La. Stat. Ann. § 23:1221

Section 23:1221 treats weekly and scheduled workers’ compensation benefits as compensation for lost wages or lost earning capacity, not for pain and suffering.

Brooks v. Chicola · filed 1987-10-19(3)(d)(iii), (4), (3)

Provisions of the current Worker's Compensation Law also support the conclusions that weekly benefits are (1) intended as partial replacement for lost wages, (2) intended as compensation for lost wage earning capacity, and (3) not intended as compensation for pain and suffering. ... La.R.S. 23:1221(3)(d)(iii) provides for reduction of benefits if an injured worker receives old age insurance benefits under the Social Security Act. ... Compensation benefits generally provide two-thirds of weekly wages during periods of recovery from work-related injury based on the severity of the injury. La.R.S. 23:1221. ... The second provision of the Worker's Compensation Law which demonstrates weekly benefits insure against lost ability to work and earn wages and not merely to lost wages, vis a vis his former job, is the schedule for permanent partial disability. La.R.S. 23:1221(4). Benefits are paid for anatomical loss of use or amputation according to a schedule and regardless of whether the employee is unable to continue in his current job. ... La.R.S. 23:1221(3) provides if an injured employee is able to earn a percentage of his former wages by working "while in pain," then he shall not receive supplemental earnings benefits for that percentage of wages earned. That is to say, pain and suffering itself is not compensable, but only the inability to work and earn a wage is compensable.

Section 23:1221 requires clear and convincing proof that an employee is physically unable to engage in any employment for permanent-total-disability benefits; temporary-total benefits end when the employee can perform some employment, back impairment is not compensable as permanent partial disability under Subparagraphs (4)(p) and (q), and the employee may instead seek supplemental earnings benefits under Subparagraph (3).

Keith v. Office of Risk Management · filed 1987-11-10(2)(c), (1), (4)(p) and (q), and (3)

The medical evidence shows that after July 9, 1985, Keith had a 20% permanent partial disability of the whole body and was employable. The evidence fails to show that Keith was "physically unable to engage in any employment." Cf. Price v. Fireman's Fund Insurance Company, 502 So.2d 1078 (La.1987). ... The medical evidence shows that Keith was "unable to engage in any ... gainful occupation for wages" between March 19, 1985, and July 9, 1985, because he was receiving medical treatment for the injury caused by his work-related accident. However, after July 9, 1985, Keith was able to engage in some employment and was no longer totally disabled, either temporarily or permanently. ... Permanent partial disability of the body as a whole (or back) is not provided for in La.R.S. 23:1221(4)(a through o) or (r). ... Accordingly, Keith is not entitled to permanent partial disability benefits. ... Our review of the trial court's record and the briefs submitted to this court indicates that this case was not litigated with a view to obtain or defend against SEB. We believe that the interests of justice dictate that this matter be remanded to the trial court for a trial specifically on that issue.

Section 23:1221 does not support compensation benefits when the claimant fails to prove a disability from the work-related condition.

Gibson v. BOH BROS. CONST. CO., INC. · filed 1989-11-16

However, the record only contains Gibson's self-serving testimony to indicate he was disabled under La.R.S. 23:1221 as a result of the aggravation of the chondrolacia. All expert testimony concluded there was no disability from the leg condition.

Subsection (3)(a) requires a claimant to prove by a preponderance of the evidence that a work-related injury caused an inability to earn at least 90% of pre-injury wages, while Subparagraph (3)(c)(i) places on the employer the burden of showing available work when the claimant is not employed.

Clark v. Welex · filed 1987-12-09(3)(a), (3)(c)(i)

To qualify for supplemental earnings benefits under 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 his inability to earn wages equal to 90% or more of his wages at the time of injury. ... In the instant case the employee was not engaged in any employment or self-employment, therefore the amount of supplemental earnings benefits he is entitled to receive is determined according to R.S. 23:1221(3)(c)(i). ... The burden is on the employer to show that such work was available to the employee.

Section 23:1221 requires a claimant seeking total disability benefits to prove inability to engage in gainful employment, calculates supplemental earnings benefits as two-thirds of the wage difference, and requires the employer to show offered or available physically suitable employment when the claimant is not working.

Tassin v. Cigna Ins. Co. · filed 1991-07-16(1), (3)(a), (3)(c)(i)

In claiming a total disability, whether temporary or permanent, the plaintiff must prove his inability to engage in any gainful occupation, whether or not the same or similar to that customarily engaged in 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...." ... 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. ... Under La.R.S. 23:1221(3)(c)(i), if an employee is not working, then the employer must prove that employment which the claimant is physically able to perform has been offered or is available.

Section 23:1221(1) requires an employee to prove temporary total disability, while § 23:1221(3)(c)(i) places the initial burden on an employer to prove that an unemployed employee can perform offered or available work.

Hebert v. Grey Wolf Drilling Co., Inc. · filed 1992-12-10(1), (3)(c)(i)

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. ... However, if the employee is not employed or self-employed or is earning less than he is able to earn, the burden is on the employer to show the employee is physically capable of performing employment which is offered or available. ... As a result, the defendants did not meet the burden imposed under La.R.S. 23:1221(3)(c)(i). Consequently, we find plaintiff is entitled to Supplemental Earnings Benefits based upon a zero earnings calculation.

Section 23:1221(3) requires an SEB claimant to prove inability to earn 90 percent of pre-injury wages, shifts the burden to the employer to show physical ability and available work, and then requires clear and convincing proof that the offered or available work cannot be performed solely because of substantial pain.

Terro v. WMCO, INC. · filed 1993-05-05(3)(c)(ii)

The claimant in an SEB case must prove by a preponderance of evidence that his work-related injury rendered him unable to earn 90 percent of his pre-injury wages. Barton v. Wausau Ins. Co., 545 So.2d 1248 (La.App. 2d Cir.1989); Duncan v. State, DOTD, 556 So.2d 881 (La.App. 2d Cir.1990). Once the SEB claimant establishes his prima facie case, the burden shifts to the employer to show that the claimant is physically capable of work and that the work was offered or available in the reasonable geographic region. Barton, supra; Williams v. Avondale Indus., Inc., 521 So.2d 491 (La.App. 4th Cir.1988). 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. LSA-R.S. 23:1221(3)(c)(ii).

Section 23:1221(3)(a) requires an employee to prove an injury-related inability to earn at least 90% of pre-injury wages, after which the employer must show suitable available work to defeat or reduce supplemental earnings benefits.

Morris v. Norco Const. Co. · filed 1993-12-29(3)(a)

In order to receive supplemental earnings benefits, [1] plaintiff must prove that a work-related injury resulted in his inability to earn wages equal to ninety percent or more of his wages at the time of his injury. ... Once the plaintiff proves his inability to earn ninety percent of his pre-injury wages, the burden of proceeding with the evidence is on the employer, who can defeat or reduce benefits only by showing that the employee is earning less than he is able to earn. ... Under Daigle, the employer must prove that the employee is physically able to perform a certain job and that the job was offered to him or was available to him in a reasonable geographic location.

Section 23:1221(3)(a) requires an employee seeking supplemental earnings benefits to prove inability to earn at least 90% of pre-injury wages, after which § 23:1221(3)(c)(i) places on the employer the burden to show physically suitable work was offered or reasonably available.

Peveto v. WHC Contractors · filed 1994-01-14(3)(a), (3)(c)(i)

In order to recover, the employee must first 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 before the accident. La. R.S. 23:1221(3)(a); Daigle v. Sherwin-Williams Co., 545 So.2d 1005, 1007 (La.1989). Once the employee has satisfied this burden, the employer must establish that the employee is earning less than he is "able to earn" by showing that the "employee is physically able to perform a certain [higher paying] job and that the job was offered to him or was available to him in a reasonable geographic location." Allen v. City of Shreveport, 618 So.2d 386, 389 (La.1993); La.R.S. 23:1221(3)(c)(i).

Section 23:1221(1)(c) requires clear and convincing proof, without a presumption of disability, that an employee cannot perform any employment for temporary total disability benefits; under subsection (3), an employee's prima facie showing of inability to earn 90% of pre-injury wages shifts the burden to the employer to prove a suitable offered or available job for supplemental earnings benefits.

Belaire v. L & L OIL CO. · filed 1994-05-04(1)(c), (3)

La.R.S. 23:1221(1)(c) provides in pertinent part: ... [C]ompensation 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. ... An injured employee seeking SEB bears the burden of proving by a preponderance of the evidence that, as a result of a work-related injury, he/she is unable to earn 90% or more of wages received at the time of injury. Once the employee establishes this fact by a prima facie showing the burden shifts to the employer to establish that the employee is physically capable of performing a type of work which has been offered to him or which is available in his or the employer's community or reasonable geographic region.

Section 23:1221(3)(a) requires an employer seeking to reduce supplemental earnings benefits to prove that the employee is physically able to perform the job and that the job was offered or was available in the employee's or employer's community or reasonable geographic region.

Skipper v. Acadian Oaks Nursing Home · filed 1994-06-01(3)(a)

If the employer wishes to contend that the employee is earning less than he is able to earn, then the employer 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. ... We find that the hearing officer erred in concluding the employer met the burden imposed in La.R.S. 23:1221(3)(a) and as explained in Daigle.

Section 23:1221(3)(a) requires an employee seeking supplemental earnings benefits to prove by a preponderance of the evidence that a work-related disability prevents earning at least 90% of pre-injury wages; under Section 23:1221(3)(c)(i), the employer must then show the employee is physically able to perform a higher-paying job that was offered or reasonably available.

Stutes v. Koch Services, Inc. · filed 1994-12-07(3)(a), (3)(c)(i)

Supplemental earnings benefits were established in 1983 to replace lost wages for partially disabled employees. The benefits are designed to replace lost earning capacity of workers who do not fall under the definition of total disability. When an injured employee is able to engage in a gainful occupation, but because of his work-related disability is unable to earn wages at the level he was earning prior to his injury, then he is classified as partially disabled. When the employee's partial disability is such that he is unable to earn wages equal to ninety percent or more of the wages he was earning at the time of the injury, then the employee is entitled to supplemental earnings benefits, calculated according to a formula relating to his pre-injury wages and the wages he is able to earn in any employment or self-employment after the injury. La.R.S. 23:1221(3)(a); Allen v. City of Shreveport, 618 So.2d 386 (La.1993). In order to recover SEB, an employee must first 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 before the accident. La.R.S. 23:1221(3)(a); Daigle v. Sherwin-Williams Co., 545 So.2d 1005 (La.1989); Peveto v. WHC Contractors, 630 So.2d 689 (La.1994). Once the employee has satisfied this burden, then the burden shifts to the employer to establish the employee is earning less than he is able to earn by showing the employee is physically able to perform a certain higher paying job and that the job was offered to him or was available to him in a reasonable geographic location. La.R.S. 23:1221(3)(c)(i); Allen; Peveto, supra .

Section 23:1221(3) requires a claimant seeking supplemental earnings benefits to prove by a preponderance of the evidence that the injury left him unable to earn at least 90% of his pre-injury wages.

Mitchell v. Dixie Roofing & Sheet Metal Co. · filed 1995-10-04(3)

The injured employee bears the burden of proving by a preponderance of the evidence that the injury resulted in his inability to earn 90% or more of the wages he was earning at the time of injury.

(3)(a) requires an employee seeking supplemental earnings benefits based on disability to prove an inability to earn at least 90 percent of pre-accident wages, after which (3)(c)(i) shifts the burden to the employer to show suitable higher-paying work the employee could perform was offered or available nearby.

Ferrier v. Jordache-Ditto's · filed 1995-10-30(3)(a), (3)(c)(i)

To recover SEB, based upon disability and not substantial pain, an employee must first prove by a preponderance of the evidence that she is unable to earn wages equal to ninety percent or more of the wages she earned before the accident. La.R.S. 23:1221(3)(a); Peveto v. WHC Contractors, 93-1402 (La. 1/14/94), 630 So.2d 689; Daigle v. Sherwin-Williams Co., 545 So.2d 1005 (La.1989); Glascock v. Georgia-Pacific Corp., 635 So.2d 474 (La.App. 2 Cir.1994). If the employee overcomes this initial step, then the burden shifts to the employer to establish that the employee is earning less than he is able to earn by showing the employee is physically able to perform a certain higher paying job and that the job was offered to him or was available to him in a reasonable geographic location. La.R.S. 23:1221(3)(c)(i); Peveto, supra.

Section 23:1221(3)(a) places on the claimant the initial burden to prove that a work-related injury prevents earning at least 90 percent of pre-injury wages, while Section 23:1221(3)(c)(i) requires the employer to rebut that showing by proving the claimant can physically perform available work in the relevant community or reasonable geographic area.

Davis v. Jones Baldwin Music Co. · filed 1995-11-01(3)(a), (3)(c)(i)

To recover SEB, the claimant bears the initial burden of proving by a preponderance of the evidence that a work-related injury renders him unable to earn 90 percent or more of his pre-injury wages. La.R.S. 23:1221(3)(a); Smith v. Louisiana Dept. Of Corrections, 93-1305 (La. 2/28/94), 633 So.2d 129. To rebut the claimant's proof, the employer must prove that the claimant is physically able to perform work that was available to him in his or the employer's community or reasonable geographic area. La.R.S. 23:1221(3)(c)(i); Smith, supra.

Section 23:1221(3) requires an employee seeking supplemental earnings benefits to prove an inability to earn at least 90 percent of pre-accident wages, after which the employer must show the employee can physically perform suitable higher-paying work that was offered or reasonably available.

Lolan v. Louisiana Industries · filed 1995-11-02(3)(a), (3)(c)(i)

To recover SEB, based upon disability and not substantial pain, an employee must first prove by a preponderance of the evidence that he is unable to earn wages equal to 90 percent or more of the wages he earned before the accident. La.R.S. 23:1221(3)(a); ... If the employee overcomes this initial step, then the burden shifts to the employer to establish that the employee is earning less than he is able to earn by showing the employee is physically able to perform a certain higher paying job and that the job was offered to him or was available to him in a reasonable geographic location. La. R.S. 23:1221(3)(c)(i); ... Because the defendant presented no evidence pursuant to La. R.S. 23:1221(3)(c)(i), demonstrating that Lolan was physically able to perform other employment, or that such employment was offered to plaintiff or available in his community, we find that the hearing officer properly awarded SEB to Lolan.

Section 23:1221(3) requires an employee seeking supplemental earnings benefits to prove a qualifying loss of earning capacity, after which the employer must show suitable offered or available work; substantial pain can establish inability to perform that work by clear and convincing evidence.

Rochon v. Iberia Parish School Bd. · filed 1996-05-21(3)(a), (3)(c)(i), (3)(c)(ii)

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 his injury. La.R.S. 23:1221(3)(a). Once the employee meets this 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 was available within the employee's or the employer's community or reasonable geographic region. La. R.S. 23:1221(3)(c)(i). See also Daigle v. Sherwin-Williams Co., 545 So.2d 1005 (La. 1989). The employee shall be deemed incapable of performing the employment offered, tendered, or otherwise proven available to him if he establishes by clear and convincing evidence that solely as a consequence of substantial pain he cannot perform such employment. La.R.S. 23:1221(3)(c)(ii). ... We find that the record does not contain sufficient information for this court to determine whether Rochon is entitled to an award of supplemental earnings benefits; we will, therefore, remand the case for an evidentiary hearing on this issue.

Section 23:1221(3)(c)(ii) requires a claimant seeking supplemental earnings benefits to prove the work injury reduced earning capacity below 90 percent of pre-injury wages; after a prima facie showing, the employer must show suitable available work, and the claimant must then prove by clear and convincing evidence that substantial pain prevents performing it.

Weeks v. Buffington Corp. · filed 1996-08-21(3)(c)(ii)

To recover supplemental earnings benefits, the claimant must establish by a preponderance of the evidence that his work-related injury rendered him unable to earn 90 percent of his pre-injury wages. Once the claimant makes out a prima facie case, the burden shifts to the employer to show that claimant is physically capable of work and the work was available in that geographic area. If the employer meets that burden, then the claimant must show by clear and convincing evidence, unaided by any presumption, that he is unable to perform the offered or available employment due to substantial pain. La.R.S. 23:1221(3)(c)(ii).

Section 23:1221(3) requires an employee seeking supplemental earnings benefits to first prove by a preponderance that she cannot earn at least 90 percent of her pre-accident wages, after which the employer must prove suitable available work.

Clifton v. RAPIDES REGIONAL MED. CENTER · filed 1996-10-09(3)

In order to recover supplemental earnings benefits, the employee must first prove by a preponderance of the evidence that she is unable to earn wages equal to ninety percent or more of the wages she earned before the accident. Once this has been shown, the burden shifts to the employer to prove that the employee is physically able to perform a certain job, that the job was offered to or available to the employee, and that the job offered or available is in the employee's or the employer's community or reasonable geographic region.

Section 23:1221(3) provides supplemental earnings benefits when an injured employee cannot earn at least 90% of pre-injury wages, after which the employer must prove the employee's earning capacity through suitable offered or available work.

Johnson v. Apeck Const., Inc. · filed 1997-03-05(3)(a), (3)(c)(I)

Entitlement to supplemental earnings benefits is governed by LSA-R.S. 23:1221(3). In order to recover, the employee must first 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 before the accident. ... Once the employee's burden is met, the burden of proof then 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 supplemental earnings benefits, 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.

Section 23:1221(3)(a) requires an injured employee seeking supplemental earnings benefits to prove by a preponderance of the evidence that the injury leaves the employee unable to earn at least 90% of pre-injury wages, based on the facts and circumstances of the individual case.

Kortz v. Colt Energy Services, Inc. · filed 1997-07-29(3)(a)

Under La.R.S. 23:1221, [2] the injured employee bears the burden of proving, by a preponderance of the evidence, that the injury resulted in his or her inability to earn wages equal to 90% or more of wages at the time of injury; such is determined by the facts and circumstances of each individual case.

Section 23:1221(3)(a) provides supplemental earnings benefits when a work-related injury leaves an employee unable to earn at least 90% of the pre-injury wage, and under § 23:1221(3)(c)(i) the employer must then prove the employee can perform an offered or available job to defeat or limit those benefits.

Kahlden v. Horseshoe Entertainment · filed 1998-02-25(3)(a), (3)(c)(i)

An employee is entitled to receive SEBs if he sustains a work-related injury that results in an inability to earn ninety percent (90%) or more of his average pre-injury wage. La. R.S. 23:1221(3)(a). ... Once the employee's burden is met, the burden shifts to the employer who, in order to defeat the employee's claim for SEBs 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. La. R.S. 23:1221(3)(c)(i); ... Actual job placement is not required. ... The amount of SEBs 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); ... Again, once the plaintiff has shown that she is entitled to SEBs, it is the defendant's burden to come forward and show that the employee is physically able to perform a certain job and that a job was offered to the employee or that a job was available to the employee in either the community or the reasonable geographic region. La. R.S. 23:1221(3)(c)(i).

Section 23:1221(3)(a) requires an employee seeking supplemental earnings benefits to prove by a preponderance of the evidence that a work injury leaves her unable to earn at least 90% of her pre-injury wages.

IHS/Heritage Manor of Kaplan v. Smith · filed 1998-04-29(3)(a)

In order to recover SEB, an employee must first prove by a preponderance of the evidence that as a result of a work injury she is unable to earn wages equal to 90% or more of the wages earned before the accident.

Section 23:1221(3)(a) provides SEBs when a work injury leaves an employee unable to earn at least 90% of the pre-injury average wage, while (3)(c)(i) permits denial when the employer proves the employee is physically able to perform suitable work that was offered or available in the relevant community or geographic region.

Harrison v. Frank & Janie Seafood Rest. · filed 1998-08-19(3)(a), (3)(c)(i)

Under Louisiana law, an employee is not entitled to supplemental earnings benefits if she is capable of earning 90 percent or more of the pre-injury wage in any employment or self-employment which she is physically capable of performing, and which was offered or tendered by the employer or any other employer or which is proven available to the employee in the employee's or employer's community or reasonable geographic region. ... An employee is entitled to receive supplemental earnings benefits (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. ... Once the employee's burden is met, the burden shifts to the employer who, in order to defeat the employee's claim for SEBs 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. La.Rev.Stat. Ann. 23:1221(3)(c)(i) (West Supp.1997); Daigle, 545 So.2d at 1009.

Section 23:1221(3)(a) requires an employee seeking supplemental earnings benefits to prove by a preponderance of the evidence that a workplace injury leaves the employee unable to earn at least ninety percent of pre-injury wages; only then does the burden shift to the employer to prove suitable job availability.

Joffrion v. Bryant · filed 1999-04-14(3)(a)

Regarding a claimant's entitlement to SEBs, La R.S. 23:1221(3) provides, in pertinent part, as follows: ... (a) For injury resulting in the employee's inability to earn wages equal to ninety per cent or more of wages at time of injury, supplemental earnings benefits equal to sixty-six and two-thirds percent of the difference between the average monthly wages at time of injury and average monthly wages earned or average monthly wages the employee is able to earn in any month thereafter in any employment or self-employment, 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 the injury was particularly fitted by reason of education, training, and experience, such comparison to be made on a monthly basis. . . . . (c)(i) Notwithstanding the provisions of Subparagraph (b) of this Paragraph, for purposes of Subparagraph (a) of this Paragraph, if the employee is not engaged in any employment or self-employment, as described in Subparagraph (b) of this Paragraph, or is earning wages less than the employee is able to earn, the amount determined to be the wages the employee is able to earn in any month shall in no case be less than the sum the employee would have earned in any employment or self-employment, as described in Subparagraph (b) of this Paragraph, which he was physically able to perform, and (1) which he was offered or tendered by the employer or any other employer; or (2) which is proven available to the employee in the employee's or employer's community or reasonable geographic region. The statute involves shifting burdens of proof. Initially, the employee must prove by a preponderance of the evidence that, due to a workplace injury, he or she is unable to earn at least ninety percent of the wages earned prior to the injury. Seal v. Gaylord Container Corp., 97-0688 (La.12/2/97); 704 So.2d 1161. Once the employee satisfies that initial burden, in order to defeat the employee's claim for SEBs, the employer must demonstrate, 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." 97-0688 at p. 8; 704 So.2d at 1166. However, it is only after the employee carries his initial burden of establishing entitlement to SEBs that the burden shifts to the employer. See Smith v. Hamp Enterprises, Inc., 95-2343 (La.App. 4 Cir 4/17/96); 673 So.2d 267.

Section 23:1221(3)(a) requires an employed or self-employed claimant seeking supplemental earnings benefits to prove by a preponderance that a work-related injury caused an inability to earn at least 90% of pre-injury wages.

Kibodeaux v. Cajun Bag and Supply Co. · filed 1999-06-02(3)(a)

If a claimant is employed or self-employed, then he or she has the burden of proving by a preponderance of the evidence that a work-related injury resulted in an inability to earn wages equal to ninety percent or more of his wages at the time of injury. ... Kibodeaux established her 5% impairment, but the workers' compensation judge found that she failed to establish that her disability resulted in her inability to earn 90% of her pre-injury wage. Kibodeaux has no medical restrictions on her employment. Furthermore, Kibodeaux did not demonstrate that her disability in any way limited her ability to earn 90% of her preinjury wage. The failure to establish the causal link between the disability and the inability to earn the requisite wage is the critical difference between this case and Allen. The workers' compensation judge correctly concluded that Kibodeaux failed to carry her burden of proof.

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; the claimant bears the initial burden, after which the employer must show the wages the employee can earn through suitable offered or available work.

Smith v. Ventura Foods · filed 1999-06-30(3)(a)

La.R.S. 23:1221(3) provides that an injured employee is entitled to supplemental earnings benefits where he is unable to earn ninety percent of his pre-injury wages. As an initial matter, the claimant bears the burden of proving by a preponderance of the evidence that he is unable, because of injury, to earn ninety percent of his pre-injury wages. If the employee is able to meet his initial burden, then the burden shifts to the employer to prove the amount of wages the employee is able to earn. The employer may discharge that burden by proving that the employee is able to perform a job and that the job was either offered to the employee or available to the employee in his or the employer's community or reasonable geographic region. We find no error in the finding that Smith proved his inability to earn ninety percent of his pre-injury wages and in the award of SEBs.

Section 23:1221(3) requires an employee seeking supplemental earnings benefits to prove inability to earn at least 90% of pre-injury wages; if that burden is met, the employer must show a physically suitable job was offered or available in the relevant community or reasonable geographic region.

McKenzie v. Evans Quality Temporaries · filed 1999-10-26(3)

La. R.S. 23:1221(3) places the initial burden to prove disability on the claimant. In order to recover, the employee must first 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 before the accident. ... If the employee meets his burden of proof, the burden 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. ... Actual job placement is not required.

Section 23:1221 requires a claimant seeking judicial entitlement to benefits to prove by clear and convincing evidence that a work-related injury physically prevents any employment or self-employment.

Snelling Personnel Services v. Duhon · filed 2000-11-02

Under La.R.S. 23:1221, a claimant seeking a judicial determination of entitlement to benefits must prove by clear and convincing evidence that he or she is physically unable to engage in any employment or self-employment as a result of a work.

Subsection (3)(a) makes supplemental earnings benefits available when a work injury leaves an employee unable to earn at least 90 percent of the pre-injury wage; once that showing is made, the employer must prove suitable available work.

Shell v. Wal-Mart Stores, Inc. · filed 2001-03-21(3)(a)

Under La.R.S. 23:1221(3)(a), 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 wage. The injured employee bears the burden of proving, by a preponderance of the evidence, that the injury resulted in his inability to earn wages equal to ninety percent or more of the wages he earned at the time of injury. ... If the employee meets his burden, the burden of production then 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 was available to the employee in either the employee's or the employer's community or reasonable geographic region.

Section 23:1221(3)(a) requires a claimant seeking supplemental earnings benefits to prove by a preponderance that the claimant cannot earn ninety percent of pre-injury wages, while subsection (3)(c)(i) places on the employer the burden to prove the claimant can earn more by showing the physical ability to perform an offered or available job.

Cole v. Langston Companies, Inc. · filed 1999-02-03(3)(a), (3)(c)(i)

In order to prove entitlement to supplemental earnings benefits (SEB), a plaintiff must initially demonstrate, by a preponderance of the evidence, his or her inability to earn ninety percent of his or her pre-accident wages. ... It then becomes the employer’s burden to establish that the plaintiff is capable of earning more money by demonstrating, by a preponderance of the evidence, the plaintiffs physical ability to perform a job offered to the plaintiff or one available in either the plaintiffs or employer’s community or a reasonable geographic region.

Section 23:1221(3) allocates the burdens for supplemental earnings benefits: the claimant must first prove at least a 10% loss of pre-injury earning capacity, after which the employer must show suitable available work and the claimant must prove inability to perform it solely because of substantial pain.

Lang-Parker v. Unisys Corp. · filed 2001-10-05(3)(a), (3)(c)(i), (3)(c)(ii)

In order to receive an award of SEBs, a claimant bears the initial burden of proving by a preponderance of the evidence that her work-related injury rendered her unable to earn 90 percent of her pre-injury wages. La. R.S. 23:1221(3)(a). Once a claimant establishes a prima facie case, the burden shifts to the employer to show that the claimant is physically capable of work and that the work was offered or available in the reasonable geographic region. La. R.S. 23:1221(3)(c)(i). On such a showing, the burden then shifts back to the claimant to prove 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. La. R.S. 23:1221(3)(c)(ii). ... Based on the evidence presented, the record supports the WCJ's determination that claimant failed to meet her burden of showing by clear and convincing evidence that she is unable to perform the employment offered, i.e. to physically transport herself to the available employment because of substantial pain. Accordingly, we hold that the WCJ's determination was not manifestly erroneous and we reject claimant's request for SEBs and additional vocational rehabilitation.

Section 23:1221(3) places the initial burden on the employee to prove an inability to earn at least 90% of preaccident wages, then shifts the burden to the employer to prove physical ability and an offered or available job.

Cooley v. K-Mart Corp. · filed 2001-10-31(3)(a), (3)(c)(i)

Importantly, the employee, not the employer, initially bears the burden of proving, by a preponderance of the evidence, that her injury resulted in her inability to earn ninety percent or more of her preac-cident wages. ... Only after the employee has met her burden of proof does the burden shift to the employer, who, in order to defeat the 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 available to the employee in her or the employer’s community or reasonable geographic region.

Section 23:1221(3)(c)(i) requires proof that the claimant is physically able to perform a job offered or available in the relevant geographic area but does not require physician approval before notification, while paragraph (3)(c)(ii) requires clear and convincing proof of inability to perform the job solely because of substantial pain.

Payne v. Lawn Lourd Lawn Service · filed 2001-12-05(3)(c)(i), (3)(c)(ii)

We can find no statutory or jurisprudential requirement of physician approval of jobs prior to notification of the claimant. ... We can find no reason why sending simultaneous notification to the claimant and physician is not appropriate. ... We find, therefore, that the WCJ's conclusion as quoted above is erroneous. In summary, after reviewing the testimony in this case, we conclude that Defendants satisfied their burden of showing that Mr. Payne was physically capable of work and that work was offered or available. In order to be entitled to reinstatement of benefits, therefore, Mr. Payne had to show, by clear and convincing evidence unaided by any presumption of disability, that he was unable to perform employment offered or available solely as a consequence of substantial pain. La. R.S. 23:1221(3)(c)(ii); Baker, supra ; Lubom, supra .

Section 23:1221(3)(a) provides supplemental earnings benefits when a work-related injury leaves an employee unable to earn at least 90% of the pre-injury wage; after the employee proves that by a preponderance, the employer must prove suitable offered or available work, and the employee must then prove by clear and convincing evidence that substantial pain prevents performing it.

Figueroa v. Hardtner Medical Center · filed 2002-01-25(3)(a), (3)(c)(i), (3)(c)(ii)

Under the provisions of La. R.S. 23:1221(3)(a), an employee is entitled to receive SEBs if she sustains a work-related injury that results in her inability to earn ninety percent (90%) or more of her 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 her inability to earn that amount under the facts and circumstances of the individual case. Seal, supra ; Freeman, supra; Todd v. Security Industrial Insurance, 33-233 (La.App.2d Cir.5/15/00), 759 So.2d 1082; Kahlden v. Horseshoe Entertainment, 30,277 (La.App.2d Cir.2/25/98), 709 So.2d 873. ... Once the employee's burden is met, the burden shifts to the employer, who, in order to defeat the employee's claim for SEBs 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 her or the employer's community or reasonable geographic region. La. R.S. 23:1221(3)(c)(i); Seal, supra ; Daigle, supra ; Todd, supra ; Kahlden, supra . Actual job placement is not required. Banks, supra . If the employer meets this burden, then the claimant must show, by clear and convincing evidence, that she is unable to perform the offered or available work solely because of substantial pain. La. R.S. 23:1221(3)(c)(ii); Todd, supra .

Section 23:1221(3) provides supplemental earnings benefits when an injured employee cannot earn 90% of pre-injury wages, with the claimant bearing the initial burden and the employer able to rebut by proving suitable work was offered or available.

Johnson v. Transerve · filed 2002-02-27(3)

La.R.S. 23:1221(3) provides an injured employee is entitled to supplemental earnings benefits where he is unable to earn ninety percent of his pre-injury wages. The claimant bears the burden of proving by a preponderance of the evidence that he is unable, because of injury, to earn ninety percent of his pre-injury wages. If the employee is able to meet his initial burden, then the burden shifts to the employer to prove the amount of wages the employee is able to earn. The employer may discharge that burden by proving the employee is able to perform a job and that job was either offered to the employee or available to the employee. Daigle v. Sherwin-Williams Co., 545 So.2d 1005 (La.1989); Foreman v. West Calcasieu-Cameron Hosp., 625 So.2d 1104 (La. App. 3 Cir.1993), writ denied, 93-2740 (La.1/7/94); 631 So.2d 450.

Section 23:1221(3)(a) provides supplemental earnings benefits when a work-related injury leaves an employee unable to earn at least 90% of the pre-injury wage, and Section 23:1221(3)(c)(i) shifts the burden to the employer to prove physical ability and an offered or available suitable job once that showing is made.

Gilcrease v. Wal-Mart Stores, Inc. · filed 2002-12-11(3)(a), (3)(c)(i)

An employee is entitled to receive supplemental earnings benefits if she has sustains a work-related injury that results in her inability to earn 90% or more of her 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 her inability to earn that amount under the facts and circumstances of the individual case. Banks, supra ; Freeman v. Poulan/Weed Eater, 93-1530 (La.01/14/94), 630 So.2d 733. This analysis is necessarily a facts and circumstances one in which the court is mindful of the jurisprudential tenet that workers' compensation is to be liberally construed in favor of coverage. Daigle v. Sherwin-Williams Co., 545 So.2d 1005 (La.1989). Once the employee's burden is met, the burden shifts to the employer who, in order to defeat the employee's claim for SEB 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 her or the employer's community or reasonable geographic region. La.R.S. 23:1221(3)(c)(i). Actual job placement is not required. Banks, supra .

Section 23:1221(3)(a) provides SEB when a work injury leaves an employee unable to earn at least 90% of the pre-injury wage, and § 23:1221(3)(c)(i) shifts the burden to the employer to prove physical ability and a suitable offered or available job.

Marshall v. Louisiana Pacific Corp. · filed 2001-11-02(3)(a) (3)(c)(i)

Air employee is entitled to receive SEB if he sustains a work-related injury that results in his inability to earn 90 percent or more of his average pre-injury wage. ... Once the employee’s burden is met, the burden shifts to the employer who, in order to defeat the claim for SEB 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 was available in his or the employer’s community or reasonable geographic region.

Section 23:1221(3)(a) provides supplemental earnings benefits when a work-related injury leaves an employee unable to earn at least 90% of the pre-injury wage, while Paragraph (3)(c)(i) permits the employer to defeat the claim by proving the employee can physically perform an offered or available job.

Culotta v. AL & W. Moore Trucking Co. · filed 2003-03-05(3)(a), (3)(c)(i)

"An employee is entitled to receive supplemental earnings benefits (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. 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. ... Once the employee's burden is met, the burden shifts to the employer who, in order to defeat the employee's claim for SEBs 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. La.R.S. 23:1221(3)(c)(i); Daigle, 545 So.2d at 1009. Actual job placement is not required. ... We conclude that the WCJ was clearly wrong in concluding that Mr. Culotta carried his burden by a preponderance of the evidence that he could not earn 90% of his pre-injury wages. ... Accordingly, Mr. Culotta is not entitled to SEB."

Section 23:1221(3)(a) requires an injured employee seeking supplemental earnings benefits to prove an inability to earn at least 90 percent of pre-injury wages because of the work injury.

Edmondson v. PCA International, American Studios · filed 2003-07-02(3)(a)

Although the medical records of Dr. Guidry admitted into evidence show that on two occasions he prescribed physical therapy for Edmondson, that showing simply does not sustain her burden of proving an inability to earn 90 percent of her pre-accident wages due to the work-related injury as required under La. R.S. 23:1221(3)(a).

Section 23:1221(3)(a) requires a claimant seeking supplemental earnings benefits to initially show that the work injury caused an inability to earn ninety percent of the prior average wage.

King v. Willstaff Worldwide, Inc. · filed 2003-09-26(3)(a)

From these facts, we find no manifest error in the finding that Mr. King met his initial burden of showing that his work injury caused his inability to earn ninety percent of his prior average wage. See La. R.S. 23:1221(3)(a); ... 93-1530, p. 7 (La.1/14/94), 630 So.2d 733, 739.

Section 23:1221(3)(a) provides supplemental earnings benefits when a work injury prevents an employee from earning at least 90% of pre-injury wages, and § 23:1221(3)(c)(i) requires the employer to prove the employee’s physical ability and the availability or offer of suitable work to defeat the claim or establish earning capacity.

Lacaze v. Alliance Compressors · filed 2004-04-14(3)(a), (3)(c)(i)

An employee is entitled to receive SEBs if he sustains a work-related injury that results in his inability to earn ninety percent or more of his average pre-injury wage. La.R.S. 23:1221(3)(a). “Initially, the injured employee 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.” Freeman v. Poulan/Weed Eater, 93-1530, p. 7 (La. 1/14/94), 630 So.2d 733, 739. Once the employee’s burden is met, the burden shifts to the employer. In order to defeat the employee’s claim for SEBs or establish the employee’s earning capacity, the employer must prove, by a preponderance of the evidence, that the employee is physically able to perform a certain job. In addition, the employer must prove 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); Daigle v. Sherwin-Williams Co., 545 So.2d 1005 (La.1989). Actual job placement is not required. Romero v. Grey Wolf Drilling Co., 594 So.2d 1008 (La.App. 3 Cir. 1992).

Section 23:1221(3)(a) provides SEB when a work injury leaves an employee unable to earn at least 90% of pre-injury wages, and § 23:1221(3)(c)(i) shifts the burden to the employer to prove suitable work or earning capacity after the employee makes that showing.

Howard v. HOLYFIELD CONST., INC. · filed 2004-07-14(3)(a), (3)(c)(i)

The purpose of SEB is to compensate the injured employee for the wage earning capacity he has lost as a result of his accident. ... An employee is entitled to receive SEB if he sustains a work related injury that results in his inability to earn ninety (90%) or more of his pre-injury wage. ... Initially, the employee bears the burden of proving, by a preponderance of the evidence, that the injury resulted in an 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, in order to defeat the claim for SEB or establish the employee's earning capacity, must prove by a preponderance of the evidence that the worker is physically able to perform a certain job which was offered to the employee or was available in his or the employer's community or reasonable geographic region. La. R.S. 23:1221(3)(c)(i); Banks, supra . ... We believe that Howard met his burden to show that he was unable to earn 90% of his pre-injury wage. ... As a result, he has shown his entitlement to SEB.

Section 23:1221(3) provides that a claimant seeking supplemental earnings benefits must first prove an inability to earn at least 90% of pre-injury wages; the burden then shifts to the employer to show physically suitable employment was offered or available, after which the claimant must prove inability to perform it solely because of substantial pain.

Williams v. Plumbing · filed 2004-09-22(3)(a)-(c)

From this provision, the claimant bears the initial burden of proving, by a preponderance of the evidence, that his injury resulted in his inability to earn 90% of his pre-injury wage, under the facts and circumstances of the case. Lee v. Schumpert, 36,733 (La.App.2d Cir.1/29/03), 836 So.2d 1214. If the claimant meets this burden, the burden shifts to the employer to prove that the claimant is physically able to perform a certain job and that the job was offered to the claimant, or that the job was available to him within his or the employer's geographic region. Id. If the employer satisfies that burden, then the claimant 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 result of substantial pain. Id. ... Regardless of which party's burden applied, we agree that the WCJ's conclusion regarding the reasonableness of the job position offered Williams is not manifestly erroneous or contrary to our workers' compensation law. Section 1221 of the Act, as shown above, recognizes jobs tendered by the employer, including sheltered employment, and their effect on the reduction of the amount of SEB's.

Section 23:1221(3) requires an employee seeking supplemental earnings benefits to prove by a preponderance of the evidence that the employee cannot earn at least 90 percent of the pre-accident wages.

Zirlott v. Chitimacha Tribe of Louisiana · filed 2005-05-06(3)

In order to recover supplemental earnings benefits, an employee must first prove by a preponderance of the evidence that he is unable to earn wages equal to 90 per cent or more of wages he earned before the accident. La. R.S. 23:1221(3); Smith, 633 So.2d at 132.

Subsection (3)(a) requires an injured employee seeking supplemental earnings benefits to prove by a preponderance that the injury caused an inability to earn at least ninety percent of the pre-injury average wage.

Palmer v. Alliance Compressors · filed 2005-11-02(3)(a)

“An employee bears the burden of proving, by a preponderance of the evidence, that the injury resulted in his or her inability to earn ninety percent (90%) or more of the average pre-injury wage under the facts and circumstances of the individual case. Lacaze, 870 So.2d at 1155, quoting Freeman v. Poulan/Weed Eater, 93-1530, p. 7 (La. 1/14/94), 630 So.2d 733, 739; La.R.S. 23:1221(3)(a). In this case, Palmer necessarily fails in meeting her burden of proof by virtue of the stipulations that, at the time of her accident, she had an average weekly wage of three hundred eighty-seven dollars and sixty cents ($387.60) and that, on December 2, 2002, after her on-the-job injury, she received a raise which made her average weekly wage four hundred and three dollars and twenty cents ($403.20), and that the parties knew of no reason why Palmer could not still be employed by Alliance at a weekly wage equal to or higher than her pre-accident average weekly wage but for the “for cause” termination. In effect, Palmer stipulated that as of December 2, 2002, she was earning more than one hundred percent (100%) of her pre-accident wages and that the reason she was unable to earn ninety percent (90%) or more of her average pre-injury wage after December 11, 2002 was because of her own attempt to conceal her violation of Alliance’s attendance policy and not because of her injury. Therefore, she failed to meet the applicable burden of proof and is not entitled to SEB for that reason.”

Section 23:1221(3)(a) requires an employee seeking supplemental earnings benefits to prove by a preponderance of the evidence that the work injury reduced the employee's ability to earn to less than 90% of the pre-injury average wage.

Grillette v. Alliance Compressors · filed 2006-02-01(3)(a)

An employee bears the burden of proving, by a preponderance of the evidence, that the injury resulted in his or her inability to earn ninety percent (90%) or more of the average pre-injury wage under the facts and circumstances of the individual case. Lacaze, 870 So.2d at 1155 (quoting Freeman v. Poulan/Weed Eater, 93-1530, p. 7 (La.1/14/94), 630 So.2d 733, 739); La.R.S. 23:1221(3)(a). ... In this case, Grillette necessarily fails in meeting her burden of proof by virtue of the stipulation that she was terminated for cause. ... This finding leads us to the conclusion that there is no reason that Grillette could not have continued to work for Alliance for the period from March 31, 2003 to January 27, 2004, but for her termination for cause. As we have said, this results in her inability to meet her burden of proof, and the WCJ erred as a matter of law in finding otherwise.

Section 23:1221(3)(a) provides supplemental earnings benefits when a work injury leaves the claimant unable to earn at least 90% of pre-injury wages, while (3)(c)(ii) requires clear and convincing proof that any inability to perform offered or available work is solely due to substantial pain.

Reynolds Industrial Contractors v. Fox · filed 2006-06-28(3)(a), (3)(c)(ii)

A claimant is entitled to receive SEBs if he sustains a work-related injury that results in the inability to earn 90% or more of his pre-injury wage. La. R.S. 23:1221(3)(a). The claimant bears the initial burden of proving, by a preponderance of the evidence, that the injury resulted in the inability to earn that amount, under the facts and circumstances of the case. Freeman v. Poulan/Weed Eater, 93-1530 (La.1/14/94), 630 So.2d 733. If the claimant meets this burden, the burden then shifts to the employer to prove that the claimant is physically able to perform a certain job and that the job was offered to the claimant or that the job was available to him or within his or the employer's geographic region. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551. If the employer satisfies that burden, then the claimant must show by clear and convincing evidence, unaided by any presumption of disability, that he is unable to perform the offered or available employment, solely as the result of substantial pain. La. R.S. 23:1221(3)(c)(ii); Payne v. Lawn Lourd Lawn Service, 35,491 (La.App. 2d Cir.12/5/01), 803 So.2d 321.

Under § 23:1221(3), an employee seeking supplemental earnings benefits must prove by a preponderance of the evidence that the employee cannot earn 90 percent of pre-injury wages.

Standard Companies v. Trahan · filed 2005-12-30(3)(a)

In order to recover SEB, an employee bears the burden of proving by a ^preponderance of the evidence he is not able to earn ninety percent of his pre-injury wages.

Section 23:1221(3)(a) places the initial burden on an employee claiming supplemental earnings benefits to prove inability to earn 90% of pre-accident wages, after which § 23:1221(3)(c)(i) shifts the burden to the employer to show physical capacity and offered or available work.

Sowell v. Process Equipment · filed 2007-02-07(3)(a), (3)(c)(i)

When making a claim for SEB, the employee bears the initial burden of proving that he is unable to earn wages equal to 90% of his pre-accident wages. La.R.S. 23:1221(3)(a). If the employee meets this threshold showing, then the burden shifts to the employer to show that the employee is physically capable of work and that work was offered or available in the employer’s or the employee’s reasonable geographic region. La.R.S. 23:1221(3)(c)(i).

Section 23:1221(3) authorizes supplemental earnings benefits when a work-related injury leaves an employee unable to earn 90% of preinjury wages, and subsection (3)(c)(i) shifts the burden to the employer to show generally available employment within the employee’s physical limitations and reasonable geographic area.

Royals v. Town of Richwood · filed 2007-10-24(3)(c)(i)

When work-related injuries do not result in total disability, but rather leave the employee unable to earn 90% of her preinjury wage, the statute authorizes an award of SEB. ... Only after the claimant makes this prima facie showing does the burden shift to the employer to show that employment is generally available within the claimant's physical limitations and in her or the employer's reasonable geographic region. ... The burden therefore shifted to Richwood to show that employment was generally available within Ms. Royals' physical limitations and in her or the employer's reasonable geographic area. La. R.S. 23:1221(3)(c)(i); Banks v. Industrial Roofing & Sheet Metal, supra. The record contains no evidence whatsoever regarding any other employment that would meet these criteria.

Section 23:1221(3)(a) requires a claimant seeking supplemental earnings benefits to prove by a preponderance of the evidence that the claimant cannot earn at least 90 percent of pre-accident wages.

Marion Thomas Terral, Jr. v. Justiss Oil Company, Inc. · filed 2008-03-05(3)(a)

In order to be entitled to receive SEB, a claimant 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 before the accident. La.R.S. 23:1221(3)(a). In the instant matter, the WCJ found that Mr. Terral was “self-limiting his ability to earn at least ninety percent of his pre-injury wage.” Implicit in this finding is a determination that Mr. Terral failed to prove that he is “unable” to earn ninety percent or more of his pre-accident wages. Mr. Terral, therefore, failed to meet his burden of proof under La.R.S. 23:1221(3)(a). It is only when the initial burden of proof is met by Mr. Terral that the burden would shift to Justiss Oil.

Section 23:1221(3)(a) makes an employee initially prove by a preponderance that a work injury prevents earning at least 90% of pre-injury wages, after which § 23:1221(3)(c)(i) requires the employer to prove physical ability and a suitable offered or available job in the employee’s or employer’s community or reasonable geographic region; actual placement is unnecessary.

Brien v. Leon Angel Constructors, Inc. · filed 2008-03-12(3)(a) and (3)(c)(i)

Supplemental Earnings Benefits (SEB) are awarded when a work-related injury prevents the employee from earning 90% or more of his pre-injury wages. La. R.S. 23:1221(3)(a). The employee has the initial 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. Banks, supra . ... Once the employee's burden is met, the burden shifts to the employer who, in order to defeat the employee's claim for SEB 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. La. R.S. 23:1221(3)(c)(i); Daigle, supra . Actual job placement is not required. Banks, supra .

Section 23:1221(3)(a) makes an employee eligible for supplemental earnings benefits upon proving a work-related inability to earn at least 90% of pre-injury wages, after which the employer must show a physically suitable job that was offered or available to defeat the claim.

Poissenot v. St. Bernard Parish Sheriff's Office · filed 2009-11-24(3)(a)

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. ... Employees bear the initial burden of proving, by a preponderance of the evidence, that their injury resulted in their inability to earn ninety percent or more of their pre-accident wages. ... Only after an employee has met her burden of proof does the burden shift to the employer, who, in order to defeat the 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 available to the employee in her or the employer’s community or reasonable geographic region.

After an employee proves inability to earn 90% of pre-accident wages, § 23:1221(3)(c)(i) shifts the burden to the employer to show that the employee can physically perform a job and that the job was offered or was available in the relevant geographic area.

Broussard v. Country Club Auto Repair, Inc. · filed 2011-02-02(3)(c)(i)

Louisiana Revised Statutes 23:1221(3)(a) provides an employee with SEBs if he proves by a preponderance of the evidence his inability to earn ninety percent or more of his pre-accident wages as a result of his work accident, under the facts and circumstances surrounding his claim. ... Once the employee satisfies his burden, the burden shifts to the employer to prove that the employee is physically capable of performing a certain job, that the job was offered to him, or that it was available to him or within his or the employer’s geographic region. ... Based on the light-duty restrictions placed on Mr. Broussard by Dr. Gidman, we find no error in the WCJ finding that Mr. Broussard was unable to perform the heavy work required of a body technician. Moreover, the record is devoid of any efforts made by Country Club Auto Repair to assist Mr. Broussard in returning to gainful employment. ... We find no merit in this assignment of error and affirm the WCJ’s judgment awarding Mr. Broussard SEBs, based on a zero-rate earning capacity.

Section 23:1221(3) requires an employee seeking supplemental earnings benefits to first prove by a preponderance of the evidence that a work injury leaves the employee unable to earn at least 90% of pre-injury wages; only after that showing does the burden shift to the employer to prove available suitable employment.

Kelly v. MAXX · filed 2011-05-24(3)(c)(i)

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(8)(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. ... It is only when the employee overcomes this initial step that 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 employee’s community or reasonable geographic location. La. R.S. 23:1221(3)(c)(i); ... As claimant failed to make a prima facie case that her work-related injury rendered her incapable of earning 90% of her pre-injury wages, the burden did not shift to defendants to prove she was capable of other employment.

Section 23:1221(3)(a) requires a claimant to prove that a work-related injury caused an inability to earn at least 90% of pre-injury wages, regardless of whether the claimant can perform the same or similar occupation.

Poissenot v. St. Bernard Parish Sheriff's Office · filed 2011-01-09(3)(a)

The statute clearly places its focus on the amount of wages earned before and after the accident, not the type of occupation or the type of work performed.

Section 23:1221(3) requires a claimant seeking supplemental earnings benefits to prove by a preponderance of the evidence that a work-related injury prevents earning at least 90 percent of the pre-injury wage, after which the employer may defeat the claim by proving the claimant can perform a specific job that was offered or available in the community or region.

Broussard v. Louisiana Radio Communications · filed 2011-02-02(3), (3)(c)(i)

Further, a claimant’s pursuit of SEBs is guided by La.R.S. 23:1221(3), which establishes that a claimant must first prove, by a preponderance of the evidence, that he or she is unable to earn ninety percent of his or her pre-injury wage due to a work-related injury. Thereafter, an employer seeking to defeat that claim or establish the claimant’s earning capacity, must prove, by a preponderance of the evidence, that the claimant is physically able to perform a certain job and that this job was offered to the claimant or was available to him or her in the community or region.

Section 23:1221(3) provides supplemental earnings benefits when a work injury prevents the employee from earning at least 90% of pre-injury wages, generally for up to 520 weeks, and shifts the burden to the employer to prove suitable available work after the employee establishes entitlement.

Slade v. State ex rel. University of Louisiana at Monroe · filed 2011-11-09(3)(a), (3)(d)(ii), (3)(c)(i)

To qualify for SEB, a claimant is required to prove by a preponderance of the evidence that a work related injury resulted in the inability to earn 90% or more of the pre-injury wages. La. R.S. 23:1221(3)(a); ... In any week where the worker is unable to earn at least 90% of his pre-injury wages, SEB will be payable to him, for a maximum of 520 weeks. La. R.S. 23:1221(3)(d)(ii); ... 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. ... Once the employee’s burden is met, the burden shifts to the employer who, in order to defeat the claim for SEB 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 the job was offered to the employee, or was available in his or the employer’s community or reasonable geographic region. La. R.S. 23:1221(3)(c)(i); ... Actual job placement is not required.

Section 23:1221(3)(a) provides supplemental earnings benefits when a work injury prevents an employee from earning 90% or more of the average pre-injury wage.

Richard v. Calcasieu Parish School Board · filed 2011-12-28(3)(a) and (1)

As set forth in Poissenot, as quoted in Sharp, and La.R.S. 23:1221(1), Ms. Richard bears the burden of establishing by clear and convincing evidence, unaided by any presumption of disability, that she is physically unable to engage in any employment as a result of a work-related injury in order to be awarded TTD benefits. ... Therefore, it was not error for the School Board to convert Ms. Richard’s benefits to SEB, and the WCJ erred in reinstating Ms. Richard’s TTD benefits. ... However, once it was determined that SEB were the appropriate benefits payable to Ms. Richard, then the burden shifted to the School Board to establish by a preponderance of the evidence that a particular job was available to her and that she was physically able to perform that particular job. ... Therefore, the SEB are to be paid based on a zero earning capacity.

Subsection (3) provides supplemental earnings benefits when an injury prevents an employee from earning at least 90 percent of pre-injury wages, and the employee bears the burden of proving that inability in any employment.

Holden v. City of New Orleans (NOPD) · filed 2012-06-08(3)

“An injured employee is entitled to SEB under La. R.S. 23:1221(3) when her injury results in her inability to earn wages equal to ninety percent or more of the wages she was earning at the time of the injury. The injured employee bears the burden of proving that the injury resulted in her inability to earn that amount in any employment.”

Section 23:1221(3)(a) provides supplemental earnings benefits when a work-related injury leaves an employee unable to earn 90 percent or more of the employee’s average pre-injury wage, and the employee must prove that inability by a preponderance of the evidence.

Slocum v. Driveline · filed 2013-04-26(3)(a)

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 or more of his average 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(3)(a) provides supplemental earnings benefits when a work-related injury leaves an employee unable to earn 90% of pre-injury wages, and paragraph (3)(c)(i) shifts the burden to the employer to prove physical ability and a suitable job offer or availability after that showing.

Lafayette Steel Erector, Inc. v. Constance · filed 2014-04-16(3)(a), (3)(c)(i)

“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. 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. ... It is only when the employee overcomes this initial step that 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 location. La. R.S. 23:1221(3)(c)(i); Banks, supra at 556; Daigle, supra at 1009.”

Section 23:1221(3) requires the employee first to prove an injury-related inability to earn at least 90% of the pre-injury wage; the employer may then defeat supplemental earnings benefits by proving a suitable available job, after which the employee must prove by clear and convincing evidence an inability to engage in any employment.

Richard v. HSLI & Touro Infirmary · filed 2013-05-23(3)(a)(i), (3)(c)(i), (3)(c)(ii)

Initially, the employee bears the burden of proving by a preponderance of the evidence that the injury caused his inability to earn ninety percent (90%) or more of his average pre-injury wage. ... Once an employee meets this burden, the burden shifts to the employer who, in order to defeat the employee’s claim for supplemental earnings benefits, must prove by a preponderance of evidence 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 in his or the employer’s community or reasonable geographic region. ... If the employer meets this burden, then the employee must establish by clear and convincing evidence that he is unable to engage in any employment.

Section 23:1221(3) provides supplemental earnings benefits when a work injury leaves an employee unable to earn at least 90% of pre-injury wages, and shifts the burden to the employer to show the employee can perform an offered or reasonably available job once that showing is made.

Rachal v. Wal-Mart Corporation · filed 2015-06-03(3)(a), (3)(c)(i)

The purpose of SEBs is 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) provides that an employee is entitled to receive SEBs if he sustains a work-related injury that results in his inability to earn 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. 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).

Section 23:1221(3) requires the claimant first to prove that a work-related injury caused an inability to earn at least ninety percent of pre-injury wages, then shifts the burden to the employer to show suitable available work, and finally requires clear and convincing proof that substantial pain prevents the claimant from performing it.

Andrews v. Thrasher Construction Co. · filed 2015-11-09(3)(a), (3)(c)(i), (3)(c)(ii)

In order to receive an award of -SEBs, -a claimant bears the initial burden of proving by a preponderance of the evidence that his work-related injury rendered him unable to earn ninety percent of his pre-injury wages. La. R.S. 23:1221(3)(a). Once a claimant establishes a prima facie case, the burden shifts to-the employer to show that the claimant is physically capable of work and that the work was offered or available in the reasonable geographic region.' La. R.S. 23:1221(3)(c)(i). On such a-showing, the burden then shifts back to the claimant to prove 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 Lpain. La. R.S. 23:1221(3)(c)(ii); Lang-Parker v. Unisys Corporation, 00-0880, p. 15 (La.App. 1st Cir.10/5/01), 809 So.2d 441, 451.

Section 23:1221(3)(a)(i) requires the employee to first prove an inability to earn at least 90% of pre-injury wages, after which the employer bears the burden under (3)(c)(i) to prove physically suitable work was offered or available.

Turner v. Chi. Bridge & Iron Co. · filed 2018-06-27(3)(a)(i), (3)(c)(i)

Initially, [under Section 1221(3)(a)(i),] the employee bears the burden of proving by a preponderance of the evidence that the injury resulted in his inability to earn...[at least 90% of his pre-accident income]... under the facts and circumstances of the individual case. ... Only when the employee makes this initial showing does the burden shift to the employer to prove 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 area.

Section 23:1221(3)(a) entitles an employee to supplemental earnings benefits when a work-related injury prevents the employee from earning at least 90% of the pre-injury wage, and subsection (3)(c)(i) shifts the burden to the employer to prove the employee can perform a suitable job that was offered or available.

Bos v. Packaging Corporation of America · filed 2023-02-15(3)(a), (3)(c)(i)

The Louisiana Supreme Court addressed the standards for proving entitlement to SEB payments in Clay v. Our Lady of Lourdes Regional Medical Center, Inc., 11-1797, p. 4 (La. 5/8/12), 93 So.3d 536, 538-39, as follows: ... 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 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. ... 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); Poissenot, 56 So.3d at 174; Banks, 696 So.2d at 551.

After the employee proves by a preponderance of the evidence that a work injury prevents her from earning at least 90% of her pre-injury wage, the employer must prove that she can physically perform a suitable job and that the job was offered or available in her community or a reasonable geographic area.

Ziegler v. Slidell Mem'l Hosp. · filed 2017-11-02(3)(c)(i)

If the employee satisfies that burden of proof, 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 her or the employer's community or reasonable geographic location.

Section 23:1221(3)(a)(i) provides supplemental earnings benefits when an injury leaves the employee unable to earn at least 90% of pre-injury wages; under (3)(c)(i) the employer then bears the burden to show suitable available work; and under (3)(d)(iii) benefits terminate at retirement, although leaving work because of the occupational injury is not retirement.

Safford v. New Orleans Fire Department · filed 2024-02-01(3)(a)(i), (3)(c)(i), (3)(d)(iii)

According to La. R.S. 23:1221(3)(a)(i), supplemental earnings benefits are provided “[f]or injury resulting in the employee’s inability to earn wages equal to ninety percent or more of wages at time of injury . . . .” ... The burden of proof is a shifting one though. That is, if the employee meets his or her burden of proof, thereafter the burden shifts to the employer. ... To defeat the employee’s claim for supplemental earnings benefits, the employer 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.” ... “Retirement” occurs for purposes of [supplemental earnings benefits] entitlement when the worker either “withdraws from the work force” or draws old age social security benefits, whichever comes first. ... On the other hand, unemployment caused solely by employment injury is not considered “retirement” for purposes of terminating [supplemental earnings benefits]. ... At that time, Mr. Safford’s retirement became affected by his atrial fibrillation, and Mr. Safford was considered to have left work due to his occupational disease, not retirement in the traditional sense. ... Thus, we conclude that the WCJ was not manifestly erroneous or clearly wrong in finding that Mr. Safford was entitled to supplemental earnings benefits from January 1, 2015, through June 11, 2020. The NOFD’s third and fourth assignments of error are without merit because Mr. Safford was not “retired” for purposes of terminating supplemental earnings benefits as his retirement was affected by his atrial fibrillation upon Dr. Iteld diagnosing Mr. Safford with atrial fibrillation; finding him disabled as a result of his atrial fibrillation; and restricting his work on the basis of his atrial fibrillation.

Section 23:1221(2) allows a worker to make a prima facie case for permanent total disability under the odd lot doctrine when pain and disability appreciably limit available work and the worker’s ability to compete in the labor market.

Poland v. American Mutual Insurance · filed 1982-01-25(2)

We consider the evidence clearly establishes a prima facie case for his classification in the odd lot category as plaintiff’s pain and disability appreciably limit the types of work available to him and greatly diminish his ability to compete in the labor market.

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, and subsection (3)(b) requires post-injury wages to include at least the sums actually received, including odd-lot, sheltered, and pain-limited employment.

Clark v. Atlantic Painting Co. · filed 1988-02-10(3)(a) and (3)(b)

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 the injury. ... The post-injury wages are to be calculated under La. R.S. 23:1221(3)(b), which states: "(b) For purposes of Subparagraph (3)(a), of this Paragraph, the amount determined to be the wages the employee is able to earn in any month shall in no case be less than the sums actually received by the employee, including, but not limited to, earnings from odd-lot employment, sheltered employment, and employment while working in any pain." (emphasis added) This provision is clear that the wages Ms. Clark earned on her various jobs should have been included in the computation of her supplemental earnings benefits.

Section 23:1221(3) bases supplemental earnings benefits on the employee's ability to earn at least 90% of preinjury wages, permits recovery when offered work is beyond the employee's physical ability, and limits entitlement to 520 weeks.

Payne v. Country Pride Foods, Ltd. · filed 1988-03-02(3)(a), (3)(c)(i), and (3)(d)

Our review of Section 1221 reveals that the Legislature has struck a balance between the competing needs of employers and employees. ... The threshold prerequisite to the recovery of supplemental earnings benefits, as set forth in subparagraph (3)(a) is that the employee's injury result in his "inability to earn wages equal to ninety percent or more of the wages he was earning at the time of the injury." Id. (emphasis added). ... We believe that this compensation scheme gives an employee the freedom to accept or decline employment as he or she should so choose, while at the same time determining the amount of supplemental earnings benefits the employer or insurer will be obligated to pay by referencing the claimant's ability to earn wages. ... Although Payne was offered and accepted employment with Country Pride, we do not believe that the "offered or accepted" element of subsubparagraph (3)(c)(i) precludes his recovery. ... We believe, as did the Trial Judge, that although Payne was offered and accepted his previous position with Country Pride, he was not physically able to perform the work. ... They cite R.S. 23:1221(3)(d) as their authority for the fact that a claiment's right to supplemental earnings benefits may not exceed 520 weeks. ... Subsequent to our review of the statute and the facts of this case, we conclude that the computations urged by the appellants are correct and modify the judgment accordingly.

Section 23:1221(3)(a) requires a claimant to prove an inability to earn 90% or more of pre-injury wages and calculates benefits at 66 2/3% of the wage difference, while § 23:1221(3)(c)(i) places on the employer the burden to show that an unemployed or under-earning employee can physically perform offered or available work.

Kennedy v. Commercial Union Ins. Co. · filed 1990-12-12(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. La.R.S. 23:1221(3)(a); Clark v. Welex, a Halliburton Company, 517 So.2d 1186 (La.App. 3d Cir.1988), writ denied, 521 So.2d 1170 (La.1988). Once the claimant has met this threshold requirement, benefits are then calculated at "sixty-six and two-thirds percent of the difference between the average monthly wages at time of injury and average monthly wages earned or average monthly wages the employee is able to earn...." 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); Culotta v. Great Atlantic & Pacific Tea Company, 524 So.2d 259 (La.App. 5th Cir.1988), writ denied, 530 So.2d 88 (La.1988). ... The most logical interpretation of this provision is that the employer, if he wishes to contend that the employee is earning less than he is able to earn, 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 area. (Emphasis added.) 545 So.2d at 1008, 1009. ... Based upon the above, we must agree with the trial judge that the defendants did not meet their burden under La.R.S. 23:1221(3)(c)(i). We find no error in the trial court's calculation of plaintiff's SEB payments.

Section 23:1221(3) provides supplemental earnings benefits when a work-related injury leaves an employee unable to earn at least ninety percent of the wages earned at the time of injury.

Connor v. Jones Bros. Enterprises · filed 1992-10-15(3)

Pursuant to the provisions of La. R.S. 23:1221(3), a claimant for supplemental earnings benefits must establish that he suffered a work related injury which resulted in a diminished earning capacity. More specifically, he must show that a job related injury resulted in his inability to earn wages equal to ninety per cent or more of the wages being earned at the time of injury.

Section 23:1221(3) requires a claimant first to prove a work-related disability causing inability to earn at least 90% of pre-injury wages; if the employer asserts the claimant can earn more, the employer must prove physical ability and an offered or available job.

Doucet v. Baker Hughes Production Tools · filed 1993-11-17(3)

To qualify for SEB, a claimant must initially 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. ... The most logical interpretation of this provision is that the employer, if he wishes to contend that the employee is earning less than he is able to earn, 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.

Section 23:1221(3)(a) requires proof that an employee is unable to earn at least 90% of the wages earned at the time of injury to establish entitlement to supplemental earnings benefits.

Hebert v. DOTD · filed 1993-12-28(3)(a)

Hebert never indicated whether he was unable "to earn wages equal to ninety percent or more of wages at time of injury" as a result of his shortness of breath. La.R.S. 23:1221(3)(a). Hebert also testified he had lower back surgery in 1990. He never indicated whether he earned reduced wages as a result of consequences related to his back or to shortness of breath. That failure coupled with his uncertainty as to his current wages supports the hearing officer's conclusion that Hebert did not make "out a prima facie case of entitlement to supplemental earnings benefits." Daigle, supra at 1007.

Section 23:1221(3)(a) authorizes supplemental earnings benefits when an employee cannot earn at least 90 percent of pre-injury wages through any employment or self-employment, regardless of whether the work is in the same or a similar occupation or one for which the employee is specially fitted.

Glascock v. Georgia-Pacific Corp. · filed 1994-03-30(3)(a)

La.R.S. 23:1221(3)(a) authorizes SEBs where the employee is unable to earn 90 percent or more of his pre-injury wages through any employment or self-employment, 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 the injury was particularly fitted by reason of education, training, and experience. ... The hearing officer also was not clearly wrong to conclude that, although Glascock was capable of working after January 25, 1991, he was unable to earn 90 percent of his pre-injury wages. ... Consequently, we find no error in the hearing officer's award of SEBs.

Section 23:1221(3) provides supplemental earnings benefits when a work-related injury prevents a claimant from earning at least 90 percent of pre-injury wages.

Garner v. Sheats & Frazier · filed 1995-07-05(3)

Supplemental earnings benefits are awarded when a work-related injury prevents the claimant from earning ninety percent of his pre-injury wages.

Section 23:1221(3)(a) calculates supplemental earnings benefits as 66 2/3% of the difference between average monthly wages at injury and average monthly wages earned or able to be earned.

Deris v. DHL Airways, Inc. · filed 1996-06-25(3)(a)

Under La.R.S. 23:1221(3)(a) the average monthly wages are 4.3 times the average weekly wage. This equals $1683.88. Deris is entitled to sixty-six and two thirds percent of the difference between $1683.88 (average monthly wage at time of injury) and zero (average monthly wage he is currently able to earn).

Section 23:1221(3)(a) bases SEB on the difference between pre-injury wages and the wages the employee earned or was able to earn, requiring proof sufficient to calculate that difference.

DePaul Hospital v. Every · filed 1996-08-28(3)(a)

However, DePaul did not bear its burden under SEB showing how many hours Every can work, what type of job she can perform, or whether jobs are available to her with her physical restrictions. Without that evidence, the hearing officer could not calculate the correct amount of SEB that Every is entitled to receive. See: R.S. 23:1221(3)(a) and 23:1221(3)(e)(i). In addition, there may not be any jobs available for Every with her limited capabilities, in which case she would be totally disabled for purposes of SEB. Consequently, we find that the hearing officer was clearly wrong in finding that Every is able to work four hours per day, five days per week at minimum wage. Because she is entitled to SEB and the evidence was insufficient to determine the amount, we must remand for a determination of this issue.

Section 23:1221(3) provides supplemental earnings benefits when a work injury leaves an employee unable to earn at least 90% of pre-injury wages, and release to work alone does not defeat eligibility.

Washington v. Lyons Specialty Co. · filed 1996-11-08(3)

A claimant's entitlement to SEB is governed by La.R.S. 23:1221(3). ... The purpose of SEB is to compensate the injured employee for wage-earning capacity he has lost as a result of an accident. ... The threshold prerequisite to the recovery of SEB is that the employee's injury results in his inability to earn wages equal to 90% or more of the wages he was earning at the time of the injury. ... Thus, the injured employee bears the burden of proving by a preponderance of the evidence that his work-related injury resulted in his inability to earn that amount. ... In determining if an injured employee has made out a prima facie case of entitlement to SEB, the trial court may and should take into account all those factors which might bear on an employee's ability to earn a wage. ... The mere fact that the employee has been released to return to work does not automatically disqualify him from receiving SEB.

Section 23:1221(3)(a) makes eligibility for supplemental earnings benefits turn first on proving by a preponderance of the evidence that the employee cannot earn at least 90% of pre-injury wages.

Simon v. Winn-Dixie Louisiana, Inc. · filed 1997-02-19(3)(a)

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 90% or more of the wages he or she earned at the time of the injury.

Section 23:1221(3) provides supplemental earnings benefits when an employee cannot earn at least 90 percent of pre-injury wages; available employment may be counted in determining the employee’s earning capacity.

Farinelli v. St. John the Baptist Parish School Board · filed 1997-04-29(3)

Plaintiff has proved that she is unable to earn wages equal to ninety per cent or more of wages at the time of injury under La.R.S. 23:1221(3). Furthermore, defendant failed to present any evidence that plaintiff is employable and was offered employment or that employment is available to her in her geographic region, under R.S. 23:1221(3)(e)(i).

Section 23:1221(3) requires supplemental earnings benefits to be calculated using the pre-injury average hours multiplied by the employee’s current hourly rate, so an employee is not disqualified merely because working more hours produces 90% of prior total wages.

Bourgeois v. Akzo Nobel Salt, Inc. · filed 1997-10-01(3)

The appropriate calculation to determine whether an injured employee is earning 90% of his pre-injury wages under the circumstances represented by this case is to use the average number of hours worked before the injury and multiply that number by the hourly pay rate he or she is currently receiving. If the resulting, figure is not 90% of pre-injury wages, SEB payments are appropriate. Applying this formula to Mr. Bourgeois’ situation yields a figure below 90% of his pre-injury earnings. As such we find that Mr. Bourgeois is entitled to SEB payments pursuant to La.R.S. 23:1221(3).

Section 23:1221(3)(a) calculates supplemental earnings benefits using the wages at the time of injury, which in an occupational-disease case is the date the disability arises.

Coats v. City of Bossier City · filed 1998-10-30(3)(a)

La. R.S. 23:1221(3)(a) provides: For injury resulting in the employee's inability to earn wages equal to ninety per cent or more of wages at the time of injury, supplemental earnings benefits equal to sixty-six and two-thirds percent of the difference between the average monthly wages at time of injury and average monthly wages earned or average monthly wages the employee is able to earn in any month thereafter in any employment or self-employment, 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 the injury was particularly fitted by reason of education, training, and experience, such comparison to be made on a monthly basis. Average monthly wages shall be computed as four and three-tenths times the wages as defined in R.S. 23:1021(10). ... Thus, in such cases, the date of disability is the correct time in which to determine the compensation rate. We find that the WCJ erred in calculating Coats' SEB based upon his wages at the time of his retirement in 1992 rather than his wages at the time his disability arose.

Section 23:1221(3)(a) provides supplemental earnings benefits when a work-related injury leaves an employee unable to earn at least 90% of the pre-injury wage, calculated as two-thirds of the difference between pre-injury wages and post-injury earning capacity.

Bennett v. Rodeway Inn · filed 1999-04-21(3)(a)

La. R.S. 23:1221(3)(a) entitles an employee to SEB 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. (West 1998). ... SEB, if owed, is calculated on “sixty-six and two-thirds percent of the difference between the average monthly wages at time of injury and average monthly wages earned or average monthly wages the employee is able to earn in | Rany month thereafter in any employment or self-employment....” La. R.S. 23:1221(3)(a) (West 1998).

Section 23:1221(3)(a) provides supplemental earnings benefits when an injury prevents an employee from earning at least 90% of pre-injury wages, with benefits calculated from the difference between pre-injury and post-injury earning capacity, including self-employment income.

Briscoe v. Thero-Kinetics, Inc. · filed 1999-05-05(3)(a)

La. R.S. 23:1221(3)(a) provides: For injury resulting in the employee's inability to earn wages equal to ninety per cent or more of wages at time of injury, supplemental earnings benefits equal to sixty-six and two-thirds percent of the difference between the average monthly wages at time of injury and average monthly wages earned or average monthly wages the employee is able to earn in any month thereafter in any employment or self-employment, 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 the injury was particularly fitted by reason of education, training, and experience, such comparison to be made on a monthly basis. Average monthly wages shall be computed as four and three-tenths times the wages as defined in La. R.S. 23:1021(10). ... We find, therefore, that the WCJ was correct in awarding Plaintiff SEBs in the amount of the maximum rate of $307 per week for the period of November 1, 1994, to December 31, 1995.

Subsection (3)(a) provides supplemental earnings benefits when an injury leaves an employee unable to earn at least 90% of pre-injury wages, calculated as 66 2/3% of the wage difference.

Scuderi v. Crazy Johnnie Cafe, Inc. · filed 2002-10-16(3)

La. R.S. 23:1221 provides in part: (3) Supplemental earnings benefits. (a) For injury resulting in the employee's inability to earn wages equal to ninety percent or more of wages at time of injury, supplemental earnings benefits equal to sixty-six and two-thirds percent of the difference between the average monthly wages at time of injury and average monthly wages earned or average monthly wages the employee is able to earn in any month thereafter in any employment or self-employment, 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 the injury was particularly fitted by reason of education, training, and experience, such comparison to be made on a monthly basis. ... Reviewing the evidence as a whole, we find no manifest error in the workers' compensation judge's conclusion that the Plaintiff is entitled to SEBs from August of 1997 through July of 1998, in accordance with R.S. 23:1221.

Section 23:1221(3) requires a claimant seeking supplemental earnings benefits to prove that a work-related injury leaves the claimant unable to earn at least 90 percent of pre-injury wages.

Smith v. JE Merit Constructors, Inc. · filed 2002-11-08(3)

The payment of SEB is governed by La. R.S. 23:1221(3), which provides benefits for injury resulting in the employee's inability to earn wages equal to ninety percent or more of wages at time of injury, supplemental earnings benefits equal to sixty-six and two-thirds percent of the difference between the average monthly wages at time of injury and average monthly wages earned or average monthly wages the employee is able to earn in any month thereafter in any employment or self-employment, 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 the injury was particularly fitted by reason of education, training, and experience, such comparison to be made on a monthly basis. ... Thus, the claimant in a SEB case must prove by a preponderance of the evidence that his work-related injury rendered him unable to earn ninety percent of his pre-injury wages. ... The record amply supports the OWC's finding that Mr. Smith failed to prove by a preponderance of the evidence that his work-related injury resulted in his inability to earn ninety percent of his pre-injury wages. Therefore, Mr. Smith is not entitled to SEB.

Subsection (3) provides supplemental earnings benefits when a work injury prevents the claimant from earning 90% of pre-injury wages, and Subsection (3)(a) measures those benefits by the difference between pre-injury average monthly wages and proven post-injury monthly earning capacity.

Chelette v. RIVERWOOD INTERN. USA, INC. · filed 2003-04-30(3), (3)(a)

Supplemental earnings benefits are awarded when a work-related injury prevents the claimant from earning ninety percent of his pre-injury wages. La.R.S. 23:1221(3). 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. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97); 696 So.2d 551; La.R.S. 23:1221(3)(a). ... We agree with the trial court and hold that because the jobs identified were not approved by Dr. Rich, they were not deemed "available" under the Banks criteria. Accordingly, Riverwood failed to establish the three criteria of Banks needed in order to show that reducing claimant's SEB was warranted.

Section 23:1221(3)(a) provides supplemental earnings benefits when a work injury leaves an employee unable to earn at least 90% of pre-injury wages, with benefits based on the difference between pre-injury wages and post-injury earning capacity.

Short v. Allen Johnson Builders, Inc. · filed 2003-05-14(3)(a)

We therefore find the claimant failed to meet his initial burden of proving, by a preponderance of the evidence, that the injury to his knee resulted in his inability to earn ninety percent of his pre-injury wages after May 15, 2002. We find no error in the workers’ compensation judge’s termination of those benefits effective that date.

Section 23:1221(3)(a) entitles an injured employee to supplemental earnings benefits when a work-related injury prevents the employee from earning at least 90% of the average pre-injury wage, with benefits measured by the difference between pre-injury average monthly wages and post-injury earning capacity.

Mitchell v. Winnfield Holding Corp. · filed 2003-12-17(3)(a)

The purpose of SEB is to compensate an injured employee for the loss of wage earning capacity. Pinkins v. Cardinal Wholesale Supply, Inc., 619 So.2d 52 (La.1993). An employee is entitled to receive SEB 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). 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. Id.

Section 23:1221(3)(a) requires an employee seeking supplemental earnings benefits to prove by a preponderance that the employee cannot earn at least 90% of the pre-injury average weekly wage.

Hayes v. New Orleans Voodoo Football, Inc. · filed 2008-04-29(3)(a)

La. R.S. 23:1221(3) places the initial burden to prove disability on the claimant. In order to recover, the employee must first 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 before the accident. ... Hayes is only entitled to supplemental earnings if he can prove that he cannot earn 90% of the average weekly wage earned at the time of the accident. ... Accordingly, we find claimant is not entitled to supplemental earnings benefits after July of 2005 when he obtained employment as an automobile salesman.

Section 23:1221 provides supplemental earnings benefits when an injured employee cannot earn at least 90% of pre-injury wages, with the claimant bearing the initial burden to prove that threshold; for this professional football player, the wage comparison used pre-season pay rather than the promised annual contract salary.

Newsome v. New Orleans Saints · filed 2008-10-14(2), (3), (3)(d)(i)

La. R.S. 23:1221 sets out the schedules of compensation for the various categories of injuries within the statute. ... La. R.S. 23:1221(3) places the initial burden to prove disability on the claimant. In order to recover, the employee must first 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 before the accident. ... Thus, when calculating supplemental earnings, in accordance with La.R.S. 23:1221(3)(d)(i), the claimant would only be entitled to supplemental earnings if he was unable to earn at least 90% of his pre-season salary. The evidence in the record does not support such a finding. As such, we find the trial court erred in finding that the claimant is entitled to continuing benefits from January 1, 2004.

Section 23:1221(3) provides supplemental earnings benefits when an injured employee cannot earn at least 90% of pre-injury wages, calculated as two-thirds of the difference between pre-injury and post-injury average monthly wages.

Williams v. Tioga Manor Nursing Home · filed 2009-11-18(3)

Pursuant to La. R.S. 23:1221(3), an injured employee who is unable to earn at least ninety percent of his pre-injury wages is entitled to SEB in the amount equal to sixty-six and two-thirds percent of the difference between his or her average monthly wage at the time of the injury and the average monthly wages earned thereafter.

Section 23:1221(3)(a) requires a claimant seeking supplemental earnings benefits to prove inability to earn at least 90 percent of pre-injury wages and bases the benefit on the difference between pre-injury and post-injury monthly wages, while § 23:1221(3)(d) ends benefits upon a listed statutory event or after 520 weeks.

Williams v. Averitt Express, Inc. · filed 2009-04-01(3)(a), (3)(d)

According to the provision of La.R.S. 23:1221(3)(a), in order to be entitled to receive SEB, a claimant 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 before the accident. ... No end date is required in judgment as SEB discontinues by operation of law upon the occurrence of one of the events listed in La.R.S. 23:1221(3)(d) or the passage of five hundred and twenty weeks (the maximum period for which the right to SEB extends).

Section 23:1221(3)(a) requires an employee seeking supplemental earnings benefits to prove by a preponderance of the evidence that the work-related injury prevents earning at least 90 percent of pre-injury wages.

Brown v. Shop Rite, Inc. · filed 2011-11-02(3)(a)

In order to obtain SEBs, the claimant must show by a preponderance of the evidence that his work-related injury resulted in an inability to earn wages equal to at least ninety percent of his pre-disability wages.

For supplemental earnings benefits, the average weekly wage is based on what the worker was earning when injured, not later contract payments made while on injured reserve.

Campbell v. New Orleans Saints · filed 2013-05-16(3)(a)

Under the law in this circuit, the only figure of significance is the amount Mr. Campbell was earning at the time of his injury, which was $525 per week.

Section 23:1221(3)(a)(i) authorizes supplemental earnings benefits when an injury leaves an employee unable to earn at least 90% of the wages earned at the time of injury.

Johnson v. St. Francis Nursing & Rehabilitation Center · filed 2014-12-23(3)(a)(i)

An award of SEBs is appropriate when there is an “injury resulting in the employee’s inability to earn wages equal to ninety percent or more of wages at time of injury.” La.R.S. 23:1221(3)(a)(i).

Section 23:1221(3)(a)(i) makes SEBs appropriate when a work injury leaves an employee unable to earn at least 90% of pre-injury wages.

Johnson v. St. Frances Nursing & Rehabilitation Center · filed 2014-12-23(3)(a)(i)

An award of SEBs is appropriate when there is an “injury resulting in the employee’s inability to earn wages equal to ninety percent or more of wages at time of injury.” La.R.S. 23:1221(3)(a)(i). ... Based on the WCJ’s evaluation of Johnson’s credibility and the record before this court, there is a reasonable basis for the WCJ’s award of SEBs. Thus, this assignment or error is without merit.

Section 23:1221(3)(a)(i) calculates supplemental earnings benefits as 66 2/3 percent of the difference between average monthly pre-injury wages and average monthly wages earned or earnable after the injury.

Darwin v. Paretti Imports, Inc. · filed 2014-05-14(3)(a)(i)

Then, to calculate monthly SEB compensation, La. R.S. 23:1221(3)(a)(i) provides that SEB monthly compensation is “equal to sixty-six and two-thirds percent of the difference between the average monthly wages at Intime of injury and average monthly wages earned or average monthly wages the employee is able to earn in any month thereafter in any employment or self-employment....”

Section 23:1221(3)(a) requires an employee seeking supplemental earnings benefits to prove that the injury caused an inability to earn at least 90 percent of the pre-injury wages.

Edwards v. East Baton Rouge Parish School Board · filed 2014-11-07(3)(a)

The threshold prerequisite to recovery of SEB, as set forth in La. R.S. 23:1221(3)(a), is that the employee’s injury results in her inability to earn wages equal to 90 percent or more of the wages she was earning at the time of the injury.

Section 23:1221(3) reduces the maximum compensation period by one week for each week compensation is paid and provides no compensation for a week in which the employee earns wages exceeding the pre-injury wage.

Dick v. Charter Marketing Co. · filed 1990-04-12(3)

Under the express provisions of LSA-R.S. 23:1221(3) as it read at the time of plaintiff’s injuries, the employer is entitled to a reduction of one week of compensation against the maximum number of weeks compensation is payable and also for any week the employee actually received earnings.

Section 23:1221(3) allows a credit for wages a partially disabled worker earns after the injury.

Butts v. Procter & Gamble Co. · filed 1985-03-06(3)

As to the third item, there is no doubt the defendant is entitled to a credit based upon the earnings plaintiff received from his employment at TG & Y. See La.R.S. 23:1221.

Section 23:1221(1) provides temporary total disability benefits at two-thirds of wages for a work-related disability during the period of total disability.

Sparks v. TULANE MED. CTR. HOSP. & CL. · filed 1989-02-24(1)

We find that plaintiff suffered a temporary total disability from April 6, 1987 to September 30, 1987 as contemplated by La. R.S. 23:1221(1).

Section 23:1221(1) provides temporary total disability benefits when an injury leaves an employee unable to work in any gainful occupation; an employee who can work only in pain qualifies.

Coalgrove v. Spider Staging Sales Co. · filed 1988-08-16(1)

Dr. Doyle’s testimony, describing the extent and duration of Coalgrove’s injury, established Coalgrove’s disability and proved that Coalgrove was, as a result of his injury, unable to work in any occupation until July, 1987. An employee who can only perform work in pain is entitled to a temporary total disability award.

Section 23:1221(1) defines temporary total disability as the inability to engage in any self-employment or gainful occupation for wages, regardless of whether the work is the same or similar or one for which the employee is specially fitted by education, training, or experience.

Comeaux v. City of Ville Platte · filed 1993-05-05(1)

La.R.S. 23:1221(1) defines temporary total disability as the inability "... 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 ...".

Section 23:1221(1) provides temporary total disability benefits when an injury prevents an employee from engaging in any self-employment or gainful occupation for wages, and unsuccessful efforts to find work do not by themselves show that the employee can work.

Cowans v. Schwegmann Giant Supermarkets, Inc. · filed 1993-10-26(1)

The evidence shows that, while the doctors at times noted possibilities in relation to Co-wans’ ability to work, we find the comments are not definite as to this issue because he continued to become worse after the physical activity designed to get him to a state where he could begin searching for employment. ... However, we do not find that those unsuccessful attempts prove that he was able to return to work. This shows only that he tried to follow the recommendations of the medical personnel supervising his recovery efforts. Based on these facts, we cannot say that the trial judge erred in finding that Cowans was unable to return to work prior to the Wal-Mart accident. ... Thus, we affirm the judgment of the trial court awarding plaintiff benefits and medical payments for disability under La.R.S. 23:1221(1).

Section 23:1221(1)(C) requires a claimant seeking temporary total disability benefits to prove disability by clear and convincing evidence.

Polk v. Babineaux's Plumbing, Inc. · filed 1993-10-27(1)(C)

A claimant has the burden of proving his temporary total disability by clear and convincing evidence. La.R.S. 23:1221(1)(C). ... In relying on these reports and the plaintiff's testimony, the OWC administrative hearing officer clearly erred in concluding that Polk proved he was disabled by clear and convincing evidence. There is simply not enough evidence in the record to support this conclusion.

Section 23:1221(1) requires clear and convincing evidence that work-related pain is substantial enough to make gainful employment impossible to establish disability benefits.

Armond v. Starcastle Dinner Theatre, Inc. · filed 1999-01-26(1)

The burden of proof of disability while working in substantial pain is that of “clear and convincing evidence” under La. R.S.23:1221(1). ... The presence of pain without proof that this pain is substantial enough to make the pursuit of gainful employment an impossibility is inadequate under La.R.S. 23:1221(1).

Section 23:1221(1)(d) keeps a claimant temporarily totally disabled until the condition stabilizes such that further medical care is no longer useful, while § 23:1221(3)(c)(ii) deems an employee unable to perform offered work when clear and convincing evidence shows substantial pain alone prevents it.

Wiltz v. Baudin's Sausage Kitchen · filed 2000-06-19(1)(d) and (3)(c)(ii)

As noted in Sept v. City of Baker, 98-1190 (La.App. 1 Cir. 5/18/99); 733 So.2d 748, the ability to work is not mentioned in La.R.S. 23:1221(1)(d). That factor becomes controlling only after a claimant's condition has stabilized to such extent that it is reasonable to conclude further medical care will serve no useful purpose in restoring the patient's health or reducing the effects of the disabling injury. ... The fact that an employee might have the residual physical capacity to perform work and earned at least 90% of her pre-injury wage is not dispositive because La.R.S. 23:1221(3)(c)(ii) states "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."

Section 23:1221(1) requires a claimant who is not working to prove that pain is substantial enough to make pursuing gainful employment impossible in order to establish temporary total disability.

Ranalletta v. Chuy's Opco, Inc. and Argonaut Insurance Company · filed 2020-04-08(1)

In order for a claimant to prove an inability to engage in any employment on account of pain, La.R.S. 23:1221(1) requires proof that the pain is substantial enough to make the pursuit of gainful employment an impossibility.

Section 23:1221(2) provides total disability benefits to a worker who cannot work without substantial pain, even if the worker remains employed.

Calogero v. City of New Orleans · filed 1983-05-16(2)

Although plaintiff has not established his odd-lot eligibility entitling him to total and permanent disability benefits, we nonetheless find him eligible for such benefits by reason of his inability to engage in any employment without incurring substantial pain.

Section 23:1221(3)(d)(i) governs termination of supplemental earnings benefits after they have been awarded; it does not govern a claimant's first-time claim for those benefits.

Bibbins v. Boh Brothers Const. Co. · filed 1999-10-13(3)(d)(i)

La.R.S. 23:1221(3)(d)(i), cited and relied on by Boh Brothers in support of its prescription exception as to the claim for SEBs, addresses itself to the termination of SEBs after the benefits have been awarded. It does not pertain to the case before us herein, wherein claimant is asserting for the first time his right to SEBs.

After an employee has received at least 104 weeks of supplemental earnings benefits, the provision terminating those benefits when the employee begins receiving old-age Social Security benefits unconstitutionally denies equal protection, so the benefits may extend to 520 weeks.

Clay v. City of Jeanerette · filed 2000-05-31(3)(d)(iii)

Pierce v. Lafourche Parish Council, 99-2854, pp. 8-9 (La.5/16/00); 762 So.2d 608, 614, recently concluded that: The statute's application results in disparate treatment of employees over age 62 from employees under age 62 and thus constitutionally discriminates against those persons on the basis of age. In sum, we conclude that the part of La.R.S. 23:1221(3)(d)(iii) which provides that supplemental earnings benefits shall terminate `when an employee begins to receive old age insurance benefits under Title II of the Social Security Act' after having received not less than one hundred four weeks of supplemental earnings benefits unconstitutionally denies plaintiff equal protection of the laws under article I, § 3 of the Louisiana Constitution. Thus, Mr. Clay's SEB under La.R.S. 23:1221(3)(d) extends to 520 weeks.

Section 23:1221(3)(d)(i) sets a condition for terminating supplemental earnings benefits during the entitlement period, rather than a deadline for filing an SEB claim.

Dufrene v. VIDEO CO-OP, LA. WORKERS'COMP. · filed 2003-04-09(3)(d)(i)

We agree with the Fifth Circuit that § 1221(3)(d)(i) sets forth a circumstance under which an employee's SEB payments will terminate, and is not a prescriptive statute.

Section 23:1221(3)(d)(iii) ends supplemental earnings benefits when the employee retires, subject to a minimum payment period of 104 weeks; that limitation does not apply to temporary total disability benefits absent a justified shift to supplemental earnings benefits.

Glover v. General Motors · filed 2004-08-18(3)(d)(iii)

The basis for termination of benefits urged by General Motors and accepted by the WCJ is R.S. 23:1221(3)(d)(iii), which states (with emphasis added): ... (iii) When the employee retires; however, the period during which supplemental earnings benefits may be payable shall not be less than one hundred four weeks. General Motors' LDOL Form 1003 (stop payment form) clearly indicates that it had paid Ms. Glover temporary total disability benefits for 141 weeks. There is no indication that it ever paid her any SEB. For this reason, the 104-week limitation of 23:1221(3)(d)(iii) simply does not apply.

Section 23:1221(3)(d)(i) terminates an employee’s right to supplemental earnings benefits at the end of a two-year period after termination of temporary total disability unless supplemental earnings benefits were payable for at least thirteen consecutive weeks during that period.

Anthony F. Elie, Sr. v. Sears Roebuck and Company · filed 2006-09-27(3)(d)(i)

Louisiana Revised Statute 23:1221(3)(d)(i) sets forth the circumstances under which an employee’s SEB payments will terminate. It provides: (3) Supplemental earnings benefits. .... (d) The right to supplemental earnings benefits pursuant to this Paragraph shall in no event exceed a maximum of five hundred twenty weeks, but shall terminate: (i) As of the end of any two-year period commencing after termination of temporary total disability, unless during such two-year period supplemental earnings benefits have been payable during at least thirteen consecutive weeks[.] Thus, Mr. Elie’s right to SEB will be terminated if he cannot show that, during any two-year period, supplemental earnings benefits have been payable during at least thirteen consecutive weeks. The record before us does not show that this event occurred.

Supplemental earnings benefits terminate at the end of a two-year period after temporary total disability unless they were payable for at least thirteen consecutive weeks during that period.

Elie v. Sears, Roebuck & Co. · filed 2006-09-27(3)(d)(i)

Louisiana Revised Statute 23:1221(3)(d)(i) sets forth the circumstances under which an employee’s SEB payments will terminate. ... Thus, Mr. Elie’s right to SEB will be terminated if he cannot show that, during any two-year period, supplemental earnings benefits have been payable during at least thirteen consecutive weeks. The record before us does not show that this event occurred.

For purposes of § 23:1221(3)(d)(iii), retirement means leaving work with no intention of returning regardless of disability; an employee who retired because of a disability but remains willing to perform suitable light-duty work is not considered retired.

Key v. Monroe City School Board · filed 2010-03-10(3)(d)(iii)

The retirement referred to in § 1221 (3) (d) (iii) is not resignation from work because of disability; it refers only to a worker who has no intention of returning to work regardless of disability. ... When a worker has retired from a heavy work duty job but is still willing to take on light duty employment within the scope of the limitations imposed by her disability, then that worker is said not to have withdrawn from the workforce and is not considered retired under § 1221 (3)(d)(iii).

Under § 23:1221(3)(d)(iii), supplemental earnings benefits terminate when an employee retires, but retirement requires an intent not to return to work, and willingness to perform suitable light-duty work means the employee has not retired.

Normand v. Dresser Industries, Inc. · filed 2011-11-09(3)(d)(iii)

The retirement referred to in § 1221(3)(d)(iii) is not resignation from work because of disability; it refers only to a worker who has no intention of returning to work regardless of disability. When a worker has retired from a heavy work duty job but is still willing to take on light duty employment within the scope of the limitations imposed by her disability, then that worker is said not to have withdrawn from the workforce and is not considered retired under § 1221(3)(d)(iii). ... Only then did the burden shift to Dresser to prove that Normand had retired under La.R.S. 23:1221(3)(d)(iii).

Section 23:1221(3)(c)(i) requires an employer seeking to reduce or terminate supplemental earnings benefits based on earning capacity to establish that a suitable job exists within the worker’s community or reasonable geographic region, at a wage the worker could be expected to earn, and that the position actually existed when the worker was notified.

Magbee v. Federal Express · filed 2012-12-12(3)(c)(i)

It is implicit in the language “earning capacity is established pursuant to La. R.S. 23:1221(3)” that no unilateral actions, i.e., reduction or termination, can be taken by FedEx until it first satisfies the criteria of La.R.S. 23:1221(3)(c)(i) and Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La. 7/1/97), 696 So.2d 551, that a suitable job exists within Mr. Magbee’s and FedEx’s community or reasonable geographic region; at a wage Mr. Magbee, considering his experience and training, would be expected to earn; and that the position actually existed when FedEx notified Mr. Magbee about the opening. Peters v. Gen. Motors Corp., 39,279 (La.App. 2 Cir. 1/26/05), 892 So.2d 717. FedEx can only do this by a judicial proceeding before the WCJ in which it presents evidence proving its claim.

Under § 23:1221(3)(d)(iii), supplemental earnings benefits terminate when the employee retires, but the payable period may not be less than 104 weeks; retirement for this purpose generally means withdrawal from the workforce based on age or years of service, and disability retirement does not necessarily qualify.

Miley v. Bogalusa Fire Department · filed 2015-03-06(3)(d)(iii)

On the other hand, unemployment caused solely by employment injury is not considered “retirement” for purposes of terminating SEB payments. ... The “retirement” which restricts SEB payments is that based on age or years of service resulting in some type of pension. ... In doing so, the Supreme Court rejected the notion that “retirement” for purposes of receiving benefits under a disability pension policy necessarily constitutes “retirement” within the meaning of La. R.S. 2S:1221(3)(d)(iii).” ... For these reasons, we conclude that Mr. Miley was not retired from the workforce and proved his entitlement to SEB payments beyond 104 weeks, and we find no error in the workers’ compensation judge’s award of SEB payments to him.

Section 23:1221(3)(d)(i) governs when supplemental earnings benefits terminate; it does not shorten the time to file an initial claim for those benefits.

Cormier v. Housing Authority of Lafayette · filed 2003-04-30(3)(d)(i)

After reviewing the record and the jurisprudence, we agree with the workers’ compensation judge that the three-year prescriptive period found in La.R.S. 23:1209 applies to the facts at hand. ... Finally, the supreme court has just rendered an opinion in Dufrene, wherein it reversed the first circuit finding that La. R.S. 23:1221(3)(d)(i) applied under the factual scenario at issue.

Section 23:1221(3)(d)(iii) limits a retired employee’s supplemental earnings benefits to 104 weeks.

Adams v. Ga. Gulf Lake Charles, LLC · filed 2018-06-27(3)(d)(iii)

Under the provisions of La.R.S. 23:1221(3)(d)(iii), "[w]hen the employee retires ... the period during which supplemental earnings benefits may be payable shall not be less than one hundred four weeks." Because the record supports the fact that Mr. Adams has not sought employment since his retirement in June 2011, and that he now considers himself retired, we amend the WCJ's judgment to limit Mr. Adams' SEB payments to 104 weeks.

Subsection (4)(p)'s disfigurement benefits apply only when an injury is not covered by another specific disability provision; loss of an index finger is covered by (4)(b), and partial loss is calculated under (4)(o).

Smith v. Howard Steel Erection, Inc. · filed 1988-06-07(4)(p), (4)(b), (4)(o)

By its express language, La.R.S. 23:1221(4)(p) applies only “[i]n cases not falling within any of the provisions already made.” Since La.R.S. 23:1221(4) contains specific provisions governing loss of an index finger, Subsection (p) does not apply. ... La.R.S. 23:1221(4)(b) provides that an employee is entitled to 30 weeks of compensation if he loses his entire index finger. When an anatomical loss or amputation is only partial, La.R.S. 23:1221(4)(o) provides that “compensation shall bear such proportion to the number of weeks provided for herein for the total loss of such members as the percentage loss or impairment to such members bears to the total loss of the member.” Since plaintiff’s doctor estimates his loss as 20 percent, plaintiff is entitled to 20 percent of 30 weeks, or six weeks, of benefits.

Section 23:1221(1) covers temporary total disability when the worker cannot engage in any self-employment or gainful occupation; § 23:1221(2) covers permanent total disability; after the worker can return to some employment, the possible benefits are supplemental earnings benefits under paragraph (3) or permanent partial disability benefits under paragraph (4).

Nat. Union Fire Ins. Co. v. Workers'comp. Second Injury Bd. · filed 1988-11-22(1), (2), (3), (4)

For Simpson to have a temporary total disability, he had to be unable to engage in any self-employment or gainful occupation for wages. La.R.S. 23:1221(1). After December 17, 1984, Simpson was able to return to some types of employment and was no longer totally disabled. For this same reason, after December 17, 1984, Simpson did not have a permanent total disability claim either. La. R.S. 23:1221(2). Thus, after December 17, 1984, Simpson was entitled either to permanent partial disability benefits, La.R.S. 23:1221(4), or supplemental earnings benefits, La.R.S. 23:1221(3), or he was entitled to no benefits at all.

Section 23:1221 makes temporary or permanent total disability benefits unavailable to an employee capable of employment, reserves permanent partial disability for anatomical loss or an impairment rating, and leaves supplemental earnings benefits as the possible remaining indemnity benefit.

Sensat v. Washington Group International, Inc. · filed 2012-12-12(1)(b), (2)(a), (4)

The employee bears the burden of proving disability by clear and convincing evidence. La.R.S. 23:1221. Under the statutory scheme, Sensat is not eligible for temporary or permanent total disability, because he is capable of employment, and has in fact engaged in employment. La. R.S. 23:1221(l)(b) and (2)(a). Permanent partial disability is reserved for loss of use of an anatomical part or establishment of an impairment rating. La.R.S. 23:1221(4). That leaves supplemental earnings benefits the only indemnity benefit for which Sensat might be eligible.

Section 23:1221(3)(c)(i) permits an employer to prove available work by showing that jobs are generally available within the employee's capacity in the employee's community or reasonable geographic region.

Ambrose v. Fluor Constructors, Inc. · filed 1989-01-25(3)(c)(i)

This court has previously held that an employer may meet his burden of proving that there are jobs available to the employee as contemplated by La.R.S. 23:1221(3)(c)(i) by showing that jobs are generally available within the range of the employee's capacity. ... Based upon this evidence we feel the defendants met their burden of proving that employment was available to plaintiff in his community or reasonable geographic region as set forth in La.R.S. 23:1221(3)(c)(i).

Section 23:1221(3)(c)(i) requires the employer to prove that suitable employment is available in the employee's or employer's community or reasonable geographic region, and permits that proof to be rebutted by economic or other conditions.

Romero v. Grey Wolf Drilling Co. · filed 1992-02-12(3)(c)(i)

Our task here is to determine the meaning of that portion of LSA-R.S. 23:1221(3)(c)(i) which refers to employment "which is proven available to the employee in the employee's or employer's community or reasonable geographic region." The employer bears the burden of proving the availability of such employment. ... While Kreider does appear to stand for this proposition, the case is perhaps more important for recognizing that such proof may be rebutted by showing that "economic and other conditions" belie such availability. ... Accordingly, we will remand the matter to the trial court with directions to hold a new trial restricted to the issue of availability of employment to Romero in connection with determining the amount of SEB to which he may be entitled.

Under § 23:1221(3)(c)(i), an employer must show that an unemployed or underemployed employee is physically capable of performing offered or available work, and job availability alone is insufficient if the employee cannot realistically perform it.

Lavergne v. Lake Charles Memorial Hosp. · filed 1993-10-06(3)(c)(i)

Merely showing the "availability of jobs" in the geographical area which pays 90% or more of an injured worker's wage is not sufficient to overcome the burden of proof required by La.R.S. 23:1221(3)(c)(i) if "realistically" the jobs cannot be performed by the worker.

Section 23:1221 provides SEB when a work injury leaves an employee unable to earn at least 90 percent of pre-injury wages, but an employee who is physically able to work and has available jobs cannot decline work and continue receiving SEB.

Blanchard v. Federal Exp. Corp. · filed 1995-11-09(3)(a), (3)(c)(i)

A plaintiff is entitled to SEB if the injury has resulted in the employee's inability to earn wages equal to ninety percent or more of wages at the time of injury. La.R.S. 23:1221(3)(a). The injured 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. Freeman v. Poulan/Weed Eater, 93-1530, p. 7 (La. 1/14/94), 630 So.2d 733, 739. If this burden is met, the burden shifts to the employer who must demonstrate jobs were offered or are available and the employee is physically able to perform them. Id. The SEB statute does not permit a claimant to choose not to work and still collect SEB when he is physically able to work and jobs are available.

For supplemental earnings benefits, a job is proven available when it exists within the employee’s or employer’s community or reasonable geographic region; an offered position at the employee’s former workplace can satisfy that requirement.

Gilley v. Reeves Deli Mart · filed 1998-04-08(3)(c)(i)

The statute states that the job must be "proven available to the employee in the employee's or employer's community or reasonable geographic region." (Emphasis added.) La. R.S. 23:1221(3)(c)(i). Given the facts of this case, including the employer's proposal that claimant return to a job at the deli mart where she previously worked, and with personal decisions unrelated to any disability having caused Gilley to move from Oak Grove, we agree that the employment offered by Reeves clearly constitutes a proven available position within the meaning of the statute.