§1221. Temporary total disability; permanent total disability; supplemental earnings
benefits; permanent partial disability; schedule of payments
Compensation shall be paid under this Chapter in accordance with the following
schedule of payments:
(1) Temporary total.
(a) For any injury producing temporary total disability of an employee to engage in
any self-employment or occupation for wages, whether or not the same or a similar
occupation as that in which the employee was customarily engaged when injured, and
whether or not an occupation for which the employee at the time of injury was particularly
fitted by reason of education, training, or experience, sixty-six and two-thirds percent of
wages during the period of such disability.
(b) For purposes of Subparagraph (1)(a) of this Paragraph, compensation for
temporary disability shall not be awarded if the employee is engaged in any employment or
self-employment regardless of the nature or character of the employment or self-employment
including but not limited to any and all odd-lot employment, sheltered employment, or
employment while working in any pain.
(c) For purposes of Subparagraph (1)(a) of this Paragraph, whenever the employee
is not engaged in any employment or self-employment as described in Subparagraph (1)(b)
of this Paragraph, compensation for temporary total disability shall be awarded only if the
employee proves by clear and convincing evidence, unaided by any presumption of disability,
that the employee is physically unable to engage in any employment or self-employment,
regardless of the nature or character of the employment or self-employment, including but
not limited to any and all odd-lot employment, sheltered employment, or employment while
working in any pain, notwithstanding the location or availability of any such employment or
self-employment.
(d) An award of benefits based on temporary total disability shall cease when the
physical condition of the employee has resolved itself to the point that a reasonably reliable
determination of the extent of disability of the employee may be made and the employee's
physical condition has improved to the point that continued, regular treatment by a physician
is not required.
(2) Permanent total.
(a) For any injury producing permanent total disability of an employee to engage in
any self-employment or occupation for wages, whether or not the same or a similar
occupation as that in which the employee was customarily engaged when injured, and
whether or not an occupation for which the employee at the time of injury was particularly
fitted by reason of education, training, and experience, sixty-six and two-thirds percent of
wages during the period of such disability.
(b) For purposes of Subparagraph (2)(a) of this Paragraph, compensation for
permanent total disability shall not be awarded if the employee is engaged in any
employment or self-employment regardless of the nature or character of the employment or
self-employment including but not limited to any and all odd-lot employment, sheltered
employment, or employment while working in any pain.
(c) For purposes of Subparagraph (2)(a) of this Paragraph, whenever the employee
is not engaged in any employment or self-employment as described in Subparagraph (2)(b)
of this Paragraph, compensation for permanent total disability shall be awarded only if the
employee proves by clear and convincing evidence, unaided by any presumption of disability,
that the employee is physically unable to engage in any employment or self-employment,
regardless of the nature or character of the employment or self-employment, including, but
not limited to, any and all odd-lot employment, sheltered employment, or employment while
working in any pain, notwithstanding the location or availability of any such employment or
self-employment.
(d) Notwithstanding any judgment or determination that an employee is permanently
and totally disabled, if such employee subsequently has or receives any earnings, including,
but not limited to, earnings from odd-lot employment, sheltered employment, or employment
while working in any pain, such employee shall not receive benefits pursuant to this
Paragraph but may receive benefits computed pursuant to Paragraph (3) of this Section, if
applicable.
(e) The issue of permanent total disability provided herein shall not be adjudicated
or determined while the employee is engaged in employment pursuant to R.S. 23:1226(G),
but such employment shall not prevent adjudication or determination of the employee's right
to any other benefits otherwise provided in this Chapter; however, the employee shall not by
virtue of employment pursuant to R.S. 23:1226(G) be deprived of the right to determination
or adjudication of permanent total disability herein at a time when he is not engaged in such
employment.
(3) Supplemental earnings benefits.
(a)(i) For injury resulting in the employee's inability to earn wages equal to ninety
percent or more of wages at time of injury, supplemental earnings benefits, payable monthly,
equal to sixty-six and two-thirds percent of the difference between the average monthly
wages at time of injury and average monthly wages earned or average monthly wages the
employee is able to earn in any month thereafter in any employment or self-employment,
whether or not the same or a similar occupation as that in which the employee was
customarily engaged when injured and whether or not an occupation for which the employee
at the time of the injury was particularly fitted by reason of education, training, and
experience, such comparison to be made on a monthly basis. Average monthly wages shall
be computed by multiplying his wages by fifty-two and then dividing the product by twelve.
(ii) When the employee is entitled to monthly supplemental earnings benefits
pursuant to this Subsection, but is not receiving any income from employment or self-employment and the employer has not established earning capacity pursuant to R.S. 23:1226,
payments of supplemental earning benefits shall be made in the manner provided for in R.S.
23:1201(A)(1).
(b) For purposes of Subparagraph (3)(a), of this Paragraph, the amount determined
to be the wages the employee is able to earn in any month shall in no case be less than the
sums actually received by the employee, including, but not limited to, earnings from odd-lot
employment, sheltered employment, and employment while working in any pain.
(c)(i) Notwithstanding the provisions of Subparagraph (b) of this Paragraph, for
purposes of Subparagraph (a) of this Paragraph, if the employee is not engaged in any
employment or self-employment, as described in Subparagraph (b) of this Paragraph, or is
earning wages less than the employee is able to earn, the amount determined to be the wages
the employee is able to earn in any month shall in no case be less than the sum the employee
would have earned in any employment or self-employment, as described in Subparagraph (b)
of this Paragraph, which he was physically able to perform, and (1) which he was offered or
tendered by the employer or any other employer, or (2) which is proven available to the
employee in the employee's or employer's community or reasonable geographic region.
(ii) For purposes of Subsubparagraph (i) of this Subparagraph, if the employee
establishes by clear and convincing evidence, unaided by any presumption of disability, that
solely as a consequence of substantial pain, the employee cannot perform employment
offered, tendered, or otherwise proven to be available to him, the employee shall be deemed
incapable of performing such employment.
(d) The right to supplemental earnings benefits pursuant to this Paragraph shall in
no event exceed a maximum of five hundred twenty weeks, but shall terminate:
(i) As of the end of any two-year period commencing after termination of temporary
total disability, unless during such two-year period supplemental earnings benefits have been
payable during at least thirteen consecutive weeks; or
(ii) After receipt of a maximum of five hundred twenty weeks of benefits, provided
that for any week during which the employee is paid any compensation under this Paragraph,
the employer shall be entitled to a reduction of one full week of compensation against the
maximum number of weeks for which compensation is payable under this Paragraph;
however, for any week during which the employee is paid no supplemental earnings benefits,
the employer shall not be entitled to a reduction against the maximum number of weeks
payable under this Paragraph; or
(iii) When the employee retires; however, the period during which supplemental
earnings benefits may be payable shall not be less than one hundred four weeks.
(e)(i) The fact that an employee has suffered previous disability, impairment, or
disease, or received compensation therefor, shall not preclude him from receiving benefits
for a subsequent injury or preclude benefits for death resulting therefrom.
(ii) If an employee receiving supplemental earnings benefits suffers a subsequent
injury causing the payment of temporary total disability, permanent total disability, or
supplemental earnings benefits, the combined benefits payable shall not exceed the
maximum compensation rate in effect for temporary total disability at the time of the
subsequent injury. Any reduction in benefits due to such limit shall be applied first to the
supplemental earnings benefits payable as a result of the prior injury.
(f) Any compensable supplemental earnings benefits loss shall be reported by the
employee to the insurer or self-insured employer within thirty days after the termination of
the week for which such loss is claimed. The assistant secretary shall provide by rule for the
reporting of supplemental earnings benefits loss by the injured worker and for the reporting
of supplemental earnings benefits and payment of supplemental earnings benefits by the
employer or insurer to the office and may prescribe forms for such reporting. The office,
upon request by the employer or insurer, shall provide verification through unemployment
compensation records under the Louisiana Employment Security Law of any claimed
supplemental earnings benefits loss and shall obtain such verification from other states, if
applicable.
(g) When an injured employee has been released to return to work with or without
restrictions, and the employer maintains an established written and promulgated substance
abuse policy which requires employer-administered drug testing prior to employment or
return to work, upon the employee's failure to meet the requirements of such employer's
established policy and inability to qualify for the position for that reason, the obligation for
all benefits pursuant to this Chapter, with the sole exception of the obligation to provide
reasonable and necessary medical treatment, shall be terminated and the employee shall be
subject to the terms and conditions established in the employer's promulgated drug testing
policy and program. The provisions of this Subparagraph shall not apply to prescription
medication prescribed for the employee in the dosages so prescribed by a physician.
(4) Permanent partial disability. In the following cases, compensation shall be solely
for anatomical loss of use or amputation and shall be as follows:
(a) For the loss of a thumb, sixty-six and two-thirds percent of wages during fifty
weeks.
(b) For the loss of a first finger, commonly called the index finger, sixty-six and two-thirds percent of wages during thirty weeks.
(c) For the loss of any other finger, or a big toe, sixty-six and two-thirds percent of
wages during twenty weeks.
(d) For the loss of any toe, other than a big toe, sixty-six and two-thirds percent of
wages during ten weeks.
(e) For the loss of a hand, sixty-six and two-thirds percent of wages during one
hundred fifty weeks.
(f) For the loss of an arm, sixty-six and two-thirds percent of wages during two
hundred weeks.
(g) For the loss of a foot, sixty-six and two-thirds percent of wages during one
hundred twenty-five weeks.
(h) For the loss of a leg, sixty-six and two-thirds percent of wages during one
hundred seventy-five weeks.
(i) For the loss of an eye, sixty-six and two-thirds percent of wages during one
hundred weeks.
(j) Loss of both hands, or both arms, or both feet, or both legs, or both eyes, or one
hand and one foot, or any of two thereof, or paraplegia, or quadriplegia shall, in the absence
of conclusive proof of a substantial earning capacity, constitute permanent total disability.
(k) The loss of the first phalanx of the thumb or big toe, or two phalanges of any
finger or toe, shall be considered to be equal to the loss of one-half of such member, and the
compensation shall be one-half of the amount above specified.
(l) The loss of more than one phalanx of a thumb, or more than two phalanges of any
finger or toe shall be considered as the loss of the entire member; provided, however, that
in no case shall the amount received for more than one finger exceed the amount provided
in this schedule for the loss of a hand, or the amount received for the loss of more than one
toe exceed the amount provided in this schedule for the loss of a foot.
(m) Amputation between the elbow and the wrist shall be considered as equivalent
to the loss of a hand and amputation between the knee and the ankle shall be equivalent to
the loss of a foot.
(n) A permanent total anatomical loss of the use of a member is equivalent to the
amputation of the member.
(o) In all cases involving a permanent partial anatomical loss of use or amputation
of the members mentioned hereinabove, compensation shall bear such proportion to the
number of weeks provided for herein for the total loss of such members as the percentage
loss or impairment to such members bears to the total loss of the member, provided that in
no case shall compensation for an injury to a member exceed the compensation payable for
the loss of such member.
(p) In cases not falling within any of the provisions already made, where the
employee is seriously and permanently disfigured or suffers a permanent hearing loss solely
due to a single traumatic accident, or where the usefulness of the physical function of the
respiratory system, gastrointestinal system, or genito-urinary system, as contained within the
thoracic or abdominal cavities, is seriously and permanently impaired, compensation not to
exceed sixty-six and two-thirds percent of wages for a period not to exceed one hundred
weeks may be awarded. In cases where compensation is so awarded, when the disability is
susceptible to percentage determination, compensation shall be established in the proportions
set forth in Subparagraph (o) of this Paragraph. In cases where compensation is so awarded,
when the disability is not susceptible to percentage determination, compensation as is
reasonable shall be established in proportion to the compensation hereinabove specifically
provided in the cases of specific disability.
(q) No benefits shall be awarded or payable in this Paragraph unless the percentage
of the anatomical loss of use or amputation, as provided in Subparagraphs (a) through (o) of
this Paragraph or the percentage of the loss of physical function as provided in Subparagraph
(p) or (s) of this Paragraph is as established in the most recent edition of the American
Medical Association's "Guides to the Evaluation of Permanent Impairment".
(r)(i) In all claims for inguinal hernia, it must be established by a preponderance of
the evidence that the hernia resulted from injury by accident arising out of and in the course
and scope of employment; that the accident was reported promptly to the employer, and that
the employee was attended by a licensed physician within thirty days thereafter.
(ii) If the employee submits to treatment, including surgery, recommended by a
competent physician or surgeon, the employer or insurer shall pay compensation benefits as
elsewhere fixed by this Chapter.
(iii) If the employee refuses to submit to such recommended treatment, including
surgery, and establishes by a preponderance of the evidence that his refusal is based upon his
conscientious religious objection thereto or that such recommended treatment, including
surgery, involves an unusual and serious danger to him, the employer or insurer shall pay
compensation benefits as elsewhere fixed by this Chapter. In all other cases of the
employee's refusal to submit to such recommended treatment, including surgery, the
employer shall provide all necessary first aid and medical treatment and supply the necessary
truss, support, or other mechanical appliance at a total cost not in excess of six hundred
dollars. In addition, the employer shall pay compensation for a period not to exceed twenty-six weeks.
(iv) Recurrence of the hernia following surgery shall be considered as a separate
hernia, and the provisions and limitations of this Subparagraph shall apply.
(s)(i) In addition to any other benefits to which an injured employee may be entitled
under this Chapter, any employee suffering an injury as a result of an accident arising out of
and in the course and scope of his employment shall be entitled to a sum of fifty thousand
dollars, payable within one year after the date of the injury. Interest on such payment shall
not commence to accrue until after it becomes payable. Such payment shall not be subject
to any offset for payment of any other benefit under this Chapter. Such payment shall not be
subject to a claim for attorney fees; however, attorney fees may be awarded in a claim to
collect such payment pursuant to R.S. 23:1201.2.
(ii) In any claim for an injury, it must be established by clear and convincing evidence
that the employee suffers an injury and that such resulted from an accident arising out of and
in the course and scope of his employment. Nothing herein shall limit the right of any party
to obtain a second medical opinion or, in appropriate cases, the opinion of an additional
medical opinion medical examiner pursuant to R.S. 23:1123.
(iii) Only the following injuries shall be considered injuries for which benefits
pursuant to this Subparagraph may be claimed:
(aa) Paraplegia or quadriplegia or the total anatomical loss of both hands, or both
arms, or both feet, or both legs, or both eyes, or one hand and one foot, or any of two thereof;
however, functional loss or loss of use shall not constitute anatomical loss.
(bb) Third degree burns of forty percent or more of the total body surface.
(iv) Notwithstanding the provisions of R.S. 23:1291.1 and 1377, any benefit paid
pursuant to this Subparagraph shall be reported to the office separately from any other benefit
paid pursuant to this Chapter and shall not be subject to assessment by the office or by the
Louisiana Workers' Compensation Second Injury Board.
(v) Repealed by Acts 2006, No. 494, §1.