular injury,
illness, or death shall not be considered a personal injury by accident arising out of and in the
course of employment and is not compensable pursuant to this Chapter unless it is
demonstrated by clear and convincing evidence that:
(i) The physical work stress was extraordinary and unusual in comparison to the
stress or exertion experienced by the average employee in that occupation, and
(ii) The physical work stress or exertion, and not some other source of stress or
preexisting condition, was the predominant and major cause of the heart-related or
perivascular injury, illness, or death.
(9) "Office" means the office of workers' compensation administration established
pursuant to R.S. 23:1291.
(10) "Owner operator" means a person who provides trucking transportation services
under written contract to a common carrier, contract carrier, or exempt haulers which
transportation services include the lease of equipment or a driver to the common carrier,
contract carrier, or exempt hauler. An owner operator, and the drivers provided by an owner
operator, are not employees of any such common carrier or exempt hauler for the purposes
of this Chapter if the owner operator has entered into a written agreement with the carrier or
hauler that evidences a relationship in which the owner operator identifies itself as an
independent contractor. For purposes of this Chapter, owner operator does not include an
individual driver who purchases his equipment from the carrier or hauler, and then directly
leases the equipment back to the carrier or hauler with the purchasing driver.
(11) "Part-time employee" means an employee who as a condition of his hiring
knowingly accepts employment that (a) customarily provides for less than forty hours per
work week, and (b) that is classified by the employer as a part-time position.
(12) "Payor" means the entity responsible, whether by law or contract, for the
payment of benefits incurred by a claimant as a result of a work related injury.
(13) "Wages" means average weekly wage at the time of the accident. The average
weekly wage shall be determined as follows:
(a) Hourly wages.
(i) If the employee is paid on an hourly basis and the employee is employed for forty
hours or more, his hourly wage rate multiplied by the average actual hours worked in the four
full weeks preceding the date of the accident or forty hours, whichever is greater; or
(ii) If the employee is paid on an hourly basis and the employee was offered
employment for forty hours or more but regularly, and at his own discretion, works less than
forty hours per week for whatever reason, then, the average of his total earnings per week for
the four full weeks preceding the date of the accident; or
(iii) If the employee is paid on an hourly basis and the employee is a part-time
employee, his hourly wage rate multiplied by the average actual hours worked in the four full
weeks preceding the date of the injury.
(iv) A part-time employee, as defined in R.S. 23:1021(9) and who is employed by
two or more different employers in two or more successive employments, shall be entitled
to receive benefits as follows:
(aa) If an employee is employed by two or more different employers in two or more
successive employments and the employee incurs a compensable injury under the provisions
of this Chapter in one of the employments, the employer in whose service the employee was
injured shall pay the benefits due the employee as provided in this Chapter.
(bb) If the employee is a part-time employee in one of the successive employments,
is injured in that employment, but as a result of the injury also incurs loss of income from
other successive employments, that employee shall be entitled to benefits computed by
determining wages under the provisions of this Subsection using his hourly rate in
employment at the time of injury and using the total hours worked for all employers of the
part-time employee, but not to exceed his average, actual weekly hours worked or forty hours
weekly, whichever is less.
(v) For an employee in seasonal employment, his annual income divided by fifty-two.
(aa) For purposes of this Subparagraph, seasonal employment shall be any
employment customarily operating only during regularly recurring periods of less than forty-four weeks annually.
(bb) If the employee was not engaged in the seasonal employment more than one
year prior to the accident, his annual income shall be the average annual income of other
employees of the same or most similar class working in the same or most similar
employment for the same employer or, in the event that the employee was the only individual
engaged in that specific employment, then his annual income shall be the average annual
income of other employees of the same or most similar class working for a neighboring
employer engaged in the same or similar employment.
(b) Monthly wages. If the employee is paid on a monthly basis, his monthly salary
multiplied by twelve then divided by fifty-two.
(c) Annual wages. If the employee is employed at an annual salary, his annual salary
divided by fifty-two.
(d) Other wages. If the employee is employed on a unit, piecework, commission, or
other basis, his gross earnings from the employer for the twenty-six week period immediately
preceding the accident divided by the number of days the employee actually worked for the
employer during said twenty-six week period and multiplied by the average number of days
worked per week; however, if such an employee has worked for the employer for less than
a twenty-six week period immediately preceding the accident, his gross earnings from the
employer for the period immediately preceding the accident divided by the number of days
the employee actually worked for the employer during said period and multiplied by the
average number of days worked per week.
(e) Exceptions. For municipal police officers, additional compensation paid by the
state pursuant to R.S. 40:1667.3 shall not be included in the calculation and computation of
total salary or average weekly wage to the extent such officer continues to receive such
additional compensation during the period of his disability.
(f) Income tax. In the determination of "wages" and the average weekly wage at the
time of the accident, no amount shall be included for any benefit or form of compensation
which is not taxable to an employee for federal income tax purposes; however, any amount
withheld by the employer to fund any nontaxable or tax-deferred benefit provided by the
employer and which was elected by the employee in lieu of taxable earnings shall be
included in the calculation of the employee's wage and average weekly wage including but
not limited to any amount withheld by the employer to fund any health insurance benefit
provided by the employer and which was elected by the employee in lieu of taxable earnings
shall be included in the calculation of the employee's wage and average weekly wage.
(g) Date of accident. In occupational disease claims the date of the accident for
purposes of determining the employee's average weekly wage shall be the date of the
employee's last employment with the employer from whom benefits are claimed or the date
of his last injurious exposure to conditions in his employment, whichever date occurs later.

Legislative History

Amended by Acts 1968, Ex. Sess., No. 25, §1; Acts 1975, No. 583, §1, eff. Sept. 1, 1975; Acts 1983, 1st Ex. Sess., No. 1, §§1, 6; eff. July 1, 1983; Acts 1987, No. 396, §1; Acts 1987, No. 494, §1; Acts 1988, No. 938, §1, eff. Jan. 1, 1989, and July 1, 1989; Acts 1989, No. 260, §1, eff. Jan. 1, 1990; Acts 1989, No. 454, §1, eff. Jan. 1, 1990; Acts 1991, No. 468, §1; Acts 1991, No. 565, §1; Acts 1993, No. 928, §2, eff. June 25, 1993; Acts 1995, No. 1137, §1, eff. June 29, 1995; Acts 1997, No. 423, §1; Acts 1997, No. 536, §1; Acts 1997, No. 1172, §4, eff. June 30, 1997; Acts 1999, No. 751, §1; Acts 1999, No. 1309, §5, eff. Jan. 1, 2000; Acts 2001, No. 288, §2; Acts 2001, No. 486, §2, eff. June 21, 2001; Acts 2001, No. 546, §1; Acts 2001, No. 1014, §§1 and 2, eff. June 27, 2001; Acts 2004, No. 26, §10; Acts 2004, No. 188, §1, eff. June 10, 2004; Acts 2004, No. 561, §1; Acts 2013, No. 337, §1; Acts 2014, No. 158, §§3 and 7.