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Regular Session, 2012
SENATE BILL NO. 613
BY SENATOR CORTEZ
WORKERS' COMPENSATION. Provides for workers' compensation benefits, medical
treatment and rehabilitation, and fraudulent conduct. (8/1/12)
AN ACT1
To amend and reenact R.S. 23:1021(12), 1034.2(C)(4), 1121(B)(1), 1208(A) and (D), and2
to enact R.S. 23:1226(H), relative to workers' compensation; to provide with respect3
to the calculation of wages; to provide with respect to reimbursement for medication;4
to provide with respect to examination by a physician; to provide with respect to5
fraudulent conduct; to provide with respect to vocational rehabilitation; and to6
provide for related matters.7
Be it enacted by the Legislature of Louisiana:8
Section 1. R.S. 23:1021(12), 1034.2(C)(4), 1121(B)(1), 1208(A) and (D) are hereby9
amended and reenacted and R.S. 23:1226(H) is hereby enacted to read as follows: 10
§1021. Terms defined11
As used in this Chapter, unless the context clearly indicates otherwise, the12
following terms shall be given the meaning ascribed to them in this Section:13
* * *14
(12) "Wages" means average weekly wage at the time of the accident. The15
average weekly wage shall be determined as follows:16
(a) Hourly wages. For all wages paid on a basis other than as set forth in17 SB NO. 613
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Subparagraphs (b), (c), and (d) of this Paragraph:1
(i) If the employee is paid on an hourly basis and the employee is employed2
for forty hours or more, his hourly wage rate multiplied by the average actual hours3
worked in the four full weeks preceding the date of the accident or forty hours,4
whichever is greater; or The total gross wages earned with the employer during5
the fifty-two full weeks preceding the work-related compensable injury divided6
by fifty-two.7
(ii) If the employee is paid on an hourly basis and the employee was offered8
employment for forty hours or more but regularly, and at his own discretion, works9
less than forty hours per week for whatever reason, then, the average of his total10
earnings per week for the four full weeks preceding the date of the accident; or If11
the employee did not work for the subject employer during the entire fifty-two12
weeks preceding the compensable injury, gross wages earned during the13
number of full weeks worked prior to the work-related compensable injury14
divided by the number of full weeks worked.15
(iii) If the employee is paid on an hourly basis and the employee is a part time16
employee, his hourly wage rate multiplied by the average actual hours worked in the17
four full weeks preceding the date of the injury. If the employee has not worked a18
full week at the time of the accident, his actual earnings divided by the number19
of hours actually worked and multiplied by the number of hours the employee20
was expected to work per week, if less than forty and the employer provides21
written documentation of the expected number of hours, or forty hours.22
(iv) * * *23
(v) For employee in seasonal employment, his annual income divided by24
fifty-two.25
(aa) For purposes of this Subparagraph, seasonal employment shall be any26
employment customarily operating only during regularly recurring periods of less27
than forty-four weeks annually.28
( bb) If the employee was not engaged in the seasonal employment more than29 SB NO. 613
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one year prior to the accident his annual income shall be the average annual income1
of other employees of the same or most similar class working in the same or most2
similar employment for the same employer or, in the event that the employee was the3
only individual engaged in that specific employment, then his annual income shall4
be the average annual income of other employees of the same or most similar class5
working for a neighboring employer engaged in the same or similar employment.6
(b) Monthly wages. If the employee is paid on a monthly basis, his monthly7
salary multiplied by twelve then divided by fifty-two.8
(c) Annual wages. If the employee is employed at an annual salary, his9
annual salary divided by fifty-two.10
(d) Other wages. If the employee is employed on a unit, piecework,11
commission, or other basis, his gross earnings from the employer for the twenty-six12
week period immediately preceding the accident divided by the number of days the13
employee actually worked for the employer during said twenty-six week period and14
multiplied by the average number of days worked per week; however, if such an15
employee has worked for the employer for less than a twenty-six week period16
immediately preceding the accident, his gross earnings from the employer for the17
period immediately preceding the accident divided by the number of days the18
employee actually worked for the employer during said period and multiplied by the19
average number of days worked per week. For an employee in seasonal20
employment, the average weekly wage calculated pursuant to Subparagraph (a)21
of this Paragraph, multiplied by the ratio calculated by dividing the number of22
weeks worked for the employer by fifty-two.23
(i) For purposes of this Subparagraph, seasonal employment shall be any24
employment customarily operating only during regularly recurring periods of25
less than forty-four weeks annually.26
(ii) If the employee was not engaged in the seasonal employment more27
than one year prior to the accident, his average weekly wage calculated28
pursuant to Subparagraph (a) of this Paragraph, multiplied by the ratio29 SB NO. 613
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calculated by dividing the average number of weeks such seasonal employment1
lasts by fifty-two.2
(e) The employer shall provide the available wage information for3
calculation of the average weekly wage within five days of such information4
being requested from said employer. The inability of the insurer to properly5
calculate the average weekly wage due to lack of information from the employer6
shall never be considered a basis for the imposition of penalties and attorney7
fees against the insurer pursuant to R.S. 23:1201(F).8
(f) Exceptions. For municipal police officers, additional compensation paid9
by the state pursuant to R.S. 33:2218.4 shall not be included in the calculation and10
computation of total salary or average weekly wage to the extent such officer11
continues to receive such additional compensation during the period of his disability.12
(f) (g) Income tax. In the determination of "wages" and the average weekly13
wage at the time of the accident, no amount shall be included for any benefit or form14
of compensation which is not taxable to an employee for federal income tax15
purposes; however, any amount withheld by the employer to fund any nontaxable or16
tax-deferred benefit provided by the employer and which was elected by the17
employee in lieu of taxable earnings shall be included in the calculation of the18
employee's wage and average weekly wage including but not limited to any amount19
withheld by the employer to fund any health insurance benefit provided by the20
employer and which was elected by the employee in lieu of taxable earnings shall be21
included in the calculation of the employee's wage and average weekly wage.22
(g) (h) Date of accident. In occupational disease claims the date of the23
accident for purposes of determining the employee's average weekly wage shall be24
the date of the employee's last employment with the employer from whom benefits25
are claimed or the date of his last injurious exposure to conditions in his26
employment, whichever date occurs later.27
* * *28
§1034.2. Reimbursement schedule29 SB NO. 613
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* * *1
C.(1) * * *2
(4)(a) Notwithstanding any other provisions of this Section, reimbursement3
for dental services shall not exceed the seventieth percentile in the current edition of4
the National Dental Advisory Service (NDAS) Comprehensive Fee Report, utilizing5
the average of geographic multipliers for Louisiana as published in the NDAS report.6
(b) Notwithstanding any other provisions of this Section, reimbursement7
for pharmaceuticals shall not exceed the Average Wholesale Price (AWP) with8
the lowest per pill price offered by any manufacturer for the medication.9
* * *10
§ 1121. Examination of injured employee11
* * *12
B.(1) The employee shall have the right to select one treating physician in13
any field or specialty. If the employer notifies the employee in writing that the14
employer is denying compensability, the employee shall not have the right to15
select the treating physician in any field or specialty until his claim has been16
determined compensable by the court in a final judgment. The employee shall17
have a right to the type of summary proceeding provided for in R.S. 23:1124(B),18
when denied his right to an initial physician of choice. After his initial choice the19
employee shall obtain prior consent from the employer or his workers' compensation20
carrier for a change of treating physician within that same field or specialty. The21
employee, however, is not required to obtain approval for change to a treating22
physician in another field or specialty.23
* * *24
§1208. Misrepresentations concerning benefit payments; penalty25
A. It shall be unlawful for any person, for the purpose of obtaining or26
defeating any benefit or payment under the provisions of this Chapter, either for27
himself or for any other person, to willfully make a false statement or representation.28
In addition to any action, word, or writing that is designed to assist in falsely29 SB NO. 613
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obtaining or defeating such benefit of payment, false statements or1
representations shall include any efforts to exaggerate an injury or disability.2
* * *3
D. In addition to the criminal penalties provided for in Subsection C of this4
Section, any person violating the provisions of this Section may be assessed civil5
penalties by the workers' compensation judge of not less than five hundred dollars6
nor more than five thousand dollars payable to the Kids Chance Scholarship Fund,7
Louisiana Bar Foundation, and may be ordered to make restitution. Restitution may8
only be ordered for benefits claimed or payments obtained through fraud and only9
up back to the time the employer became aware of the fraudulent conduct employee10
committed the fraudulent conduct. Restitution shall include attorney fees.11
* * *12
§ 1226. Rehabilitation of injured employees13
* * *14
H. (1) The vocational rehabilitation counselor is not required to obtain15
physician approval of specific jobs identified by the counselor as jobs that the16
injured employee is capable of performing.17
(2) With respect to the capacity of performing a particular job and18
whether a particular job entails certain physical demands, the expertise of the19
physician is limited to the assessment of physical restrictions and work20
limitations, and such expertise shall not be extended to whether a particular job21
can be performed within the assigned physical restrictions and work limitations.22
(3) The expertise of assessing whether a particular job can be performed23
within the physical restrictions and work limitations of the injured employee is24
that of a vocational rehabilitation counselor, although the expertise of such25
counselor shall not be extended to the assessment of the employee's physical26
restrictions and work limitations.27 SB NO. 613
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The original instrument and the following digest, which constitutes no part
of the legislative instrument, were prepared by Mary Dozier O'Brien.
DIGEST
Present law provides for hourly wages in the context of hourly wage rate multiplied by the
average actual hours worked.
Proposed law provides for a calculation of hourly wages using the total gross wages earned
in the 52 full weeks prior to the injury and dividing by 52.
Present law provides for a calculation of hourly wages for the employee who is paid on an
hourly basis but did not work a full forty hours per week, utilizing the average of the total
earnings for the four weeks prior to the injury.
Proposed law provides for a calculation of hourly wages if the employee did not work for
the subject employer for an entire 52 weeks prior to the injury by using the gross wages
earned during the number of full weeks worked prior to the injury and dividing by the
number of full weeks worked.
Present law provides for a calculation of hourly wage based upon a part-time employee,
employing the earnings in the four weeks prior to the injury.
Proposed law provides for a calculation of hourly wages if an employee has not worked a
full week at the time of the injury taking the employee's actual earnings divided by the
number of hours actually worked and multiplied by the number of hours the employer attests
the employee was expected to work, if less than 40, or 40 hours.
Present law provides relative to seasonal employees, part-time employees who work for
more than one employer, and part-time workers who have worked for subsequent employers.
Proposed law retains present law with respect to part-time employees who work for more
than one employer and part-time workers who have worked for subsequent employers and
proposed law further provides provisions relating to seasonal employment.
Proposed law provides that if the employer fails to timely provide the wage information for
calculation of the average weekly wage, the resulting inability of the insurer to properly
calculate the average weekly wage shall not be a basis for penalties and attorney fees against
the insurer.
Present law calculations with regard to monthly wages and annual wages are retained in
proposed law.
Present law provides relative to the reimbursement schedule in workers' compensation cases.
Proposed law retains present law provisions while providing that regardless of other
provisions, reimbursement for pharmaceuticals shall not exceed the average wholesale price
(AWP) with the lowest per pill price offered by any manufacturer.
Present law provides for the employee's right to select one treating physician in any field or
specialty.
Proposed law provides that if the employer notifies the employee that the employer denies
compensability of the claim, the employee shall have no right to select a treating physician
until the compensability question is settled by the court in a final judgment. SB NO. 613
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Coding: Words which are struck through are deletions from existing law;
words in boldface type and underscored are additions.
Present law provides with respect to misrepresentations concerning benefits and the penalties
for such misrepresentations.
Proposed law provides that included in these misrepresentations shall be any efforts to
exaggerate an injury or disability.
Present law provides for restitution for benefits claimed or payments obtained through fraud
and only up to the time the employer became aware of the fraud.
Proposed law provides that restitution shall include attorney fees and repayment of benefits
claimed or payments obtained back to the time the employee committed the fraudulent
conduct.
Present law provides for decisions as to whether certain jobs are appropriate for an injured
employee to be made by the vocational rehabilitation counselor and signed-off on by the
treating physician.
Proposed law provides clarity that the physician assesses the injured employee' s physical
restrictions and work limitations, while the vocational rehabilitation counselor has the
expertise to determine whether a particular job can be performed by the injured employee
within the physical restrictions and work limitations set forth by the physician.
Effective August 1, 2012.
(Amends R.S. 23:1021(12), 1034.2(C)(4), 1121(B)(1), 1208(A) and (D); adds R.S.
23:1226(H))