La. Stat. Ann. § 23:1221

Law changed since Acts 1975, No. 583 (effective Sept. 1, 1975) replaced the same-or-similar-work permanent-total-disability test with inability to engage in any gainful occupation; the former test remains relevant to earlier injuries. Acts 1983, 1st Ex. Sess., No. 1 (effective July 1, 1983) required clear-and-convincing proof of physical inability to perform any employment for permanent total disability, displacing the former odd-lot, labor-market, and working-in-pain tests for later injuries.

Section 23:1221(2) treats a skilled employee as totally and permanently disabled when a work injury prevents performance of substantially all job duties except in pain or while endangering the employee or coworkers.

Mercer v. Coal Operators Casualty Co. · filed 1968-07-01(2)

An ironworker is a skilled employee. If he receives accidental injuries during the course and scope of his employment which render him unable to perform substantially all his duties except in pain, or without endangering himself or his coworkers, he is totally and permanently disabled under La.R.S. 23:1221(2) and the jurisprudence decided thereunder.

Law changed since Acts 1975, No. 583 (effective Sept. 1, 1975) replaced the same-or-similar-work permanent-total-disability test with inability to engage in any gainful occupation; the former test remains relevant to earlier injuries.

Section 23:1221(2) provides compensation for an injury producing permanent total disability to do work of any reasonable character.

Lawless v. Steel Erectors, Inc. · filed 1969-05-05(2)

On the facts which we have reviewed, we hold that Section 1221(4) (p) quoted above does not apply here. This injury does not simply involve the serious and permanent impairment of a physical function as defense counsel suggest. It is more. This back injury involves a definite disability, and since disabilities are not contemplated by Section 1221(4) (p) the injury must be otherwise classified under the Act. Malone, Louisiana Workmen’s Compensation Law and Practice, Sec. 284 (1951). We have, therefore, classified the disability under Section 1221(2) for the reasons already stated and upon the authority to which we refer.

Law changed since Same change as noted above.

Section 23:1221(2) treats an employee as totally and permanently disabled when the employee cannot perform work of the same or similar character to the work performed at the time of the accident.

Krouse v. Parnell, Inc. · filed 1971-05-25(2)

An employee is totally and permanently disabled if he is unable to perform work of the same or similar character he was performing at the time of the accident. La.R.S. 23:1221(2); Cooley v. Insurance Company of North America (La.App., 3 Cir. 1968), 216 So.2d 388; Knispel v. Gulf States Utility Company, Inc., 174 La. 401, 141 So. 9 (1932).

Law changed since Acts 1975, No. 583 (effective Sept. 1, 1975) replaced the same-or-similar-work permanent-total-disability test with inability to engage in any gainful occupation; the former test remains relevant to earlier injuries. Acts 1983, 1st Ex. Sess., No. 1 (effective July 1, 1983) required clear-and-convincing proof of physical inability to perform any employment for permanent total disability, displacing the former odd-lot, labor-market, and working-in-pain tests for later injuries.

Section 23:1221(2) treats a common laborer as totally and permanently disabled when an injury prevents similar work or substantially handicaps competition in the regular common labor market.

Carlisle v. Great American Insurance Company · filed 1974-04-05(2)

The jurisprudence has established the rule that a common laborer will be considered as being totally disabled from doing work of any reasonable character within the meaning of the Louisiana Workmen's Compensation Act if his injuries disabled him from performing work of a kind similar to that which he was accustomed to performing, or if his injury is of such a character that it appears he will be substantially handicapped in competing with other able-bodied workers in the regular common labor market. ... The evidence in this case is uncontradicted that at the time of trial plaintiff was able to return to his work as a roofer's helper and perform all of the duties in connection therewith, but he was not able to perform any type of common labor that required repeated lifting of heavy objects or strenuous, hard work during an entire eight-hour work day. Under these circumstances we think it would be contrary to the intent of the Workmen's Compensation Act to find that a 20-year-old man, qualified to do only manual labor, would not be substantially handicapped in competing with other able-bodied workers in the flexible common labor market. We find plaintiff is totally and permanently disabled within the meaning of the Louisiana Workmen's Compensation Act.

Law changed since Acts 1975, No. 583 (effective Sept. 1, 1975) replaced the same-or-similar-work permanent-total-disability test with inability to engage in any gainful occupation; the former test remains relevant to earlier injuries.

Section 23:1221(2) treats an injured employee as totally and permanently disabled when the injury prevents work of the same or similar description to the pre-accident work; benefits are awarded when total disability exists at trial and its duration is indefinite or unclear.

Walker v. Gaines P. Wilson & Son, Inc. · filed 1976-11-08(2)

An injured employee is deemed totally and permanently disabled "whenever he is unable to perform work of the same or similar description to that which he performed before the accident." ... A judgment for total permanent disability should be awarded when the claimant is shown to be totally disabled at the time of trial and the duration of such disability is indefinite or the evidence does not clearly indicate its duration. ... Under this jurisprudence, the court of appeal was in error in reducing the award to compensation during temporary total compensation, where the workman is shown to be totally disabled at the trial, even if, as the court of appeal felt, there was a possibility that the disability might lessen over the course of time.

Law changed since Same change as noted above.

Section 23:1221(2) treats a worker as totally and permanently disabled when unable to perform work of the same or similar description as before the accident, but the disability must be causally connected to a work-related accident; after recovery, a residual condition must substantially increase the possibility of recurrence of a disabling episode.

Parks v. Insurance Co. of North America · filed 1976-11-08(2)

It is true that a worker is ordinarily deemed totally and permanently disabled whenever he is unable to perform work of the same or similar description to that which he performed before the accident. La.R.S. 23:1221(2); Futrell v. Hartford Acc. & Indem. Co., 276 So.2d 271 (La.1973). This general rule, however, operates only when it is proven that the alleged disability is causally connected to a work-related accident. We have held that total and permanent disability benefits may be payable when a plaintiff has fully recovered from such an accident, only if a residual condition resulting from the accidental injury substantially increases the possibility of recurrence of a disabling episode. Bertrand v. Coal Operators Casualty Co., supra .

Law changed since Acts 1983, 1st Ex. Sess., No. 1 (effective July 1, 1983) required clear-and-convincing proof of physical inability to perform any employment for permanent total disability, displacing the former odd-lot, labor-market, and working-in-pain tests for later injuries.

Section 23:1221(2) provides permanent-total-disability benefits when an injured worker cannot perform his former job without substantial pain or materially increased danger to health or safety.

Crawford v. Al Smith P. & H. Service, Inc. · filed 1977-11-14(2)

Moreover, it has been consistently held that the law providing for permanent total disability benefits (La.R.S. 23:1221(2)) does not contemplate that an injured workman is required to return to his regular work if he is unable to perform that work without substantial pain or when it will materially increase the hazard to his health and safety or to the health and safety of his employees.

Law changed since Acts 1983, 1st Ex. Sess., No. 1 (effective July 1, 1983) replaced the former partial-disability award under § 23:1221(3) with supplemental earnings benefits based on inability to earn 90% of pre-injury wages; the former award can govern earlier injuries.

Section 23:1221(2) defines total permanent disability by inability to engage in any gainful occupation for wages, while § 23:1221(3) covers partial disability when the employee cannot perform the duties of the job held at injury or similar work for which the employee is fitted, with benefits based on the wage difference.

Barksdale v. Southern Airways, Inc. · filed 1978-10-09(2), (3)

In Leblanc v. Commercial Union Assurance Company, 349 So.2d 1283 (La.App. 1st Cir. 1977) writ refused 351 So.2d 174 (La. 1977), we held that La.R.S. 23:1221(2), as amended by Act 583 of 1975, defines total permanent disability as inability to engage in any gainful occupation for wages, whether or not of the same or a similar occupation as that in which the employee was engaged when injured and whether or not an occupation for which the employee, at the time of injury, was particularly fitted by education, training and experience. ... We find that the record establishes that Appellee is partially disabled from performing the duties in which she was customarily engaged when injured, or duties of the same or similar character, nature or description for which she is fitted by education, training and experience. La.R.S. 23:1221(3). Being partially disabled, Appellee is entitled to compensation of $85.00 weekly, not beyond a maximum of 400 weeks. Should Appellee earn wages in another occupation during disability, she is entitled to compensation of sixty-six and two-thirds per centum of the difference between wages she was earning at the time of injury and any lesser wages earned in any week thereafter in any other gainful occupation for wages.

Law changed since Acts 1983, 1st Ex. Sess., No. 1 (effective July 1, 1983) required clear-and-convincing proof of physical inability to perform any employment for permanent total disability, displacing the former odd-lot, labor-market, and working-in-pain tests for later injuries.

Section 23:1221(2) treats an injured employee as permanently and totally disabled when the employee cannot pursue any gainful employment without experiencing substantial pain.

Lemoine v. Employers Cas. Co. · filed 1980-02-15(2)

As this Court stated in Rachal: "... Our interpretation of the amended statute is that an injured employee is totally disabled if he is unable to pursue any gainful employment without experiencing substantial pain. We feel that this interpretation reconciles the jurisdictional rule with the express terms of the amended statute." (Emphasis added)

Law changed since Same change as noted above.

Section 23:1221 treats a worker as totally disabled when the worker cannot pursue any gainful employment without experiencing substantial pain.

Schriner v. Riverside Companies, Inc. · filed 1980-03-03

Under La.R.S. 23:1221, a worker is totally disabled if he is unable to pursue any gainful employment without experiencing substantial pain.

Law changed since Same change as noted above.

Section 23:1221(2) provides permanent-total-disability compensation when an employee cannot engage in any gainful occupation for wages, without requiring complete helplessness, and the court applies an odd-lot framework to that determination.

Oster v. Wetzel Printing, Inc. · filed 1980-11-10(2)

In 1975, La.R.S. 23:1221(2) was revised to constrict the broad "same or similar occupation" formula then being applied by the courts. Total disability compensation can now be obtained only if the employee is unable "to engage in any gainful occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged ...." La. R.S. 23:1221(2) (Supp.1975). It was not the aim of the legislative revision, however, to require that an employee be completely helpless before he could recover total and permanent disability compensation.

Law changed since Same change as noted above.

Section 23:1221(2) awards permanent total disability benefits under the odd-lot doctrine when an injured worker can perform only work for which no reasonably stable market exists, unless the employer shows suitable work is regularly and continuously available nearby.

Turner v. American Mut. Ins. Co. · filed 1980-11-12(2)

Under the odd-lot test as announced in Oster v. Wetzel Printing, Inc., supra , an injured employee is entitled to total, permanent disability compensation if he can perform no services other than those which are so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist. ... If the worker establishes that he falls into the odd-lot category, he is entitled to total, permanent disability compensation unless the employer or his insurer is able to show that some form of suitable work is regularly and continuously available to the employee within reasonable proximity to the worker's residence.

Law changed since Same change as noted above.

Section 23:1221(2) treats an injured worker as permanently and totally disabled under the odd-lot doctrine when the worker's limitations, considered with factors such as education, training, age, and local job availability, leave no reasonably continuous market for the worker's labor; the employer then must show suitable available work or a gainful occupation.

Celestine v. Henry Industries, Inc. · filed 1981-01-26(2)

“In order to determine whether the plaintiff fits within this category of odd-lot workers, he must show that because of his physical impairment, mental capacity, education, training, age, availability of employment in his area, and any other relevant factor, that he ‘cannot perform the substantial and material parts of some gainful work or occupation with reasonable ‘continuity.’ [citation omitted] If the plaintiff is successful in showing a combination of factors indicating that the services which he is able to render are so limited in quality, quantity, or dependability that a market for his labor does not exist within which he can effectively compete, he has presented a prima facie case for classification in the odd-lot category. An offering of such proof by the plaintiff, therefore, satisfies his burden of proving that he should be awarded benefits for permanent and total disability. The defendant employer then has the onus of showing that there are jobs which are available to provide a steady income to the plaintiff or that will provide him with ‘a gainful occupation.’ ”

Law changed since Same change as noted above.

Section 23:1221(2) treats a common laborer as totally and permanently disabled when the worker can no longer compete for regular employment among able-bodied workers in the flexible market for common labor.

Hawkins v. Johns-Manville Corp. · filed 1982-07-30(2)

Prior to the 1975 amendments, the pertinent section of the workmen’s compensation statute, La.R.S. 23:1221(2), defined total permanent disability as an inability “to do work of any reasonable character.” ... Accordingly, the courts developed the rule that a common laborer would be considered “totally and permanently disabled” only if he could no longer compete for regular employment among able-bodied workers in the flexible market for common labor. ... Applying the “labor market” test to the facts of this case, we affirm the trial court’s finding that Mr. Hawkins is totally and permanently disabled.

Law changed since Acts 1983, 1st Ex. Sess., No. 1 (effective July 1, 1983) replaced the former partial-disability award under § 23:1221(3) with supplemental earnings benefits based on inability to earn 90% of pre-injury wages; the former award can govern earlier injuries.

Section 23:1221(2) addresses permanent total disability and § 23:1221(3) addresses partial disability; neither category applies when the claimant can perform the same customary employment duties as before the accident.

Chisholm v. LS Womack, Inc. · filed 1982-12-21(2), (3)

The evidence indicates that Chisholm is not permanently and totally disabled in the purview of La.R.S. 23:1221(2). Dr. Flynn testified that the work limitations on Chisholm in October of 1981 were essentially the same as those when he was discharged from his operation in 1975. After his discharge in 1975, Chisholm was gainfully employed and thus in October of 1981, he again was able to engage in a gainful occupation for wages. Chisholm was not partially disabled by the accident of February of 1981 within the purview of La.R.S. 23:1221(3). [2] Dr. Flynn testified that in October of 1981, Chisholm was able to perform the same employment duties that he was customarily engaged in prior to the time that he was injured in February of 1981. The work limitations placed upon him prior to February 18, 1981, were essentially the same as those placed upon him post October 6, 1981.

Law changed since Acts 1983, 1st Ex. Sess., No. 1 (effective July 1, 1983) required clear-and-convincing proof of physical inability to perform any employment for permanent total disability, displacing the former odd-lot, labor-market, and working-in-pain tests for later injuries. Acts 1983, 1st Ex. Sess., No. 1 (effective July 1, 1983) replaced the former partial-disability award under § 23:1221(3) with supplemental earnings benefits based on inability to earn 90% of pre-injury wages; the former award can govern earlier injuries.

Section 23:1221(2) treats a claimant unable to engage in any gainful employment, including under the odd-lot doctrine, as totally and permanently disabled, while § 23:1221(3) treats a claimant able to engage in some employment as partially disabled.

Robichaux v. Terrebonne Parish Sch. Bd. · filed 1983-01-05(2), (3)

A workmen's compensation claimant is totally and permanently disabled if he is unable to engage in any gainful employment. La.R.S. 23:1221(2). Louisiana has also adopted the "odd-lot" doctrine which provides that a claimant is also totally and permanently disabled if he can establish that because of his physical impairment and other factors, such as mental capacity, education, and training, he can perform no services other than those which are so limited in quality or dependability that a reasonably stable market for them does not exist. Oster v. Wetzel Printing, Inc., 390 So.2d 1318 (La.1980). A claimant who is able to engage in some employment, though not necessarily the type of employment he was engaged in at the time of the accident, is considered to be only partially disabled. La.R.S. 23:1221(3).

Law changed since Acts 1983, 1st Ex. Sess., No. 1 (effective July 1, 1983) required clear-and-convincing proof of physical inability to perform any employment for permanent total disability, displacing the former odd-lot, labor-market, and working-in-pain tests for later injuries.

Section 23:1221(2) provides permanent-total-disability benefits when a work injury prevents the employee from engaging in any gainful occupation for wages; residual pain supports that status only when it is substantial or appreciable.

Jacobs v. Pik-Quick, Inc. · filed 1984-07-03(2)

A claimant is not considered disabled solely because he suffers some residual pain and discomfort upon returning to work following a work-related accident; the pain must be substantial or appreciable. ... Whether the pain suffered by a claimant is substantial enough to be disabling is a question of fact for the trial court to decide. ... The trial court weighed the testimony of plaintiff's doctors against plaintiff's own testimony and concluded plaintiff was not totally and permanently disabled. We find no manifest error.

Law changed since Acts 2012, No. 860 (effective Aug. 1, 2012) increased the § 23:1221(4)(s)(i) catastrophic-injury payment from $30,000 to $50,000; the listed-injury and anatomical-loss limits remain.

Subparagraph (4)(s) authorizes the $30,000 lump-sum benefit only for listed injuries involving total anatomical loss; functional loss or loss of use does not qualify.

Black v. Lofland Co. · filed 2004-02-26(4)(s)(iii)(aa)

This argument ignores the clear language of subparagraph (4)(s)(iii)(aa), which states, “functional loss or loss of use shall not constitute anatomical loss.” What Black suffered was a functional loss of use of his hands to some degree, but it was not an anatomical loss of his hands as contemplated by the statute.

Law changed since Acts 1983, 1st Ex. Sess., No. 1 (effective July 1, 1983) required clear-and-convincing proof of physical inability to perform any employment for permanent total disability, displacing the former odd-lot, labor-market, and working-in-pain tests for later injuries. Acts 1983, 1st Ex. Sess., No. 1 (effective July 1, 1983) replaced the former partial-disability award under § 23:1221(3) with supplemental earnings benefits based on inability to earn 90% of pre-injury wages; the former award can govern earlier injuries.

Section 23:1221(2) treats an unskilled common laborer as permanently and totally disabled when an injury substantially reduces the worker’s ability to compete with ablebodied workers in the flexible general labor market; subsection (3) permits partial-disability benefits when a residual disability prevents performance of only some customary duties.

Lewis v. St. Charles Parish Hosp. Serv. Dist. · filed 1976-09-23(2) (3)

Within the meaning of the compensation act in effect at the time of the present injury, [1] an unskilled common laborer, such as is the plaintiff, is considered permanently and totally disabled, La.R.S. 23:1221(2) (1968), "if the injury has substantially decreased his ability to compete with ablebodied workers in the flexible general labor market." ... On the other hand, if the residual of the accident does not substantially handicap the worker in securing employment, then an award for partial disability, La.R.S. 23:1221(3) (1950), may be appropriate where the residual results in disability to perform only some of the duties in which he was customarily engaged when injured.

Law changed since Acts 1983, 1st Ex. Sess., No. 1 (effective July 1, 1983) required clear-and-convincing proof of physical inability to perform any employment for permanent total disability, displacing the former odd-lot, labor-market, and working-in-pain tests for later injuries.

Section 23:1221 treats an employee as totally disabled when the employee cannot pursue any gainful employment without substantial pain, even if the employee is working.

Rachal v. Highlands Ins. Co. · filed 1978-02-06(1) and (2)

Our interpretation of the amended statute is that an injured employee is totally disabled if he is unable to pursue any gainful employment without experiencing substantial pain.

Law changed since Acts 1983, 1st Ex. Sess., No. 1 (effective July 1, 1983) required clear-and-convincing proof of physical inability to perform any employment for permanent total disability, displacing the former odd-lot, labor-market, and working-in-pain tests for later injuries. Acts 1983, 1st Ex. Sess., No. 1 (effective July 1, 1983) replaced the former partial-disability award under § 23:1221(3) with supplemental earnings benefits based on inability to earn 90% of pre-injury wages; the former award can govern earlier injuries.

Section 23:1221, as amended effective September 1, 1975, governs the extent of disability for a later covered accident: inability to perform any gainful employment without substantial pain supports total disability, while capacity for available alternative work supports partial disability.

Lattin v. Hica Corp. · filed 1981-03-02

La.R.S. 23:1221 (Temporary, permanent, or partial disability; schedule of payments) was amended by Acts 1975, No. 583, § 9, eff. Sept. 1, 1975. The accident in the instant case occurred on October 6, 1975. Hence, our determination of the extent of disability must be governed by the new amendment and recent decisions of this court interpreting same, particularly those cases involving disability caused by substantial pain. A worker who cannot return to any gainful employment without suffering substantial pain is entitled to compensation benefits for total disability. ... On the other hand, if a worker cannot perform the same work that he did before his injury because it causes him substantial pain, but he has the mental capacity to perform other jobs which are available, he should be considered partially disabled.

Law changed since Acts 1983, 1st Ex. Sess., No. 1 (effective July 1, 1983) replaced the former partial-disability award under § 23:1221(3) with supplemental earnings benefits based on inability to earn 90% of pre-injury wages; the former award can govern earlier injuries.

Section 23:1221(3) provides partial-disability status when a worker can perform his former occupation only in substantial pain, even if he is currently earning more than before the injury.

Kirkley v. DSI Transports, Inc. · filed 1982-05-25(3)

For the above reasons, the trial court erred in holding plaintiff totally and permanently disabled. However, although plaintiff failed to show he is an "odd-lot" worker, he did prove that his former (and present) occupation is accomplished in substantial pain. For this reason, we hold that plaintiff is partially disabled, under La.R.S. 23:1221(3). Plaintiff is now enjoying a better income than that he received at the time of the accident. Should the pain become so overwhelming that plaintiff can no longer endure driving a truck, or should pain and impairment hinder plaintiff's job performance, causing DSI to dismiss him, then plaintiff will be protected from the loss of his income by his partially disabled status. See Dusang v. Henry C. Beck Builders, Inc., 389 So.2d 367, 372 (La.1980).

Law changed since Acts 1983, 1st Ex. Sess., No. 1 (effective July 1, 1983) required clear-and-convincing proof of physical inability to perform any employment for permanent total disability, displacing the former odd-lot, labor-market, and working-in-pain tests for later injuries.

Section 23:1221 allows an injured worker to be found totally and permanently disabled when the work-related injury leaves the worker in constant substantial disabling pain, regardless of the character of work performed or available.

Cottonham v. Rockwood Ins. Co. · filed 1981-07-22(1) and (2)

Under the Whitaker rationale, one who can demonstrate that he is and will be in substantial disabling pain at all times, regardless of the character of work he does or might do, should be found totally disabled.

Law changed since Acts 1983, 1st Ex. Sess., No. 1 (effective July 1, 1983) replaced the former partial-disability award under § 23:1221(3) with supplemental earnings benefits based on inability to earn 90% of pre-injury wages; the former award can govern earlier injuries.

Section 23:1221(3) treats an employee as partially disabled when an injury prevents return to the former job but permits gainful work elsewhere, including when substantial pain prevents the former job but not other work.

McBroom v. Argonaut Ins. Co. · filed 1979-06-11(3)

On the other hand, if an injured workman cannot return to his former employment because of his injury, but can perform gainful work in another position, he is partially disabled. Kilbourne v. Armstrong, supra ; Leblanc v. Commercial Union Assurance Company, supra . Partial disability also includes the situation where a workman would experience substantial pain when working in his former occupation, but where he could work in other categories of jobs without experiencing such pain. Conlay v. Houston General Insurance Company, 370 So.2d 196 (La.App. 3rd Cir. 1979); Lachney v. Cabot Corporation, 368 So.2d 500 (La.App. 3rd Cir. 1979).

Law changed since Same change as noted above.

Section 23:1221(2) treats a worker as totally disabled only when he cannot engage in any gainful occupation for wages, while § 23:1221(3) treats him as partially disabled when he cannot perform his customary or similarly suitable work but can perform other available jobs.

Dusang v. Henry C. Beck Builders, Inc. · filed 1980-10-06(2), (3)

The amended act defines total disability as the inability "to engage in any gainful 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..." (R.S. 23:1221(1) and (2)). This new language suggests that a worker is totally disabled only if he cannot engage in any gainful occupation for wages. A person who can engage in a gainful occupation is not totally disabled, even if such occupation is not the same or similar to his old occupation and even if it is not one for which he is particularly fitted by education, training or experience. ... Under the new act, an employee is deemed partially disabled if he is unable "to perform the duties in which he was customarily engaged when injured or duties of the same or similar character, nature, or description for which he was fitted by education, training, and experience ..." (R.S. 23:1221(3)). ... On the other hand, if a worker cannot perform the same work that he did before his injury because it causes him substantial pain, but he has the mental capacity and physical capability to perform other jobs which are available, he should be considered partially disabled.

Law changed since Same change as noted above.

Section 23:1221(3) deems an employee partially disabled when the employee cannot perform the duties being performed at the time of injury or duties of the same or similar character, nature, or description for which the employee is fitted by education, training, and experience.

Simpson v. SS Kresge Co. · filed 1980-10-06(3)

An injured employee is deemed partially disabled when he is unable to perform the duties in which he was customarily engaged when injured or duties of the same or similar character, nature, or description for which he was fitted by education, training, and experience.

Law changed since Same change as noted above.

Section 23:1221(3) treats a worker as permanently and partially disabled when he can no longer perform his former duties or other same or similar work for which he is fitted by education, training, and experience.

Allor v. Belden Corp. · filed 1981-01-26(3)

We find that Mr. Allor is now permanently and partially disabled within the meaning of La. R.S. 23:1221(3). We find that the preponderance of the evidence shows that Mr. Allor can no longer perform the "duties in which he was customarily engaged when injured or duties of the same or similar character, nature, or description for which he was fitted by education, training, and experience."

Law changed since Same change as noted above.

Section 23:1221 provides partial-disability benefits at 662/3rds percent of the difference between a worker's former wages and any lesser wages actually earned during the disability period, capped at 450 weeks.

Young v. Western Elec. Co., Inc. · filed 1986-03-25

As a partially disabled worker, plaintiff is entitled to compensation benefits in the amount of 662/3rds percent of the difference between his former wages and any lesser wages he actually earns during the period of his disability, but not to exceed 450 weeks, La.R.S. 23:1221.

Law changed since Same change as noted above.

Section 23:1221(3) provides weekly workers’ compensation benefits based on 66% percent of the difference between the worker’s prior and lesser subsequent wages during disability, subject to a $163 weekly maximum and a 450-week maximum.

Young v. Employers Casualty Co. · filed 1986-03-25(3)

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of Martin S. Young, Jr., and against defendants, Stone and Webster Engineering Corporation and Employers National Insurance Company, solidarily, for benefits under the Louisiana Worker’s Compensation Law, including weekly benefits under La.R.S. 23:1221(3), subject to a maximum weekly benefit of $163.00, at the rate of 66% percent of the difference between $611.60 and lesser wages which Martin S. Young, Jr., actually earns in any week thereafter during his period of disability, but not beyond a maximum of 450 weeks.

Law changed since Same change as noted above.

Former § 23:1221(3) provides 450 weeks of workers’ compensation benefits for a claimant found partially disabled, subject to credit for benefits already paid.

Layssard v. Procter & Gamble Manufacturing Co. · filed 1986-06-25(3)

Under these facts we find that the trial court did not err in finding that plaintiff did not meet his burden of proving odd-lot status. ... For these reasons the judgment of the trial court is affirmed at Procter and Gamble’s cost. The judgment is amended to provide workmen’s compensation benefits for 450 weeks as provided in former La. R.S. 23:1221(3), subject to a credit for weekly benefits already paid.

Law changed since Same change as noted above.

Section 23:1221(3) covers permanent partial disability shown by an appreciable diminution in the worker’s ability to perform the regular job or a similar one.

Dugas v. J.A. Jones Construction Co. · filed 1986-07-23(3)

The trial judge made an award based on partial disability in accordance with LSA-R.S. 23:1221(3) in effect on June 2, 1982, the date of the accident. ... The distinction between an impairment of a physical function and a disability is that for a permanent partial disability there must be an appreciable diminution in the worker’s ability to perform in his regular job or a similar one, while for the permanent impairment of a physical function no disability need be found. ... In the present case, plaintiff’s loss of earning power qualifies him for benefits under both the specific loss schedule and the partial disability provisions. That being the case, he is entitled to the more favorable of the two remedies. ... The trial judge found that plaintiff had a permanent partial disability, a finding with which we agree.

Law changed since Same change as noted above.

Section 23:1221(3) provides partial-disability benefits when an employee cannot perform the duties of the job held when injured or similar work suited by education, training, and experience, with benefits based on the wage difference and subject to the statutory maximum.

Hernandez v. FW Woolworth Co. · filed 1987-11-03(3)

In this case the plaintiff cannot perform the duties required by her former employment. The expert medical testimony was uniformly to the effect that the plaintiff should not engage in activities such as stooping, bending, lifting and prolonged standing. ... We are convinced that plaintiff's condition precluded most, if not all of her prior employment duties. ... Likewise the fact that the defendant has agreed to provide the plaintiff a job with special accommodations (such as restricted duties, facilities for her to be seated and breaks within the work day) is not the test for determining whether plaintiff is partially disabled under the Act. The test is "the employee's ability to perform the duties in which he was customarily engaged when injured or duties of the same or similar character, nature or description for which he is fitted". Mott v. Wal-Mart, supra. ... Under these circumstances the trial judge was clearly wrong in failing to find that, as a result of her injuries, plaintiff was partially disabled within the meaning of La.R.S. 23:1221(3), notwithstanding the employer's offer of a specially designed "cashier" job. Accordingly, for these reasons we find the plaintiff is partially disabled and the trial court erred in finding her to be temporarily totally disabled.

Law changed since Same change as noted above.

Section 23:1221(3) provides partial-disability compensation for a work-related injury even when the employee remains employed; post-injury wages affect only the amount owed.

Naquin v. Uniroyal, Inc. · filed 1981-09-28(3)

The statute clearly provides that an employee is eligible for compensation for a partially disabling work-related injury regardless of whether his employment continues; only the amount of compensation due may be affected by wages actually earned after the injury.

Law changed since Same change as noted above.

Section 23:1221(3) classifies an employee as partially disabled when unable to perform the duties of the pre-injury job or similar work suited to the employee's education, training, and experience, and provides compensation based on the difference between pre-injury wages and lesser post-injury earnings, subject to its week-credit rules.

Wool v. Parish of Jefferson · filed 1982-03-09(3)

Under La. R.S. 23:1221(3) as amended, an employee who is unable “to perform the duties in which he was customarily engaged when injured or duties of the same or similar character, nature or description for which he was fitted by education, training and experience ...” is classified as partially disabled. This statutory provision also fixes the compensation rate for partial disability at 66%% of the difference between the wages the employee was earning at the time of injury and any lesser wages which the injured employee actually earns in any week thereafter in any gainful occupation for wages. Further, under this statutory provision (i.e., R.S. 23:1221[3]) for any week during which the employee is paid any compensation under this subdivision, the employer is entitled to a reduction of one full week of compensation against the maximum number of weeks for which compensation is payable under the subdivision. However, for any week during which the employee receives no compensation because his earnings during the week exceeded the amount of compensation benefits he would be entitled to for the week, the employer is not entitled to a reduction for that week against the maximum number of weeks for which compensation is payable under the subdivision.

Law changed since Same change as noted above.

Section 23:1221(3) treats an employee as partially disabled when an injury prevents the employee from performing the customary job or similar work for which the employee is qualified, and provides partial-disability benefits.

Droze v. McCarty Corp. · filed 1982-05-25(3)

La.R.S. 23:1221(3) provides that partial disability results when the employee is unable to perform the duties in which he was customarily engaged when injured or duties of the same or similar character, nature or description for which he was fitted by education, training or experience. We find that plaintiff has proven by a preponderance of the evidence that he is unable to perform the duties in which he was engaged when injured and for which he is fitted by education and training, despite the fact that plaintiff has not attempted to resume work as a carpenter's apprentice since his surgery in January of 1980. Although plaintiff is not totally and permanently disabled, we hold that he is entitled to benefits for partial disability, pursuant to La.R.S. 23:1221(3).

Law changed since Same change as noted above.

Section 23:1221(3) defines partial disability as inability to perform the duties in which the employee was customarily engaged when injured, or similar duties for which the employee is qualified by education, training, and experience.

Daly v. LE Myers Const. Co. · filed 1982-08-17(3)

Partial disability, as defined in § 1221(3), is disability "to perform the duties in which he was customarily engaged when injured or duties of the same or similar character... by which he was fitted by education, training, and experience."

Law changed since Same change as noted above.

Section 23:1221(3) provides partial-disability benefits to a worker who cannot perform the former job but can still do other work.

Jackson v. Maloney Trucking & Storage, Inc. · filed 1982-09-30(3)

A claimant is partially disabled if he cannot perform the duties of his former employment but can still do other work. ... When Maloney Trucking Co. terminated benefits it knew that Jackson was limited to light duty, and was still entitled to benefits under La.R.S. 23:1221(3).

Law changed since Same change as noted above.

Section 23:1221(3) treats an employee as partially disabled when the employee cannot perform the duties customarily performed at injury or comparable duties suited by education, training, and experience.

Dodd v. Nicolon Corp. · filed 1982-10-29(3)

La.R.S. 23:1221(3) as amended provides that an employee is deemed partially disabled if he is unable "to perform the duties in which he was customarily engaged when injured or duties of the same or similar character, nature, or description for which he was fitted by education, training, and experience..." We find that the preponderance of the evidence shows that Linda Perry is permanently and partially disabled.

Law changed since Same change as noted above.

Section 23:1221 treats an employee as totally disabled when unable to engage in any gainful occupation and as partially disabled when unable to perform the work for which the employee was fitted by education, training, and experience.

Wheat v. Ford, Bacon and Davis Const. Corp. · filed 1982-11-16(1) and (3)

La.R.S. 23:1221(1), (2) state essentially an employee is totally disabled when he cannot engage in any gainful occupation for wages. In contrast, an employee is deemed partially disabled if he is unable "to perform the duties in which he was customarily engaged when injured or duties of the same or similar character, nature, or description for which he was fitted by education, training, and experience...." La.R.S. 23:1221(3).

Law changed since Same change as noted above.

Section 23:1221(3) defines partial disability as inability, because of an injury, to perform the job the worker was doing when injured or work of the same or similar character for which the worker is qualified by education, training, or experience.

Lennix v. St. Charles Grain Elevator Co. · filed 1983-10-12(3)

A worker is partially disabled by an injury if he is unable to perform the duty in which he was customarily engaged when injured or duties of the same or similar character, nature, or description for which he was fitted by education, training or experience. See, La.R.S. 23:1221(3).

Law changed since Same change as noted above.

Section 23:1221 treats an employee as partially disabled when the employee cannot perform the duties of the job held at the time of injury, or duties of the same or similar character, nature, or description, even if the employee can perform other gainful work.

Bazile v. Pellerin Milnor Corp. · filed 1982-10-12(3)

In Louisiana Revised Statutes 23:1221, permanent total disability prevents the employee from engaging in “any gainful occupation for wages whether or not the same or a similar occupation as that in which the employee was customarily engaged while partial disability causes the employee to be unable “to perform the duties in which he was customarily engaged when injured or duties of the same or similar character, nature or description ...”

Law changed since The 1983 revision removed the former face-or-head restriction; current § 23:1221(4)(p) permits compensation for serious permanent disfigurement without that location limit.

Section 23:1221(4)(p) authorizes compensation for serious permanent disfigurement only when the disfigurement is about the employee's face or head, not other body areas.

Whitaker v. Church's Fried Chicken, Inc. · filed 1979-07-16(4)(p)

We agree that the scarring is permanent and disfiguring; however, we find the trial judge in error for awarding workmen's compensation benefits for scarring which permanently disfigures the plaintiff in any area other than the face or head. La.R.S. 23:1221(4)(p) is clear, and thus the legislative will to limit workmen's compensation benefits for permanent disfiguring scarring must be limited to the face or head.

Law changed since Acts 1983, 1st Ex. Sess., No. 1 (effective July 1, 1983) required clear-and-convincing proof of physical inability to perform any employment for permanent total disability, displacing the former odd-lot, labor-market, and working-in-pain tests for later injuries.

Section 23:1221(2) provides total-disability compensation when a compensable injury leaves a worker unable, as a practical matter, to obtain any gainful occupation for wages, including when substantial pain severely limits employment.

Wilson v. Ebasco Services, Inc. · filed 1981-01-26(2)

The term "any gainful employment for wages," as used in R.S. 23:1221(1-2), must be understood to mean any gainful occupation which, as a practical matter, affords an injured worker an opportunity for employment. If such employment is not available to the worker because of the worker's injury and other individual factors, the odd-lot doctrine mandates that compensation be paid for total disability.

Law changed since Same change as noted above.

Section 23:1221(2) supports permanent-total-disability benefits when a worker's medical and personal limitations leave no reasonable stable market for the work he can perform, shifting to the employer the burden to show available gainful employment.

White v. Johns-Manville Sales Corp. · filed 1982-06-08(2)

The central issue is whether Rayfield White is unable "to engage in any gainful occupation for wages" within the meaning of La.R.S. 23:1221(2) (Supp.1975) and therefore should be awarded compensation for permanent total disability. ... If the plaintiff is successful in showing a combination of factors indicating that the services which he is able to render are so limited in quality, quantity, or dependability that a market for his labor does not exist within which he can effectively compete, he has presented a prima facie case for classification in the odd-lot category. ... The defendant employer then has the onus of showing that there are jobs which are available to provide a steady income to the plaintiff or that will provide him with `a gainful occupation.' ... Therefore, we hold that the plaintiff is entitled to an award of total permanent disability benefits.

Law changed since Same change as noted above.

Section 23:1221(2) treats a worker unable to return to any gainful employment without substantial pain as totally disabled and eligible for compensation benefits.

Vernon v. Aetna Life and Cas. Ins. Co. · filed 1983-11-22(2)

A worker who cannot return to any gainful employment without suffering substantial pain is entitled to compensation benefits for total disability. La.R.S. 23:1221(2); Wilson v. Ebasco Services, Inc., 393 So.2d 1248 (La.1981); Whitaker v. Church's Fried Chicken, Inc., 387 So.2d 1093 (La.1980). Since the Louisiana Supreme Court's decision in Oster v. Wetzel Printing, Inc., 390 So.2d 1318 (La.1980), cases involving substantial pain are analyzed within the framework of the "odd-lot" doctrine.

Law changed since Acts 1983, 1st Ex. Sess., No. 1 (effective July 1, 1983) replaced the former partial-disability award under § 23:1221(3) with supplemental earnings benefits based on inability to earn 90% of pre-injury wages; the former award can govern earlier injuries.

Section 23:1221(3) provides partial-disability benefits for a maximum of 450 weeks when the injury occurs after September 1, 1977.

Miller v. Olinkraft, Inc. · filed 1981-03-27(3)

However, under La.R.S. 23:1221(3), for injuries occurring after September 1, 1977, benefits are payable for a maximum period of 450 weeks. Therefore, the judgment will be amended to change the maximum period for payment of benefits from 425 weeks to 450 weeks.

Law changed since Same change as noted above.

Section 23:1221(3) treats an employee unable to perform the pre-injury or similar duties as partially disabled and bases benefits on the difference between pre-injury wages and lesser wages actually earned, with actual earnings credited against compensation.

Schouest v. J. Ray McDermott & Co., Inc. · filed 1982-04-16(3)

Offers of other employment are irrelevant in cases of partial disability. Only actual employment and earned wages are relevant and then only as a credit against the compensation otherwise due. La.R.S. 23:1221(3) fixes the compensation rate for partial disability at "sixty-six and two thirds per centum of the difference between the wages the employee was earning at the time of the injury and any lesser wages which the injured employee actually earns in any week thereafter in any gainful occupation for wages, ..." (Emphasis provided)

Law changed since Same change as noted above.

Subsection (3) covers partial disability when an injury prevents return to the former employment but permits gainful employment in another position; subsection (4) covers scheduled member or extremity disabilities only when the first three subsections do not apply.

Case v. K-Mart, Inc. · filed 1981-05-05(3), (4)

Section (4) refers to a scheduled disability due to loss of a member or partial disability of an extremity. This section only applies where the first three sections are inapplicable. ... Under La.R.S. 23:1221(3), an injured workman is partially’ disabled if, because of his injury, he cannot return to his former employment, but can perform gainful employment in another position. ... Accordingly, Mrs. Case’s injury meets the criteria outlined in La.R.S. 23:1221(3), and is a partial permanent disability.

Law changed since Same change as noted above.

Section 23:1221(3) does not treat an employee as partially disabled when the employee can perform the former job’s duties and earns wages equal to or greater than the pre-injury wages.

Wright v. Aetna Life & Casualty Co. · filed 1981-10-12(3)

Plaintiff has returned to the full-time duties of his former employment with no indication that his injury has prevented him from performing any of his required duties. Since his return to work, plaintiff has earned wages equal to or greater than those being earned when injured. Under these circumstances and the clear wording of La.R.S. 23:1221(3), plaintiff is not partially disabled.

Law changed since Same change as noted above.

Section 23:1221(3) makes an employee eligible for compensation for a partially disabling work-related injury even if employment continues, although post-injury wages may affect the amount of compensation.

Spillers v. Cities Service Co. · filed 1981-11-10(3)

La. R.S. 23:1221(3) provides that an employee is eligible for compensation for a partially disabling work-related injury regardless of whether his employment continues; only the amount of compensation due may be affected by wages actually earned after the injury.

Law changed since Same change as noted above.

Section 23:1221(3) provides partial-disability benefits when an injury prevents an employee from performing the duties in which the employee was customarily engaged, or duties of the same or similar character for which the employee was fitted by education, training, and experience; bookkeeping work may qualify even when it is largely sedentary because it requires some movement.

Irvine v. Sentry Ins. Co. · filed 1982-05-25(3)

There was substantial evidence showing Mrs. Irvine was partially disabled within the meaning of La.R.S. 23:1221(3). That subsection of the statute reads in pertinent part as follows: "For injury producing partial disability of the employee to perform the duties in which he was customarily engaged when injured or duties of the same or similar character, nature, or description for which he was fitted by education, training, and experience...." Mrs. Irvine testified she was a bookkeeper by education and experience. We find no manifest error in the trial court's conclusion that Mrs. Irvine is disabled from doing bookkeeping or similar work, because any such work involves movement to some extent and cannot be done properly by someone who is unable to move about. The court, impressed by Mrs. Irvine's truthfulness and by Dr. Newman's expert opinion, did not err in determining Mrs. Irvine was permanently partially disabled.

Law changed since Same change as noted above.

Section 23:1221(3) deems an employee partially disabled when he cannot perform the duties in which he was customarily engaged when injured or similar duties for which he is qualified by education, training, and experience.

Dauzat v. Gregory & Cook, Inc. · filed 1983-11-09(3)

The trial court made a finding of fact that plaintiff could not “perform all of the duties which he was customarily engaged in when injured, or duties of the same or similar character, nature or description for which he was fitted by education, training or experience.” La.R.S. 23:1221(3), as amended, provides that an employee is deemed partially disabled if he is unable “to perform the duties in which he was customarily engaged when injured or duties of the same or similar character, nature, or description for which he was fitted by education, training, and experience ...” The evidence clearly shows from plaintiff’s own testimony that he has been able to perform all the duties and that he has in fact performed all the duties in which he was customarily engaged when injured. There was no other testimony beside plaintiff’s regarding his work performance. Accordingly, the trial court’s finding of fact that plaintiff could not perform all the duties which he was customarily engaged in when injured is clearly wrong.

Law changed since Same change as noted above.

Section 23:1221(3) permits partial-disability status even when an employee remains in the pre-injury job, if the employee cannot perform the same duties customarily performed when injured.

Thibodeaux v. Aetna Cas. and Sur. Co. · filed 1984-07-03(3)

An employee may be deemed partially disabled even if employed at his pre-injury job if he is unable to perform the same duties in which he was customarily engaged when injured. La.R.S. 23:1221(3); Orgeron v. Tri-State Road Boring, Inc., 434 So.2d at 67.

Law changed since Same change as noted above.

Sections 23:1221(1) and (2) address total disability, subsection (3) addresses partial disability when an employee cannot perform customary work but can earn wages in suitable work, and subsection (4)(p) permits compensation for serious permanent impairment of a physical function when the statutory requirements are proved.

Daney v. Argonaut Ins. Co. · filed 1982-10-12(1), (2), (3), and (4)(p)

From March of 1980 until the date of trial, Daney was neither temporarily nor permanently totally disabled, as contemplated by the Louisiana Workmen's Compensation Law, because he was capable of a gainful occupation for wages. La.R.S. 23:1221(1) and (2); Wilson v. Ebasco Services, Inc., 393 So.2d 1248 (La.1981); Smith v. State, Department of Highways, 370 So.2d 1295 (La.App. 3rd Cir.1979). ... If an employee is unable to "perform the duties in which he was customarily engaged when injured or duties of the same or similar character, nature, or description ...", but is able to engage in gainful activity at some job for which he is fitted by education, training or experience, he is considered partially disabled. La.R.S. 23:1221(3); Wright v. Aetna Life and Casualty Company, 405 So.2d 1166 (La.App. 1st Cir.1981); Jacks v. Banister Pipelines America, 396 So.2d 604 (La.App. 1st Cir. 1981). ... Where the usefulness of a physical function of an employee is seriously permanently impaired, the court may allow such compensation as is reasonable, not to exceed sixty-six and two-thirds per centum of wages during one hundred weeks. La.R.S. 23:1221(4)(p). ... Since Daney has not satisfactorily demonstrated a causal relationship between this disability and the accident of October, 1979, nor proven the wages upon which compensation is calculated, he cannot recover benefits on this basis.

Law changed since Same change as noted above.

Section 23:1221(2) treats an employee as totally and permanently disabled when unable to engage in any gainful employment, while § 23:1221(3) treats an employee who can engage in some employment as partially disabled.

Thornell v. Payne & Keller, Inc. · filed 1983-11-22(2) (3)

A workmen's compensation claimant is totally and permanently disabled if he is unable to engage in any gainful employment. La. R.S. 23:1221(2). Louisiana also has adopted the "odd-lot" doctrine which provides that an employee is totally and permanently disabled if he can establish that because of his physical impairment and other factors, such as mental capacity, education and training, he can perform no services other than those which are so limited in quality or dependability that a reasonably stable market for them does not exist. Oster v. Wetzel Printing, Inc., 390 So.2d 1318 (La.1980). An employee who is able to engage in some employment, though not necessarily the type of employment he was engaged in at the time of the accident, is considered to be only partially disabled. La.R.S. 23:1221(3); Dodd v. Nicolon Corporation, 422 So.2d 398 (La.1982); Stracener v. United States Fidelity & Guaranty Company, 420 So.2d 1101 (La.1982).

Law changed since Same change as noted above.

Section 23:1221(3) covers an employee whose injury prevents performance of the duties in which the employee was engaged or comparable duties for which the employee is fitted by education, training, and experience, while § 23:1221(4)(e) provides scheduled compensation for loss of a hand subject to a credit when partial-disability benefits are also awarded.

Stracener v. United States Fid. & Guar. Co. · filed 1982-10-18(3), (4)(e)

Based on these facts, we conclude that plaintiff's injury prevents him from performing the duties in which he was engaged when injured as well as those for which he is fitted by education, training, and experience. Hence, he is partially disabled within the meaning of La.R.S. 23:1221(3) and entitled as such to recover disability benefits under this provision. ... Applying Jacks to the instant case, wherein the situation is practically identical, plaintiff is entitled to 150 weeks of compensation according to the schedule for the specific loss of his hand under La.R.S. 23:1221(4)(e) and 300 weeks of partial disability compensation under La.R.S. 23:1221(3), subject to a credit for the portion of compensation which has been paid.

Law changed since Acts 1983, 1st Ex. Sess., No. 1 (effective July 1, 1983) required clear-and-convincing proof of physical inability to perform any employment for permanent total disability, displacing the former odd-lot, labor-market, and working-in-pain tests for later injuries. Acts 1983, 1st Ex. Sess., No. 1 (effective July 1, 1983) replaced the former partial-disability award under § 23:1221(3) with supplemental earnings benefits based on inability to earn 90% of pre-injury wages; the former award can govern earlier injuries.

Section 23:1221 treats a worker as totally and permanently disabled under the odd-lot doctrine when no stable labor market exists for the limited services the worker can perform, and measures permanent partial benefits by wages the worker could safely earn.

Shatoska v. Intern. Grain Transfer, Inc. · filed 1983-04-05(2), (3)

A workmen's compensation claimant is totally and permanently disabled if he is unable to engage in any gainful employment. La.R.S. 23:1221(2). Louisiana has also adopted the "odd-lot" doctrine which provides that a claimant is also totally and permanently disabled if he can establish that because of his physical impairment and other factors, such as mental capacity, education, and training, he can perform no services other than those which are so limited in quality or dependability that a reasonably stable market for them does not exist. ... A claimant who is able to engage in some employment, though not necessarily the type of employment he was engaged in at the time of the accident, is considered to be only partially disabled. La.R.S. 23:1221(3); Dodd v. Nicolon Corporation, 422 So.2d 398 (La.1982); Stracener v. United States Fidelity & Guaranty Company, 420 So.2d 1101 (La.1982). ... We are mindful that La. R.S. 23:1221(3) provides that compensation benefit payments based on permanent, partial disability are to be calculated at "sixtysix and two-thirds per centum of the difference between the wages the employee was earning at the time of the injury and any lesser wages which the injured employee actually earns in any week thereafter in any gainful occupation for wages, ...". However, we do not believe that it was the intention of the legislature that this language was to be literally applied in a situation where an employee is earning wages by doing work that is dangerous and detrimental to his health. If Shatoska falls in this category, his entitlement to benefits should be based on the difference between the wages he was earning at the time of the injury and any lesser wages that he could safely earn in a gainful occupation. We do not believe that it would be a good public policy to calculate permanent, partial disability benefits based on wages earned by an employee who is engaged in work which is dangerous to his health.

Law changed since Acts 1983, 1st Ex. Sess., No. 1 (effective July 1, 1983) replaced the former partial-disability award under § 23:1221(3) with supplemental earnings benefits based on inability to earn 90% of pre-injury wages; the former award can govern earlier injuries.

Section 23:1221(2) treats a claimant unable to engage in any gainful employment as totally and permanently disabled, while § 23:1221(3) treats a claimant able to engage in some employment as partially disabled.

Bridgewater v. Crown Zellerbach · filed 1984-02-28(2) and (3)

A workmen's compensation claimant is totally and permanently disabled if he is unable to engage in any gainful employment. La.R.S. 23:1221(2). Louisiana has also adopted the "odd-lot" doctrine which provides that a claimant is also totally and permanently disabled if he can establish that because of his physical impairment and other factors, such as mental capacity, education, and training, he can perform no services other than those which are so limited in quality or dependability that a reasonably stable market for them does not exist. Oster v. Wetzel Printing, Inc., 390 So.2d 1318 (La.1980). A claimant who is able to engage in some employment, though not necessarily the type of employment he was engaged in at the time of the accident, is considered to be only partially disabled. La.R.S. 23:1221(3); Dodd v. Nicolon Corporation, 422 So.2d 398 (La. 1982); Stracener v. United States Fidelity & Guaranty Company, 420 So.2d 1101 (La.1982). ... Therefore, he has failed to prove that he is totally and permanently disabled as an "odd-lot" employee. ... Bridgewater has thus established that he is permanently but partially disabled as a result of his injury.

Law changed since Acts 1989, No. 454, § 6 (effective Jan. 1, 1990) required clear-and-convincing proof of physical inability to perform any employment for temporary total disability, ending the former preponderance and odd-lot or working-in-pain routes for later injuries.

Section 23:1221(1) provides temporary-total-disability benefits when an employee cannot engage in any gainful employment without substantial pain.

Chiasson v. Lafourche Parish Council · filed 1984-04-03(1)

A worker's compensation claimant is considered totally disabled if he is unable to engage in any gainful employment without suffering substantial pain. La.R.S. 23:1221; [1] Lattin v. Hica Corporation, 395 So.2d 690 (La.1981); Vernon v. Aetna Life and Cas. Ins. Co., 442 So.2d 674 (La.App. 1st Cir.1983). ... Upon a review of the record, and in light of the trial court's evaluations of credibility, we find no manifest error in the trial court's conclusion that the limited medical evidence and extensive lay testimony support a conclusion that plaintiff is totally disabled. ... La.R.S. 23:1221(1) provides that an employee suffering from a temporary total disability should receive compensation benefits during the period of such disability.

Law changed since Current official § 23:1221(4)(p), checked Oct. 1, 2026, limits physical-function impairment awards to the specified respiratory, gastrointestinal, and genito-urinary systems, rather than the former general physical-function provision; the intervening act was not established.

Section 23:1221(4)(p) permits compensation for a serious permanent impairment of a physical function when no other listed provision applies, while § 23:1221(3) does not govern when the claimant can physically resume the former job.

Culp v. Belden Corp. · filed 1983-05-23(4)(p) and (3)

The question was also raised as to whether Ms. Culp might be entitled to an award under La.R.S. 23:1221(3) for permanent partial disability rather than under La.R.S. 23:1221(4)(p): "cases not falling within any of the provisions already made, ... where the usefulness of a physical function is seriously permanently impaired." We find that the trial judge was correct in his award designation. The evidence establishes that Ms. Culp was physically able to resume the responsibilities of the job of plant nurse, since they did not involve excessive bending, stooping, or lifting. These were "the same duties in which she was customarily engaged when injured [and] duties of the same or similar character for which she was fitted by education, training or experience."

Law changed since Acts 1983, 1st Ex. Sess., No. 1 (effective July 1, 1983) replaced the former partial-disability award under § 23:1221(3) with supplemental earnings benefits based on inability to earn 90% of pre-injury wages; the former award can govern earlier injuries.

Section 23:1221(3) provides permanent partial-disability benefits based on two-thirds of the difference between pre-injury wages and lesser post-injury weekly wages when an employee cannot perform customary or similar duties.

Faucheux v. Hooker Chemical Corp. · filed 1983-11-09(3)

In that respect, R.S. 23:1221(3) provides: "For injury producing partial disability of the employee to perform the duties in which he was customarily engaged when injured or duties of the same or similar character, nature, or description for which he was fitted by education, training, and experience, sixty-six and two-thirds percentum of the difference between the wages the employee was earning at the time of the injury and any lessor wages which the injured employee actually earns any week thereafter in any gainful occupation for wages...." ... Accordingly we affirm, but amend the judgment to provide benefits to Faucheux for partial and permanent disability under LSA-R.S. 23:1221(3) and for worker's compensation benefits to be paid for the period August 6, 1979 to October 8, 1979 (the months plaintiff-appellee was unemployed), payable weekly during the period of disability, but not beyond a maximum of four hundred fifty weeks, at the rate of sixty-six and two-thirds percentum of the difference between the wages the employee was earning at the time of the injury and any lesser wages which the injured employee actually earns or earned in any week, together with legal interest on each delinquent weekly payment from date of each delinquency until paid, and all medical costs and expenses; subject to credit for weekly payments made and medical expenses paid.

Law changed since Same change as noted above.

Section 23:1221(3) treats an employee as partially disabled when an injury prevents a return to former work but permits gainful work elsewhere, and bases benefits on wages actually earned, even if the employee refuses available work.

Cotten v. Union Tank Car Co. · filed 1983-06-28(3)

Under this statute, if an injured worker cannot return to his former employment because of his injury, but can perform gainful work in another position, he is partially disabled.

Law changed since Current official § 23:1221(4)(p), checked Oct. 1, 2026, permits an award for up to 100 weeks; it no longer requires a fixed 100-week period, and the intervening act was not established.

Section 23:1221(4)(p) authorizes compensation for facial scarring only when the scars are materially disfiguring and permanent, for a fixed 100-week period, with discretion limited to the weekly benefit amount.

Edwards v. Hartford Ins. Co. · filed 1984-01-16(4)(p)

In cases involving facial scarring this provision requires that the scars be both materially disfiguring and permanent in nature. ... The compensation period under 23:1221(4)(p) is established at 100 weeks. The trial court has no discretion to set a lower number of weeks. The trial court has discretion as to the amount of each weekly benefit to which the claimant is entitled.

Law changed since Acts 1983, 1st Ex. Sess., No. 1 (effective July 1, 1983) replaced the former partial-disability award under § 23:1221(3) with supplemental earnings benefits based on inability to earn 90% of pre-injury wages; the former award can govern earlier injuries.

Section 23:1221(3) treats an injured employee as partially disabled when he cannot perform his customary work or similar work for which his education, training, and experience qualify him.

Benoit v. Giant Rentals, Inc. · filed 1984-11-07(3)

“An injured employee is deemed partially disabled when he is unable to perform the duties in which he was customarily engaged when injured or duties of the same or similar character, nature, or description for which he was fitted by education, training, and experience. La. R.S. 23:1221(3).”

Law changed since Same change as noted above.

Section 23:1221(3) treats a claimant who can engage in some employment but cannot perform the pre-injury job as partially disabled and preserves the maximum compensation period despite weeks in which no compensation is paid because of actual earnings.

Tucker v. Associated Grocers, Inc. · filed 1985-06-25(3)

La.R.S. 23:1221(3) as it appeared in 1975 La.Acts, No. 583 § 9, is applicable in the present instance. Pursuant thereto, a claimant who is able to engage in some employment, though not necessarily the type of employment he was engaged in at the time of the accident, is considered to be only partially disabled. ... Accordingly, Tucker is entitled to compensation benefits for a period of 450 weeks, commencing January 25, 1982. ... The proviso in La.R.S. 23:1221(3) which applies reads: "... and for any week during which the employee is paid no compensation, because of the employee's actual earnings during that week, the employer shall not be entitled to a reduction for that week against the maximum number of weeks for which compensation is payable under this subdivision (3)...." (Emphasis supplied.) ... This method of calculation, together with the prohibition against credit where no compensation is paid because of the employee's "actual earnings," is a legislative mandate to award Tucker the full 450 weeks of compensation.

Law changed since Same change as noted above.

Subsection (3) provides permanent-partial-disability coverage when an employee can no longer perform the duties in which he was injured, or similar duties for which he is qualified, even though he can perform less strenuous work.

Walton v. Normandy Village Homes Ass'n, Inc. · filed 1985-09-10(3)

We find that Walton is permanently and partially disabled within the meaning of La.R.S. 23:1221(3). The preponderance of the evidence shows that Walton can no longer perform the "duties in which he was customarily engaged when injured or duties of the same or similar character, nature, or description for which he was fitted by education, training, and experience." The medical testimony established that resumption of heavy manual labor would be detrimental to Walton's health and could have disastrous consequences. His doctors did not rule out a wide range of jobs with lesser physical requirements, however.

Law changed since Same change as noted above.

Section 23:1221(3) provides permanent partial disability benefits when an employee cannot perform the duties in which the employee was customarily engaged when injured.

Savoie v. Fire Protection Dist. No. 1 · filed 1985-12-11(3)

Under these facts we find the plaintiff to be permanently and partially disabled since he is unable to perform the same duties in which he was customarily engaged when injured. See La. R.S. 23:1221(3). Consequently, plaintiff is entitled to benefits pursuant to La.R.S. 23:1221(3).

Law changed since Current official § 23:1221(2)(a), checked Oct. 1, 2026, pays permanent-total-disability benefits during disability without the former 500-week cap on weekly benefits; the intervening removing act was not established.

For a permanent-total-disability injury, subsection (2)'s 500-week limit restricts the amount of weekly benefits, not the duration of the employer's obligation to pay related medical expenses during the disability.

Lester v. Southern Cas. Ins. Co. · filed 1985-04-01(2)

The obligation imposed by La.R.S. 23:1221 on the employer at the time of plaintiff's accident was to pay compensation "during the period of disability". The 500-week limitation on weekly benefits applied to the amount of the obligation and not the length of the obligation.

Law changed since Acts 1983, 1st Ex. Sess., No. 1 (effective July 1, 1983) required clear-and-convincing proof of physical inability to perform any employment for permanent total disability, displacing the former odd-lot, labor-market, and working-in-pain tests for later injuries.

Under the pre-1983 version applicable here, § 23:1221(2) entitled a worker found temporarily totally disabled at trial to permanent-total-disability benefits when the disability’s duration was indefinite or unclear.

Sharbono v. H & S CONST. CO. · filed 1985-11-13(2)

Plaintiff has appealed the trial court's finding that he is temporarily totally disabled and contends that the trial court should have found him to be permanently totally disabled under the law applicable at the time of the accident, LSA-R.S. 23:1221(2). The law applicable in this case provides that once a worker is found, at the time of trial, to be temporarily totally disabled, he is entitled to a judgment for permanent total disability if the duration of the disability is indefinite or is not clearly indicated by the evidence.

Law changed since Same change as noted above.

Former § 23:1221(2) treats total permanent disability as inability to engage in any gainful occupation for wages, applied through the odd-lot doctrine.

Bernard v. WOODROW WILSON CONST. CO., INC. · filed 1988-04-06(2)

Prior to the 1983 amendment, La.R.S. 23:1221(2) defined total permanent disability as inability "to engage in any gainful occupation for wages." ... Under the facts of this case, we find Bernard does not fit within the category of odd-lot workers and is not entitled to total disability benefits.

Law changed since Current official § 23:1221(4)(p), checked Oct. 1, 2026, limits physical-function impairment awards to the specified respiratory, gastrointestinal, and genito-urinary systems, rather than the former general physical-function provision; the intervening act was not established.

Section 23:1221 treats permanent partial impairment of both eyes as warranting permanent-partial-disability compensation absent conclusive proof to the contrary, while the omnibus provision supplies a reasonable proportionate award when no disability is proven.

Bordelon v. Vulcan Materials Co. · filed 1985-06-28(4)(j), (4)(p), (3)

We conclude, therefore, that to compensate employees suffering partial and permanent impairment of both eyes in proportion to employees sustaining total loss of both eyes requires that they be treated as if they were permanently partially disabled, in the absence of conclusive proof to the contrary. ... Accordingly, this being a case not falling within any of the other provisions, and one in which the usefulness of a physical function is seriously permanently impaired, we are required by the omnibus provision to allow such compensation as is reasonable and in proportion to that provided for other cases by the schedule, not to exceed sixty-six and two-thirds percent of wages for one hundred weeks.