§1378. Determination of liability of fund
A. An employer operating under the provisions of this Chapter who knowingly
employs, re-employs, or retains in his employment an employee who has a permanent partial
disability, as defined in R.S. 23:1371.1, shall qualify for reimbursement from the Second
Injury Fund, if the employee incurs a subsequent injury arising out of and in the course of his
employment resulting in a greater liability due to the merger of the subsequent injury with
the preexisting permanent partial disability. The employer or, if insured, his insurer shall pay
all benefits provided in this Chapter, but the employer or, if insured, his insurer thereafter
shall be reimbursed by the Second Injury Fund for all indemnity and medical benefit
payments as follows:
Date of Injury
Reimbursement Schedule
Before July 1, 2004 & on/
after July 1, 2009, but before
July 1, 2010
INDEMNITY
• TTD/SEB/PTD After the first 104 weeks of
payment of benefits
• Death benefits after the first 175 weeks of
payment of benefits
MEDICAL
• 50% of all reasonable and necessary medical
expenses actually paid which exceed $5,000.00,
but no less than $10,000.00
• 100% of all reasonable and necessary medical
expenses actually paid which exceed $10,000.00
On/after July 1, 2004 &
before July 1, 2009
INDEMNITY
• After the first 130 weeks of payment of benefits
MEDICAL
• 100% of all reasonable and necessary medical
expenses actually paid which exceed $25,000.00
•
On/after July 1, 2010
INDEMNITY
• After the first 104 weeks of indemnity
MEDICAL
• 100% of all reasonable and necessary medical
expenses actually paid which exceed $25,000.00,
including reasonable and necessary Vocational
Rehabilitation expenses, if such expenses are
directly related to services provided in the actual
retention or reemployment of employees
(1) Such payments shall be reimbursed provided they are submitted to the board
within one year of the approval for reimbursement or within one year of the payment of such
weekly compensation payments, whichever occurs later.
(2) No employer or insurer shall be entitled to reimbursement unless it is clearly
established that the employer had actual knowledge of the employee's preexisting permanent
partial disability prior to the subsequent injury. For injuries occurring after December 31,
2010, actual knowledge shall be established only by any one of the following circumstances:
(a) The employee's preexisting permanent partial disability was caused by a
compensable workers' compensation accident or occupational disease while employed by the
same employer seeking reimbursement from the Second Injury Fund.
(b) Prior to the second injury, the employee disclosed to the employer the employee's
preexisting permanent partial disability on a form promulgated by the office of workers'
compensation.
(c) The employer employs, retains, or re-employs employees from the PPD employee
registry maintained by Louisiana Works and which is created and maintained in accordance
with rules promulgated by the office of workers' compensation.
(d) The employer provides an affidavit, on a form promulgated by the office of
workers' compensation, which shall set forth all of the following:
(i) An attestation as to hire and fire authority as defined in R.S. 23:1371.1.
(ii) An attestation as to how and when knowledge was acquired.
(iii) An attestation as to the actual permanent partial disability existing.
(iv) An attestation of how the permanent partial disability, if not a presumed
condition as listed in Subsection F of this Section, was a hindrance and obstacle to
employment.
(v) An attestation certifying that false statements used in the affidavit may result in
penalties pursuant to R.S. 23:1208.
(3) The Second Injury Fund shall be credited or reimbursed for sums recovered by
the employer or the insurer from third parties in an amount equal to a pro rata share of the
net amount recovered based upon the amounts paid by the fund, and the amounts paid by the
self-insurer or insurer which have not been reimbursed by the fund, to or on behalf of the
injured employee for medical benefits, workers' compensation indemnity benefits, and
vocational rehabilitation services. The employer or the insurer shall advise the board of any
subrogation action against third parties on any claim submitted to the board. The failure of
the employer or insurer to notify the board of any pending subrogation action prior to receipt
of payment from the board shall subject the employer or the insurer to a penalty of twenty
percent of the amount otherwise claimed by the employer or insurer as payable from the
Second Injury Fund, as well as a return of all amounts paid by the board to the extent these
amounts are recovered in the subrogation action. Except as provided in this Subsection the
Second Injury Fund shall not be required to reimburse vocational rehabilitation expenses.
(4)(a) The Second Injury Fund shall not be liable for reimbursement or be obligated
to give credit for any amounts paid by an employer or carrier as attorney fees, penalties, or
interest, nor for any sums paid under the Jones Act or Longshoremen and Harbor Workers
Compensation Act.
(b) For settlements occurring after July 1, 2007, the Second Injury Fund shall be
liable for reimbursement or be obligated to give credit for attorney fees paid pursuant to R.S.
23:1141, but shall not be liable for reimbursement or be obligated to give credit for attorney
fees paid pursuant to R.S. 23:1201 or any other penalty provision provided for in Chapter 10
of this Title.
(5) Upon the board's approval of a claim for reimbursement, and on an annual basis
thereafter, the insurer shall report to the board an estimate of the future medical and
indemnity liability to the injured employee on a form promulgated by the assistant secretary.
The report shall be submitted to the board each year at the same time the annual report
required by R.S. 23:1291.1 is submitted to the office of workers' compensation
administration.
(a) Upon the board's approval of a claim for reimbursement, the insurer shall
immediately certify to the board that the medical reserve and the weekly disability benefits
(indemnity) reserve do not exceed the threshold limits provided in the reimbursement
schedule set forth in this Subsection. No reimbursement will be made to the insurer unless
such insurer complies with the provisions of this Paragraph:
(i) As a prerequisite to reimbursement from the fund, the insurer shall be required
to certify that the medical and indemnity reserves have been reduced to the threshold limits
of reimbursement and report in accordance with the National Council on Compensation
Insurance Workers' Compensation Statistical Plan.
(ii) The Second Injury Fund director shall quarterly submit to the National Council
on Compensation Insurance information regarding the Second Injury Fund accepted claims.
(iii) The National Council on Compensation Insurance shall submit a report of any
discrepancies pursuant to regulations established by the Department of Insurance. The
Department of Insurance is directed to establish regulations concerning Second Injury Fund
discrepancies.
(b) The Louisiana Insurance Guaranty Association shall be entitled to
reimbursement, but only to the extent of the proportion of the Second Injury Fund assessment
paid by insurance companies.
(6)(a)(i) For an accident occurring on or after October 1, 1995, the employer, if
self-insured, or the insurer shall obtain written approval from the board of any lump sum or
compromise settlement of an approved claim before such settlement is submitted for
approval, as provided in Part III of this Chapter.
(ii) If written approval is obtained, an order approving the settlement shall be
obtained within one hundred eighty days from the date that approval is issued after which
time the written approval shall be null and the self-insurer or insurer must again obtain
written approval to settle the claim. The board shall respond to requests for written approval
within forty-five days of receipt of the request.
(iii) If an employer, if self-insured, or the insurer seeks authority to enter into a
compromise settlement in connection with the settlement of a third-party claim, the board
shall respond within three working days unless the settlement contemplates payment by the
insurer or self-insurer of additional amounts which exceed fifty thousand dollars. If the
settlement contemplates additional amounts which exceed fifty thousand dollars, the board
shall respond within forty-five days of receipt of the request.
(iv) If the board does not issue a written response within the time provided in Items
(ii) and (iii), the request shall be deemed approved unless the employer or insurer does not
comply with rules promulgated pursuant to Item (v) of this Paragraph.
(v) The assistant secretary of the Office of Workers' Compensation Administration
shall establish and promulgate, in accordance with the Administrative Procedure Act, such
rules and regulations governing the submission of requests for approval as well as response
from the board as may be deemed necessary and which are not inconsistent with the laws of
this state.
(b)(i) Except in cases of a settlement in connection with the settlement of a third-party claim, if the self-insurer or insurer fails to obtain written approval from the board as
provided in Subparagraph (a) of this Paragraph or fails to submit the settlement to the judge
for approval as provided in Subparagraph (a) of this Paragraph, the fund shall not reimburse
such self-insurer or insurer for the final settlement amount.
(ii) In cases of a settlement in connection with the settlement of a third-party claim,
if the self-insurer or insurer fails to obtain written approval from the board as provided in
Subparagraph (a) of this Paragraph or fails to submit the settlement to the judge for approval
as provided in Subparagraph (a) of this Paragraph, the fund shall not reimburse such self-insurer or insurer for the final settlement amount and twenty-five percent of the unpaid
reimbursements due or ten thousand dollars, whichever is greater.
(iii) As used in this Section, "final settlement amount" shall mean only additional
funds contemplated to be paid by the insurer or self-insurer.
(c) The board shall not be a party to any lump sum compromise settlement with the
employee.
(d) In the event that the board issues a written denial of the settlement, the property
or casualty insurer, self-insured employer, or group self-insurance fund may appeal pursuant
to Subsection E of this Section. The appeal shall be placed on the preference docket of the
appropriate district court and shall be heard on the earliest practicable date.
B.(1) Except as provided in Paragraph (2) of this Subsection, the employer or his
insurer, whichever of them makes the payments or becomes liable, shall within one year after
the first payment of either compensation or medical benefits, whichever occurs first, notify
the board in writing of such facts and furnish such other information as may be required by
the board to determine if the employer or his insurer is qualified for reimbursement from the
Workers' Compensation Second Injury Fund. Except as provided in Paragraph (2) of this
Subsection, no employer, insurer, servicing agent, or self-insured association shall be
reimbursed unless the board is notified within one year from the date of the first payment of
either compensation or medical benefits whichever occurs first. Employers which are self-insured for workers' compensation benefits, but have not received a certificate of authority
from the commissioner of insurance as provided for in R.S. 23:1197 or authorization from
the assistant secretary pursuant to R.S. 23:1168(A)(2) or (3) shall not be entitled to
reimbursement from the fund.
(2) When R.S. 23:1209(A)(3) is applicable to a claim against an employer, the
employer or his insurer, whichever of them makes the payments or becomes liable, shall
within one year after the first payment of either compensation or medical benefits, whichever
occurs later, notify the board in writing of such facts and furnish such other information as
may be required by the board to determine if the employer or his insurer is qualified for
reimbursement from the Workers' Compensation Second Injury Fund.
C.(1) Upon receipt of a notice as provided in Subsection B of this Section, the board
may conduct an investigation into all phases of the matter and take any and all other actions
necessary to permit it to determine whether or not the employer or his insurer is entitled to
reimbursement from the Workers' Compensation Second Injury Fund.
(2) The board may call a hearing, and in such case the employer and insurer, if any,
shall be notified of the date, time, and place at least ten days before the date set for the
hearing. Hearings may be had in the parish wherein the accident occurred or in any other
parish that the board determines to be more convenient. The board shall establish rules for
the conduct of such hearings. The board may issue subpoenas for witnesses in its behalf or
for witnesses deemed necessary to a proper determination of the case. It shall issue
subpoenas for witnesses at the request of the employer or insurer. At such hearings, the
board shall not make a determination which would create, provide, diminish, or affect any
workers' compensation benefits due to an injured employee but shall limit itself to the
determination of whether the fund is liable to reimburse the employer, or, if insured, the
insurer.
D. If the board finds that the employer or, if insured, his insurer is entitled to
reimbursement, as provided in this Part, from the Workers' Compensation Second Injury
Fund, the board shall issue its warrant to the state treasurer for payments to be made at such
intervals as the board directs from the Workers' Compensation Second Injury Fund to such
employer or insurer for the amount provided in Subsection A of this Section. In the event
the employer or insurer makes a compromise or a lump-sum payment as provided in R.S.
23:1271 through 1274, the board shall have the discretion of paying in a lump sum or in
periodic payments of three-month intervals for the amount that would have been due the
employee for that period from the date the compromise or lump-sum settlement agreement
is received in the board's office.
E. Written notice of the decision of the board shall be given to all parties to the
hearing and the representatives designated by the party on the reimbursement form submitted
to the board. The decision of the board shall be final; however, an appeal therefrom may be
taken by any of the parties within thirty days after the date of the decision of the board. If
an appeal is taken, the board shall be made party defendant, and service and citation shall be
made in accordance with applicable law upon the attorney general or one of his assistants.
The appeal shall be to the Nineteenth Judicial District Court, parish of East Baton Rouge.
All appeals in all such cases shall be tried de novo.
F. Where the employer establishes that he had knowledge of the preexisting
permanent partial disability prior to the subsequent injury, and diagnosis of the condition was
made by qualified physicians within the scope of their practice or other persons properly
licensed and certified to make such a diagnosis, there shall be a presumption that the
employer considered the condition to be permanent and to be or likely to be a hindrance or
obstacle to employment where the condition is one of the following:
(1) Seizure disorder.
(2) Diabetes mellitus.
(3) Coronary artery disease or congestive heart failure.
(4) Arthritis.
(5) Amputated foot, leg, arm, or hand, or total or partial of at least fifty percent loss
of use thereof.
(6) Loss of sight of one or both eyes or legal blindness.
(7) Residual disability from poliomyelitis.
(8) Cerebral palsy.
(9) Multiple sclerosis.
(10) Parkinson's disease.
(11) Cerebral vascular accident.
(12) Tuberculosis.
(13) Pneumoconiosis.
(14) Psychoneurosis or psychosis following treatment in a recognized medical or
mental institution.
(15) Bleeding disorder.
(16) Chronic osteomyelitis.
(17) Ankylosis of joints.
(18) Muscular dystrophy.
(19) Arteriosclerosis.
(20) Thrombophlebitis.
(21) Varicose veins.
(22) Heavy metal poisoning.
(23) Ionizing radiation injury.
(24) Compressed air sequelae.
(25) Ruptured or herniated intervertebral disc.
(26) Brain damage.
(27) Spinal surgery including fusion, partial, or total discectomy or microdiscectomy.
(28) Chronic obstructive pulmonary disease (COPD).
(29) Post traumatic stress disorder syndrome (PTSD).
(30) Post concussive syndrome.
(31) Alzheimer's disease.
(32) Sickle cell anemia.
(33) Joint replacement surgery.
(34) Intellectual disability, (a) Provided the diagnosis of an intellectual disability
shall be made on the basis of the following:
(i) Significantly subnormal intellectual functioning, defined as an objective measure
of cognitive status which falls at least two standard deviations below the mean of the national
standardization sample based on valid results of a recognized individually administered test
of intellectual function.
(ii) Objective evidence of concurrent impairment of adaptive functioning in at least
two areas of functional behavior as measured by standardized, norm reference measures of
adaptive function.
(iii) Evidence of an onset before the age of eighteen years.
(b) It shall not be necessary for the employer to know the employee's actual
intelligence quotient or actual relative ranking in relation to the intelligence quotient of the
general population.
(c) Diagnosis of an intellectual disability shall be made by a psychiatrist,
psychologist, or other person properly licensed and certified to make such a diagnosis.
NOTE: Acts 1991, No. 892, §2 provided R.S. 23:1378(e) shall apply only to
decisions of the second injury board issued on or after September 6, 1991.
Acts 1974, No. 165, §1; Acts 1976, No. 267, §2, eff. Oct. 1, 1977; Acts 1976, No.
298, §1; Acts 1976, No. 299, §§1, 2; Acts 1977, No. 267, §§2, 3, eff. Oct. 1, 1977; Acts
1976, No. 50, §1; Acts 1983, 1st Ex. Sess., No. 1, §§1, 6, eff. July 1, 1983; Acts 1985, No.
697, §1, eff. Oct. 1, 1985; Acts 1988, No. 938, §1, eff. July 1, 1989; Acts 1988, No. 997, §1;
Acts 1989, No. 23, §1, eff. June 15, 1989; Acts 1989, No. 260, §1, eff. Jan. 1, 1990; Acts
1991, No. 892, §1; Acts 1992, No. 767, §1; Acts 1995, No. 245, §1, eff. June 14, 1995; Acts
2004, No. 227, §1, eff. June 14, 2004; Acts 2004, No. 256, §1, eff. June 15, 2004; Acts 2004,
No. 258, §1, eff. June 15, 2004; Acts 2004, No. 293, §1, eff. July 1, 2004; Acts 2005, No.
257, §1; Acts 2006, No. 453, §1, eff. June 15, 2006; Acts 2007, No. 332, §1, eff. July 9,
2007; Acts 2008, No. 220, §8, eff. June 14, 2008; Acts 2010, No. 799, §1, eff. June 30, 2010;
Acts 2014, No. 811, §12, eff. June 23, 2014; Acts 2015, No. 254, §1, eff. June 29, 2015.