HLS 12RS-1067 ORIGINAL
Page 1 of 9
CODING: Words in struck through type are deletions from existing law; words underscored
are additions.
Regular Session, 2012
HOUSE BILL NO. 885
BY REPRESENTATIVE LIGI
WORKERS COMPENSATI ON: Provides with respect to workers' compensation
AN ACT1
To amend and reenact R.S. 23:1021(12)(a)(I), (ii), and (iii), (d), (e), (f), and (g),2
1034.2(C)(4), 1121(B)(1), 1208(A) and (D), to enact R.S. 23:1021(12)(h) and3
1226(H) and to repeal R.S. 23:1021(12)(a)(v), relative to workers' compensation; to4
provide for the calculation of wages; to provide with respect to reimbursement for5
medication; to provide for examination by a physician; to provide with respect to6
fraudulent conduct; to provide for vocational rehabilitation; and to provide for7
related matters.8
Be it enacted by the Legislature of Louisiana:9
Section 1. R.S. 23:1021(12)(a)(I), (ii), and (iii), (d), (e), (f), and (g), 1034.2(C)(4),10
1121(B)(1), 1208(A) and (D) are hereby amended and reenacted and R.S. 23:1021(12)(h)11
and 1226(H) are hereby enacted to read as follows:12
§1021. Terms defined13
As used in this Chapter, unless the context clearly indicates otherwise, the14
following terms shall be given the meaning ascribed to them in this Section:15
* * *16
(12) "Wages" means average weekly wage at the time of the accident. The17
average weekly wage shall be determined as follows:18
(a) Hourly wages. For all wages paid on a basis other than as set forth in19
Subparagraphs (b), (c), and (d) of this Paragraph:20 HLS 12RS-1067 ORIGINAL
HB NO. 885
Page 2 of 9
CODING: Words in struck through type are deletions from existing law; words underscored
are additions.
(i) If the employee is paid on an hourly basis and the employee is employed1
for forty hours or more, his hourly wage rate multiplied by the average actual hours2
worked in the four full weeks preceding the date of the accident or forty hours,3
whichever is greater; or The total gross wages earned with the employer during the4
fifty-two full weeks preceding the work-related compensable injury divided by fifty-5
two.6
(ii) If the employee is paid on an hourly basis and the employee was offered7
employment for forty hours or more but regularly, and at his own discretion, works8
less than forty hours per week for whatever reason, then, the average of his total9
earnings per week for the four full weeks preceding the date of the accident; or If the10
employee did not work for the employer during the entire fifty-two weeks preceding11
the compensable injury, gross wages earned during the number of full weeks worked12
prior to the work-related compensable injury divided by the number of full weeks13
worked.14
(iii) If the employee is paid on an hourly basis and the employee is a part-15
time employee, his hourly wage rate multiplied by the average actual hours worked16
in the four full weeks preceding the date of the injury. If the employee has not17
worked a full week at the time of the accident, his actual earnings divided by the18
number of hours actually worked and multiplied by the number of hours the19
employee was expected to work per week, if less than forty, and the employer20
provides written documentation of the expected number of hours, or forty hours.21
* * *22
(d) Other wages. If the employee is employed on a unit, piecework,23
commission, or other basis, his gross earnings from the employer for the twenty-six24
week period immediately preceding the accident divided by the number of days the25
employee actually worked for the employer during said twenty-six week period and26
multiplied by the average number of days worked per week; however, if such an27
employee has worked for the employer for less than a twenty-six week period28
immediately preceding the accident, his gross earnings from the employer for the29 HLS 12RS-1067 ORIGINAL
HB NO. 885
Page 3 of 9
CODING: Words in struck through type are deletions from existing law; words underscored
are additions.
period immediately preceding the accident divided by the number of days the1
employee actually worked for the employer during said period and multiplied by the2
average number of days worked per week. For an employee in seasonal employment,3
the average weekly wage calculated pursuant to Subparagraph (a) of the Paragraph4
multiplied by the ratio calculated by dividing the number of weeks worked for the5
employer by fifty-two.6
(I) For purposes of this Subparagraph, seasonal employment shall be any7
employment customarily operating only during regularly recurring periods of less8
than forty-four weeks annually.9
(ii) If the employee was not engaged in the seasonal employment more than10
one year prior to the accident, his average weekly wage calculated pursuant to11
Subparagraph (a) multiplied by the ratio calculated by dividing the average number12
of weeks the seasonal employment lasts by fifty-two.13
(e) The employer shall provide the available wage information for14
calculation of the average weekly wage within five days of the information being15
requested from the employer. The inability of the insurer to properly calculate the16
average weekly wage due to lack of information from the employer shall never be17
considered a basis for the imposition of penalties and attorney fees against the18
insurer pursuant to R.S. 23:1201(F).19
(e) (f) Exceptions. For municipal police officers, additional compensation20
paid by the state pursuant to R.S. 33:2218.4 shall not be included in the calculation21
and computation of total salary or average weekly wage to the extent such officer22
continues to receive such additional compensation during the period of his disability.23
(f) (g) Income tax. In the determination of "wages" and the average weekly24
wage at the time of the accident, no amount shall be included for any benefit or form25
of compensation which is not taxable to an employee for federal income tax26
purposes; however, any amount withheld by the employer to fund any nontaxable or27
tax-deferred benefit provided by the employer and which was elected by the28
employee in lieu of taxable earnings shall be included in the calculation of the29 HLS 12RS-1067 ORIGINAL
HB NO. 885
Page 4 of 9
CODING: Words in struck through type are deletions from existing law; words underscored
are additions.
employee's wage and average weekly wage including but not limited to any amount1
withheld by the employer to fund any health insurance benefit provided by the2
employer and which was elected by the employee in lieu of taxable earnings shall be3
included in the calculation of the employee's wage and average weekly wage.4
(g) (h) Date of accident. In occupational disease claims the date of the5
accident for purposes of determining the employee's average weekly wage shall be6
the date of the employee's last employment with the employer from whom benefits7
are claimed or the date of his last injurious exposure to conditions in his8
employment, whichever date occurs later.9
* * *10
§1034.2. Reimbursement schedule11
* * *12
C.13
* * *14
(4) (a) Notwithstanding any other provisions of this Section, reimbursement15
for dental services shall not exceed the seventieth percentile in the current edition of16
the National Dental Advisory Service (NDAS) Comprehensive Fee Report, utilizing17
the average of geographic multipliers for Louisiana as published in the NDAS report.18
(b) Notwithstanding any other provisions of this Section, reimbursement for19
pharmaceuticals shall not exceed the average wholesale price (AWP) with the lowest20
per pill price offered by any manufacturer for the medication.21
* * *22
§1121. Examination of injured employee23
* * *24
B.(1) The An employee who is entitled to benefits pursuant to this Chaper25
shall have the right to select one treating physician in any field or specialty. The26
employee shall have a right to the type of summary proceeding provided for in R.S.27
23:1124(B), when denied his right to an initial physician of choice. After his initial28
choice the employee shall obtain prior consent from the employer or his workers'29 HLS 12RS-1067 ORIGINAL
HB NO. 885
Page 5 of 9
CODING: Words in struck through type are deletions from existing law; words underscored
are additions.
compensation carrier for a change of treating physician within that same field or1
specialty. The employee, however, is not required to obtain approval for change to2
a treating physician in another field or specialty.3
* * *4
§1208. Misrepresentations concerning benefit payments; penalty5
A. It shall be unlawful for any person, for the purpose of obtaining or6
defeating any benefit or payment under the provisions of this Chapter, either for7
himself or for any other person, to willfully make a false statement or representation.8
In addition to any action, word, or writing that is designed to assist in falsely9
obtaining or defeating such benefit of payment, false statements or representations10
shall include any efforts to exaggerate an injury or disability.11
* * *12
D. In addition to the criminal penalties provided for in Subsection C of this13
Section, any person violating the provisions of this Section may be assessed civil14
penalties by the workers' compensation judge of not less than five hundred dollars15
nor more than five thousand dollars payable to the Kids Chance Scholarship Fund,16
Louisiana Bar Foundation, and may be ordered to make restitution. Restitution may17
only be ordered for benefits claimed or payments obtained through fraud and only18
up back to the time the employer became aware of the fraudulent conduct employee19
committed the fraudulent conduct. Restitution shall include the cost of attorney fees.20
* * *21
§1226. Rehabilitation of injured employees22
* * *23
H. The vocational rehabilitation counselor shall not be required to obtain24
physician approval of specific jobs identified by the counselor as jobs that the injured25
employee is capable of performing. With respect to the capacity of performing a26
particular job and whether a particular job entails certain physical demands, the27
expertise of the physician shall be limited to the assessment of physical restrictions28
and work limitations, and such expertise shall not be extended to whether a particular29 HLS 12RS-1067 ORIGINAL
HB NO. 885
Page 6 of 9
CODING: Words in struck through type are deletions from existing law; words underscored
are additions.
job can be performed within the assigned physical restrictions and work limitations.1
The expertise of assessing whether a particular job can be performed within the2
physical restrictions and work limitations of the injured employee shall be that of a3
vocational rehabilitation counselor, although the expertise of such counselor shall not4
be extended to the assessment of the employee's physical restrictions and work5
limitations.6
* * *7
Section 2. R.S. 23:1021(12)(a)(v) is hereby repealed in its entirety.8
DIGEST
The digest printed below was prepared by House Legislative Services. It constitutes no part
of the legislative instrument. The keyword, one-liner, abstract, and digest do not constitute
part of the law or proof or indicia of legislative intent. [R.S. 1:13(B) and 24:177(E)]
Ligi HB No. 885
Abstract: Provides for the calculation of wages for workers' compensation, for the
examination and rehabilitation of injured employees, and the makeup of the workers'
compensation advisory council.
Present law (R.S. 23:1221(12) provides for definitions of terms used in workers'
compensation.
Present law provides that when an employee is paid hourly, and works at least a 40 hour
work week, his wage multiplied by the average hours worked for 4 full weeks prior to the
accident and injury average weekly.
Proposed law deletes present law and instead provides that the wage is calculated by figuring
the total gross wage earned in the 52 weeks before the accident, and dividing it by 52.
Present law provides that if an employee is paid hourly, and offered to work at least 40
hours, but chooses not to, then the average of his total earnings per week for the 4 weeks
before the accident is his wage.
Proposed law deletes present law and provides that if an employee did not work for the
employer during the entire 52 weeks before the injury, then the wage is determined by gross
wages earned during the number of full weeks worked, divided by the number of full weeks
worked.
Present law provides that the wage of a part-time employee paid hourly is figured by
multiplying his hourly wage by the actual hours worked in the 4 weeks before the injury.
Proposed law deletes present law and provides that if an employee has not worked a full
week by the time of the injury, his actual earnings divided by the number of hours worked
and multiplied by the number of hours he was expected to work per week is how his wage
is calculated. HLS 12RS-1067 ORIGINAL
HB NO. 885
Page 7 of 9
CODING: Words in struck through type are deletions from existing law; words underscored
are additions.
Present law provides that when a part-time employee with two or more jobs is injured, the
employer in whose service the employee was injured shall pay the benefits due, but if the
injury causes a loss of income from the other jobs, he is entitled to benefits computed by
using the total hours worked for all of the jobs for his average weekly hours worked, or 40
hours, whichever is less.
Proposed law retains present law.
Present law provides that if the employee is employed on a unit, piecework, commission, or
other basis, his gross earnings for the 26 week period before the accident, divided by the
number of days he worked during the 26 week period, and multiplied by the average number
of days worked per week, is how his wages are calculated.
Proposed law deletes present law.
Present law further provides that if the employee has worked for less than 26 weeks before
the accident, his gross earnings shall be divided by the number of days he actually worked,
and then multiplied by the average number of days worked per week.
Proposed law deletes present law and provides that the wages shall be calculated by
calculating the average weekly wage and multiplying the ratio calculated by dividing the
number of weeks worked by 52.
Present law defines "seasonal employment" as any employment customarily operating only
during regularly recurring periods of less than 44 weeks per year.
Proposed law deletes present law relative to the definition of "seasonal employee", but
retains the same definition in proposed law, in a different location of the statute.
Proposed law provides that if a seasonal employee was not engaged in the seasonal
employment for at least a year before the accident, that his wages are calculated by the ratio
described in proposed law and dividing the average number of weeks worked by 52.
Proposed law requires the employer to provide the available wage information when he is
requested to do so.
Proposed law provides that when an insurer is unable to calculate the wage due to a lack of
information by an employer, the employer is subject to penalties.
Present law provides for exceptions for municipal police officers, and provides that they
shall be paid pursuant to present law (R.S. 33:2218.4).
Proposed law retains present law.
Present law provides that wages shall be taxable, except for any amount withheld by the
employer to fund any nontaxable or tax-deferred benefit which was elected by the employee
instead of taxable earnings.
Proposed law retains present law.
Present law provides that in occupational disease claims, the date of the accident for
purposes of determining the 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 exposer to
conditions in his employment, whichever is later.
Proposed law retains present law. HLS 12RS-1067 ORIGINAL
HB NO. 885
Page 8 of 9
CODING: Words in struck through type are deletions from existing law; words underscored
are additions.
Present law (R.S. 23:1034.2) provides for a reimbursement schedule that includes charges
for care, services, treatment, drugs, and supplies.
Present law provides that reimbursement for dental services shall not exceed the 70
th
percentile in the current edition of the National Dental Advisory Service.
Proposed law retains present law and further requires that the reimbursement for
pharmaceuticals shall not exceed the average wholesale price (AWP) with the lowest per pill
price offered by any manufacturer for the medication.
Present law (R.S. 23:1121) provides that an employee shall have the right to select 1 treating
physician in any field or specialty, and that he has a right to a summary proceeding if he is
denied the physician of choice.
Proposed law retains present law and clarifies that the employee shall be someone who is
entitled to workers' compensation benefits.
Present law further provides that after his initial choice of physician, he shall be required to
obtain consent from the employer or his workers' compensation carrier to change physician
within the same field, but not for a change to a physician in another field or specialty.
Proposed law retains present law.
Present law (R.S. 23:1208) provides that it is unlawful to make false statement or
representation to obtain benefits.
Proposed law retains present law and further provides that false statements or
representations also include any efforts to exaggerate an injury or disability.
Present law provides that in additional to criminal penalties, any person violating the law
may be assessed civil penalties by the workers' compensation judge of an amount between
$500 to $5,000 to the Kids Chance Scholarship Fund, the Louisiana Bar Foundation, and
may be ordered to pay restitution.
Present law provides that restitution may only be ordered for benefits claimed or payments
obtained through fraud and only up to the time the employer became aware of the fraud.
Proposed law changes present law to provide that restitution may ordered back to the time
the employee committed the fraudulent conduct.
Proposed law provides that restitution shall include the cost of attorney fees.
Present law (R.S. 23:1226) provides that when an employee is injured, he is entitled to
prompt rehabilitation services.
Present law provides that the employer shall choose the rehabilitation counselor to evaluate
and assist the employee in job placement or vocational training.
Proposed law provides that the rehabilitation counselor is not required to obtain physician
approval of specific jobs identified by the counselor as jobs that the injured employee is
capable of performing.
Proposed law provides that the physician is limited to reporting on the limitations and
abilities of the employee and is not permitted to judge a particular job that the employee is
able to perform.
Present law provides that the annual income of a seasonal employe e is divided by 52 to
calculate his wage. HLS 12RS-1067 ORIGINAL
HB NO. 885
Page 9 of 9
CODING: Words in struck through type are deletions from existing law; words underscored
are additions.
Proposed law deletes present law relative to seasonal employees and provides that to
calculate a wage for a seasonal employee, calculate the average weekly wage, multiplied by
the ratio calculated by dividing the number of weeks worked for the employer by 52.
(Amends R.S. 23:1021(12)(a)(I), (ii), and (iii), (d), (e), (f), and (g), 1034.2(C)(4),
1121(B)(1), 1208(A) and (D); Adds R.S. 23:1021(12)(h) and 1226(H)); Repeals R.S.
23:1021(12)(a)(v)