La. Stat. Ann. § 23:1221

Section 23:1221(1) denies temporary-total disability benefits when an injured worker can perform any employment, including work while in pain, and ends those benefits when continued regular physician treatment is no longer required.

Graham v. Georgia-Pacific Corp. · filed 1994-09-23(1)(a), (1)(b), and (1)(d)

Temporary total benefits are not available if the claimant can engage in any employment, including employment while working in pain. R.S. 23:1221(1)(b). ... The hearing officer found that Graham was able to do the desk clerk job identified by Ms. Sims, as well as the utility worker, desk clerk and counter clerk jobs located by Mr. Lipinski. These jobs represent any occupation for wages, were approved by Graham's treating and evaluating physicians as within his physical restrictions, and were available to him by July 1992. R.S. 23:1221(1)(a). On the evidence presented, the hearing officer could reasonably find that Graham did not prove, by clear and convincing evidence, that he could not perform these jobs. The fact that he felt he would have been in pain at these jobs is irrelevant under the definition of temporary total disability. R.S. 23:1221(1)(b). ... Moreover, the record supports the finding that apart from surgery, Graham had reached the point that "continued, regular treatment by a physician is not required." R.S. 23:1221(1)(d). On this record, we perceive no manifest error in the hearing officer's denial of benefits for temporary, total disability. Rosell v. ESCO, supra.

For permanent total disability, an employee must prove by clear and convincing evidence that the employee is unable to engage in any employment or self-employment.

Darbonne v. Canal Refining Co. · filed 1993-02-03(2)(c)

Under these circumstances, plaintiffs failed to prove by clear and convincing evidence that Elias was unable to engage in any employment or self-employment under the guidelines of La.R.S. 23:1221(2)(c).

Section 23:1221(2)(a) defines permanent total disability as inability to engage in any self-employment or wage occupation, and (2)(e) requires clear and convincing evidence, without any presumption of disability, that the claimant is physically unable to engage in any employment or self-employment.

Paddie v. American Interstate Insurance Co. of Georgia · filed 1995-10-04(2)(a), (2)(e)

An injury which produces permanent total disability is one which prevents a claimant from engaging “in any self-employment or occupation for wages, whether Ror 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.” La.R.S. 23:1221(2)(a). A claimant’s burden of proof is to show “by clear and convincing evidence, unaided by any presumption of disability” that he “is physically unable to engage in any employment or self-employment” regardless of its particular nature. La.R.S. 23:1221(2)(e).

Section 23:1221(2)(c) supplies the proper burden of proof for a permanent-total-disability claim.

Lucas v. T.L. James & Co. · filed 1995-11-02(2)(c)

However, a complete review of the hearing officer’s written reasons reveals that she recognized and applied the proper burden of proof for permanent total disability as set forth in La.R.S. 23:1221(2)(c).

Section 23:1221(2)(c) bars permanent-total-disability benefits when the claimant can perform any employment, including sheltered employment, even while experiencing pain.

Transportation Ins. Co. v. Pool · filed 1998-05-13(2)(c)

For permanent total disability, Subsection 1221(2)(c) requires a physical disability to engage in "any employment" regardless of its nature or character, including sheltered employment, even while working in "any pain."

Section 23:1221(2)(c) requires a claimant seeking permanent and total workers' compensation benefits to prove by clear and convincing evidence, without a presumption of disability, that she is physically unable to engage in any employment; for injuries predating the 1983 amendment, the prior preponderance standard applies.

Hughes v. Delphi Interior & Lighting Systems · filed 1999-12-17(2)(c)

In 1983, the legislature amended La. R.S. 23:1221(2)(c) which now requires a claimant seeking workers' compensation benefits to prove by clear and convincing evidence unaided by any presumption of disability that she is physically unable to engage in any employment. However, prior to the sweeping reform legislation of 1983, that provision provided that a claimant who could only work in pain was entitled to receive permanent and total disability benefits so long as she could prove her inability to engage in any gainful occupation by a preponderance of the evidence.

Section 23:1221(2)(c) requires clear and convincing proof that an employee is physically unable to engage in any employment, including odd-lot, sheltered, or painful employment, to receive permanent total disability benefits.

Camardelle v. K Mart Corp. · filed 2004-07-27(2)(c)

R.S. 23:1221(2)(c) provides that (c) For purposes of Subparagraph (2)(a) of this Paragraph, whenever the employee is not engaged in any employment or self-employment as described in Subparagraph (2)(b) of this Paragraph, compensation for permanent total disability shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including, but not limited to, any and all odd-lot employment, sheltered employment, or employment while working in any pain, notwithstanding the location or availability of any such employment or self-employment. Thus, a claimant seeking temporary or permanent disability benefits must offer clear and convincing evidence that he is unable to engage in any type of employment.

Section 23:1221(2)(c) requires an injured employee seeking permanent and total disability benefits to prove by clear and convincing evidence that the employee cannot engage in any type of employment.

Odom v. Kinder Nursing Home · filed 2007-04-25(2)(c)

An injured employee will be entitled to recover permanent and total disability benefits if he or she proves their inability to engage in any type of employment by clear and convincing evidence. La.R.S. 23:1221(2)(c).

A claimant seeking temporary total disability benefits must prove by clear and convincing evidence, without a presumption of disability, that the claimant is physically unable to engage in any employment or self-employment.

Pardee v. Forest Haven Nursing Home · filed 2007-06-20(1)(C)

To obtain an award of TTD benefits, a claimant must prove by clear and convincing evidence, unaided by any presumption of disability, that she is physically unable to engage in any employment or self-employment. La. R.S. 23:1221(1)(C); Brantley v. Delta Ridge Implement, Inc., 41,190 (La.App.2d Cir.06/28/06), 935 So.2d 308. This is the standard of proof which a claimant must satisfy when he files a disputed claim form seeking an award of TTD benefits after the employer or insurer terminates voluntary payments of TTD benefits. To prove a matter by clear and convincing evidence, as required to establish entitlement to TTD benefits, means to demonstrate that the existence of a disputed fact is highly probable, i.e., much more probable than its nonexistence. Id. Here, we agree with Forest Haven that the WCJ was manifestly erroneous in finding that Pardee was entitled to TTD benefits for the period of time between August 27, 2003 and October 30, 2003. Simply put, Pardee failed to prove by clear and convincing evidence that she was physically unable to engage in any employment or self-employment.

Section 23:1221(1)(c) requires clear and convincing proof that an employee is physically unable to perform any employment for temporary total disability benefits, while the substantial-pain doctrine applies only to supplemental earnings benefits under § 23:1221(3)(c)(ii).

Carmouche v. Kraft Foods, Inc. · filed 2011-04-13(1)(c)

All these arguments miss the mark. Louisiana Revised Statute 23:1221(3)(c)(ii) makes it clear that the substantial pain doctrine is limited to cases involving an award of supplemental earnings benefits. An award of TTD benefits can only be predicated upon a finding that the employee is physically unable to perform any employment, including employment while working in any pain. La.R.S. 23:1221(1)(c). See Comeaux v. Sam Broussard Trucking, 94-1631 (La.App. 3 Cir. 5/31/95), 657 So.2d 449, reversed on other grounds, Smith v. Southern Holdings, Inc., 02-1071 (La.1/28/03), 839 So.2d 5. The substantial pain doctrine has no application when considering an award of TTD benefits. Every physician has maintained that Carmouche is physically able to return to employment, including Dr. Rees. He is not entitled to TTD benefits.

Section 23:1221(2)(c) requires a claimant seeking permanent total disability benefits to prove by clear and convincing evidence, without a presumption of disability, that the claimant is physically unable to perform any employment or self-employment, including work while in pain.

Morgan v. Glazers Wholesale Drug Co. · filed 2011-11-02(2)(c)

Thus, a workers’ compensation claimant seeking permanent total disability benefits bears the burden of proving, by clear and convincing evidence, his inability to engage in any type of employment.

Section 23:1221(2)(c) requires a claimant seeking permanent total disability benefits to prove by clear and convincing evidence, without a presumption of disability, that the claimant is physically unable to perform any employment or self-employment, even if the work would involve pain.

State, DOTD v. Berry · filed 2014-08-13(2)(c)

In short, a claimant seeking PTD benefits bears the burden of proving, by clear and convincing evidence, his inability to engage in any type of employment. ... Since the 1983 amendments to R.S. 23:1221(2), evidence that a claimant could not return to any gainful employment without suffering substantial pain is no longer sufficient to support an award of PTD.

A claimant seeking permanent total disability benefits must prove by clear and convincing evidence, without a presumption of disability, that the claimant is physically unable to engage in any employment.

Mason v. Willis-Knighton Medical Center · filed 2014-10-01(2)(c)

Thus, a workers’ compensation claimant seeking permanent total disability benefits bears the burden of proving by clear and convincing evidence that he or she is physically unable to engage in any employment.

For an unemployed employee seeking permanent-total-disability benefits, § 23:1221(2)(e) requires clear and convincing proof of physical inability to engage in any employment or self-employment; the ability to perform some physical activities alone does not satisfy that standard.

Stelly v. CNA Insurance Co. · filed 2015-10-21(2)(e), (2)(a), (2)

The ability of an employee to perform “some physical activities” does h nnot necessarily equate to that employee being capable of performing sufficient activity so as to be able to “engage in any self-employment or occupation for wages.” La.R.S. 23:1221(2). ... We hold that Mr. Stelly has met the burden of proof required by La.R.S 23:1221(2) to establish his entitlement to permanent and total disability status.

Section 23:1221 sets the criteria for total and partial disability, with compensation based on diminished or lost earning capacity rather than wages actually lost during incarceration.

Crawford v. Midwest Steel Co., Inc. · filed 1987-10-07

R.S. 23:1221 provides the criteria by which total and partial disability is ascertained. ... A reading of the Act, as effective on February 23, 1983, establishes that recovery is founded upon a diminution or loss of earning capacity. Compensation benefits are not paid in lieu of lost wages. R.S. 23:1221 (1)-(3), supra.; 13 W. Malone & H. Johnson, Louisiana Civil Law treatise at 595 (1980); Sims V.R.D. Brooks, Inc., 204 N.W.2d 139 (Mich.1973); Matter of Injury to Spera, supra ; Cf., King, supra .

Section 23:1221(1) provides temporary total disability benefits when an injury prevents gainful work, and § 23:1221(4)(p) permits up to 100 weeks of compensation for serious and permanent disfigurement.

Keyes v. Rockwood Ins. Co. · filed 1987-02-04(1), (4)(p)

La.R.S. 23:1221(1) in pertinent part provides as follows: "Compensation shall be paid under this chapter in accordance with the following schedule of payments: (1) Temporary total. For injury producing temporary total disability of an employee to engage in any self-employment or gainful occupation for wages whether or not the same or 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 the injury was particularly fitted by reason of education, training or experience, sixty-six and two-thirds percent of wages during the period of such disability." ... It follows, that Mr. Keyes, like the plaintiff in Bernard, supra, should not be disallowed compensation because of his work attempts. Instead, plaintiff should be awarded the compensation. Thus, we conclude that the trial court correctly awarded the compensation and affirm the portion of the trial court judgment which reflects same. ... La.R.S. 23:1221(4)(p) provides in pertinent part as follows: "In cases not falling within any of the provisions already made, where the employee is seriously and permanently disfigured... compensation not to exceed sixty-six and two-thirds percent of wages for a period not to exceed one hundred weeks may be awarded." ... Thus, because of the extent of plaintiff's scarring and the fact that the scarring will most likely be long term if not permanent in nature, we conclude that plaintiff's injuries are compensable under La.R.S. 23:1221(4)(p).

Section 23:1221(1) provides temporary total disability benefits when a work-related injury leaves an employee unable to work.

Westley v. Land & Offshore · filed 1988-04-11(1)

We find that Dr. Sanders' testimony clearly indicated that plaintiff was disabled by the post-traumatic stress disorder which was caused by the fall. Moreover, there was no testimony to the contrary. We find that under the circumstances, plaintiff has proved by a preponderance of the evidence that he is temporarily totally disabled and that his disability was caused by the work-related fall. We conclude that the trial judge was clearly wrong in finding otherwise.

Section 23:1221(2)(c) requires clear and convincing proof, without a presumption, that an employee is physically unable to engage in any employment for total disability; when permanency is not established, § 23:1221(1) provides for temporary total disability.

Ducharme v. Belongia · filed 1989-05-16(2)(c), (1)

According to La.R.S. 23:1221(2)(c), "total disability shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character...." Before the 1983 amendments to the above statute, if an employee was shown to be totally disabled at the time of trial, and the disability was of indefinite duration, the employee was entitled to benefits for total permanent disability as opposed to those for temporary total disability. See Walker v. Gaines P. Wilson & Son, Inc., 340 So.2d 985 (La.1976). The 1983 amendments to the Louisiana Worker's Compensation Law legislatively overruled this jurisprudential principle. The language of the amendments makes clear the court must find permanent disability unaided by any presumption. In the case at hand, Dr. Feigley testified that he does not know whether the post traumatic stress disorder will resolve itself. He stated that plaintiff is in sort of a limbo at the moment and that she will stay there. However, he was of the opinion that she would benefit by future treatments. He also stated that she might be able to return to her prior job of bartending. Without the pre-1983 presumption, the testimony presented at trial falls short of establishing total permanent disability by clear and convincing evidence. Although it appears likely that Mrs. Ducharme will not return to truck driving, she may at some time in the future return to other work. Therefore, we conclude that Mrs. Ducharme is temporarily totally disabled within the meaning of La.R.S. 23:1221(1) (as it appeared before Act 938 of 1988) and is entitled to disability benefits as therein provided.

Section 23:1221(4)(p) permits recovery for serious and permanent disfigurement of any part of the body, but the disfigurement must be materially disfiguring and permanent in character.

Brooks v. Avondale Shipyards, Inc. · filed 1989-11-16(4)(p)

The statute is clear and concise. It has been in effect since July of 1983 with no legislative attempt to restrict the disfigurement provisions. We cannot change the clear wording of the statute. We interpret it to mean that recovery may be awarded for serious and permanent disfigurement of any part of the body.

Section 23:1221(4)(p) provides benefits for an employee who is seriously and permanently disfigured, requiring the scar to be materially disfiguring and permanent in character.

Jordan v. Schwegmann Giant Super Markets, Inc. · filed 1991-11-13(4)(p)

The jurisprudence of this and other circuits has consistently held that, for a scar to be compensable under R.S. 23:1221(4)(p); i.e., for an employee to be considered “seriously permanently disfigured,” the scar complained of must be materially disfiguring and permanent in character.

Section 23:1221(2) requires permanent inability to perform any employment for permanent total disability, while § 23:1221(1) requires inability to engage in any employment temporarily for temporary total disability.

Gradney v. D.B.L. Drilling & Production Services, Inc. · filed 1997-10-08(2), (1)

To be eligible for permanent total disability payments, the claimant must be permanently unable to perform any type of employment or occupation for wages. La. R.S. 23:1221(2). Nothing in the record supports a finding of permanent disability. Eligibility for temporary total disability requires that the claimant be unable to engage in any form of employment for a temporary period of time. La.R.S. 23:1221(1). The evidence in the record supports a finding that Mr. Gradney was temporarily totally disabled for four weeks.

For temporary or permanent total disability benefits, the employee must prove by clear and convincing evidence, supported by objective medical evidence, that the injury prevents the employee from engaging in any type of employment.

Greis v. Lake Charles Memorial Hosp. · filed 1998-03-06(1) and (2)

It is not clear whether the plaintiff is seeking temporary or permanent disability benefits, however, under either, a claimant must offer clear and convincing evidence that he or she is unable to engage in any type of employment. [1] See La.R.S. 23:1221(1) [2] ; La. R.S. 23:1221(2). In order to meet this clear and convincing standard, a claimant must introduce objective medical evidence. Comeaux v. Sam Broussard Trucking , 94-1631 (La.App. 3 Cir.App. 5/31/95); 657 So.2d 449.

Section 23:1221(4)(p) compensates a permanent partial disability from a scar only when the scar seriously and permanently disfigures the employee, with the award set proportionally to scheduled specific disabilities.

Dupard v. MMR Constructors, Inc. · filed 2015-09-18(4)(p)

Therefore, in order to be a compen-sable permanent partial disability, a scar must render the employee “seriously and permanently disfigured.”

Section 23:1221(4)(p) allows compensation for disfigurement only when it is serious and permanent; a heel lift does not affect that inquiry.

Broadway v. Cade Wood, Inc. · filed 1991-07-16(4)(p)

We agree with plaintiff that the availability of a heel lift to compensate for his injury is immaterial. ... La.R.S. 23:1221(4)(p) specifically provides that compensation is allowed only for serious and permanent disfigurement. ... We find no clear error in this conclusion and affirm.

The thirty-day period for reporting a compensable supplemental-earnings-benefit loss is not preemptive, and an unemployed employee need only give the employer or insurer notice of the unemployment.

Smith v. Georgia Cas. & Sur. Co. · filed 1987-03-04(3)(f)

We do not agree with the above contention. As correctly stated by the trial judge in his reasons for judgment: "... On this issue, it does not appear that the Legislature intended the 30 day period to be preemptive, after which time no claim could be asserted. Instead, it is apparent that the reporting period is included so that the employer or its insurer can determine the appropriate subsidy, if any, to be applied. Where the plaintiff is unemployed, then the necessity for such reporting would seem to be academic. The only requirement for the employer to determine the amount payable would be notice that the plaintiff is unemployed. There is more than ample evidence in this case that the defendant was aware of this fact." The record reflects that the reports sent to defendant by Dr. Kingsley clearly showed that when Dr. Kingsley released plaintiff, he had not returned to work and that he was having difficulty with his foot. Additionally, on February 7, 1985, Dr. Kingsley reported to defendant's insurer that plaintiff was experiencing pain in his foot and that he had not yet secured employment. Thus, it is apparent that defendant was put on notice that plaintiff was unemployed. Consequently, we find that the trial court correctly awarded these benefits to plaintiff.

Section 23:1221(3)(f) requires an employee to report each compensable supplemental earnings benefit loss within thirty days after the relevant week ends and permits rules, forms, and verification procedures for reporting those losses.

Mullins v. Courtney Equipment · filed 1996-01-31(3)(f)

La.R.S. 23:1221(3)(f) states: Any compensable supplemental earnings benefits loss shall be reported by the employee to the insurer or self-insured employer within thirty days after the termination of the week for which such loss is claimed. ... After a thorough reading of this statute, we find that the hearing officer was reasonable in her decision. The defendant had no right or authority to withhold SEB payments in the aforementioned manner.

For injuries occurring in August 1983, § 23:1221(2)(c) requires a claimant seeking permanent total disability benefits to prove permanent total disability by clear and convincing evidence.

Marchan v. Continental Casualty Co. · filed 1987-03-04(2)(c)

The injury occurred in August, 1983, therefore, under La.R.S. 23:1221(2)(c) a claimant must prove permanent total disability by clear and convincing evidence.

Section 23:1221(2)(a) requires clear and convincing proof that the claimant is physically unable to engage in any employment, including employment performed while working in pain.

Stewart v. Ormond Country Club · filed 1989-04-12(2)(a)

Here the trial court expressly found that Stewart was unable to pursue any gainful employment without experiencing substantial pain. Our review of the facts amply support that Stewart proved by clear and convincing evidence that he is physically incapable of performing any employment without pain. General has failed to show that the trial court was manifestly erroneous in finding Stewart totally and permanently disabled and physically incapable of performing any employment. Accordingly, we find no reason to disturb the trial court's judgment, and for the reasons expressed above, we affirm.

Section 23:1221(2)(c) requires a claimant seeking total and permanent disability benefits to prove by clear and convincing evidence, without relying on a presumption of disability, that the claimant is physically unable to engage in any employment or self-employment.

Johnson v. Acadian Contractors · filed 1991-11-13(2)(c)

A claimant seeking total and permanent disability benefits must prove by clear and convincing evidence, unaided by any presumption of disability, that he is physically unable to engage in any employment or self-employment. La.R.S. 23:1221(2)(c). After reviewing the totality of the record, which includes overwhelming medical testimony and diagnostic evidence, we find no error in the trial court's conclusion that Johnson proved his entitlement to these benefits by clear and convincing evidence.

Section 23:1221(2)(c) requires an employee seeking permanent total disability benefits to prove by clear and convincing evidence, without a presumption of disability, that the employee is physically unable to perform any employment or self-employment, including odd-lot, sheltered, or painful work.

Augustine v. Paul Wall Truck Line, Inc. · filed 1992-06-24(2)(a) and (c)

La.R.S. 23:1221(2)(a) and (c) provide: "(a) For any injury producing permanent total disability of an employee to engage in any self-employment or 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, sixty-six and two-thirds percent of wages during the period of such disability. . . . . . (c) For purposes of Subparagraph (2)(a) of this Paragraph, whenever the employee is not engaged in any employment or self-employment as described in Subparagraph (2)(b) of this Paragraph, compensation for permanent total disability shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including, but not limited to, any and all odd-lot employment, sheltered employment, or employment while working in any pain, notwithstanding the location or availability of any such employment or self-employment." ... As the statute mandates, in order to be adjudicated permanently and totally disabled, plaintiff must prove with clear and convincing evidence that he is physically unable to engage in any employment or self-employment. LSA-R.S. 23:1221(2)(c). The existence of pain suffered by the employee is not relevant to a determination of total permanent disability. Id.; Gaspard v. St. Paul Fire & Marine Insurance Company, 483 So.2d 1037, 1039 (La.App.3d Cir.1985). The nature, character, location and availability of employment are similarly irrelevant. LSA-R.S. 23:1221(2). ... We find plaintiff failed to carry his burden of proving by clear and convincing evidence that he is totally and permanently disabled and the trial court clearly erred in concluded otherwise.

Section 23:1221(1)(c) requires an employee seeking temporary total disability benefits to prove by clear and convincing evidence that the employee is physically unable to engage in any employment or self-employment.

Schexnyder v. PMB OPERATORS · filed 1994-05-04(1)(c)

The record in this case shows the plaintiff failed to establish by clear and convincing evidence that he was physically unable to engage in any employment or self-employment within the meaning of LSA-R.S. 23:1221(1)(c), supra, following his accident.

Subsection (l)(e) requires a claimant seeking temporary total disability benefits to prove disability by clear and convincing evidence.

Baker v. Davison Transport · filed 1994-09-21(l)(e)

Furthermore, a claimant must prove his temporary total disability by clear and convincing evidence.

Section 23:1221(1)(c) requires an employee seeking temporary total disability benefits to prove by clear and convincing evidence, without a presumption of disability, that the employee is physically unable to engage in any employment or self-employment.

Carrier v. Debarge's College Junction · filed 1996-01-24(1)(c)

An employee seeking temporary total disability (TTD) benefits must prove by clear and convincing evidence, unaided by any presumption of disability, that he is physically unable to engage in any employment or self-employment. La.R.S. 23:1221(1)(c). The new "clear and convincing" standard is a heavier burden of proof than the usual civil "preponderance of the evidence" standard, but it is less burdensome than the "beyond a reasonable doubt" standard of the criminal law.

Section 23:1221 requires a workers’ compensation claimant seeking temporary or permanent total disability benefits to prove by clear and convincing evidence, without a presumption of disability, that the claimant is physically unable to perform any employment.

Boudreaux v. Production Management, Inc. · filed 1996-10-01(1)(e) & (2)(e)

Further, to qualify for temporary or permanent total disability benefits, a claimant must prove by “clear and convincing evidence, unaided by any presumption of disability, that [he] is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment....” La.R.S. 23:1221(l)(e) & (2)(e). ... In short, there is not clear and convincing evidence in the record that claimant is physically disabled from engaging in any employment or self-employment. Likewise, we conclude that claimant’s mental condition does not entitle him to temporary or permanent total disability benefits.

Section 23:1221(1)(e) requires an employee seeking temporary total disability benefits to prove by clear and convincing evidence, without a presumption of disability, that the employee is physically unable to engage in any employment or self-employment.

Goodly v. Colston · filed 1997-04-02(1)(e)

In order to prove entitlement to temporary total disability, an employee must prove by clear and convincing evidence, unaided by any presumption of disability, that |4he is physically unable to engage in any employment or self-employment. La.R.S. 23:1221(l)(e).

Section 23:1221(1)(c) requires a claimant seeking temporary total disability benefits to prove by clear and convincing evidence, without a presumption of disability, that the claimant is physically unable to engage in any employment or self-employment.

Davis v. CAJUN BAG AND SUPPLY CO. · filed 1997-06-25(1)(c)

An employee seeking temporary total disability (TTD) benefits must prove by clear and convincing evidence, unaided by any presumption of disability, that he is physically unable to engage in any employment or self-employment. La.R.S. 23:1221(1)(c). ... After reviewing the facts in the record, which are set forth below, we find that Davis has carried his burden of proof.

Section 23:1221(l)(c) requires a claimant to prove entitlement to temporary total disability benefits by clear and convincing proof.

Clark v. Schwegmann Giant Supermarket · filed 1999-01-13(l)(c)

Consequently, Clark must prove his entitlement to Temporary Total Disability benefits with “clear and convincing” proof.

Section 23:1221(2)(c) requires clear-and-convincing proof that an unemployed claimant is physically unable to perform any employment, while an unsuccessful rehabilitation attempt under § 23:1226 may corroborate that physical incapacity.

Comeaux v. City of Crowley · filed 2001-07-03(2)(c)

Given that plaintiff is not employed, the controlling statutory provision is La.Rev.Stat. 23:1221(2)(c), which provides: ... compensation for permanent total disability shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including, but not limited to, any and all odd-lot employment, sheltered employment, or employment while working in any pain, notwithstanding the location or availability of any such employment or self-employment. ... We therefore hold that plaintiff's unsuccessful attempt at the rehabilitation required by La.Rev.Stat. 23:1226 is a proper factor to consider, along with his physical incapacity, in deciding his disability status. And, after considering these factors we are satisfied that plaintiff has proved by clear and convincing evidence that he is permanently, totally disabled.

Section 23:1221(2)(e) requires clear and convincing evidence, without a presumption of disability, that the claimant is physically unable to engage in any employment or self-employment for permanent total disability.

Chavis v. Northrop Grumman Corp. · filed 2001-10-17(2)(e)

We find that the record establishes that Ms. Chavis has proved in accordance with La.R.S. 23:1221(2)(e) “by clear and convincing evidence unaided by any presumption of disability that [she] is physically unable to engage in any employment, or self employment.”

Subparagraph (1)(c) requires clear and convincing proof, without a presumption of disability, that the employee is physically unable to engage in any employment or self-employment before temporary total disability compensation may be awarded.

Jackson v. Quikrete Products, Inc. · filed 2002-04-17(1)(c)

La. R.S. 23:1221(1)(c) provides that: ... compensation for temporary total disability shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment.... To recover workers' compensation benefits, an employee must show that he received a personal injury by an accident arising out of and in the course and scope of his employment, and that his injury necessitated medical treatment or rendered the employee disabled, or both.

Section 23:1221(1)(c) requires an employee claiming injury to prove by clear and convincing evidence, without any presumption of disability, the nature of the injury and entitlement to disability benefits.

Cameron v. Delta Plumbing · filed 2004-03-17(1)(c)

That is, La. R.S. 23:1221(1)(c) requires an employee claiming injury to prove by "clear and convincing evidence, unaided by any presumption of disability" the nature of the injury sustained and his entitlement to disability benefits.

Section 23:1221(2)(c) requires an employee seeking permanent and total disability benefits to prove by clear and convincing evidence, without a presumption of disability, that he is physically unable to perform any employment or self-employment.

Paul Thomas, Jr. v. Browning-Ferris, Inc. · filed 2004-03-31(2)(c)

Pursuant to La.R.S. 23:1221(2)(c), an employee, who is neither employed or self-employed, shall receive compensation for permanent and total disability if he proves: [B]y clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including, but not limited to, any and all odd-lot employment, sheltered employment, or employment while working in any pain, notwithstanding the location or availability of any such employment or self-employment.

Section 23:1221(2) requires a claimant seeking permanent total disability benefits to prove physical inability to perform any employment, and subsection (2)(c) requires clear and convincing evidence without a presumption of disability.

Frith v. Riverwood, Inc. · filed 2004-07-02(2), (2)(c)

To be entitled to PTD benefits, the employee/claimant must prove that he is physically unable to engage in any employment, regardless of the nature or character of the employment. La.R.S. 23:1221(2). This must be proven by clear and convincing evidence, unaided by any presumption of disability. La.R.S. 23:1221(2)(c).

A claimant seeking temporary total or permanent total disability benefits must prove by clear and convincing evidence, without relying on a presumption of disability, that the claimant is physically unable to engage in any employment or self-employment.

Carter v. Williamson Eye Center · filed 2005-02-11(1)(c) and (2)(c)

A claimant that seeks temporary total or permanent total disability benefits must prove by clear and convincing evidence, unaided by any presumption of disability, that he is physically unable to engage in any employment or self-employment, regardless of the nature or character of the work. La. R.S. 23:1221(1)(c) and (2)(c).

For temporary total disability benefits, an employee who is not working must prove by clear and convincing evidence, without a presumption of disability, that the employee is physically unable to engage in any employment.

Lambert v. Brookshire Grocery Company · filed 2006-12-20(1)(c)

Pursuant to La.R.S. 23:1221(1)(c), “the employee-claimant must show, by clear and convincing evidence, that [he or] she is physically unable to engage in any kind of employment.” ... Given this evidence, we find that the workers’ compensation judge was not manifestly erroneous in finding that Lambert met her burden of proof with regard to La.R.S. 23:1221(1)(c), finding her temporarily totally disabled, and awarding her temporary total disability benefits.

For temporary total disability, § 23:1221(1)(c) requires clear and convincing proof, including objective medical evidence and expert testimony, that the employee is physically unable to engage in any employment.

Lambert v. Brookshire Grocery Co. · filed 2006-12-20(1)(c)

Pursuant to La.R.S. 23:1221(1)(c), "the employee-claimant must show, by clear and convincing evidence, that [he or] she is physically unable to engage in any kind of employment." Alexander v. Autozone, Inc., 04-871, p. 6 (La.App. 3 Cir. 12/8/04), 889 So.2d 366, 371. Clear and convincing proof requires "`objective medical evidence of [the] disabling condition' causing his `inability to engage in any employment.' Thus, the claimant must provide objective, expert testimony as to [his or her] medical condition, symptoms, pain, and treatment, in addition to personal testimony, in order to fulfill this standard." Id. at 372.

Permanent total disability benefits require clear and convincing proof, without a presumption of disability, that a work-related injury physically prevents the employee from performing any employment.

Edwards v. PROCTER & GAMBLE MFG. · filed 2007-03-07(2)(c)

The workers' compensation statute provides for permanent total disability compensation for an injured worker if the following standard is met: (c) ... La.R.S. 23:1221(2)(c) (emphasis added). ... None of this constitutes clear and convincing evidence of the occurrence of a work-related injury that precludes Edwards from engaging in any type of employment. La.R.S. 23:1221(2); see also, Miller v. Roger Miller Sand, Inc., 94-1151 (La.11/30/94), 646 So.2d 330.

When an employee is not working, permanent total disability benefits require clear and convincing proof, without any presumption, that the employee cannot engage in any employment or self-employment.

Johnson v. East Baton Rouge Parish School Board · filed 2007-03-28(2)(e)

As set forth in La. R.S. 23:1221(2)(e), when an employee is not engaged in any employment or self-employment, compensation for permanent total disability “shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment.”

Section 23:1221 requires a claimant seeking total disability benefits to prove by clear and convincing objective medical evidence that she is physically unable to engage in any employment.

Mary Lu Doucet Hardee v. City of Jennings · filed 2007-05-30

A claimant seeking total disability benefits must prove by clear and convincing objective medical evidence that she is physically unable to engage in any employment. La.R.S. 23:1221.

To obtain temporary or permanent total disability benefits, a claimant must prove by clear and convincing evidence, without a presumption of disability, that the claimant is physically unable to perform any employment or self-employment.

Williams v. Children's Hosp. · filed 2008-01-23(1)(C) and (2)(C)

To prove entitlement to temporary total disability benefits or permanent total disability benefits, pursuant to La. R.S. 23:1221(1)(C) and (2)(C), a claimant must establish: "by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including but not limited to any and all odd-lot employment, sheltered employment, or employment while working in any pain, notwithstanding the location or availability of any such employment or self-employment." In the absence of such evidence, a claimant's demand for temporary total or permanent total disability benefits fails.

Section 23:1221(2)(c) requires clear and convincing proof that the employee is physically unable to engage in any employment, and working with pain alone does not establish permanent total disability.

Smith v. Dresser Industries, Inc. · filed 2009-04-01(2)(c)

For purposes of Subparagraph (2)(a) of this Paragraph, whenever the employee is not engaged in any employment or self-employment as described in Subparagraph (2)(b) of this Paragraph, compensation for permanent total disability shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including, but not limited to, any and all odd-lot employment, sheltered employment, or employment while working in any pain, notwithstanding the location or availability of any such employment or self-employment. ... We are cognizant of the objective physical condition of Mr. Smith, and we do not question the veracity of his subjective complaints of pain; however, that alone does not render him permanently and totally disabled pursuant to La. R.S. 23:1221 and the jurisprudence interpreting same.

For temporary total disability benefits, an employee who is not working must prove by clear and convincing evidence, without a presumption of disability, that the injury prevents any employment or self-employment.

Gradney v. Louisiana Commercial Laundry · filed 2010-05-12(1)(c)

We note, however, that in cases of TTD benefits, La.R.S. 23:1221(1)(c) provides for an elevated burden of proof: ... For purposes of Subparagraph (1)(a) of this Paragraph, whenever the employee is not engaged in any employment or self-employment as described in Subparagraph (1)(b) of this Paragraph, compensation for temporary total disability shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including but not limited to any and all odd-lot employment, sheltered employment, or employment while working in any pain, notwithstanding the location or availability of any such employment or self-employment. ... Upon reviewing the record, we find that there is ample evidence to support Gradney having proved by clear and convincing evidence that he was not capable of working over the period of April 3, 2008 through June 19, 2008. For this reason, we find that the trial court did not err in awarding TTD benefits for that period.

Section 23:1221(2)(c) requires clear and convincing proof, without a presumption of disability, that an employee is physically unable to engage in any employment or self-employment to receive permanent total disability compensation.

Landry v. City of Scott · filed 2010-06-02(2)(c)

After a thorough review of the record, we find sufficient evidence to uphold the WCJ’s determination that Landry was “physically unable to engage in any employment or self-employment.” La.R.S. 23:1221(2)(c).

Section 23:1221(2)(c) awards permanent total disability benefits only when the employee proves by clear and convincing evidence, without a presumption of disability, that the employee is physically unable to perform any employment, including work while in pain, odd-lot work, sheltered work, or self-employment.

Duplessis v. Tulane University Medical Center · filed 2010-08-25(2)(c)

An employee's entitlement to PTD is governed by Louisiana Revised Statutes 23:1221(2)(c), which provides: For purposes of Subparagraph (2)(a) of this Paragraph, whenever the employee is not engaged in any employment or self-employment as described in Subparagraph (2)(b) of this Paragraph, compensation for permanent total disability shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including, but not limited to, any and all odd-lot employment, sheltered employment, or employment while working in any pain, notwithstanding the location or availability of any such employment or self-employment. Pursuant to La. R.S. 23:1221(2)(c), even if an employee seeking PTD is in pain, he must work unless he proves by clear and convincing evidence that he is physically unable to engage in any type of employment whatsoever, including self-employment.

Section 23:1221(2)(c) awards permanent total disability benefits only when an employee not engaged in employment proves by clear and convincing evidence, without a presumption of disability, that the employee is physically unable to engage in any employment or self-employment.

Villar v. Industrial Metal Recyclers · filed 2012-11-02(2)(c)

As set forth in La. R.S. 23:1221(2)(c), when an employee is not engaged in any employment or self-employment, compensation for permanent total disability “shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment.”

Section 23:1221(2) requires a claimant seeking permanent disability benefits to prove by clear and convincing evidence that they cannot engage in any type of employment.

Allensworth v. Grand Isle Shipyard, Inc. · filed 2015-10-28(2)

To establish a right to receive permanent disability benefits, a claimant must show by clear and convincing evidence that he or she is unable to engage in any type of employment. La. R.S. 23:1221(2). ... Accordingly, we find that the workers’ compensation judge was not manifestly erroneous in finding, that Mr. Allensworth failed to prove his total and permanent disability.

Section 23:1221(2)(c) requires clear and convincing evidence that a work-related injury leaves the employee physically unable to engage in any employment to receive permanent total disability benefits.

Edwards v. Proctor & Gamble Manufacturing · filed 2007-03-07(2)(c)

None of this constitutes clear and convincing evidence of the occurrence of a work-related injury that precludes Edwards from engaging in any type of employment.

Section 23:1221(3)(a) treats sabbatical pay as wages earned and limits an injured employee to supplemental earnings benefits for the difference between those wages and the wages the employee would have earned while working.

Cormier v. Lafayette Parish School Bd. · filed 1987-06-03(3)(a)

We find that it would be illogical to allow plaintiff to receive anything more than supplemental earnings benefits for the time period that she was on her sabbatical leave. An award of temporary total benefits in addition to plaintiff's sabbatical leave pay would constitute a windfall and go against the grain of the purpose of the supplemental earnings benefits section of the worker's compensation statute, to provide an injured employee who has the ability to earn certain wages a supplement in the form of compensation in the differences between these wages and what he would have earned had he been working.

Section 23:1221(3)(a) provides supplemental earnings benefits to a worker who can perform some duties but cannot earn at least 90% of pre-injury wages, while § 23:1221(3)(d) sets the benefit at 74% of the wage difference and caps payments at 520 weeks.

Gibson v. Boh Bros. Construction Co. · filed 1987-09-15(3)(a), (3)(d)

Supplemental earnings benefits are awarded to a worker who is able to perform some duties, but cannot now earn at least ninety percent of the wages that he earned at the time of his injury. Based upon plaintiffs testimony that he felt he was able to do light work and Dr. Jarrott’s opinion that plaintiff is now able to do light work, plaintiff should have begun receiving supplemental earnings benefits rather than payments for temporary total disability. ... He is entitled to 74% of 90% of the difference between his average monthly wage and any wage he will earn in any month for the duration of his injury. Such payments may not exceed a maximum of 520 weeks. La.R.S. 23:1221(3)(d) (as in effect May 1, 1985).

Section 23:1221(3)(a) provides supplemental earnings benefits based on the difference between pre-injury and post-injury or earning-capacity wages, subject to the maximum compensation rate applicable under § 23:1202.

Daigle v. Sherwin-Williams Co. · filed 1989-09-11(3)(a)

§ 1202, however, which is applicable to compensation paid "under this Chapter", provides for a maximum compensation, to be determined in accordance with a specified formula. We agree with Defendant that supplemental benefits cannot exceed the maximum compensation rate in effect at the time of Plaintiff's injury, which Defendant contends was $245 per week.

Section 23:1221(3)(a) provides supplemental earnings benefits when an injury leaves an employee unable to earn at least 90% of pre-injury wages, calculated at 74% of the difference between 90% of pre-injury average monthly wages and post-injury wages earned or able to be earned.

Cousins v. City of New Orleans · filed 1991-05-16(3)(a)

Pursuant to the stipulations of the parties plaintiff is entitled to supplemental earnings benefits. Once it has been established that a plaintiff is entitled to supplemental earnings benefits the amount of such benefits must be calculated. ... Therefore, plaintiff is entitled to supplemental earnings benefits equal to seventy-four (74%) percent of the difference between ninety (90%) percent of the average monthly wages at the time of injury and $0.00.

Section 23:1221(3) provides supplemental earnings benefits after temporary total disability benefits, continuing until employment or self-employment is proven to be offered, tendered, or available.

Spinks v. DEPT. OF HEALTH & HUMAN RES. · filed 1991-12-18(3)

Thereafter, plaintiff is entitled to supplemental earnings benefits in accordance with La.R.S. 23:1221(3) until such time as employment or self-employment is proven to be offered, tendered or available, together with all outstanding medical bills, and together with legal interest from due date of each weekly installment, until paid, subject to a credit for weekly worker's compensation benefits previously paid by the defendant.

Section 23:1221(3)(a) calculates supplemental earnings benefits as two-thirds of the difference between pre-injury wages and the wages the employee can earn, while Paragraph (3)(c)(i) requires the employer to prove available work the nonworking employee is physically able to perform.

Jefferson v. Greer Timber Co. · filed 1993-05-05(3)(a), (3)(c)(i)

To qualify for SEB, a claimant must prove by a preponderance of the evidence that a work related injury resulted in his inability to earn wages equal to 90% or more of his wages at the time of injury. ... Once the plaintiff has met this threshold requirement, benefits are calculated at “sixty-six and two-thirds percent of the difference between the average monthly wages at the time of injury and average monthly wages the employee is able to earn_” La.R.S. 23:1221(3)(a). ... If the employee is not employed or self-employed or is earning less than he is able to earn, the employer must then show the employee is physically capable of performing employment which is offered or available. La.R.S. 23:1221(3)(c)(i).

Section 23:1221(3)(a) requires the claimant initially to show that the work-related accident caused an inability to earn at least 90 percent of former wages; once shown, the employer must prove suitable work was offered or available in the relevant community or geographic region.

Herty v. City of New Orleans · filed 1995-04-13(3)(a)

The City also claims that Herty is not entitled to supplemental earnings benefits under La.R.S. 23:1221(3)(a) because Herty failed to show that his accident directly resulted in an inability to earn at least 90 percent of his former wages. ... Keeping in mind that the worker's compensation law is to be liberally construed in favor of coverage, claimant has the initial burden of showing that the work-related accident results in an inability to earn at least 90 percent of his former wages. Smith v. Louisiana Dept. of Corrections, 93-1305 (La. 2/28/94), 633 So.2d 129. Once the employee's burden is met, the burden of proof then shifts to the employer who must show that the claimant is physically able to perform a certain job and that job was offered to the employee or that job was available to the employee in the employer's community or reasonable geographic region. Id. ... Therefore Herty is entitled to supplemental earnings benefits.

Section 23:1221(3)(a) sets the supplemental-earnings-benefit wage benchmark by converting the average weekly wage to a monthly figure, while (3)(e)(i) requires proof that suitable work was offered or available in the relevant geographic region.

Smirnov v. Alexandria Coca-Cola Bottling Co. · filed 1995-10-04(3)(a), (3)(e)(i)

This figure is plugged into La.R.S. 23:1221(3)(a) and multiplied by four and three-tenths to equal $1,568.25 (average monthly pre-injury wages). Therefore, Smirnov must prove he was unable to earn $1,411.43 or more to be entitled to SEBs. ... Coca-Cola obviously did not have a job for Smirnov and offered no other evidence that Smirnov was able to perform a certain job ... and that that job was offered to him or available to him in Alexandria or a reasonable geographic region as required by La. R.S. 23:1221(3)(e)(i).

Section 23:1221(3) provides supplemental earnings benefits when a work-related injury prevents the claimant from earning at least 90% of pre-injury wages; after that showing, the employer must prove suitable offered or available work, and benefits are calculated from the difference between pre- and post-injury average monthly wages multiplied by 66 2/3%.

Courville v. Omni Drilling · filed 1996-07-10(3), (3)(a), (3)(c)(i)

To be entitled to SEB, the claimant bears the burden of proving by a preponderance of the evidence that his work-related injury prevents him from earning wages equal to 90% or more of his wages at the time of his injury. La.R.S. 23:1221(3); Smith v. Louisiana Dept. of Corrections, 93-1305 (La. 2/28/94); 633 So.2d 129; Woolley v. CAS Refining, Inc., 94-648 (La.App. 3 Cir. 1/11/95); 651 So.2d 860, writ denied, 95-1158 (La. 6/16/95); 655 So.2d 331. ... Once the employee meets his burden of proof, the employer then has to show that the employee is physically able to perform a certain job and that the job was offered to the employee, or was available to the employee, within the employee's or employer's community or reasonable geographic region. La. R.S. 23:1221(3)(c)(i); Smith, 633 So.2d 129. ... A worker's compensation beneficiary is entitled to a SEB amount calculated by subtracting the average post-injury monthly wage he earns, or is capable of earning, from his average pre-injury monthly wage, and then multiplying the difference by sixty-six and two-thirds (662/3%) percent. La.R.S. 23:1221(3)(a); Margin v. Barthelemy, 93-2224 (La.App. 4 Cir. 5/17/94); 638 So.2d 291, writ denied, 94-2172 (La. 11/18/94); 646 So.2d 378.

Subsection (3)(a) provides supplemental earnings benefits when an employment-related injury leaves an employee unable to earn at least 90% of the wages earned at the time of injury.

Seal v. Gaylord Container Corp. · filed 1997-02-14(3)(a)

An employee is entitled to supplemental earnings benefits (SEBs) when he has sustained an employment-related injury resulting in his inability to earn wages equal to 90% or more of his wages at the time of the injury.

Section 23:1221(3)(a) provides supplemental earnings benefits when a work-related injury leaves an employee unable to earn at least 90% of pre-injury wages, while Subparagraphs (c)(i) and (c)(ii) address the wages the employee is deemed able to earn and allow inability to perform available work to be established by clear and convincing evidence of substantial pain.

Valley v. American Ins. Co. · filed 1987-06-26(3)(a), (3)(c)(i), (3)(c)(ii)

To qualify for supplemental earnings benefits under La.R.S. 23:1221(3)(a) a plaintiff is required to prove by a preponderance of the evidence that a work related injury resulted in her inability to earn wages equal to 90% or more of her wages at the time of injury. ... The burden is on the employer to show that such work is available to the employee and there was no admissible evidence on this issue. ... For these and other reasons previously discussed, we find that there was sufficient evidence in the record to furnish a reasonable basis for the finding by the trial court that plaintiff met her burden of proof in establishing that solely as a consequence of substantial pain she was unable to perform the duties of a nurse's aide. We find no error in the trial judge's determination that plaintiff was entitled to supplemental earnings benefits in the amount of $174.12 per week based upon her being able to earn $0.00.

Section 23:1221(3)(a) provides supplemental earnings benefits when an injured worker cannot earn at least 90 percent of the pre-injury wage.

Wheat v. Murphy Construction Co. · filed 1987-11-17(3)(a)

Furthermore, we find that plaintiff is not entitled to supplemental earnings benefits pursuant to La.R.S. 23:1221(3)(a). Supplemental earnings benefits are awarded to a worker when he is unable to earn wages equal to at least ninety percent of the wages he was making at the time of the injury. Although plaintiff currently earns $7.00 per hour there is convincing evidence in the record that he could return to the type of work he had done previously and, therefore, be able to earn $9.00 an hour. He is not entitled to supplemental earnings benefits.

Section 23:1221(3) provides supplemental earnings benefits when an injury prevents the employee from earning at least 90% of pre-injury wages; after the employer shows suitable available work, the employee must prove by clear and convincing evidence that substantial pain alone prevents performing it.

Benoit v. PET, INC. · filed 1994-04-06(3)(c)(ii)

Under La.R.S. 23:1221(3), a claimant is entitled to supplemental earnings benefits (SEB) if the injury has resulted in the employee's inability to earn wages equal to 90% or more of wages at the time of injury. The injured employee thus bears the burden of proving, by a preponderance of the evidence, that the injury resulted in his or her inability to earn that amount under the facts and circumstances of the individual case. Once the employee's burden is met, the burden shifts to the employer, who, if he wishes to contend that the employee is earning less than he is able to earn so as to defeat or reduce SEB, bears the burden of proving that the employee is physically able to perform a certain job and that the job was offered to the employee or that the job was available to the employee in his or the employer's community or reasonable geographic region. ... If the employer meets the burden of showing that the SEB claimant is physically able to perform a certain job and that that job was offered to the employee or available within a reasonable geographic region, the claimant must then counter by clear and convincing evidence, unaided by any presumption of disability, that she is unable to perform the employment offered or available solely as a consequence of substantial pain. ... We conclude that Benoit met the proof requirements of La.R.S. 23:1221(3)(c)(ii) and that she has established that she is incapable of performing the employments offered, tendered, or otherwise proved available, solely as a consequence of substantial pain.

An employee who proves by clear and convincing evidence that substantial pain alone prevents performance of available employment is deemed incapable of performing that employment, and whether the pain is substantial is a factual issue reviewed for clear error.

Miller v. Wal-Mart Stores, Inc. · filed 1995-10-04(3)(c)(ii)

La.R.S. 23:1221(3)(c)(ii), provides: ... For purposes of Subparagraph (i) of this Subparagraph, if the employee establishes by clear and convincing evidence, unaided by any presumption of disability, that solely as a consequence of substantial pain, the employee cannot perform employment offered, tendered, or otherwise proven to be available to him, the employee shall be deemed incapable of performing such employment. ... Whether pain is substantial is a factual issue to be decided by the trial court and that finding will not be disturbed on appeal unless clearly wrong. ... In this case, the hearing officer concluded that Miller was in substantial pain such that she could not perform her job functions and was therefore entitled to supplemental earnings benefits.

Under § 23:1221(3)(c)(ii), an employee who declines offered work he can physically perform may still receive supplemental earnings benefits by proving clearly and convincingly that substantial pain alone prevented him from performing it.

Anderson v. Biedenharn Bottling Group · filed 1995-11-02(3)(c)(ii)

Under La.R.S. 23:1221(3)(c)(ii), if the employer proves that the employee was offered and declined a job that he was physically able to perform, the employee may still recover SEB if he can show by clear and convincing evidence that he was unable to perform solely as a result of substantial pain.

For supplemental earnings benefits, an unemployed employee's wages are measured by work the employee is physically able to perform that was offered, tendered, or proven available, and the employee need meet the clear-and-convincing burden only as to such employment.

Lemoine v. Hessmer Nursing Home · filed 1995-03-01(3)(a), (3)(c)(i), (3)(c)(ii)

However, this statute requires that the plaintiff need only meet the clear and convincing burden as to employment "offered, tendered, or otherwise proven to be available to him...."

An employee is deemed incapable of performing otherwise available employment only when clear and convincing evidence shows that substantial pain alone prevents the employee from performing it.

Figueroa v. Hardtner Medical Center · filed 2003-08-20(3)(c)(ii)

Notwithstanding application of the law of the case doctrine, however, this record contains sufficient evidence to support the reasonable conclusion that Ms. Figueroa was not prevented from performing as a teacher due solely to substantial pain.

Section 23:1221(3)(c)(ii) requires an employee, after the employer proves suitable available work, to show by clear and convincing evidence, without any presumption of disability, that the employee cannot perform the work solely because of substantial pain.

Bethley v. City of New Orleans · filed 2006-10-18(3)(c)(ii)

Finally, if the employer is successful in sustaining its burden, the burden shifts back to the claimant to show by clear and convincing evidence, unaided by any presumption of disability, that he is unable to perform the employment offered solely as a consequence of substantial pain. La. R.S. 23:1221(3)(c)(ii); Reynolds Industrial Contractors v. Fox, 41,051, p. 12 (La.App. 2 Cir. 6/28/06), 935 So.2d 783, 790; Hebert v. Terrebonne Parish School Board, 03-1444, p. 10 (La.App. 1 Cir. 5/14/04), 879 So.2d 222, 229. ... After reviewing the record, we conclude that Bethley failed to produce clear and convincing evidence of his inability to perform the available work solely as a consequence of substantial pain. Accordingly, the WCJ did not err in determining that the reduction of Bethley's SEB was justified.

Section 23:1221(3)(c)(ii) allows supplemental earnings benefits when, after the employer shows the claimant can perform an available job, the claimant proves by clear and convincing evidence that substantial pain prevents performing it.

Jack v. Union Tank Car Co. · filed 2016-11-02(3)(c)(ii)

Pursuant to La. R.S. 23:1221(3)(a), an employee is entitled to SEBs if he sustains a work-related injury resulting in an inability to earn ninety percent or more of his average pre-injury wage. An employee seeking SEBs must prove, by a preponderance of the evidence, that his injury resulted in his not being able to earn that amount. ... If the claimant proves he cannot earn ninety percent of his average pre-injury wage, the burden shifts to the employer to “prove, by a preponderance of the evidence, that the employee is physically able to perform a certain job and that the job was offered to the employee or that the job was available to the employee in his or the employer’s community or reasonable geographic region.” ... If the employer satisfies its burden, the employee must then prove, by clear and convincing evidence, that he is unable to perform the duties of the available job solely as a consequence of substantial pain. La.R.S. 23:1221(3)(c)(ii).

Section 23:1221 requires clear-and-convincing proof of inability to perform any employment for permanent total disability and bases supplemental earnings benefits on the difference between pre-injury wages and wages earned or reasonably available in suitable work.

Beckham v. Commercial Union Ins. Co. · filed 1987-10-07(2)(a), (2)(b), (2)(c), (3)(a)-(c)(i)

La.R.S. 23:1221, as amended by Acts 1983, 1st Ex.Sess., No. 1, § 1, effective July 1, 1983, governs the determination of whether an injured employee is entitled to permanent total disability or supplemental earnings benefits. The 1983 amendment established a stricter standard for establishing permanent and total disability, i.e., the claimant must prove, by clear and convincing evidence, that he is physically unable to engage in any employment or self-employment, regardless of the nature of the employment or self-employment, including "any and all odd-lot employment, sheltered employment, or employment while working in any pain, notwithstanding the location or availability of any such employment or self-employment". La.R.S. 23:1221(2)(a), (b), (c). ... Beckham was physically unable to return to his former employment at Angola and was unemployed at the time of trial. Therefore, his supplemental earnings benefits should be calculated in terms of the wage plaintiff would have earned from employment proven available to plaintiff in his or his employer's community or reasonable geographic region. ... In sum, we find no clear error in the trial court's determination that employment at the federal minimum wage level was proven available to plaintiff.

Subsection (3)(a) provides supplemental earnings benefits when an injury leaves an employee unable to earn at least ninety percent of pre-injury wages, while subsection (1) provides temporary total disability benefits for an injury preventing gainful work.

Lott v. Reintjes Industrial Services of Louisiana, Inc. · filed 1989-02-28(3)(a) and (1)

Mr. Lott claims as a consequence of his injury he is unable to earn ninety percent of the wages he was earning at the time of the injury and therefore is entitled to supplemental earnings benefits for the remainder of his life under La.R.S. 23:1221(3)(a). ... Nor has Mr. Lott sufficiently established that because of his physical limitations resulting from the accident at issue, he is unable to earn ninety percent of his former wages. Accordingly, we find Mr. Lott is not entitled to collect supplemental earnings benefits. ... We find Mr. Lott is entitled to recover temporary total disability for the six month time period previously indicated, in accordance with La.R.S. 23:1221(1) but subject to the limitations imposed by La.R.S. 23:1202.

Section 23:1221(1) requires proof that the employee cannot engage in any self-employment or gainful occupation for wages for temporary total disability, while § 23:1221(3) provides supplemental earnings benefits based on the wage differential, requires the employer to prove offered or available suitable work under (3)(c)(i), and limits payments to 520 weeks under (3)(d).

Brown v. Commercial Union Ins. Co. · filed 1989-09-01(1), (3), (3)(c)(i), (3)(a), (3)(d)

Thus, in order for an employee to receive benefits under La.R.S. 23:1221(1), he must prove that he is temporarily, totally disabled from engaging in any self-employment or gainful occupation for wages. Since no burden of proof is specified, by implication, the applicable burden of proof is by a preponderance of the evidence, the customary burden of proof in a civil case. ... We find that this was clear error since the record establishes that plaintiff could return to some form of employment. Thus, plaintiff clearly failed to carry his burden to prove by a preponderance of the evidence that he was temporarily, totally disabled as defined by La.R.S. 23:1221. ... In order to be entitled to these benefits, an injured employee must be unable to earn 90% or more of the wages he received at the time of the injury. La.R.S. 23:1221(3). ... Specific limitations, however, are imposed on the award of Supplemental Earnings Benefits by La. R.S. 23:1221(3)(c)(i). [1] This paragraph provides that the amount which is determined to be the wages an employee is capable of earning must be at least equal to any amount he would have earned in any employment or self employment which he is physically able to perform and which was offered to him or which is proven available to him in his or the employer's community or reasonable geographic area. The employer bears the burden of proving the applicability of this limitation. ... Pursuant to La.R.S. 23:1221(3)(a), plaintiff is, therefore, entitled to Supplemental Earnings Benefits equal to Sixty-six and two-thirds (66 2/3%) percent of the difference between the average monthly wage at the time of the injury ($1,970.17) and the average monthly wages the employee is able to earn. ... Such payments, however, may not exceed a maximum of Five Hundred Twenty (520) weeks. See La.R.S. 23:1221(3)(d).

Section 23:1221(2) requires total physical inability to engage in any employment for permanent-total-disability benefits, while § 23:1221(3) presupposes an ability to work and bases supplemental-earnings benefits on the claimant’s reduced earning capacity.

Watson v. Amite Mill. Co., Inc. · filed 1990-04-10(2), (3)

In the instant case, the question is between permanent total disability payments and SEB payments. These are not parallel remedies as was the case in Jacks. This is made clear by the language of the statute itself which provides that in order to recover benefits under the permanent total disability section, the claimant must be totally physically unable to engage in any type of employment. La.R.S. 23:1221(2). SEB payments, on the other hand, presuppose that the claimant can work. Not only is the section on SEB payments phrased in terms which infer an ability to work, i.e. "... is able to earn ...," but calculations in decisions awarding SEB payments are made on the basis of what the claimant is capable of earning. See, Clark v. Atlantic Painting Company, 521 So.2d 505 (La. App. 4th Cir.1988); Beckham v. Commercial Union Insurance Company, 517 So.2d 886 (La.App. 3rd Cir.1987). Therefore, since permanent total disability and SEB payments are not parallel remedies as was the case in Jacks, the holding therein is not applicable here.

Paragraph (2)(a) provides permanent-total-disability benefits for an injury that leaves an employee totally unable to engage in any self-employment or wage-earning occupation, while paragraph (3)(a) provides supplemental earnings benefits when the employee cannot earn 90% of pre-injury wages, measured as two-thirds of the wage difference.

Franklin v. Pizza Hut, Inc. · filed 1990-12-20(2)(a), (3)(a)

La.R.S. 23:1221 states, in part: "Compensation shall be paid under this Chapter in accordance with the following schedule of payments: (2) Permanent total (a) For any injury producing total disability of an employee to engage in any self-employment or 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 or education, training, and experience, sixty-six and two-thirds percent of wages during the period of such disability." ... However, while it is necessary that the award for permanent total disability be reversed, it is clear that Franklin is entitled to supplemental earnings benefits in accordance with La.R.S. 23:1221(3)(a). That statute provides that an employee who is unable to earn wages equal to 90% of what he or she was earning at the time of injury is entitled to 662/3% of the difference between the average monthly wage at the time of injury and the average monthly wage the employee is earning or is able to earn in any month thereafter.

Section 23:1221(1) requires an employee seeking temporary total disability benefits to prove that the injury prevents any self-employment or gainful occupation, while § 23:1221(3)(a) provides supplemental earnings benefits only when the applicable wage-loss requirement is met.

Leonard v. Wal-Mart Stores, Inc. · filed 1991-06-05(1) and (3)(a)

Plaintiffs claim for temporary total disability is governed by LSA-R.S. 23:1221(1) as it provided at the time of the injury. ... The plaintiff in worker’s compensation actions has a burden to prove that the injury has prevented her from engaging in any self-employment or gainful occupation, regardless of whether it was of the same type of employment in which she was previously engaged. ... The plaintiff must meet this burden of proof to a legal certainty and a preponderance of the evidence. ... In every case, the totality of the evidence, medical and lay, must be examined by the court in making its determination of whether to grant a disability award. ... Consequently, it was not manifestly erroneous to deny supplemental earnings benefits pursuant to LSA-R.S. 23:1221(3)(a).

Section 23:1221(1) requires proof that an injury prevents any gainful occupation; § 23:1221(3)(c)(i) allows the employer to defeat supplemental earnings benefits by showing the claimant is physically capable of offered or available work, after which § 23:1221(3)(c)(ii) requires clear and convincing proof that inability to perform that work is solely due to substantial pain.

Taylor v. Louisiana-Pacific Corp. · filed 1992-05-20(1), (3)(c)(i), and (3)(c)(ii)

The standard under La.R.S. 23:1221(1) requires that Taylor's injury prevented him from engaging in any self-employment or gainful occupation, regardless of whether employment was the same type in which claimant was engaged at the time the injury was sustained. ... If the employee is not employed or self-employed or is earning less than he is able to earn, the employer must then show the employee is physically capable of performing employment which is offered or available. La.R.S. 23:1221(3)(c)(i). ... If the employer satisfies its burden of showing that the supplemental earnings benefits claimant was physically capable of work and that work was offered or available, claimant must show, by clear and convincing evidence, unaided by any presumption of disability, that he is unable to perform employment offered or available solely as a consequence of substantial pain. Lubom v. L.J. Earnest, Inc., 579 So.2d 1174 (La.App. 2 Cir.1991); La.R.S. 23:1221(3)(c)(ii).

Section 23:1221(1) requires proof that an injury makes an employee unable to engage in any self-employment or gainful occupation for wages for temporary total disability benefits, while § 23:1221(3)(a) requires inability to earn at least 90% of pre-injury wages for supplemental earnings benefits.

DeFatta v. General Motors Corp. · filed 1992-08-19(1), (3)(a)

The issue is whether by February 24, 1988 the lingering effects of the surgeries rendered DeFatta unable to engage in any self-employment or gainful occupation for wages until June 30, 1988, and afterwards to earn wages equal to 90% of his pre-injury wage, regardless of working in pain. R.S. 23:1221(1), (3)(a) and (b). ... On this record DeFatta did not prove by a preponderance that he was entitled to temporary total or supplemental earnings benefits.

Subparagraph (1)(c) requires clear and convincing evidence, unaided by any presumption, that an employee is physically unable to engage in any employment or self-employment for temporary total disability, while Subparagraph (3) requires clear and convincing proof that injury-related substantial pain prevents any employment or self-employment for supplemental earnings benefits.

Rosella v. DeDe's Wholesale Florist · filed 1992-11-04(1)(c), (3)

The amendment, effective January 1, 1990, clearly heightened the claimant-employee's burden of proof. ... This standard of proof is applicable in this case. It is clear from the record that the claimant did not establish by clear and convincing evidence that she was physically unable to engage in any employment or self-employment as described in La.R.S. 23:1221(1)(c), supra. ... Under La. R. S. 23:1221(3) an injured employee is entitled to SEB if, by reason of the injury, the employee is unable, because of substantial pain, to engage in any employment or self-employment. The circumstances necessary to support such an award must be established by clear and convincing proof. ... In sum, we conclude that plaintiff is not entitled to an award of supplemental earnings benefits.

Section 23:1221 treats any post-injury employment, even part-time or work performed in pain, as disqualifying for permanent-total-disability benefits, and sets the wage-loss and proof rules for supplemental earnings benefits.

Paul v. Gipson · filed 1993-02-24(2)(a), (2)(b), (2)(c), (3)(a), (3)(c)(i), (3)(c)(ii)

As it was defined at the time of Paul's injury, permanent total disability is an employee's inability, because of a work-related accident, to engage in "any self-employment or 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[.]" La.R.S. 23:1221(2)(a). Under this scheme, compensation for permanent, total disability "shall not be awarded if the employee is engaged in any employment or self-employment regardless of the nature or character of the employment or self-employment including but not limited to any and all odd-lot employment, sheltered employment or employment while working in pain." R.S. 23:1221(2)(b). The burden of proof for an employee who is not working but seeks benefits for permanent, total disability is "clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment[.]" R.S. 23:1221(2)(c). ... The statute explicitly rejects the theory of working in pain as a basis for permanent, total disability. A claimant who holds any job, even a part-time job, after the work injury is ineligible for permanent, total disability benefits. Reynolds v. Burns Int'l Security Serv., 535 So.2d 1040 (La.App. 2d Cir. 1988); Captain v. Sonnier Timber Co., 503 So.2d 689 (La.App. 3d Cir.1987); 13 Malone and Johnson, Workers' Compensation, § 276.5 (1992 p.p.). ... The claimant's ability to work is critical, as it is the basis for calculating the amount of the award. La.R.S. 23:1221(3)(c)(i). The claimant in an SEB case must prove by a preponderance of evidence that his work-related injury rendered him unable to earn 90% of his pre-injury wages. La.R.S. 23:1221(3)(a); Lubom v. L.J. Earnest Inc., 579 So.2d 1174 (La.App. 2d Cir. 1991). ... If the employer meets this burden, then the employee must show by clear and convincing evidence, unaided by any presumption of disability, that he is unable to perform the employment offered or available solely as a consequence of substantial pain. R.S. 23:1221(3)(c)(ii); Lubom v. L.J. Earnest, supra. ... From the written opinion we cannot tell whether she found that Paul could work his minimum-wage job full-time, or only 14 hours per week because of substantial pain. ... If he is able to work only part time, then the award should be based on the correct wages he is "able to earn." For these reasons the case will be remanded to the ALJ for a clarified ruling as to the extent of Paul's pain and its effect on his ability or inability to work full-time at a minimum-wage job. La.C.C.P. art. 2164.

Section 23:1221(1)(c) requires clear and convincing proof that an employee is physically unable to perform any employment for temporary total benefits; under (3)(c)(i)-(ii), substantial pain preventing offered work can prevent reduction of supplemental earnings benefits.

Lewis v. Malone & Hyde, Inc. · filed 1993-11-03(1)(c), (3)(c)(i)-(ii)

La.R.S. 23:1221(1)(c) requires that the employee prove by clear and convincing evidence that the employee is physically unable to engage in any employment or self-employment, regardless of whether the employment calls for working in pain. ... Even though an employee capable of working, even while in pain, is not entitled to temporary total disability, the individual's compensation is not to be reduced if it is shown that the employment offered, tendered or shown to be available under LSA-R.S. 23:1221(3)(c)(i) cannot be performed as a consequence of the substantial pain occasioned by its performance. LSA-R.S. 23:1221(3)(c)(ii).

Section 23:1221 requires a claimant seeking temporary-total or permanent-total benefits to prove inability to engage in any gainful occupation, while supplemental-earnings benefits require proof that the injury reduced earning capacity below 90 percent of pre-injury wages.

Schmitt v. City of New Orleans · filed 1993-12-30(1)(a), (2)(a), (2)(c), and (3)(a)

The above cited provisions require that a claimant seeking temporary total benefits or permanent total benefits pursuant to the Worker's Compensation Act must prove that he is unable to engage in any gainful occupation, whether or not the same type of work he was engaging in at the time of injury. ... Since the appellee failed to establish by clear and convincing evidence that he cannot perform any type of work, he is not entitled to permanent total or temporary total benefits. The only remaining type of benefit is supplemental earnings benefits. In order to establish entitlement to these benefits, a claimant must show that because of his injury, he is no longer able to earn wages equal to ninety per cent or more of the wages earned prior to the injury. ... Since the appellee made no prima facie case of entitlement to permanent total, temporary total, or supplemental earnings benefits, the trial court erred in ordering the City to continue to pay appellee weekly benefits.

Section 23:1221(1) defines temporary total disability as inability to engage in any self-employment or gainful occupation for wages, while § 23:1221(3) provides supplemental earnings benefits when an injury prevents the employee from earning at least 90% of preinjury wages and § 23:1221(3)(c)(ii) requires clear and convincing proof of inability to perform available work solely because of substantial pain after the employer meets its burden.

Davis v. United General Ins. Co. · filed 1994-02-02(1), (3), and (3)(c)(ii)

Thus, La.R.S. 23:1221(1), in effect on December 30, 1983, provides the substantive definition of temporary total disability applicable to this case. The statute provided: Compensation shall be paid under this Chapter in accordance with the following schedule of payments: (1) Temporary total. For injury producing temporary total disability of an employee to engage in any self-employment or 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, or experience, sixty-six and two-thirds percent of wages during the period of such disability. ... However, in our view, the record sufficiently establishes Davis' entitlement to SEB pursuant to La.R.S. 23:1221(3) commencing November 8, 1984. ... Once this prima facie case is established, the burden shifts to the employer to show the claimant is physically capable of work and that the work was offered or available in the reasonable geographic region. If the employer meets this burden, it is then incumbent upon the claimant to show, by clear and convincing evidence, unaided by any presumption of disability, that he is unable to perform the employment offered or available solely as a consequence of substantial pain. La.R.S. 23:1221(3)(c)(ii).

Section 23:1221(1)(a) denies temporary total disability benefits unless the claimant cannot engage in any gainful occupation, while § 23:1221(3)(a) allows supplemental earnings benefits when the claimant can work but cannot earn at least 90% of pre-injury wages.

Mitchell v. Abbeville General Hosp. · filed 1994-04-06(1)(a), (3)(a)

Entitlement to worker's compensation benefits is based on the claimant's ability or inability to earn wages. Tassin v. Cigna Ins. Co., 583 So.2d 1222 (La.App. 3 Cir.1991). A claimant will not be entitled to temporary total disability (TTD) benefits unless he is unable to engage in any gainful occupation. La.R.S. 23:1221(1)(a). Supplemental earnings benefits (SEB) are proper where a claimant is able to work, but unable to earn wages equal to ninety percent or more of the wages earned at the time of injury. La.R.S. 23:1221(3)(a). If the claimant is not employed or is earning less than he is able to earn, the employer must show the claimant is physically capable of performing employment which is offered or available. Tassin, supra. The administrative hearing officer found that the change in plaintiff's benefit status from TTD to SEB was proper. We find no error in this determination. The evidence reflects that, as of the date her benefits were reduced, plaintiff was capable of performing part-time work. Dr. Leoni recommended plaintiff return to work on March 7, 1989. On May 10, 1990, Dr. Domingue informed plaintiff that she should return to work for two to three days a week. Furthermore, in August, 1990, Dr. Domingue approved two job descriptions that were submitted by a vocational rehabilitation group as being suitable part-time work for plaintiff. Plaintiff was informed of these job openings, as well as several others in her field, but she failed to apply for any of them. Because plaintiff was capable of working and there were appropriate jobs available at the time her TTD benefits were reduced to SEB, the reduction in benefits was proper.

Section 23:1221(2)(c) requires clear and convincing proof of inability to engage in any gainful occupation for permanent total disability, while § 23:1221(3)(a) provides supplemental earnings benefits equal to 66 2/3% of the difference between pre-injury average monthly wages and wages the claimant can earn.

Rachal v. Crown Store Equipment Co. · filed 1994-06-01(2)(c) (3)(a)

In claiming a permanent total disability, the plaintiff must prove by clear and convincing evidence her inability to engage in any gainful occupation. La.R.S. 23:1221(2)(c). ... Therefore, Ms. Rachal is entitled to supplemental earnings benefits equal to sixty-six and two-thirds (662/3) percent of the difference between the average monthly wage at time of injury and the average monthly wages that she is able to earn. La.R.S. 23:1221(3)(a).

Section 23:1221(3)(a) provides supplemental earnings benefits when a work-related injury leaves an employee unable to earn at least 90 percent of pre-injury wages; retirement alone does not establish eligibility for reclassification from temporary total disability benefits.

Clark v. State, Department of Corrections · filed 1994-10-05(3)(a)

Addressing the appropriateness of awarding supplemental earnings benefits, we point out that an injured worker is entitled to those benefits when the injury results in the worker’s inability to earn wages equal to ninety percent or more of the wages that he was earning at the time of his work-related injury. La.R.S. 23:1221(3)(a). For example, if in the future (1) nothing more medically can be done to improve CLARK’S disability and (2) he is found to be permanently partially disabled and (3) unable to earn ninety percent of his pre-injury wages, then the employer may seek to reclassify his benefits to supplemental earnings benefits. In this case, however, no evidence was presented to support that reclassification.

Section 23:1221(2)(c) requires clear and convincing proof that the work injury prevents all employment for permanent total disability, while § 23:1221(3) permits supplemental earnings benefits when the injury leaves the employee unable to earn at least 90% of pre-injury wages.

Miller v. Roger Miller Sand, Inc. · filed 1994-11-30(2)(c) (3)

In order to prevail on such a claim: [T]he employee [must] prove[] by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including, but not limited to, any and all odd-lot employment, sheltered employment, or employment while working in any pain, notwithstanding the location or availability of any such employment or self-employment. (Emphasis added.) La.R.S. 23:1221(2)(c). ... The evidence does, however, support plaintiff's claim for supplemental earnings benefits, the requirements for which are set forth in La.R.S. 23:1221(3). [7] In order to prevail on such a claim, the injured employee must prove by a preponderance of the evidence that the work-related injury has resulted in his or her inability to earn wages equal to ninety percent or more of the wages he or she was earning at the time of the injury. Peveto, 630 So.2d at 692-93; Daigle v. Sherwin-Williams Co., 545 So.2d 1005, 1007 (La.1989).

Section 23:1221(1)(a) calculates temporary-total-disability benefits at two-thirds of the employee's average weekly wage, while § 23:1221(3)(a) supplies the supplemental-earnings-benefit calculation for partial disability.

Chelette v. Security Indus. Ins. · filed 1994-12-07(1)(a), (3)(a)

Plugging $282.63 into La.R.S. 23:1221(1)(a) and multiplying by 662/3. Chelette's weekly benefits for the period of temporary total disability would be $188.42. For the purposes of supplemental earnings $282.63 is plugged into La.R.S. 23:1221(3)(a) and multiplied by four and three-tenths to equal $1,215.31. Since Chelette did not earn any wages during this period of partial disability his monthly benefits during this period would be $810.25 ($1,215.31 × .6667).

Section 23:1221 requires clear and convincing proof that a claimant is unable to perform any employment for temporary total disability, while supplemental earnings benefits require proof of inability to earn 90% of pre-injury wages and may include inability to perform available work because of substantial pain.

Harris v. Langston Co., Inc. · filed 1995-04-05(1)(c), (3), (3)(c)(i), (3)(c)(ii)

La.R.S. 23:1221(1)(c) now provides that an employee who seeks temporary total disability benefits must prove by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including but not limited to any and all odd-lot employment, sheltered employment, or employment while working in any pain, notwithstanding the location or availability of any such employment or self-employment. Thus, the existence of pain is not relevant to the question of temporary total disability benefits. ... In order to recover supplemental earnings benefits, an employee must prove by a preponderance of the evidence that he is unable to earn wages equal to ninety percent or more of the wages he earned at the time of the injury. ... Once the employee meets his burden of proof, the burden then shifts to the employer to show that the employee is physically able to perform a certain job and that the job was offered to the employee or available to the employee within the employee's or employer's community or reasonable geographic region. ... Additionally, La.R.S. 23:1221(3)(c)(ii) provides that the employee shall be deemed incapable of performing employment offered, tendered, or otherwise proven to be available to him if he establishes by clear and convincing evidence that, solely as a consequence of substantial pain, he cannot perform such employment.

Section 23:1221 requires clear and convincing proof for temporary total disability, and for supplemental earnings benefits it sets the wage-loss and employer-job-offer burdens, with clear and convincing proof of inability due solely to substantial pain.

Comeaux v. Sam Broussard Trucking · filed 1995-05-31(1)(c), (3)(a), (3)(c)(i), (3)(c)(ii)

An employee is entitled to receive temporary total disability benefits only if he proves that he "is physically unable to engage in any employment or self-employment." La.R.S. 23:1221(1)(c). Effective January 1, 1990, a claimant must prove a disability that renders him unable to work by clear and convincing evidence under La.R.S. 23:1221(1)(c). ... To be entitled to receive supplemental earnings benefits, a claimant must establish by a preponderance of the evidence that he is unable to earn ninety percent of the wages he earned at the time of his injury. La.R.S. 23:1221(3)(a); Smith v. Louisiana Dept. of Corrections, 93-1305 (La. 2/28/94), 633 So.2d 129; Belaire v. L & L Oil Co., 93-1198 (La.App. 3 Cir. 5/4/94), 636 So.2d 1177. The burden of proof then shifts to the employer, who wishes to defeat or reduce supplemental earnings benefits, to prove that the claimant is earning less than he is able to earn. The employer meets this burden by proving by a preponderance of the evidence that the employee is physically able to perform a certain job, and that this job was either offered to the employee or is available in the claimants's or employer's community or a reasonable geographic region. La.R.S. 23:1221(3)(c)(i); Smith, 633 So.2d 129; Belaire, 636 So.2d 1177. If the employee contends that he is unable to perform such employment solely as a consequence of substantial pain, the employee shall be deemed to be incapable of performing employment offered or proven available to him only if he then establishes by clear and convincing evidence, unaided by any presumption of disability, his inability to perform such job. La. R.S. 23:1221(3)(c)(ii).

Section 23:1221(1) covers temporary total disability benefits during qualifying rehabilitation, while § 23:1221(3)(a) and (3)(c)(i) address supplemental earnings benefits based on diminished wage-earning capacity and work availability in a reasonable geographic region.

Maxie v. Brown Industries, Inc. · filed 1995-05-31(1), (3)(a), (3)(c)(i)

Temporary total disability benefits paid pursuant to La.R.S. 23:1221(1) shall include such period as the employee may be receiving training or education under a retraining program pursuant to this section. La.R.S. 23:1226(F); ... If he can re-enter the job market without retraining as contemplated by section 1226, then he will be eligible for supplemental earnings benefits based on zero earnings as our de novo review of the record amply supports his diminished wage earning capacity within La.R.S. 23:1221(3)(a). ... The record does not establish that Mr. Maxie was able to perform work which was offered to him or which was proven available to him in his or the employer's community or reasonable geographic region. La.R.S. 23:1221(3)(c)(i).

Section 23:1221 requires clear and convincing proof that an employee cannot engage in any employment for temporary or permanent total disability, but permits substantial pain to establish inability to perform offered work for supplemental earnings benefits.

Perrodin v. St. Landry Parish School Bd. · filed 1996-05-22(1)(c), (2)(c), (3)(a), (3)(c)(i), (3)(c)(ii)

We agree with the School Board that the hearing officer's articulated reason of disability due to pain does not support an award of either TTD or permanent total disability benefits. ... Although "working in pain" is no longer a factor in determining temporary or permanent total disability, the concept is still considered in the context of SEB. ... If the employee establishes by clear and convincing evidence, unaided by any presumption of disability, that solely as a consequence of substantial pain, he cannot perform employment offered, tendered, or otherwise proven to be available to him, the employee shall be deemed incapable of performing such employment. La.R.S. 23:1221(3)(c)(ii).

Section 23:1221(1)(c) requires clear and convincing proof that the employee is physically unable to engage in any employment for temporary total disability benefits, while § 23:1221(3) provides supplemental earnings benefits when the employee cannot earn at least 90 percent of pre-injury wages, calculated using the wages the employee is able to earn rather than a zero earning capacity.

Wilson v. Grosjean Contractors, Inc. · filed 1996-10-30(1)(c) and (3)

Compensation for temporary total disability shall be awarded "only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that [he] is physically unable to engage in any employment or self-employment,... including ... employment while working in any pain, notwithstanding the location or availability of any such employment or self-employment." La. R.S. 23:1221(1)(c); emphasis added. ... This record does not establish or suggest that Wilson is physically unable to engage in any employment or self-employment. We must find Wilson has failed to prove by clear and convincing evidence that he is physically unable to engage in employment because of pain or the location or availability of a job. He is, therefore, not entitled to TTDs under § 1221(1)(c). ... This record contains neither evidence that Wilson can perform his previous job duties of a roofer's helper, nor evidence of any offered or available employment consistent with Wilson's capabilities which pays at least 90 percent of his pre-injury wages. Wilson is entitled to SEBs. Under this record, Wilson's inability to earn 90 percent of the wages that he earned as a roofer's helper is established. We also find, however, no evidence that Wilson is unable to earn any wages. Accordingly, we shall not calculate SEBs based upon zero earning capacity. The SEBs due Wilson should be based upon the difference between his pre-injury wage and the wage he is able to earn. La. R.S. 23:1221(3); Adams v. City of Shreveport, 27,284 (La.App.2d Cir. 8/23/95), 660 So.2d 127.

Section 23:1221(1)(d) ends temporary total disability benefits once the claimant’s condition permits a reliable disability determination and regular physician treatment is no longer required; § 23:1221(3)(c)(ii) requires clear and convincing proof, without a disability presumption, that substantial pain alone prevents available employment.

Banks v. Industrial Roofing & Sheet Metal Works, Inc. · filed 1996-10-30(1)(d); (3)(c)(ii)

An employee is entitled to temporary total disability benefits during the time that his injury precludes him from engaging in employment. Such compensation, neverthe[...]less, shall cease when the claimant’s physical condition has resolved itself to the point that a reasonably reliable determination of the extent of disability may be made, and continued regular treatment by a physician is not required. La.R.S. 23:1221(l)(d). In the present matter, Dr. Milstead has approved his patient for a return to work, released him from care, and assigned a disability rating. Banks, thus, is no longer entitled to temporary total disability benefits. ... If the employer’s burden is met, then the employee must show by clear and convincing evidence, unaided by any presumption of disability, that he is unable to perform the employment offered or available solely as a consequence of substantial pain. La.R.S. 23:1221(3)(c)(ii).

Section 23:1221(1) requires clear and convincing proof that an employee is physically unable to engage in any employment for temporary total disability benefits, while § 23:1221(3)(a) requires proof that an injury leaves the employee unable to earn at least 90% of pre-injury wages for supplemental earnings benefits.

Daigrepont v. Grand Casino Avoyelles · filed 1997-03-05(1), (3)(a)

Benefits for temporary total disability (TTD) are governed by La.R.S. 23:1221(1), which requires that compensation for TTD: ... In determining whether a claimant is entitled to SEB, the threshold inquiry is whether the employee has proven, by a preponderance of the evidence, that he or she is unable to earn wages equal to ninety percent or more of the wages he or she earned at the time of the injury.

Section 23:1221(1)(c) requires clear and convincing proof that the employee cannot engage in any employment for temporary total disability benefits, while § 23:1221(3)(a) provides supplemental earnings benefits when an injury prevents the employee from earning at least ninety percent of pre-injury wages and shifts the burden to the employer after the employee's prima facie showing.

McLaughlin v. Hill City Oil Co./Jubilee Exxon · filed 1997-10-08(1)(c), (3)(a)

La.R.S. 23:1221(1)(c) provides that temporary total disability benefits "shall be awarded only if the employee proves by clear and convincing evidence ... that the employee is physically unable to engage in any employment or self-employment...." (Emphasis added). ... An employee is entitled to supplemental earnings benefits if he sustains an injury that results in his inability to earn wages equal to ninety percent or more of the wages he was earning at the time of the injury. La.R.S. 23:1221(3)(a); Banks, 696 So.2d 551. Initially, the employee bears the burden of proof in this regard by a preponderance of the evidence. Banks, 696 So.2d 551. Once the employee meets this burden of proof, the burden of proof shifts to the employer, who, in order to defeat the employee's claim for supplemental earnings benefits or establish the employee's earning capacity, must prove by a preponderance of the evidence that the employee is physically able to perform a certain job and that the job was offered to the employee or that the job was available to the employee in his or the employer's community or reasonable geographic region. Id.

Section 23:1221(1)(c) requires an employee seeking temporary total disability benefits to prove by clear and convincing evidence, without relying on a presumption of disability, that the employee cannot engage in any employment, while subsection (3) provides supplemental earnings benefits when the injury leaves the employee unable to earn 90% of pre-injury wages.

Harvey v. BE & K CONST. · filed 1998-08-19(1)(c) and (3)

A claimant seeking temporary total disability benefits under the workers' compensation act bears the burden of proving by clear and convincing evidence that his injury prevents him from engaging in any employment. ... However, he was unable to earn 90% of his pre-injury wages due to his knee's instability and was therefore entitled to supplemental earnings benefits. See La. R.S. 23:1221(3).

Section 23:1221 requires clear-and-convincing proof that an employee cannot perform any work for temporary total disability benefits, and for supplemental earnings benefits requires inability to earn 90% of pre-injury wages, subject to a substantial-pain exception when a suitable job was declined.

McNeal v. Massman Construction Co. · filed 1999-05-05(l)(a), (l)(c), (3)(a), (3)(c)(ii)

For purposes of Subparagraph (l)(a) of this Paragraph, whenever the employee is not engaged in any employment or self-employment as described in Subpar-agraph (l)(b) of this Paragraph, compensation for temporary total disability shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including but not limited to any and all odd-lot employment, sheltered employment, or employment while working in any pain.... ... A claimant is not entitled to temporary total disability if he can perform light duty work. ... La.R.S. 23:1221(3)(a) provides that in order to qualify for supplemental earnings benefits, a claimant must prove that a work-related injury resulted in his inability to earn wages equal to 90% or more of his wages at the time of the injury. ... Pursuant to La.R.S. 23:1221(3)(c)(ii), if the employer proves that the employee was offered and declined a job that he was physically able to perform, the employee may still recover supplemental earnings benefits if he can prove by clear and convincing evidence that he was unable to perform solely as a result of substantial pain.

Section 23:1221(1)(c) requires clear and convincing proof that an employee is physically unable to engage in any employment for temporary total disability benefits, while § 23:1221(3)(a) provides supplemental earnings benefits when a work injury prevents the employee from earning ninety percent of pre-injury wages and measures benefits by the difference between pre- and post-injury average monthly wages.

East-Garrett v. Greyhound Bus Lines · filed 1999-11-03(1)(c), (3)(a)

Under La.R.S. 23:1221(1)(c), temporary total disability benefits are due if the employee proves by clear and convincing evidence that she is physically unable to engage in any employment, notwithstanding the location or availability of the employment. ... An employee is entitled to receive supplemental earnings benefits if she sustains a work injury that results in her inability to earn ninety percent or more of her average pre-injury wage. ... Therefore, pursuant to La. R.S. 23:1221(3)(a), Ms. East-Garrett's supplemental earnings benefits must be calculated as sixty-six and two-thirds percent of the difference between her average monthly wages at the time of the injury, i.e., $2,555.92, and the average monthly wages she actually earned during the period in question, i.e., $629.78 ($146.46 × 4.3).

A worker who is temporarily totally disabled and unable to work is entitled to temporary total disability benefits, not supplemental earnings benefits; eligibility for supplemental earnings benefits requires the ability to work.

Robbins v. Schumpert Medical Center · filed 2002-04-03(1)(a), (1)(b), (3)(a)

Since Plaintiff is temporarily totally disabled and is not able to earn any wages pursuant to La. R.S. 23:1221(l)(a), she is not entitled to SEBs. To find otherwise would require this court to disregard the clear wording of the statute distinguishing SEBs from TTDs and their respective prescriptive periods.

(1)(c) defines total disability as inability to engage in any gainful occupation, while (3) requires a claimant seeking supplemental earnings benefits to prove an inability to earn at least 90 percent of pre-accident wages.

Joseph v. JE Merit Constructors, Inc. · filed 2002-06-21(1)(c) and (3)

The evidence in the record does not support a finding that Ms. Joseph is temporarily, totally disabled. Total disability, whether permanent or temporary, means the inability to engage in any gainful occupation, whether or not the same or one similar to that in which the employee was customarily engaged when injured. ... Further, we find that Ms. Joseph failed to prove her entitlement to supplemental earnings benefits pursuant to La. R.S. 23:1221(3). In order to recover supplemental earnings benefits, claimant must first prove by a preponderance of the evidence an inability to earn wages equal to 90 percent or more of the wages he earned before the accident.

Section 23:1221 provides temporary total disability benefits when an injured worker cannot perform any wage-earning work, while a worker who has reached maximum medical improvement and can work but cannot earn 90% of pre-accident wages receives supplemental earnings benefits; permanent total disability is also compensated under the statute.

Vermilion Parish Police Jury v. Williams · filed 2002-07-03(1)(a), (2)(a), (3)(d)

Pursuant to Louisiana Revised Statute 23:1221(1), TTD benefits are proper when the claimant is unable to engage in any self-employment or occupation for wages. Once an injured worker reaches maximum medical improvement and is able to return to work, even in pain, then he is no longer eligible for TTD benefits, but is relegated to SEB benefits if he is unable to earn 90% of his pre-accident wages.

Section 23:1221 distinguishes temporary total disability benefits for an employee unable to work from supplemental earnings benefits for a claimant capable of working but earning or able to earn less than pre-injury wages.

Johnson v. Louisiana Container Co. · filed 2002-10-02(1)(b), (3)(a)

Louisiana Revised Statutes 23:1221(1)(a) states that a person who is temporarily totally disabled is entitled to TTDs and La.R.S. 23:1221(1)(b) states that a person who works at all is not entitled to TTDs; whereas, La.R.S. 23:1221(3)(a) provides for SEBs equal to the difference between the average monthly wages at the time of injury and average monthly wages earned or average monthly wages the employee is able to earn and that a claimant must be capable of working in order to be eligible for SEBs. We conclude, therefore, that a person who is temporarily totally disabled and not able to work is entitled to TTD benefits.

Section 23:1221 requires clear and convincing proof of inability to engage in any employment for temporary total disability benefits and governs supplemental earnings benefits when a work-related injury reduces earning capacity below 90%, including inability to perform offered work because of substantial pain.

Mack v. Cerro Copper Tube · filed 2003-06-25(1)(a), (3)(a), (3)(c)(ii)

Compensation for temporary total disability shall be awarded only if the employee proves by clear and convincing evidence her inability to engage in any employment or self-employment. La. R.S. 23:1221(1)(a). ... Supplemental Earnings Benefits (“SEB”) are defined in La. R.S. 23:1221(3)(a). The purpose of SEB is to compensate the injured employee for the wage earning capacity she has lost as a result of her injury. An employee is entitled to receive supplemental earnings benefits if she has sustained a work-related injury that results in her inability to earn 90% or more of her average pre-injury wage. The amount of SEB is based upon the difference between the claimant’s pre-injury average monthly wage and the claimant’s proven post-injury monthly earning capacity. La. R.S. 23:1221(3)(a); ... When an employee is offered and declines a job that she is physically able to do, the employee may still recover supplemental earnings benefits if she can prove by clear and convincing evidence that she can not perform the work offered because of substantial pain. La. R.S. 23:1221(3)(c)(ii).

Section 23:1221(l)(c) requires clear-and-convincing proof that an employee is physically unable to perform any employment for temporary total disability benefits, while paragraph (3)(a) requires a work-related injury causing inability to earn at least 90% of the pre-injury wage for supplemental earnings benefits.

Weeks v. Angelo Iafrate Construction Co. · filed 2003-06-25(l)(c), (3)(a)

Temporary total disability benefits shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that he is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including but not limited to any and all odd-lot employment, sheltered employment, or employment while working in any pain notwithstanding the location or availability of any such employment or self-employment. La. R.S. 23:1221(l)(c). ... 14A claimant is entitled to receive supplemental earnings benefits if he sustains a work-related injury that results in the inability to earn 90% or more of his average pre-injury wage. La. R.S. 23:1221(3)(a).

Section 23:1221 provides temporary total disability benefits for an injury causing total inability to work, supplemental earnings benefits when the injury leaves the employee unable to earn at least 90% of pre-injury wages, and cessation of temporary total disability benefits when regular physician treatment is no longer required.

Newson v. Masonry · filed 2004-03-03(1)(a), (3)(a), (1)(d)

Louisiana Revised Statutes 23:1221(1)(a) states that an employee is entitled to TTDs for: any injury producing temporary total disability of an employee to engage in any self-employment or occupation for wages, whether or not the same or 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, or experience . . . . For an injury which results in an employee’s inability to earn wages equal to ninety percent or more of his or her wages at the time of injury, that employee is entitled to SEBs as prescribed by La.R.S. 23:1221(3)(a). An award for TTDs “shall cease when the physical condition of the employee has resolved itself to the point that . . . regular treatment by a physician is not required.” La.R.S. 23:1221(1)(d).

Subsection (2)(c) requires clear and convincing proof, without a presumption of disability, that an employee is physically unable to perform any employment to receive permanent-total-disability compensation. Subsection (3)(a) provides SEB when a work injury leaves the employee unable to earn at least 90% of pre-injury wages, and subsection (3)(c)(ii) requires clear and convincing proof that the employee cannot perform offered employment solely because of substantial pain after the employer satisfies its burden.

Hebert v. Terrebonne Parish School Bd. · filed 2004-05-14(2)(c), (3)(a), (3)(c)(ii)

According to the applicable version of La. R.S. 23:1221(2)(c), "whenever the employee is not engaged in any employment or self-employment ... compensation for permanent total disability shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment." ... An employee is entitled to receive SEB if he sustains a work-related injury that results in his inability to earn ninety-percent or more of his average pre-injury wages. La. R.S. 23:1221(3)(a). ... Finally, if the employer is successful in sustaining its burden, the burden shifts back to the claimant to show by clear and convincing evidence, unaided by any presumption of disability, that he is unable to perform the employment offered solely as a consequence of substantial pain. La. R.S. 23:1221(3)(c)(ii).

Section 23:1221(1)(c) requires clear and convincing proof that an employee is physically unable to engage in any employment for temporary total disability benefits, while § 23:1221(3) governs supplemental earnings benefits when the employee can perform restricted or light-duty work.

Sarrio v. Stalling Const. Co. · filed 2004-05-26(1)(c), (3)

In order to receive TTD benefits, the Plaintiff must prove by clear and convincing evidence that he is unable to engage in any employment. La. R.S. 23:1221(1)(c). ... Rather, the Plaintiff's disability after the date of trial falls within the provisions for Supplemental Earnings Benefits (SEBs) in La.R.S. 23:1221(3). ... Like Navarre, we find that this case must be remanded for a continuation of the hearing to determine whether the Plaintiff is entitled to SEBs and if so, the amount of benefits he is entitled to receive.

Section 23:1221(l)(c) requires clear and convincing proof that an employee cannot engage in any gainful occupation for temporary total disability benefits, while § 23:1221(3)(a) requires proof that a work injury prevents earning at least 90% of the pre-injury wage for supplemental earnings benefits.

Lolis v. Petrin Corp. · filed 2005-12-22(l)(c); (3)(a)

An employee seeking to recover indemnity benefits for a temporary total disability must prove by clear and convincing evidence that he is unable to engage in any gainful occupation, whether or not the same type of work he was engaged in at the time of the injury. ... An employee is only entitled to receive such benefits if he sustains a work-related injury that results in his inability to earn ninety percent or more of his average pre-injury wage.

Section 23:1221 provides the standards for temporary total disability benefits, makes subsection (1)(d) inapplicable when an employer voluntarily paid TTD without a prior compensation award, and permits supplemental earnings benefits calculated on a zero-earning-capacity basis when the claimant is unemployed and the employer offers no suitable work.

Angelle v. Oilfield · filed 2005-12-30(1)(a), (1)(c), (1)(d), (c)(I)

An employee is entitled to temporary total disability benefits if he sustains a work-related injury “producing temporary total disability . . . to engage in any self-employment or 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, or experience.” La. R.S. 23:1221(1)(a). When such an employee is not working, TTD compensation is proper “only if the employee proves by clear and convincing evidence, unaided by any presumption of disability," that he is physically unable to engage in any employment or self-employment, “including but not limited to any and all odd-lot employment, sheltered employment, or employment while working in any pain.” La.R.S. 23:1221(1)(c). ... Angelle would have this court apply La.R.S. 23:1221(1)(d) in determining whether he is still entitled to TTD. We note that no previous award of workers’ compensation benefits had been made. Taylor Oilfield voluntary paid TTD after the accident, so La.R.S. 23:1221(1)(d) would not be applicable. ... Since Angelle is unemployed and Taylor Oilfield offered no evidence of jobs within Angelle’s physical limitations, we find that he is entitled to SEB calculated with a zero earning capacity. La.R.S. 23:1221(c)(I).

Subsection (1) limits temporary total disability benefits to employees unable to engage in any self-employment or occupation for wages, while subsection (3) provides supplemental earnings benefits when an injury prevents the employee from earning at least 90% of pre-accident wages.

Angelle Concrete, Inc. v. Sandifer · filed 2006-05-24(1) (3)

While Mr. Sandifer’s actions clearly show that he is not totally disabled, we find he is nonetheless still qualified for SEB. ... An employee who is injured during the course and scope of his employment may recover supplemental earnings benefits if he can show, by a preponderance of the evidence, that as a result of the injury sustained, he is prevented from earning at least 90% of his pre-accident wages. La.R.S. 23:1221(3).

The section limits total-disability benefits to employees who meet its applicable disability standard and provides supplemental earnings benefits when an injury prevents earning at least 90% of pre-injury wages.

Champagne v. PHS INDUSTRIES · filed 2007-05-29(1)(a), (1)(b), (1)(c), (2)(a), (2)(b), (2)(c), and (3)(a)

Next, we agree with the workers' compensation court that Champagne was not disabled and therefore, not entitled to temporary or permanent total disability benefits. La. R.S. 23:1221(1)(a) and (2)(a) provide that an employee may be entitled to a percentage of his wages if any injury produces temporary or permanent total disability of the employee to engage in work, whether the same or similar work the employer was engaged in when injured. Compensation for temporary or permanent total disability shall not be awarded if the employee is engaged in employment regardless of the nature, including employment while working in any pain. La. R.S. 23:1221(1)(b) and (2)(b). Further, when the employee is not engaged in employment, compensation for temporary or permanent total disability shall be awarded only if the employee proves by clear and convincing evidence that he is physically unable to engage in any employment, regardless of the nature of the employment, including working in any pain. La. R.S. 23:1221(1)(c) and (2)(c). ... We find Champagne has failed to prove he is physically unable to engage in employment. Therefore, we find the workers' compensation court correctly found Champagne was not disabled and therefore not entitled to temporary or permanent total disability benefits. ... Third, we agree that Champagne is not entitled to supplemental earnings benefits. La. R.S. 23:1221(3)(a) states that an employee may be entitled to supplemental earnings benefits for an injury resulting in his inability to earn wages equal to 90% or more of the wages he earned at the time of the injury. ... Since his employer offered a position to Champagne in accordance with his physician's requirements and earning the same wages as before the injury, we find Champagne failed to prove he was entitled to supplemental earnings benefits. Thus, we find the workers' compensation court correctly held Champagne was not entitled to supplemental earnings benefits.

Section 23:1221(1)(a) requires TTD benefits to be calculated at exactly 66 2/3% of the average weekly wage, while § 23:1221(3)(a) makes SEBs available when post-injury wages are less than 90% of pre-injury wages.

Smith v. Town of Olla · filed 2007-10-03(1)(a), (3)(a)

However, a plain reading of the statute clearly and specifically conveys that TTD benefits are to be paid at 66 2/3% of the average weekly wage during the period of disability. ... Therefore, we conclude that the workers’ compensation judge erred in finding that TTD benefits were paid at an incorrect rate and in ordering the Town to pay Smith an additional ninety-eight cents for each week that TTD benefits were paid. ... After reviewing the record, we find that it supports a determination that when Smith worked at Bill’s Dollar Store, she did not earn ninety percent of her pre-injury wages. Therefore, she is entitled to SEBs for the period she was employed by Bill’s Dollar Store and the period thereafter in which she was unemployed. ... Accordingly, we find that the workers’ compensation judge erred in awarding SEBs for the period in which Smith worked at Columbia Developmental Center.

Subsection (1)(c) requires clear and convincing proof, without a presumption of disability, that the claimant cannot engage in any employment or self-employment for TTD, while subsection (3) requires initial proof by a preponderance of the evidence that the work injury leaves the employee unable to earn 90% of the preinjury wage for SEB.

Jones v. Hollywood Casino Shreveport · filed 2007-12-05(1)(c) and (3)

To obtain an award of TTD benefits, a claimant must prove by clear and convincing evidence, unaided by any presumption of disability, that he is physically unable to engage in any employment or self-employment. La. R.S. 23:1221(1)(c); Brantley v. Delta Ridge Implement, Inc., 41,190 (La. App.2d Cir.06/28/06), 935 So.2d 308. ... When work-related injuries do not result in total disability, but rather leave the employee unable to earn 90% of his preinjury wage, the statute authorizes an award of SEB. La. R.S. 23:1221(3). To prevail on an SEB claim, the employee must meet an initial burden of proving, by a preponderance of the evidence, that her work-related injury has resulted in an inability to earn that amount.

For total disability benefits, the employee must prove by clear and convincing evidence that the injury makes the employee unable to work in any employment; for supplemental earnings benefits, the employee must prove an inability to earn at least ninety percent of pre-injury wages.

Madden v. Lemle and Kelleher, LLP · filed 2009-02-13(1)(c), (2)(c), and (3)

An employee seeking to recover indemnity benefits for a temporary or permanent total disability must prove by clear and convincing evidence that he is physically unable to engage in any employment. La. R.S. 23:1221(l)(c) and (2)(c). ... A threshold prerequisite to entitlement to supplemental earnings benefits under La. R.S. 23:1221(3) is that the employee’s injury results in an inability to earn wages equal to ninety percent or more of the wages he was earning at the time of the injury. The injured employee bears the burden of proving that the injury resulted in his inability to earn that amount in any employment.

Section 23:1221 provides TTD benefits at 66 2/3% of pre-injury wages and SEB benefits at 66 2/3% of the difference between pre- and post-injury wages.

Joseph H. Fontenot, Jr. v. Wal-Mart · filed 2009-03-04

Under La.R.S. 23:1221, Mr. Fontenot is entitled to sixty-six and two thirds percent of his pre-injury wages, which, with an average weekly wage of $488.00, would have been $21,634.67 (ten months plus one week x .666%). ... Under La.R.S. 23:1221, SEB’s are sixty-six and two thirds percent of the difference between the pre-injury wages and the post-injury wages.

Section 23:1221 requires clear and convincing proof that the claimant cannot perform any employment for temporary total disability benefits, and permits supplemental earnings benefits when the injury prevents earning 90% of pre-injury wages; an approved light-duty offer ends temporary total disability benefits but does not bar supplemental earnings benefits when the offered wages are below 90%.

Morrison v. First Baptist Church of West Monroe · filed 2009-04-08(1)(c), (3)(a), (3)(c)(ii)

A claimant is entitled to TTD benefits if she proves by clear and convincing evidence, unaided by any presumption of disability, that she is physically unable to engage in any employment or self-employment. La. R.S. 23:1221(l)(c); ... When an employee’s work-related injury does not result in total disability, she may still be entitled to an award of SEB if she proves by a preponderance of the evidence that as a result of the work-related injury she is unable to earn 90% of her pre-injury wages. La. R.S. 23:1221(3)(a). An employee is deemed capable of performing offered employment unless she can establish by clear and convincing evidence, unaided by any presumption of disability, that solely as a consequence of substantial pain, she cannot perform the offered employment. La. R.S. 23:1221(c)(ii). ... Since Dr. Brown had released claimant to perform light duty work, it is clear that she was no longer physically unable to engage in any employment. Accordingly, claimant’s entitlement to TTD benefits ceased on April 17, 2007. ... While the hourly wage rate of the offer was the same as claimant was earning prior to her accident, the average weekly wage was significantly less. Defendants’ light duty job offer was for 30 hours a week at an hourly rate of $12.51, which makes an average weekly wage of $375.30. This amount is 75% of claimant’s pre-injury wages, and as such, proves her entitlement to SEB. Thus, we reverse that part of the WCJ’s judgment and find that claimant is entitled to SEB and remand for the WCJ to determine the appropriate amount.

Section 23:1221(l)(c) requires clear and convincing proof that a claimant cannot perform any employment for TTD, while Section 23:1221(3) sets the burdens for proving and contesting entitlement to SEB, including substantial pain.

Reinhardt v. CITY OF NEW ORLEANS (NOPD) · filed 2010-01-13(l)(c), (3)(a), (3)(c)(i), (3)(c)(ii)

A claimant seeking TTD must not only establish a work related disability, but also establish by clear and convincing evidence, unaided by any presumption of disability, that she is physically unable to engage in any employment or self-employment. La. R.S. 23:1221(l)(c). ... To qualify for SEB, a claimant is required to prove by a preponderance of evidence that a work-related injury resulted in the inability to earn 90% or more of his average pre-injury wage. La. R.S. 23:1221(3)(a). Once the claimant makes this showing, the burden shifts to the employer, who must prove by a preponderance of evidence that the claimant is physically able to perform a certain job and that the job was offered to the claimant or was available in the claimant’s or the employer’s community or reasonable geographic region. La. R.S. 23:1221(3)(c)(i). ... Once the employer succeeds in sustaining its burden, the burden |2Sshifts back to the claimant to show by clear and convincing evidence, unaided by any presumption of disability, that the claimant is unable to perform the employment offered solely as a consequence of substantial pain. La. R.S. 23:1221(3)(c)(ii).

Subsection (3)(a) provides supplemental earnings benefits when a work injury prevents an employee from earning at least 90 percent of pre-injury wages and calculates the benefit from the wage difference, while subsection (1) requires clear and convincing proof that the employee is physically unable to engage in any employment for temporary total disability benefits.

Gasway v. Cellxion, Inc. · filed 2010-01-27(3)(a), (1)

Under the provisions of La. R.S. 23:1221(3)(a), an employee is entitled to receive SEBs if he sustains a work-related injury that results in his inability to earn 90 percent or more of her average pre-injury wage. ... A claimant is entitled to TTD benefits if he proves by clear and convincing evidence, unaided by any presumption of disability, that he is physically unable to engage in any employment or self-employment, regardless of its nature, including employment while working in pain. ... A claimant who can perform light duty work is not entitled to TTD benefits.

The statute provides temporary total disability benefits when an employee is physically unable to work and supplemental earnings benefits for lost wage-earning capacity, subject to the employer’s burden to prove physical ability and suitable job availability or an offer.

Rainwater v. TANGO TRANSPORT · filed 2010-03-10(l)(c), (3)(a)

Furthermore, because he was physically unable to engage in any employment for a period of time, we agree that Rainwater is entitled to TTD benefits beginning January 29, 2008, through the time he found other employment. La. R.S. 23:1221(l)(c). ... SEBs are to compensate the injured employee for the wage earning capacity he has lost as a result of his accident. La. R.S. 23:1221(3)(a). In order to defeat the employee’s claim for SEBs or establish the employee’s earning capacity, employer must prove, by a preponderance of the evidence, that the employee is physically able to perform a certain job and that the job was offered to the employee or that the job was available to the employee in his community or reasonable geographic region.

Section 23:1221 requires clear and convincing proof of inability to work for temporary total disability benefits, treats chronic pain alone as insufficient physical disability, and provides supplemental earnings benefits when an injury prevents earning 90 percent of pre-injury wages.

Lanaux v. Thibodaux Regional Medical Center · filed 2010-03-26(l)(c), (l)(e), (3)(a)

A claimant who seeks TTD benefits must prove by clear and convincing evidence, unaided by any presumption of disability, that he is physically unable to engage in any employment or self-employment, regardless of the nature or character of the work, or employment while working in pain. La. R.S. 23:1221(l)(c). ... It is well settled that chronic pain is not enough to establish disability, because chronic pain does not meet the requirements of physical disability under La. R.S. 23:1221(l)(e). ... An employee is entitled to receive SEB if he sustains a work-related injury that results in his inability to earn ninety percent or more of his pre-injury wage. La. R.S. 23:1221(3)(a). The employee bears the burden of proving, by a preponderance of the evidence, that the work-related injury resulted in his inability to earn that amount under the facts and circumstances of the individual case.

Section 23:1221(1)(c) limits temporary total disability benefits to employees physically unable to perform any employment, while the substantial-pain doctrine applies only to supplemental earnings benefits under § 23:1221(3)(c)(ii), which are available when the employee cannot earn 90 percent of pre-injury wages.

Carmouche v. Kraft Foods · filed 2011-04-13(1)(c), (3)(a), (3)(c)(ii)

Louisiana Revised Statute 23:1221(3)(c)(ii) makes it clear that the substantial pain doctrine is limited to cases involving an award of supplemental earnings benefits. An award of TTD benefits can only be predicated upon a finding that the employee is physically unable to perform any employment, including employment while working in any pain. La.R.S. 23:1221(1)(c). See Comeaux v. Sam Broussard Trucking, 94-1631 (La. App. 3 Cir. 5/31/95), 657 So.2d 449, reversed on other grounds, Smith v. Southern Holdings, Inc., 02-1071 (La. 1/28/03), 839 So.2d 5. The substantial pain doctrine has no application when considering an award of TTD benefits. ... An employee is entitled to SEBs when he is unable to earn 90 percent or more of his wages at the time of injury. La.R.S. 23:1221(3)(a). SEBs entitle the employee to 66 2/3 percent of the difference between his average monthly wages at the time of injury and his average monthly wages earned or capable of being earned. Id.

Section 23:1221 requires clear and convincing proof that a claimant is unable to perform any employment for temporary or permanent total disability benefits, while supplemental earnings benefits require proof by a preponderance that a work injury prevents earning at least 90% of the pre-injury wage.

Edward L. Williams, Sr. v. Pilgrim's Pride Corporation · filed 2011-06-01(1)(c), (2)(c), and (3)(a)

In order to prove entitlement to temporary total disability benefits or to permanent total disability benefits, a claimant must demonstrate by clear and convincing evidence that he is physically unable to engage in any employment, including working while in any pain. La.R.S. 23:1221(1)(c) and (2)(c). Disability is a question of fact. ... An employee is entitled to receive supplemental earnings benefits if he sustains a work-related injury that results in his inability to earn ninety percent (90%) or more of his average pre-injury wage. La.R.S. 23:1221(3)(a). Initially, the employee bears the burden of proving, by a preponderance of the evidence, that the injury resulted in his inability to earn that amount under the facts and circumstances of the individual case.

Section 23:1221(1) requires clear and convincing proof that a work injury makes the employee unable to engage in any employment for TTD, while § 23:1221(3)(a) and (3)(c)(i) govern SEBs based on inability to earn 90% and the employer’s proof of suitable available work.

Sharp v. Landscape Management Services · filed 2011-10-05(1), (3)(a), (3)(c)(i)

With regard to the continuation of benefits, Mr. Sharp bears the burden of establishing by clear and convincing evidence, unaided by any presumption of disability, that he is physically unable to engage in any employment as a result of a work-related injury in order to be awarded TTD benefits. La.R.S. 23:1221(1). ... In this case, the record establishes that based on the April 18, 2009 functional capacity evaluation, Dr. Leoni concluded that Mr. Sharp could perform sedentary to light duty work. Thus, it was not error for Mr. Richard to convert Mr. Sharp’s benefits to SEBs, and the WCJ erred in reinstating Mr. Sharp’s TTD benefits. However, once it was determined that SEBs were the appropriate benefits payable, the burden shifted to Landscape Management to establish by a preponderance of the evidence that not only was Mr. Sharp able to perform a certain job, but that the job was offered to him and was available to him within his community or reasonable geographic location. Poissenot, 56 So.2d 170. Landscape Management failed in this respect. The two positions identified by Mr. Stevens were within Mr. Sharp’s physical limitations, but neither position was ever offered to him. Thus, while the weekly payments may be classified as SEB payments, they are to be paid based on a zero earning capacity. Accordingly, the judgment of the WCJ reinstating Mr. Sharp’s TTD benefits is reversed, and we now render judgment in favor of Mr. Sharp awarding him SEBs as of April 18, 2009, paid based on a zero earning capacity.

Paragraph (1) requires clear and convincing proof that an employee is physically unable to perform any employment for temporary total disability benefits, while paragraph (3)(a) provides supplemental earnings benefits when a work injury prevents the employee from earning at least 90 percent of the pre-injury wage.

Hall v. Macpapers, Inc. · filed 2012-05-30(1), (3)(a)

Hence, as set forth in the statute above, a claimant who seeks workers’ compensation benefits on the basis that he is temporarily totally disabled must prove by clear and convincing evidence, without taking pain into consideration, that he is unable to engage in any employment or self-employment. ... A claimant who can perform light duty work is not entitled to TTD benefits. ... After a review of the record and given the totality of the evidence, we find that the claimant has failed to prove by clear and convincing evidence that he was medically incapable of performing some type of work. Therefore, based upon applicable jurisprudence and pursuant to La. R.S. 23:1221(1), Mr. Hall was not entitled to receive TTD benefits after MacPapers discontinued his benefits. ... Under the provisions of La. R.S. 23:1221(3)(a), an employee is entitled to receive SEB benefits if the employee sustains a work-related injury that results in an inability to earn ninety percent or more of the average pre-injury wage.

Section 23:1221 supports continuing temporary total disability benefits when the employee’s work capacity has not been reliably determined; conversion to supplemental earnings benefits is appropriate only after the extent of disability and ability to perform a level of work are established, while Paragraph (4)(p) concerns permanent partial disability indemnity rather than medical compensation for a claimant seeking TTD.

Turner v. Lexington House · filed 2015-04-15(1)(c), (3)(a)(i), (4)(p)

The FCE is used to determine whether the employee is capable of performing a sedentary level job. ... Once the extent of the employee’s disability is determined, and it is established that she can do a certain level of work, it is then appropriate to convert TTD benefits to SEB, even though the employee is not working and the SEB payments are based upon zero earning | ¶ (^capacity. ... No reasonably reliable determination of the extent of her disability has been made .because the recommendations of Dr. Atchison and Dr. Goodman regarding the FCE were ignored by the employer. ... Paragraph (4) pertains to “permanent partial disability,” not TTD, and to compensation “solely for anatomical loss of use or amputation.” Subparagraphs (a) through (o) refer to loss of “members” such as hands, feet, etcetera. The current version of subparagraph (p) refers to hearing loss and internal system loss, but it has not since mid-1983 contained the language quoted by Lexington regarding serious permanent disfigurement “about the face or head.”[] Further, subparagraph (p) refers to indemnity, not to medical compensation. The cited statute is inapplicable, in either version, because Ms. Turner is not seeking permanent partial disability under paragraph (4) of La.R.S. 23:1221; she is seeking TTD under paragraph (1).

Section 23:1221(2)(c) requires clear-and-convincing, objective-medical proof that the employee is physically unable to perform any employment for permanent total disability; § 23:1221(1)(d) ends temporary total disability when the condition stabilizes and regular treatment is no longer required; and § 23:1221(3)(a), (3)(c)(i) place the initial 90%-wage-loss burden on the employee and then require the employer to show physically suitable, available work.

Baker v. Harrah's · filed 2016-03-09(2)(c), (1)(d), (3)(a), (3)(c)(i)

An employee’s entitlement to PTD benefits is governed by La. R.S. 23:1221(2)(c), which provides: ... compensation for permanent total disability shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is’physically'unable to engage in any employment or self-employment,' regardless of the nature or character of the employment or self-employment, including, but not limited to, any and all odd-lot employmént, sheltered employment, or employment while working in any pain, notwithstanding the location or availability of any such employment or self-employment. ... “An award of benefits based" on temporary total disability shall cease when the physical condition of the employee has resolved itself to the point that a reasonably reliable determination of the extent of disability of the employee may be made and the employee’s physical condition has improved to .the point that continued, regular treatment by a physician is not required.” ... La. R.S. 23:1221(3)(a) provides that an . employee is entitled to receive SEBs if he sustains a work-related injury that results in his inability to earn ninety percent (90%) or more of his average pre-injury wage.' Initially, the employee bears the burden of proving by a preponderance of the evidence that the injury resulted in his inability , to earn that, amount under the facts and circumstances of the individual case. ... “Only after the claimant has discharged this initial burden does the burden shift to the employer to show that the claimant is able to perform a job available in his or his employer’s community or reasonable geographic region.”

Section 23:1221(3) provides supplemental earnings benefits based on post-injury earnings, while Section 23:1221(1) provides temporary total disability benefits for an employee who is temporarily and totally disabled.

Marshall v. Toyota · filed 2015-10-07(3), (1)

Based on the record before us, we find that Mr. Marshall is entitled to supplemental earnings benefits from January 24, 2014 through February 25, 2014, in the amount of $897.35 per month based on an offset for the wages he earned from Agape. La.R.S. 23:1221(3). We further find that he is temporarily and totally disabled from February 26, 2014, forward and that he is entitled to weekly indemnity benefits of $248.05, as stipulated to at the trial on the merits. La.R.S. 23:1221(1).

Section 23:1221(1)(d) ends temporary-total-disability benefits when the employee’s condition has improved enough for a reliable disability determination and no longer requires regular physician treatment; under § 23:1221(3)(c)(i), after the employee proves inability to earn 90% of pre-injury wages, the employer must prove suitable available work to defeat SEBs.

Olivier v. Olivier Builders · filed 2015-11-18(1)(d); (3)(c)(i)

Pursuant to La.R.S. 23:1221(l)(d), "[a]n award of .benefits based on temporary total disability shall cease when the physical condition of the employee has resolved itself to the point that a reasonably reliable determination of the extent of disability of the employee may be made and the employee’s physical condition has improved to the point that continued, regular treatment by a physician is not required." Thus, when a claimant is capable of performing light duty work, or even sedentary work, he is not entitled to temporary total disability. ... With regard to supplemental earnings benefits, generally, the employee bears the initial burden of proving that his work-related injury resulted in his inability to earn 90% or more of his average pre-injury wage. ... However, "[o]nce the employee's burden is met, the burden shifts to the employer who, in order to defeat the employee’s claim for SEBs, must prove, by a preponderance of the evidence, that the employee is physically able to perform a certain job and that the job was offered to the employee or that tire job was available to the employee in his or the employer’s community or reasonable geographic region."

Section 23:1221(1)(d) ends temporary total disability benefits once the employee’s condition permits a reliable disability determination and no longer requires continued regular physician treatment; § 23:1221(3)(d) caps supplemental earnings benefits at 520 weeks.

Mouton v. Walgreen Company · filed 2018-05-02(1)(d), (3)(d)

Louisiana Revised Statutes 23:1221(1)(a) provides that “[f]or any injury producing temporary total disability of an employee to engage in any self-employment or occupation for wages,” the injured employee shall receive TTDs “during the period of such disability.” ... The statute provides, however, that such benefits “shall cease when the physical condition of the employee has resolved itself to the point that a reasonably reliable determination of the extent of disability of the employee may be made and the employee’s physical condition has improved to the point that continued, regular treatment by a physician is not required.” La.R.S. 23:1221(1)(d). “Upon reaching maximum medical improvement, an injured worker who is able to return to work, even in pain, is no longer eligible for TTD benefits, but instead is relegated to SEB benefits if he is unable to earn 90% of his pre-accident wages.” Numa Hero, 178 So.3d at 600. Nevertheless, the right to receive SEBs “shall in no event exceed a maximum of five hundred twenty weeks, but shall terminate.” La.R.S. 23:1221(3)(d).

Section 23:1221(1)(d) ends temporary total disability benefits when the worker’s condition has stabilized enough for a reliable disability determination and continued regular physician treatment is unnecessary; after maximum medical improvement, supplemental earnings benefits may apply, subject to the statute’s job-availability requirements and 520-week limit.

Nero v. Allied Waste Services · filed 2019-02-06(1)(d), (3)(d), (3)(c)(i)

The statute provides, however, that such benefits “shall cease when the physical condition of the employee has resolved itself to the point that a reasonably reliable determination of the extent of disability of the employee may be made and the employee’s physical condition has improved to the point that continued, regular treatment by a physician is not required.” La.R.S. 23:1221(1)(d). “Upon reaching maximum medical improvement, an injured worker who is able to return to work, even in pain, is no longer eligible for TTD benefits, but instead is relegated to SEB benefits if he is unable to earn 90% of his pre-accident wages.” [Numa C. Hero & Son v. Leleux, 15-305 (La.App. 3 Cir. 10/28/15), 178 So.3d 595,] 600. Nevertheless, the right to receive SEBs “shall in no event exceed a maximum of five hundred twenty weeks, but shall terminate.” La.R.S. 23:1221(3)(d). . . . A multi-factorial analysis is employed to determine SEB eligibility, including job availability “in the employee’s or employer’s community or reasonable geographic region,” jobs actually “offered or tendered by the employer or any other employer,” the employee’s age, education or training, and work history. La.R.S. 23:1221(3)(c)(i). SEBs are not solely dependent upon the employee’s release to return to work; they also depend upon job availability, and this factor was not proven at the hearing.

Section 23:1221 provides temporary-total-disability benefits at two-thirds of wages when an injury prevents employment and requires clear and convincing proof of physical inability to work, while supplemental-earnings benefits involve a burden shift requiring the employer to prove the employee can perform an available job after a prima facie showing of reduced earning capacity.

Hebert v. the Fresh Market, Inc. · filed 2019-09-18(1)(a), (1)(c), and (3)(c)(i)

When an injury produces a temporary total disability precluding a worker from engaging in occupation for wages, the injured worker is entitled to TTD benefits of sixty-six and two-thirds percent of wages during the period of such disability. La. R.S. 23:1221(1)(a). The statute provides these benefits “shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment.” La. R.S. 23:1221(1)(c). ... Once a claimant has established a prima facie case of entitlement, the burden then shifts to the employer to show, by a preponderance of the evidence, that: 1) the employee is physically able to perform a certain job; and 2) the job was offered to the employee or that the job was available to the employee in her or the employer’s community or reasonable geographic region. Id., 2016-1044, p. 6, 204 So.3d at 619; La. R.S. 23:1221(3)(c)(i).

Section 23:1221(1)(c) requires clear and convincing proof that the worker cannot perform any employment for temporary total disability benefits, while § 23:1221(3) provides supplemental earnings benefits when the injury prevents earning 90% of preinjury wages and shifts the burden to the employer to show suitable offered or available work.

Hager v. Hospital Housekeeping Systems, LLC · filed 2020-10-28(1)(c), (3)(a)(i), (3)(c)(i)

Pursuant to La.R.S. 23:1221(1)(c), “compensation for temporary total disability shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment.” Once an employee is able to return to work, SEBs are available if he is unable to earn ninety percent of his pre-accident wages. La.R.S. 23:1221(3)(a)(i). ... Once the employee’s burden is met, the burden shifts to the employer who, in order to defeat the employee’s claim for SEBs, must prove, by a preponderance of the evidence, that the employee is physically able to perform a certain job and that the job was offered to the employee or that the job was available to the employee in his or the employer’s community or reasonable geographic region. La. R.S. 23:1221(3)(c)(i); ... Based on the medical evidence submitted, along with Ms. Hager’s testimony that she could perform the job responsibilities offered, we find no error in the WCJ’s factual determination to limit the award of SEBs from October 18, 2018 through May 16, 2019, based on a zero earnings capacity.

Section 23:1221(1) requires clear-and-convincing proof of physical inability to work for temporary total disability benefits, while § 23:1221(3) allows supplemental earnings benefits when the employee cannot earn at least 90% of pre-accident wages and requires suitable-job proof in the claimant’s or employer’s community or reasonable geographic region to defeat the claim.

Howard v. Rio Sol Nursing Home · filed 2022-06-15(1), (3)

Pursuant to La.R.S. 23:1221(1), compensation for temporary total disability shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including but not limited to any and all odd-lot employment, sheltered employment, or employment while working in any pain, notwithstanding the location or availability of any such employment or self-employment. ... Accordingly, considering all the evidence, the WCJ found that Mrs. Howard failed to show by clear and convincing evidence she was unable to work. Thus, we find that the WCJ was not manifestly erroneous in denying Mrs. Howard’s claim for TTD. ... To recover SEB, Mrs. Howard first bears the burden of proving by a preponderance of the evidence that she is unable to earn 90% or more of the wages she earned before the accident. ... Once her burden is met, the burden then shifts to the employer to prove by a preponderance of the evidence that she is “physically able to perform a certain job and that the job was offered to [her] or that the job was available to [her] in [her] or the employer’s community or reasonable geographic region[,]” in order to defeat the claim for SEB or establish earning capacity. ... It is clearly unreasonable to expect Mrs. Howard to travel such distances given her chronic pain and medication use. ... Since Rio Sol has failed to meet its burden to defeat the claim for SEB or establish earning capacity, Mrs. Howard is entitled to SEB based on a zero-earning capacity. ... Thus, we hold that the WCJ manifestly erred in ruling that the reduction of benefits to $150.78 per week was proper, and we now render judgment in favor of Mrs. Howard awarding her SEB as of January 17, 2019, based on a zero-earning capacity.

Section 23:1221(1)(C) requires clear and convincing proof of physical inability to engage in any employment for temporary total disability benefits; Section 23:1221(3) provides supplemental earnings benefits when an injury prevents earning 90 percent of pre-injury wages, shifts the burden to the employer to show suitable available work, and then requires the employee to prove inability to perform solely because of substantial pain.

Jackson v. Family Dollar Stores of La. Inc. · filed 2018-10-24(1)(C), (3)(a), (3)(c)(i), (3)(c)(ii)

The workers' compensation statute provides that an employee who suffers a workplace injury shall be awarded TTD benefits only when the employee proves by clear and convincing evidence that the employee "is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment." La. R.S. 23:1221(1)(C). ... An employee is entitled to SEBs if, as a result of a work-related injury, she is unable to earn at least 90 percent of her pre-injury wages. ... Once the employee has established that she is entitled to SEBs by showing that she is unable to earn at least 90 percent of her pre-injury wage, the burden shifts to the employer who, in order to defeat the employee's claim for SEBs, must prove, by a preponderance of the evidence, that: (1) the employee is physically able to perform a certain job; and (2) the job was offered to the employee or that the job was available to the employee in her or the employer's community or reasonable geographic region. ... Finally, if the employer is successful in sustaining its burden, the burden shifts back to the employee to show by clear and convincing evidence, unaided by any presumption of disability, that she is unable to perform the employment offered solely as a consequence of substantial pain.

Section 23:1221(1)(d) ends temporary total disability benefits when the worker's condition permits a reliable disability assessment and regular treatment is no longer required; after maximum medical improvement, an able-to-work worker may receive supplemental earnings benefits if unable to earn 90% of pre-accident wages, but those benefits cannot exceed 520 weeks under Section 23:1221(3)(d).

Mouton v. Walgreen Co. · filed 2018-05-02(1)(d), (3)(d)

"The statute provides, however, that such benefits "shall cease when the physical condition of the employee has resolved itself to the point that a reasonably reliable determination of the extent of disability of the employee may be made and the employee's physical condition has improved to the point that continued, regular treatment by a physician is not required." La.R.S. 23:1221(1)(d). ... "Upon reaching maximum medical improvement, an injured worker who is able to return to work, even in pain, is no longer eligible for TTD benefits, but instead is relegated to SEB benefits if he is unable to earn 90% of his pre-accident wages." ... Nevertheless, the right to receive SEBs "shall in no event exceed a maximum of five hundred twenty weeks, but shall terminate." La.R.S. 23:1221(3)(d). ... "Moreover, given the totality of the medical evidence offered at the hearing on Walgreens' motion to modify, we cannot say that the WCJ's decision to grant the motion, modify Claimant's TTDs to SEBs, and suspend those benefits as Claimant had already collected those benefits for the maximum time allowed by La.R.S. 23:1221(3)(d) was manifestly erroneous."

Section 23:1221 requires an SEB claimant to prove by a preponderance that the work injury prevents earning at least 90% of pre-injury wages, measured by wages rather than occupation, and requires a claimant seeking PPD benefits to establish the disability or impairment rating under the American Medical Association’s permanent-impairment guidelines.

Mitchell Loewen Versus The New Orleans Louisiana Saints LLC and Berkley Specialty Underwriting Managers, LLC · filed 2023-06-07(3)(a)(i), (3)(a), (4)(Q)

The purpose of supplemental earnings benefits is to compensate an injured employee for the wage-earning capacity he lost as the result of an accident. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La. 7/1/97), 696 So.2d 551, 556. La. R.S. 23:1221(3)(a)(i) provides that an employee is entitled to receive SEBs if he suffers a work-related injury that results in his inability to earn 90% or more of his average pre-injury wage. ... In order to receive SEBs, La. R.S. 23:1221(3)(a) requires that a claimant prove by a preponderance of the evidence that he is unable to earn 90% or more of the wages he was earning at the time of the injury, whether or not it is in the same or similar job in which the claimant was previously employed. ... This statute focuses on the amount of wages earned before and after the accident, not the type of occupation or work performed. ... Accordingly, we remand this matter and order the workers’ compensation court to rule on Mr. Loewen’s claim for PPD benefits, which includes a determination of whether Mr. Loewen established his disability or impairment rating under the American Medical Association’s guidelines for evaluating permanent impairment, pursuant to La. R.S. 23:1221(4)(Q).

Section 23:1221(1)(c) requires clear and convincing proof that an injured employee cannot engage in any employment for TTD benefits, while § 23:1221(3)(a), (3)(c)(i), and (3)(c)(ii) establish SEB eligibility and the shifting burdens for proving wage loss, suitable available work, and inability to perform any employment.

D'Marrio Kendrick Versus Brown and Root · filed 2025-02-26(1)(c), (3)(a), (3)(c)(i), (3)(c)(ii)

For a claimant to establish entitlement to TTD benefits, he must prove by clear and convincing evidence that he is physically unable to engage in any employment or self-employment due to his injury. La. R.S. 23:1221(1)(c); ... An employee is entitled to SEBs if the employee sustains a work-related injury that results in the inability to earn ninety percent (90%) or more of his average pre-injury wage. La. R.S. 23:1221(3)(a). ... Once the employee meets his burden, the burden shifts to the employer who, in order to defeat the employee’s claim for SEBs, must prove by a preponderance of the evidence that the employee is physically able to perform a certain job, and that the job was offered or was available to the employee in his or the employer’s community or reasonable geographic region. Clay, 93 So.3d at 539; La. R.S. 23:1221(3)(c)(i). If the employer meets its burden, then the burden shifts back to the employee to show by clear and convincing evidence that he cannot engage in any employment. La. R.S. 23:1221(3)(c)(ii). ... Dr. Boucree’s affidavit is admissible and is sufficient to create a genuine issue of material fact as to whether claimant was unable to engage in any type of employment from the date of the accident until his surgery.