HLS 12RS-1120 ORIGINAL
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Regular Session, 2012
HOUSE BILL NO. 888
BY REPRESENTATIVE JOHNSON
WORKERS COMPENSATION: Provides with respect to workers' compensation disability
claims
AN ACT1
To amend and reenact R.S. 23:1221(1)(a), (b), and (c), (2)(a), (b), (c), and (d), (3)(a), (b),2
(c)(ii), and (d)(introductory paragraph)(ii), (4)(a), through, (I), (p), and (q) and 1223,3
relative to disability benefits; to provide with respect to temporary total disability,4
permanent total disability, and permanent partial disability compensation; to provide5
for time periods of earning benefits; to provide for the burden of proof; to provide6
for percentages of anatomical loss; and to provide for related matters.7
Be it enacted by the Legislature of Louisiana:8
Section 1. R.S. 23:1221(1)(a), (b), and (c), (2)(a), (b), (c), and (d), (3)(a), (b), (c)(ii),9
and (d)(introductory paragraph) and (ii), (4)(a), through, (I), (p), and (q) and 1223 are hereby10
amended and reenacted to read as follows: 11
§1221. Temporary total disability; permanent total disability; supplemental earnings12
benefits; permanent partial disability; schedule of payments13
Compensation shall be under pursuant to this Chapter in accordance with the14
following schedule of payments:15
(1) Temporary total.16
(a) For any injury producing temporary total disability of an employee to17
engage in any self-employment or occupation for wages, whether or not the same or18
a similar occupation as that in which the employee was customarily engaged when19
injured, and whether or not an occupation for which the employee at the time of20 HLS 12RS-1120 ORIGINAL
HB NO. 888
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injury was particularly fitted by reason of education, training, or experience, sixty-1
six and two-thirds seventy-five percent of wages during the period of such disability.2
(b) For purposes of Subparagraph (1)(a) of this Paragraph, compensation for3
temporary disability shall not be awarded if the employee is engaged in any4
employment or self-employment regardless of the nature or character of the5
employment or self-employment including but not limited to any and all excluding6
odd-lot employment, sheltered employment, or employment while working in any7
pain.8
(c) For purposes of Subparagraph (1)(a) of this Paragraph, whenever the9
employee is not engaged in any employment or self-employment as described in10
Subparagraph (1)(b) of this Paragraph, compensation for temporary total disability11
shall be awarded only if the employee proves by clear and convincing a12
preponderance of the evidence, unaided by any presumption of disability, that the13
employee is physically unable to engage in any available employment or self-14
employme nt in the employee or employer's reasonable geographic area, regardless15
of the nature or character of the employment or self-employment, including but not16
limited to any and all excluding odd-lot employment, sheltered employment, or17
employment while working in any pain, notwithstanding the location or availability18
of any such employment or self-employment.19
* * *20
(2) Permanent total.21
(a) For any injury producing permanent total disability of an employee to22
engage in any self-employment or occupation for wages, whether or not the same or23
a similar occupation as that in which the employee was customarily engaged when24
injured, and whether or not an occupation for which the employee at the time of25
injury was particularly fitted by reason of education, training, and experience, sixty-26
six and two-thirds seventy-five percent of wages during the period of such disability.27
(b) For purposes of Subparagraph (2)(a) of this Paragraph, compensation for28
permanent total disability shall not be awarded if the employee is engaged in any29 HLS 12RS-1120 ORIGINAL
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employment or self-employment regardless of the nature or character of the1
employment or self-employment including but not limited to any and all excluding2
odd-lot employment, sheltered employment, or employment while working in any3
pain.4
(c) For purposes of Subparagraph (2)(a) of this Paragraph, whenever the5
employee is not engaged in any employment or self-employment as described in6
Subparagraph (2)(b) of this Paragraph, compensation for permanent total disability7
shall be awarded only if the employee proves by clear and convincing a8
preponderance of the evidence, unaided by any presumption of disability, that the9
employee is physically unable to engage in any available employment or self-10
employment, regardless of the nature or character of the employment or self-11
employment in the employee or employer's reasonable geographic area, including,12
but not limited to, any and all excluding odd-lot employment, sheltered employment,13
or employment while working in any pain , notwithstanding the location or14
availability of any such employment or self-employment.15
(d) Notwithstanding any judgment or determination that an employee is16
permanently and totally disabled, if such employee subsequently has or receives any17
earnings, including, but not limited to, excluding earnings from odd-lot employment,18
sheltered employment, or employment while working in any pain, such employee19
shall not receive benefits pursuant to this Paragraph but may receive benefits20
computed pursuant to Paragraph (3) of this Section, if applicable.21
* * *22
(3) Supplemental earnings benefits.23
(a) For injury resulting in the employee's inability to earn wages equal to24
ninety one hundred percent or more of wages at the time of injury, supplemental25
earnings benefits equal to sixty-six and two-thirds seventy-five percent of the26
difference between the average monthly wages at the time of injury and average27
monthly wages earned or average monthly wages the employee is able to earn in any28
month thereafter in any employment or self-employment, whether or not the same29 HLS 12RS-1120 ORIGINAL
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or a similar occupation as that in which the employee was customarily engaged when1
injured and whether or not an occupation for which the employee at the time of the2
injury was particularly fitted by reason of education, training, and experience, such3
comparison to be made on a monthly basis. Average monthly wages shall be4
computed by multiplying his "wages" by fifty-two and then dividing the quotient by5
twelve.6
(b) For purposes of Subparagraph (3)(a), of this Paragraph, the amount7
determined to be the wages the employee is able to earn in any month shall in no8
case be less than the sums actually received by the employee, including, but not9
limited to, excluding earnings from odd-lot employment, sheltered employment, and10
employment while working in any pain.11
(c)12
* * *13
(ii) For purposes of Subsubparagraph (I) of this Subparagraph, if the14
employee establishes by clear and convincing a preponderance of the evidence,15
unaided by any presumption of disability, that solely as a consequence of substantial16
pain, the employee cannot perform employment offered, tendered, or otherwise17
proven to be available to him, the employee shall be deemed incapable of performing18
such employment.19
(d) The right to supplemental earnings benefits pursuant to this Paragraph20
shall in no event exceed a maximum of five hundred twenty six hundred fifty weeks,21
but shall terminate:22
* * *23
(ii) After receipt of a maximum of five hundred twenty six hundred fifty24
weeks of benefits, provided that for any week during which the employee is paid any25
compensation under this Paragraph, the employer shall be entitled to a reduction of26
one full week of compensation against the maximum number of weeks for which27
compensation is payable under this Paragraph; however, for any week during which28
the employee is paid no supplemental earnings benefits, the employer shall not be29 HLS 12RS-1120 ORIGINAL
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entitled to a reduction against the maximum number of weeks payable under this1
Paragraph; or2
* * *3
(4) Permanent partial disability. In the following cases, compensation shall4
be solely for anatomical loss of use or amputation and shall be as follows:5
(a) For the loss of a thumb, sixty-six and two-thirds seventy-five percent of6
wages during fifty weeks.7
(b) For the loss of a first finger, commonly called the index finger, sixty-six8
and two-thirds seventy-five percent of wages during thirty weeks.9
(c) For the loss of any other finger, or a big toe, sixty-six and two-thirds10
seventy-five percent of wages during twenty weeks.11
(d) For the loss of any toe, other than a big toe, sixty-six and two-thirds12
seventy-five percent of wages during ten weeks.13
(e) For the loss of a hand, sixty-six and two-thirds seventy-five percent of14
wages during one hundred fifty weeks.15
(f) For the loss of an arm, sixty-six and two-thirds seventy-five percent of16
wages during two hundred weeks.17
(g) For the loss of a foot, sixty-six and two-thirds seventy-five percent of18
wages during one hundred twenty-five weeks.19
(h) For the loss of a leg, sixty-six and two-thirds seventy-five percent of20
wages during one hundred seventy-five weeks.21
(I) For the loss of an eye, sixty-six and two-thirds seventy- five percent of22
wages during one hundred weeks.23
* * *24
(p) In cases not falling within any of the provisions already made, all cases25
where the employee is seriously and permanently disfigured or suffers a permanent26
hearing loss solely due to a single traumatic accident, or where the usefulness of the27
physical function of the respiratory system, gastrointestinal system, or genito-urinary28
system, as contained within the thoracic or abdominal cavities, is seriously and29 HLS 12RS-1120 ORIGINAL
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permanently impaired, compensation not to exceed sixty-six and two-thirds seventy-1
five percent of wages for a period not to exceed one hundred weeks may be awarded.2
In cases where compensation is so awarded, when the disability is susceptible to3
percentage determination, compensation shall be established in the proportions set4
forth in Subparagraph (o) of this Paragraph. In cases where compensation is so5
awarded, when the disability is not susceptible to percentage determination,6
compensation as is reasonable shall be established in proportion to the compensation7
hereinabove specifically provided in the cases of specific disability.8
(q) No benefits shall be awarded or payable in this Paragraph unless the9
percentage of the anatomical loss of use or amputation, as provided in Subparagraphs10
(a) through (o) of this Paragraph or the percentage of the loss of physical function11
as provided in Subparagraph (p) or (s) of this Paragraph is as established in the most12
recent Fifth edition of the American Medical Association's "Guides to the Evaluation13
of Permanent Impairment".14
* * *15
§1223. Deductions from benefits16
A. Except as provided in R.S. 23:1221(4)(s), when compensation has been17
paid under R.S. 23:1221(1), (2), or (3), the number of weeks of compensation paid18
shall be deducted from the number of weeks of compensation allowed under R.S.19
23:1221(4) or Subpart C of this Part.20
B. Except as provided in R.S. 23:1221(4)(s), when compensation has been21
paid under pursuant to R.S. 23:1221(1), (2), or (4), the number of weeks of22
compensation paid shall be deducted from the number of weeks of compensation23
allowed under pursuant to R.S. 23:1221(3) or Subpart C of this Part.24 HLS 12RS-1120 ORIGINAL
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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)]
Johnson HB No. 888
Abstract: Provides with respect to disability benefits; increases the percentage of wages
payable for disabling injuries.
Present law (R.S. 23:1221) provides for the calculation temporary disability and permanent
total disability to be at 66 2/3% of wages during the period of disability.
Proposed law increases the percentage to 75% of wages during the period of disability.
Present law provides that compensation for disability shall be awarded only if the employee
proves that he is unable to be engaged in any employment including odd-lot, sheltered
employment, or employment while working in paid.
Proposed law excludes odd-lot employment, sheltered employment, or employment while
working in any pain.
Present law provides that compensation shall be awarded if the employee proves by clear
and convincing evidence, unaided by any presumption of disability, that he is physically
unable to engaged in employment in his geographic area.
Proposed law changes the burden of proof from clear and convincing to a preponderance of
the evidence.
Present law provides that for any injury producing temporary total disability or permanent
total disability of an employee so that he is unable to engage in any self-employment or
occupation for wages, he is entitled to sixty-six and two-thirds percent of wages.
Proposed law changes 66 2/3% to 75%.
Present law provides that for an injury resulting in the employee's inability to earn wages
equal to 90% of what he was earning at the time of the injury, supplemental earnings
benefits shall be calculated at 66 2/3% 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 after the injury.
Proposed law provides that for an injury resulting in the employee's inability to earn wages
equal to 100% of what he was earning at the time of the injury, supplemental earnings
benefits shall be calculated at 75% 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 after the injury.
Present law provides that the amount of wages the employee is able to earn in a month shall
not be less than the sums actually received by the employee, including odd-lot employment,
sheltered employment, and employment while working in pain.
Proposed law excludes odd-lot employment, sheltered employment, and employment while
working in pain.
Present law provides that the right to supplemental earnings benefits shall not exceed a
maximum of 520 weeks, but shall terminate at the end of a 2 year period after the HLS 12RS-1120 ORIGINAL
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termination of temporary total disability, unless supplemental earning benefits have been
payable during at least 13 consecutive weeks.
Proposed law changes the potential number of weeks of supplemental earnings benefits from
520 to a new maximum of 650 weeks.
Present law provides that after the receipt of the maximum number of 520 weeks, the
employer shall be entitled to a reduction of 1 full week of compensation against the
maximum number of weeks for which compensation is payable.
Proposed law changes 520 weeks to 650 weeks.
Present law provides that when an employee retires, the period he may receive supplemental
earnings benefits shall not be less than 104 weeks.
Present law provides that if an employee receiving supplemental earnings benefits suffers
an injury causing disability, the combined benefits shall not exceed the maximum
compensation rate for temporary total disability at the time of the subsequent injury.
Present law requires that any compensable supplemental earnings benefits loss shall be
reported to the insurer or self-insured employer within 30 days after the termination of the
week for which the loss is claimed.
Present law provides that when the employee has been released to return to work and the
employer he must meet any requirements of a drug testing policy, except for prescription
medication prescribed to the employee.
Present law provides for compensation for anatomical loss of use or amputation and provides
that it is permanent partial disability.
Present law provides for sixty-six and two thirds percentage of wages during 50 weeks for
the loss of a thumb.
Present law provides for sixty-six and two thirds percentage of wages during 30 weeks for
the loss of a first finger.
Present law provides for sixty-six and two thirds percentage of wages during 20 weeks for
the loss of any other finger or a big toe.
Present law provides for sixty-six and two thirds percentage of wages during 10 weeks for
the loss of any other toe.
Present law provides for sixty-six and two thirds percentage of wages during 150 weeks for
the loss of a hand..
Present law provides for sixty-six and two thirds percentage of wages during 200 weeks for
the loss of an arm.
Present law provides for sixty-six and two thirds percentage of wages during 25 weeks for
the loss of a foot.
Present law provides for sixty-six and two thirds percentage of wages during 175 weeks for
the loss of a leg.
Present law provides for sixty-six and two thirds percentage of wages during 100 weeks for
the loss of an eye. HLS 12RS-1120 ORIGINAL
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Present law provides for sixty-six and two thirds percentage of wages during 150 weeks for
the loss of a hand.
Proposed law changes 66 2/3% to 75% for all of the body parts mentioned above in present
law.
Present law provides for the loss of other body parts.
Present law provides that in cases not specifically mentioned in the statute, when an
employee has been seriously disfigured, suffers permanent hearing loss, or where the
usefulness of the physical function of the respiratory system, gastrointestinal system, or
genito-urinary system is seriously and permanently impaired, he shall be compensated at not
more than 66 2/3% of wages for a period not to exceed 100 weeks.
Proposed law changes 66 2/3% to 75%.
Present law provides that no benefits shall be awarded unless the loss of use or amputation
is established in the most recent edition of the American Medical Association's "Guides to
the Evaluation of Permanent Impairment".
Proposed law changes the most recent edition to the Fifth edition.
Present law (R.S. 23:1223) provides that when compensation has been paid under the
temporary total disability statutes, the permanent total disability statutes and the
supplemental earnings benefits statutes, then the number of weeks paid shall be deducted
from the number of weeks of compensation allowed under the permanent partial disability
statutes.
Proposed law deletes present law.
Present law provides that when compensation has been paid under the temporary total
disability statutes, the permanent total disability statutes and the permanent partial disability
statutes , then the number of weeks paid shall be deducted from the number of weeks of
compensation allowed under the supplemental earnings benefits statutes.
Proposed law retains present law.
(Amends R.S. 23:1221(1)(a), (b), and (c), (2)(a), (b), (c), and (d), (3)(a), and (b), (c)(ii), and
(d)(intro. para.) and (ii), (4)(a)-(I), (p), (q) and 1223)