La. Stat. Ann. § 23:1221

Section 23:1221(l)(a) provides temporary total disability benefits when an injured employee cannot engage in any occupation for wages, and those benefits continue until the employee can again engage in gainful employment, even after termination.

Thomas v. Lafayette Parish School System · filed 2014-12-10(l)(a)

Temporary Total Disability benefits- are paid when an employee cannot engage in any occupation for wages. La. R.S. 23:1221(l)(a). The benefits continue until the claimant is again able to engage in some kind of employment, even if the claimant is no longer an employee of the employer. ... TTD benefits are triggered by the injury, and continue until the employee re-, turns to gainful employment, of any kind. An employee may, therefore, claim TTD benefits even after termination by the employer, provided the injury causing the disability occurred in the course and scope of employment.

Section 23:1221(1)(c) requires an employee seeking temporary total disability benefits to prove that a work-related injury prevents the employee from physically engaging in any employment or self-employment.

Strother v. City of Marksville - Police Department · filed 2015-02-11(1)(c)

In order to receive temporary total disability benefits, an employee must prove that he is unable to physically engage in any employment or self-employment as a result of his work-related injury. La.R.S. 23:1221(1)(c).

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

Vargas v. Petrin Corp. · filed 2013-03-22(1)(c)

Additionally, we note that an employee seeking TTD benefits must prove by clear and convincing evidence— that is, to demonstrate that the existence of a disputed fact is much more probable than not — that he is physically unable to engage in any employment.

Section 23:1221(1) treats an employee released to return to work, even with restrictions, as able to engage in some self-employment or gainful occupation for wages, so temporary total disability payments are no longer owed.

Dillard's, Inc. v. Nichols · filed 2015-05-28(1)

We also consider that, when a claimant reaches maximum medical improvement and is released to return to work, TTD’s [temporary total disability payments] are no longer owed. This is because when the employee is released to return to work, albeit with restrictions, he is deemed to be able to engage in some self-employment or gainful occupation for wages as contemplated by La. R.S. 23:1221(1).

Section 23:1221(1)(d) ends temporary total disability benefits when the employee’s condition has stabilized enough to determine the extent of disability and continued regular physician treatment is no longer required; after maximum medical improvement, an employee able to work is instead limited to supplemental earnings benefits if unable to earn 90% of pre-accident wages.

Numa C. Hero & Son v. Louisiana Home Builders Ronald Leleux · filed 2015-10-28(1)(d)

While the parties in this matter focus on the burden of proof applicable to establish the WCJ’s jurisdiction under La.R.S. 23:1310.8, we note that Numa Hero’s burden to modify Mr. Leleux’s benefits from TTD to SEB is actually two-fold: (1) It must prove by a preponderance of the evidence that there was a change in Mr. Leleux’s condition or circumstances in order to establish the WCJ’s jurisdiction; and (2) It must also prove by a preponderance of the evidence that, because of Mr. Leleux’s change in condition or circumstances, his entitlement to TTD under La.R.S. 23:1221(1)(d) has ceased. ... Even though Numa Hero sought to modify TTD benefits to SEB and did not seek to terminate benefits altogether, TTD benefits would nevertheless cease. Therefore, La.R.S. 23:1221(1)(d) is applicable to the analysis. ... (d) An award of benefits based on temporary total disability shall cease when the physical condition of the employee has resolved itself to the point that a reasonably reliable determination of the extent of disability of the employee may be made and the employee’s physical condition has improved to the point that continued, regular treatment by a physician is not required. ... “In other words, when the claimant no longer requires treatment and his physical condition has stabilized, an award for TTD benefits is no longer appropriate and a determination regarding the extent of the Claimant’s disability must be made.” ... Upon reaching maximum medical improvement, an injured worker who is able to return to work, even in pain, is no longer eligible for TTD benefits, but instead is relegated to SEB benefits if he is unable to earn 90% of his pre-accident wages.

Section 23:1221(1)(c) requires a claimant seeking temporary total disability benefits to prove by clear and convincing evidence that the claimant is physically unable to engage in any gainful occupation, supported by objective expert medical testimony.

Namias v. Sunbelt Innovative Plastics, LLC · filed 2016-02-24(1)(c)

A worker seeking to recover indemnity benefits for, a TTD must prove by clear and convincing evidence that he. is physically unable to engage, in any gainful occupation, whether or not the same type of work he was engaged in at the, time of the injury. ... The claimant must provide objective, expert testimony as to his medical condition, symptoms, pain, and treatment, in addition to personal testimony, in order to meet this standard. ... In the absence of clear and convincing evidence that the employee is physically unable to engage in any employment, the claimant’s demand for temporary total disability benefits must fail.

Section 23:1221(1)(c) requires an employee seeking temporary total disability benefits to prove by clear and convincing evidence, without relying on a presumption of disability, that the employee is physically unable to perform any employment, including work while in pain.

Gaines v. Home Care Solutions, LLC · filed 2016-04-06(1)(c)

To prove entitlement to temporary total disability benefits, an employee must prove by “clear and convincing evidence, unaided by the presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardT less of the nature or character of the work, including but not limited to employment while working in pain.”

Section 23:1221(l)(a) provides temporary total disability benefits when an employee is temporarily unable to engage in self-employment or any wage-earning occupation, regardless of whether it is the employee's customary or specially fitted occupation.

Hill v. Iasis Glenwood Regional Medical · filed 2016-05-18(l)(a)

Benefits for TTD are based on “temporary total disability of an employee to engage in any self-employment or occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured, and whether or not an occupation for which the employee at- the time of injury was particularly fitted by reason of education, training, or experience!/]” La. R.S. 23:1221(l)(a). ... On this evidence, we cannot say Lathe WCJ abused her discretion in finding Ms. Hill qualified for TTD. This assignment of error lacks merit.

Section 23:1221(l)(c) requires a claimant seeking temporary total disability benefits to prove by clear and convincing evidence that the claimant is physically unable to engage in any employment.

New Line Environmental & Canal HR v. Davis · filed 2016-10-07(l)(c)

Pursuant to La. R.S. 23:1221(l)(c), a claimant has the burden of proving temporary and total disability by clear and convincing evidence. In the absence of clear and convincing evidence that the employee is physically unable to engage in any employment, the claimant’s demand for TTD benefits must fail. Roussell v. St. Tammany Parish School Board, 04-2622, p. 10 (La.App. 1 Cir. 8/23/06), 943 So.2d 449, 467, writ not considered, 06-2362 (La. 1/8/07), 948 So.2d 116. Clear and convincing proof has been defined as an intermediate standard falling somewhere between the ordinary “preponderance of the evidence” civil standard and the “beyond reasonable doubt” criminal standard. Clear and convincing proof requires objective medical evidence of the disabling condition causing the employee’s inability to engage in any employment. Boussell, 04-2622 at p. 10, 943 So.2d at 457-58.

Section 23:1221(1)(a) entitles a claimant with a work-related injury causing temporary total disability to indemnity benefits equal to 66⅔% of wages during the disability period.

Tingle v. Page Boiler, Inc. · filed 2016-01-13(1)(a)

A claimant is entitled to TTD benefits if he sustains a work-related injury producing temporary total disability to engage in any self-employment or occupation for wages, whether or not the same or a similar occupation as that in which he was customarily engaged when injured, and whether or not an occupation for which he was at the time of the injury particularly fitted by reason of education, training or experience.

Section 23:1221 requires a claimant seeking temporary total disability benefits to prove by clear and convincing evidence that the claimant is physically unable to engage in any employment or self-employment, and compensation cannot be awarded for periods in which the claimant was employed.

Dow v. Chalmette Restaurant, Ltd. · filed 2016-05-18(1)(C); (1)(b)

The workers’ compensation statute provides that an employee who suffers a workplace injury shall be awarded TTD benefits only' when the employee proves by clear and convincing evidence, 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-liaemployment.”’ La. R.S. 23:1221(1)(C). ... Compensation cannot be awarded for those periods in which Ms. Dow was employed. La. R.S. 23:1221(l)(b).

Section 23:1221(l)(c) requires a claimant seeking temporary total disability benefits to prove by clear and convincing evidence that an injury physically prevents any employment or self-employment.

Villatoro v. Deep South BH & R Enterprises, LLC · filed 2016-12-07(l)(c)

Under La. R.S. 23:1221(l)(c), to establish entitlement to temporary total disability benefits, a claimant must prove by clear and convincing evidence that she is physically unable to engage in any employment or self-employment due to her injury.

Section 23:1221(l)(a) sets temporary total disability compensation at 66 2/3% of wages during the period of disability, without capping the combined receipt of those benefits and sabbatical-leave pay.

Bay v. Jefferson Parish Public Schools · filed 2017-04-26(l)(a)

Under La. R.S. 23:1221(l)(a), an injured worker entitled to TTD benefits is paid compensation benefits in the amount of “sixty-six and two-thirds percent of wages during the period of [temporary total] disability.” ... None of these statutes provides for a cap on benefits where both workers’ compensation and sabbatical leave benefits are paid to an injured worker.

Section 23:1221(1)(C) requires an employee seeking temporary total disability benefits to prove by clear and convincing evidence, supported by objective medical evidence, that a workplace injury makes the employee physically unable to engage in any employment or self-employment.

Boyd v. CCMSI · filed 2018-12-26(1)(C)

This Court has further stated that "[t]he workers' compensation statute provides that an employee who suffers a workplace injury shall be awarded TTD benefits only when the employee proves by clear and convincing evidence that the employee 'is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment.' " La. R.S. 23:1221(1)(C). This Court only requires that an employee seeking TTD benefits introduce "objective medical evidence" to sustain his or her claim by clear and convincing evidence.

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

Matthews v. Big Easy Janitorial, L.L.C., and Louisiana Construction and Industry Self Insurers Fund · filed 2022-08-10(1)(c)

Temporary total disability is paid to workers injured in the course and scope of their employment “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.” La. R.S. 23:1221(1)(c). ... Thus, a reasonable factual basis exists for the trial court’s finding of temporary total disability and the trial court did not err in awarding temporary total disability.

Temporary total disability benefits cease when the employee’s physical condition has sufficiently resolved for a reasonably reliable determination of disability and has improved so that continued regular physician treatment is no longer required.

Lentz v. City of New Orleans, Police Department · filed 2022-12-15(1)(d)

La. R.S. 23:1221(1)(d) provides that TTD benefits “shall cease when the physical condition of the employee has resolved itself to the point that a reasonably reliable determination of the extent of disability of the employee may be made and the employee’s physical condition has improved to the point that continued, regular treatment by a physician is not required.” ... Considering the record as a whole, including the credibility determinations made by the WCJ, we find no manifest error in the WCJ’s finding that the City improperly modified Lentz’s benefits.

Subsection (1) requires a claimant seeking temporary total disability benefits to prove by clear and convincing evidence, without a presumption of disability, that a work-related injury leaves the claimant unable to perform any employment.

Clover v. Redfish Rentals, Inc. and Summit · filed 2023-02-08(1)

For Claimant to receive TTD benefits, he must prove by clear and convincing evidence unaided by any presumption of disability, that he is physically unable to engage in any employment as a result of a work-related injury. La.R.S. 23:1221(1).

Section 23:1221(1)(a) defines temporary total disability as inability to engage in any self-employment or wage-earning occupation, and subsection (1)(b) bars TTD when the claimant can work in odd-lot, sheltered, or pain-limited employment.

Salter v. DeSoto Parish Police Jury and Jean Simpson Personnel Services · filed 2023-05-17(1)(a), (1)(b)

“Benefits for TTD are based on “temporary total disability of an employee to engage in any self-employment or occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured, and whether or not an occupation for which the employee at the time of injury was particularly fitted by reason of education, training, or experience[.]” La. R.S. 23:1221(1)(a). TTD may not be awarded if the claimant can engage in odd-lot employment, sheltered employment, or employment while working in any pain. La. R.S. 23:1221(1)(b). ... Here, we find the WCJ erred in awarding benefits beyond October 28, 2019, when Mrs. Salter was discharged. ... Based on the record, Mrs. Salter was able to continue working, even if she was limited by no heavy lifting and wearing her brace as needed. Therefore, we modify Mrs. Salter’s award of weekly wages and medical treatment to continue only through October 28, 2019, when she was discharged. We reverse the WCJ’s award of any and all benefits beyond October 28, 2019.”

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

Miken Specialties v. Abarca · filed 2016-12-07

La. R.S. 23:1221 provides that a claimant who seeks such benefits for a work related injury bears the burden of proving, “by clear and convincing evidence unaided by any presumption of disability, that [he] is physically unable to engage in any employment or self-employment.”

Section 23:1221(1)(a) provides temporary total disability benefits when an injured employee cannot engage in self-employment or any wage-earning occupation.

Thibodeaux v. St. Mary Parish School Board · filed 2020-06-24(1)(a)

Louisiana Revised Statute 23:1221( a) pertains to temporary total disability (" TTD") under the Workers' Compensation Act. TTD benefits are paid to an employee -claimant injured while engaged in employment, and when that employee can no longer engage in any " self-employment or occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured." La. R.S. 23:1221( 1)( a).

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

Jenson v. Berry Global Group, Inc. · filed 2023-08-09(1)(C)

La. R.S. 23:1221(1)(C) states: For purposes of Subparagraph (1)(a) of this Paragraph, whenever the employee is not engaged in any employment or self-employment as described in Subparagraph (1)(b) of this Paragraph, compensation for temporary total disability shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including but not limited to any and all odd-lot employment, sheltered employment, or employment while working in any pain, notwithstanding the location or availability of any such employment or self- employment. ... The clear and convincing evidence shows that Donald suffered a work-related injury to his lower back that resulted in his inability to return to work as a senior forklift operator. ... For these reasons, we find Plaintiffs are entitled to the award of TTD benefits and this assignment of error is without merit.

Section 23:1221(1) requires a claimant seeking temporary total disability benefits to prove by clear and convincing evidence that he is unable to work, supported by objective medical evidence of a disabling condition.

Brunner v. Naes Corporation and Zurich American Insurance Company · filed 2025-01-29(1)

Under La.R.S. 23:1221(1), to be entitled to TTD benefits, a claimant must prove by clear and convincing evidence that he is unable to work. This burden requires “introducing objective medical evidence supporting the existence of a disabling condition.”

Section 23:1221(1)(a) provides temporary total disability benefits during the period of disability, and subsection (1)(d) governs future temporary total disability benefits until the claimant is no longer entitled to them.

Cormier v. Swla Center for Health Services · filed 2026-06-03(1)(a), (1)(d)

As such, Plaintiff is entitled to temporary total disability benefits during her period of disability. La.R.S. 23:1221(1)(a). Based on Plaintiff's wage records, her average weekly wage was $775.68, with a corresponding compensation rate of $517.38. Accordingly, we award Plaintiff $95,818.78 in temporary total disability benefits for the period between November 3, 2022, through May 22, 2026. We further award her future temporary total disability benefits at the rate of $517.38 per week until she is no longer entitled to such benefits pursuant to La.R.S. 23:1221(1)(d).

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

Hawthorne v. Louisiana Department of Agriculture & Forestry · filed 2004-02-04(l)(c)

Compensation for temporary total disability is available “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.” La.R.S. 23:1221(l)(c).

Section 23:1221 requires a claimant seeking temporary or permanent total disability benefits to prove by clear and convincing evidence that the injury prevents the claimant from engaging in any type of employment.

Sanchez v. AIG Insurance & Memco, Inc. · filed 2017-10-25(1)(c), (2)(c)

/Whether a workers’ compensation claimant seeks temporary or permanent total disability benefit's, the claimant bears the burden of proving, by clear and convincing evidence, his inability to engage in any type of employment.

Section 23:1221 provides temporary total disability benefits when an employer’s intentional act causes a disabling psychological injury.

Gagnard v. Baldridge · filed 1993-02-18

The benefits under the compensation act include both medical expenses (La.R.S. 23:1203) and disability benefits (La.R.S. 23:1221). ... In sum, we conclude that plaintiff is entitled to temporary total disability benefits as a result of the intentional act of her employer.

Section 23:1221(1) supports temporary total disability benefits when medical evidence shows the worker cannot return to work.

Bordelon v. Inland Indus. Contractors · filed 2001-01-31(1)

The judgment contemplates a discontinuation of benefits or a reduction of benefits to SEBs, thus, the award was for TTDs. See La.R.S. 23:1221(1) and (3). ... The medical evidence supports the workers' compensation judge's conclusion that Mr. Bordelon cannot return to work. ... There is no error in the workers' compensation judge's award of TTDs.

Section 23:1221(1)(c) requires a claimant seeking temporary total disability benefits to prove by clear and convincing objective medical evidence that she is physically unable to engage in any employment.

Lormand v. Rossclaire Construction · filed 2001-12-12(1)(c)

However, because Lormand seeks TTD benefits the workers’ compensation judge noted that she must prove by clear and convincing objective medical evidence that she is physically unable to engage in any employment. ... Accordingly, this assignment has no merit.

Section 23:1221(1)(c) allows temporary total disability benefits only when the employee proves by clear and convincing evidence that she cannot engage in any employment.

Jones v. General Motors Corp. · filed 2003-05-16(1)(c)

However, there is no support in the record for a finding of Jones' inability to work after June 7, 1999, and the judgment of the WCJ is hereby amended to award TTD benefits only until June 7, 1999.

Section 23:1221(1) and (3) place the initial burden on a claimant to establish entitlement to temporary total disability and supplemental earnings benefits.

Fluitt v. Christus St. Frances Cabrini Hospital · filed 2006-06-28(1), (3)

In its third assignment of error, Cabrini correctly points out that the burden of proof is on Ms. Fluitt to establish entitlement to TTDs [La.R.S. 23:1221(1)] as well as SEBs [La.R.S. 23:1221(3)].

Section 23:1221 requires a claimant to prove disability by the clear-and-convincing standard.

Trimble v. Hadco Services, Inc. · filed 1994-06-01

The hearing officer was correct in characterizing Trimble’s burden of proof as the higher clear and convincing standard. See La.R.S. 23:1221.

Subparagraph (1)(c) requires a workers' compensation claimant to prove temporary total disability by clear and convincing evidence for work-related injuries occurring after January 1, 1990.

Ceasar v. Crispy Cajun Restaurant · filed 1994-10-05(1)(c)

By Act No. 454, § 6 of 1989, effective January 1, 1990, the legislature amended La.R.S. 23:1221(1) by adding subparagraph (1)(c), which raised the workers' compensation claimant's burden of proving temporary total disability from a preponderance to clear and convincing. That more stringent burden of proof applies to work-related injuries occurring after January 1, 1990.

Section 23:1221(l)(c) requires a workers’ compensation claimant to prove disability by clear and convincing evidence.

Benoit v. Martco Partnership · filed 1995-05-03(l)(c)

The plaintiff in a workers’ compensation case bears the burden of proving his or her disability by clear and convincing evidence.

Section 23:1221(1)(c) requires a claimant seeking temporary total disability benefits to prove disability, or inability to engage in any employment, by clear and convincing evidence.

Cormier v. Resthaven Nursing Home · filed 1996-01-17(1)(c)

Regarding weekly indemnity benefits, a claimant is entitled to total temporary disability benefits if she meets the burden of proving her disability, or her inability to engage in any employment, by clear and convincing evidence. La.R.S. 23:1221(1)(c).

Section 23:1221(1)(c) requires an employee seeking temporary total disability benefits to prove by clear and convincing evidence that the disability prevents employment.

Teel v. Superior Scrap Metals · filed 1996-05-15(1)(c)

Under La.R.S. 23:1221(1)(c) he has the burden of proving by clear and convincing evidence such disability. ... We conclude Teel has met his burden of proving temporary total disability from June 3, 1993 to September 2, 1993. ... The record is insufficient for this court to determine whether Teel is entitled to La.R.S. 23:1221(3), Supplemental Earnings Benefits, "a lesser included element of temporary total benefits."

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

Foster v. Liberty Rice Mill · filed 1996-12-11(1)

However, under the statute, as amended, the claimant must prove the nature and extent of his disability by clear and convincing proof, unaided by any presumption of disability, that he is physically unable to engage in any employment or self-employment. ... However, in the absence of clear and convincing evidence that the employee is physically unable to engage in any employment, the claimant's demand for temporary total compensation benefits, must fail.

Section 23:1221 requires clear and convincing evidence for temporary total disability benefits and a preponderance of the evidence for supplemental earning benefits.

Bolden v. Jeffrey's Steel Co., Inc. · filed 1996-12-11

Plaintiff herein requests temporary total disability benefits, or in the alternative, supplemental earning benefits. Under La. R.S. 23:1221 the burden of proof for temporary total benefits is clear and convincing evidence and for supplemental earning benefits it is by a preponderance of the evidence.

Section 23:1221(1) requires clear and convincing evidence to prove temporary total disability.

Marks v. Pride Aviation, Inc. · filed 1996-01-31(1)

Clear and convincing evidence is required to prove temporary total disability. La.R.S. 23:1221(1).

Section 23:1221 places on the claimant the burden of proving a disabling condition resulting from the work accident.

Ball v. Wilco Marsh Buggies, Inc. · filed 1997-05-28

Plaintiff still bore the burden of proving that there was a disabling condition resulting therefrom. La. R.S. 23:1221. Plaintiff must also establish a causal link between the accident and the disabling condition.

Section 23:1221(1) requires a claimant seeking temporary total disability benefits to prove temporary total disability by clear and convincing evidence after proving that an employment accident occurred, caused the injuries, and caused the disability.

Williams v. Ravare Masonry Co. · filed 2000-10-04(1)

To establish entitlement to workers' compensation benefits, a claimant must prove by a preponderance of the evidence that an accident occurred during the course and scope of his employment; the accident caused his injuries; and the injury caused his disability. ... Once he has established the aforementioned elements, pursuant to La.R.S. 23:1221(1), a claimant must then show by "clear and convincing" evidence that he is temporarily totally disabled.

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

Sanders v. G & W Construction Co. · filed 2002-03-28(1)

A claimant seeking disability benefits based on temporary total disability must prove by clear and convincing proof, unaided by any presumption of disability, that he is physically unable to engage in any employment or self-employment.

Section 23:1221(1) requires a claimant seeking temporary or permanent disability benefits to prove by clear and convincing evidence that the injury prevents any employment, supported by objective medical evidence.

Ratliff v. Brice Bldg. Co. · filed 2003-11-12(1)

A claimant seeking temporary or permanent disability benefits must offer clear and convincing evidence that he is unable to engage in any type of employment. La. R.S. 23:1221(1). In order to meet this clear and convincing standard, the claimant must introduce objective medical evidence. Greis v. Lake Charles Memorial Hosp., 97-1258 (La.App. 3 Cir. 3/6/98), 709 So.2d 986, writ denied, 98-0937 and 98-0938 (La.5/19/98), 719 So.2d 467. The trial court must weigh all the evidence, medical and lay, in order to determine if the plaintiff has met his burden. This factual finding should be given great weight and should not be overturned absent manifest error. Bailey v. Smelser Oil & Gas, Inc., 620 So.2d 277, 280 (La.1993). At trial, Mr. Ratliff testified that he could not return to his job with McCorkle. However, Mr. Ratliff offered no testimony to show that he was unable to perform any work. Further, Dr. Nutik's report opined that claimant could perform, at a minimum, light duty work. Mr. Ratliff did not present any evidence to show that there was no light duty work available to him. We therefore find that Mr. Ratliff did not meet his burden of proving, by clear and convincing evidence, that he was unable to engage in any type of employment as a result of the accident.

Section 23:1221(1) and (3) require the claimant to prove entitlement to temporary total disability and supplemental earnings benefits, after which the employer must prove suitable available work for an SEB claim.

Fluitt v. Christus Health Cent. Louisiana · filed 2006-06-28(1), (3)

In its third assignment of error, Cabrini correctly points out that the burden of proof is on Ms. Fluitt to establish entitlement to TTDs [La.R.S. 23:1221(1)] as well as SEBs [La.R.S. 23:1221(3)].

A claimant seeking temporary or permanent disability benefits must prove by clear and convincing evidence that he or she cannot engage in any type of employment.

Murray v. SERVALL SERVICES, INC. · filed 2010-01-12(1)

To establish a right to receive temporary or permanent disability benefits, a claimant must show by clear and convincing evidence that he or she is unable to engage in any type of employment. La. R.S. 23:1221(1).

Section 23:1221(1)(c) requires a claimant seeking disability benefits to prove disability by clear and convincing evidence and support the claim with objective medical evidence.

Carradine v. Regis Corporation · filed 2010-11-03(1)(c)

A finding of disability requires proof by clear and convincing evidence. La.R.S. 23:1221(1)(c); Spell v. Conn Appliances, Inc., 97-309 (La.App. 3 Cir. 10/8/97), 702 So.2d 797. The claimant must support her claim of disability with objective medical evidence. Spell, 702 So.2d 797. However, the issue of disability is a factual determination, and the fact finder’s decision may not be overturned unless it is manifestly erroneous or clearly wrong. Id.

Sections 23:1221(1)(c) and (2)(c) require a claimant seeking temporary or permanent total disability benefits to prove by clear and convincing evidence, without a presumption of disability, that the claimant cannot engage in any employment or self-employment.

Nitcher v. Northshore Regional Medical Center · filed 2012-05-02(1)(c) and (2)(c)

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

Section 23:1221 requires clear and convincing evidence to establish temporary total, permanent total, or supplemental earnings benefits; supplemental earnings benefits are available when an employee can work but cannot earn 90% of her pre-injury wages.

Leonards v. Carmichael's Cashway Pharmacy, Inc. · filed 2022-05-18(2), (3)

Permanent total disability is governed by Paragraph (2). As in TTD cases, permanent total disability must be proven by clear and convincing evidence. Entitlement to SEBs must likewise be proven by clear and convincing evidence. The distinction between TTDs, permanent total disability, and SEBs is that an employee can receive SEBs while able to work but not able to earn ninety percent of her pre-injury wages. La.R.S. 23:1221(3).

Section 23:1221(2)(b) and (d) bars permanent-total-disability benefits when an employee engages in any employment or receives earnings, even minimal amounts; occasional help in a family business without personal wages or earnings does not trigger the bar.

Aucoin v. CNA · filed 2012-09-21(2)(b) and (d)

While Mr. Aucoin denies that either of these services amount to “work,” the pertinent statute clearly restricts PTD benefits if the claimant is involved in any type of employment or receives any earnings from the employment. It is undisputed that Mr. Aucoin earned the stated nominal amounts for each activity. While the amounts earned are modest, under the clear wording of the statutory provision, Mr. Aucoin is not entitled to receive PTD benefits.

Section 23:1221(2)(b) bars permanent-and-total-disability benefits when the employee is engaged in any employment, while § 23:1221(3) provides the applicable supplemental-earnings-benefits category for a claimant who continued working.

Newman v. Louise S. Davis Development Center · filed 1992-04-30(2)(b), (3)

Compensation for permanent and total disability shall not be awarded if the employee is engaged in any employment or self-employment regardless of the nature or character of the employment or self-employment, including but not limited to any and all odd lot employment, sheltered employment, or employment while working in pain. ... Plaintiffs work history, subsequent to the accident, is a bar to her recovery of benefits under Section 1221(2). ... Plaintiff is eligible to collect benefits under Section 1221(3), the supplemental earnings benefits category.

For permanent total disability, any employment or self-employment—regardless of its nature or character—bars benefits, and the employee must prove by clear and convincing evidence that they cannot engage in any employment.

Keasley v. Transit Management of Southeast Louisiana · filed 2010-12-07(2)(a)-(c)

The very strict legislative pronouncement contained in La. R.S. 23:1221 compels us to conclude that Mr. Keasley’s efforts to supplement his pension and disability income with the minimal earnings he received during those years precludes his qualifying for permanent total disability during that period.

Section 23:1221(1)(a) sets the weekly compensation benefit at sixty-six and two-thirds percent of the employee’s average weekly wage.

Olivier v. Olivier Builders · filed 2009-09-09(1)(a)

His weekly benefit rate is then determined by calculating sixty-six and two-thirds percent of the average weekly wage, or $634.62. La.R.S. 23:1221(1)(a). Therefore, Mr. Olivier’s weekly compensation rate was $423.08 per week, not the $114.00 as determined by the WCJ.

Section 23:1221 bases the amount of workers' compensation benefits on the wages the employee earned from the employer before the accident, leaving no basis to calculate benefits when no wages were earned.

Genusa v. POINTE COUPEE FIRE DIST. NO. 4 · filed 1994-10-07

Further, under La.R.S. 23:1221, the basis for determining the amount of benefits paid to a claimant under the worker's compensation law is the wages the employee earned from the employer prior to the accident. Where no wages were earned, there is no basis for calculating benefits.

Section 23:1221(3)(d)(iii) limits supplemental earnings benefits to 104 weeks when an injured employee has withdrawn from work on a disability pension.

Carter v. New Orleans Fire Dept. · filed 1995-02-17(3)(d)(iii)

The City argues that, as Mr. Carter retired on a disability pension, he is limited to 104 weeks of Supplemental Earnings Benefits pursuant to La. R.S. 23:1221(3)(d)(iii). We agree with the City as to that legal issue and modify the judgment below to limit the SEB award to 104 weeks.

Section 23:1221(3) requires an employee seeking supplemental earnings benefits to prove inability to earn at least 90% of pre-injury wages, and § 23:1221(3)(d) caps those benefits at 520 weeks.

Fallen v. New Orleans Police Dept. · filed 1997-07-23(3), (3)(d)

Under La. R.S. 23:1221(3), the employee must prove by a preponderance of the evidence that he is unable to earn wages equal to ninety percent or more of his pre-injury wages. ... La. R.S. 23:1221(3)(d) provides in pertinent part: The right to supplemental earnings benefits pursuant to this Paragraph shall in no event exceed a maximum of five hundred twenty weeks.... Fallen's benefits were reduced and converted to supplemental earnings benefits in July 1992. Five hundred twenty weeks had not passed from that date.

Section 23:1221(3)(a) calculates supplemental earnings benefits at sixty-six and two-thirds percent of the difference between pre-injury average monthly wages and post-injury wages or earning capacity, while § 23:1221(3)(d)(ii) provides for 520 weeks of actual payments rather than 520 calendar weeks.

Town of Basile v. Clark · filed 2000-05-31(3)(a), (3)(d)(ii)

Moreover, we find that, in accordance with La.R.S. 23:1221(3)(d)(ii), a claimant is entitled to 520 weeks of actual payments and not 520 weeks of calendar payments. ... La.R.S. 23:1221(3)(a) provides the formula for calculating SEB as follows: 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.... (Emphasis added).

Subsection (3)(d)(ii) ends entitlement to indemnity benefits when ten years have elapsed since the commencement of benefits, with applicable credit for prior temporary total disability payments.

Benjamin v. Asplundh Tree Co. · filed 2003-12-10(3)(d)(ii)

We further agree that Benjamin is no longer entitled to receive any indemnity benefits pursuant to La.R.S. 23:1221(3)(d)(ii) and La.R.S. 23:1223 because ten years have elapsed since the commencement of benefits and Asplundh is entitled to a credit for the TTD it paid to Benjamin prior to his entitlement to SEB.

Section 23:1221(3) bases supplemental earnings benefits on the employee’s earning capacity and employment availability, with the amount determined month to month.

Johnson v. Chateau Living Center · filed 1995-04-25(3)(a)-(c)

The significant problem on appeal is that while the hearing officer found that plaintiff was entitled to SEBs, she failed to set the amount to be paid. As can be seen from the statute above, the amount of SEBs awarded is based on the hearing officer’s determination of plaintiffs earning capacity and employment availability on a month to month basis. Without a judgment by the hearing officer as to what plaintiff is capable of earning and what she was entitled to recover as supplemental compensation, there is nothing for this court to review on appeal. Accordingly, the case must be remanded to the officer of worker’s compensation for a determination by the hearing officer of the amount of supplemental earnings benefits to which plaintiff is entitled.

Section 23:1221(3) provides supplemental earnings benefits when a claimant cannot earn at least ninety percent of pre-injury wages, calculated as 66 and 2/3 percent of the difference between current and pre-injury monthly earnings.

Bolton v. Grant Parish School Board · filed 1998-03-06(3)

Under the guidelines of La.R.S. 23:1221(3), a claimant who is unable to earn wages equal to or greater than ninety percent of her pre-injury wages should receive SEB equal to 66 and 2/3 percent of the difference of what she is earning monthly at the present time, and what she earned monthly prior to her injury.

Section 23:1221(3) provides supplemental earnings benefits when a work-related injury prevents a claimant from earning 90% of pre-injury wages, and subsection (3)(a) bases the benefit amount on the difference between pre-injury average monthly wages and proven post-injury monthly earning capacity.

Leger v. Young Broadcasting, Inc. · filed 1998-10-28(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).

Section 23:1221(3)(a) provides supplemental earnings benefits when an injury leaves a worker unable to earn at least 90% of pre-injury wages, with the benefit calculated as two-thirds of the wage difference.

Angulo v. ATH PAINTERS AND CONST., INC. · filed 1999-05-05(3)(a)

An injured worker such as Mr. Angulo is entitled to SEB if he is, as a result of his injury, unable to earn wages equal to 90% of his wages at the time of injury. La. R.S. 23:1221(3)(a). The amount of the benefit is two-thirds of the difference between his average monthly wages at the time of injury and his average monthly wages that he earns or is able to earn. Id.

Section 23:1221(3)(c)(ii) requires the claimant to prove by clear and convincing evidence that he cannot perform the offered job.

Rao v. R & W Equipment Co. · filed 1995-07-12(3)(c)(ii)

Further, Rao did not produce clear and convincing evidence that he could not perform the job that Grafton offered him. La.R.S. 23:1221(3)(c)(ii). In fact, Rao testified that he could not deny that he was unable to perform that job.

After the employer proves suitable employment is available, the employee must prove clearly and convincingly, without a disability presumption, that substantial pain alone prevents performing it.

White v. COUNTY MARKET · filed 2009-09-23(3)(c)(ii)

If the employer’s burden is met, then the employee must show by clear and convincing evidence, without any presumption of disability, that he is unable to perform the available employment solely as a consequence of substantial pain.

For supplemental earnings benefits, the employer must prove that the employee can physically perform offered or geographically available work, including physically transporting herself to it; substantial pain that prevents performing the work can establish incapacity by clear and convincing evidence.

Henry v. Schwegmann Giant Supermarkets, Inc. · filed 1995-12-13(3)(c)(i) (3)(c)(ii)

We agree that the statute requires that Schwegmann 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 her or the employer's community or reasonable geographic region. However, as part of that determination, the court must also consider whether Henry is physically able to transport herself to that job, because that ability is necessarily a part of whether or not she can physically perform the work. See: La.R.S. 23:1221(3)(c)(i). In addition, under La.R.S. 23:1221(3)(c)(ii), 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 the employment offered, tendered, or otherwise proven to be available to him, the employee shall be deemed incapable of performing such employment.

Section 23:1221(4)(p) permits compensation, up to 100 weeks, only for serious and permanent disfigurement, and whether an injury is disfiguring is a factual question.

Creel v. Concordia Elec. Co-Op., Inc. · filed 1996-01-31(4)(p)

La.R.S. 23:1221(4)(p) provides in pertinent part for the payment of benefits to persons suffering permanent disfigurement: In cases not falling within any of the provisions already made, where the employee is seriously and permanently disfigured... compensation not to exceed sixty-six and two-thirds percent of wages for a period not to exceed one hundred weeks may be awarded. ... The determination of whether an injury is disfiguring is factual. Therefore, the hearing officer's finding on this point will not be disturbed absent manifest error. ... Under the circumstances, we find no error in the hearing officer's conclusion that Creel is entitled to benefits for disfigurement.

Section 23:1221(4)(p) sets maximum disfigurement benefits at 66 2/3% of average weekly wages for up to 100 weeks, while leaving the actual award to the hearing officer's discretion.

Brumley v. Med Express Ambulance Service · filed 1996-06-05(4)(p)

La.R.S. 23:1221(4)(p) provides outside limits of 66|% of average weekly salary and 100 weeks for disfigurement claims which may be awarded. The statute uses the permissive language “may” which gives the hearing officer discretion in | (¡making an award.

For supplemental earnings benefits, employment is considered available when the employer proves jobs in the community or reasonable geographic region that the injured employee is physically able to perform; an actual offer or acceptance is unnecessary.

Mayeux v. Kentucky Fried Chicken · filed 1996-04-03(3)(c)(i)

To be entitled to the supplemental earnings benefit a workers' compensation claimant must prove her inability, because of her occupational injury or disease, to earn 90 percent or more of the wages she was receiving before her injury or disease. The critical inquiry is not whether the SEB claimant, after the occupational injury or disease, is actually offered or accepts some gainful employment, but whether she "was physically able to perform [employment] ... which is proven available to [her] in the employee's or employer's community or reasonable geographic region." LRS 23:1221(3)(c)(i).

Section 23:1221(3)(c)(i) requires the reasonable geographic region for available work to account for an injured employee's medically imposed limitations.

JE Merit Constructors, Inc. v. Hickman · filed 2000-03-01(3)(c)(i)

Indeed, that is the clear import of La.R.S. 23:1221; however, where an employee is physically limited due to a medical condition as in the present matter, the only pertinent geographic region that can be reasonable is one which contemplates the employee's limitations.

Section 23:1221(3)(c)(i) requires determining whether physically suitable offered or available employment is in the employee's or employer's community or a reasonable geographic region by considering factors such as the employment region, transportation, work history, and economic impact.

Gajeske v. Integrated Electrical Services, Inc. · filed 2003-10-29(3)(c)(i)

Given the fact specific nature of each determination under Section 1221(3)(c), we do not find that Fontenot gave a construction to the law that eliminates consideration of available employment with the employer when the employee's residence differs from the employer's place of business. ... The reasonableness of the geographic region of available work in this case, when considered from the perspective of the "employer's community," will require a weighing of various factors, many of which are disputed and explored rather vaguely in the record before us. Therefore, the measurement of the reasonableness of Breaux's offer is inappropriate on motions for summary judgment in this case.

For supplemental earnings benefits, an employer must prove that physically suitable work offered or available to the injured employee is within the employee's reasonable geographic region, considering the employee's ability to travel to the job.

Daugherty v. Domino's Pizza · filed 1996-05-21(3)(c)(i)

Considering Mr. Daugherty's work-related physical inability to drive more than a short distance from his home in Baker, Domino's has clearly failed to satisfy its burden of proving employment is available to Mr. Daugherty within a reasonable geographic region by offering him a light-duty job at its facility in Baton Rouge, some thirty miles from his home. Because Domino's failed to offer any other evidence as to employment available to Mr. Daugherty, his supplemental earnings benefits may not be reduced by any amount.

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

Bynum v. Good News Const. · filed 1996-05-28(1)(c)

To qualify for temporary total disability benefits, an employee must prove by "clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment...." La.R.S. 23:1221(1)(c).

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

Maiden v. Crossroads of Louisiana, Inc. · filed 1996-07-24(1)(c)

Maiden did not prove that prior to April 19, 1993 and after August 26, 1993 she could not "engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment...." La.R.S. 23:1221(1)(c). Constrained by the record, we must reverse the award of temporary total disability benefits from December 28, 1992 to April 19, 1993 and after August 26, 1993.

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

Stelly v. Guy Scroggins, Inc. · filed 1996-10-09(1)(c)

La.R.S. 23:1221(1)(c) provides that when the employee is not engaged in any employment, the employee shall be awarded temporary total disability benefits only if the employee proves by clear and convincing evidence that he is physically unable to engage in any employment.

Subsection (1)(c) requires temporary total disability benefits to be supported by clear and convincing evidence, without a presumption of disability, that the employee is physically unable to engage in any employment or self-employment.

Smith v. Martin Mills, Inc. · filed 1997-05-21(1)(c)

Appellant next argues that claimant did not prove by clear and convincing evidence that she was temporarily and totally disabled as required by La.R.S. 23:1221(1)(c). That statute states in pertinent part, [w]henever the employee is not engaged in any employment or self-employment ... compensation for temporary total disability shall be awarded only if the employee proves by clear and convincing evidence unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment.... The hearing officer based her finding that Ms. Smith reached this burden and is therefore entitled to receive temporary total disability benefits on the deposition testimonies of Drs. Budden and Franklin. Our review of these depositions leads to a different conclusion, however. When asked whether he believed Ms. Smith had been totally disabled from performing any type of work since the onset of her problems, Dr. Budden clearly stated that he did not. Although Dr. Franklin disabled Ms. Smith from her seamstress duties, he did not express the opinion that she was unable to perform certain other duties. He replied the following when asked to opine on Ms. Smith's movement capabilities: "[t]his lady is functional. This is not to say this lady could not perform some light to sedentary-type duty position." In light of the professional medical opinions of Drs. Budden and Franklin regarding Ms. Smith's ability to perform certain tasks, as well as the similar opinions of the numerous other doctors Ms. Smith saw, we conclude that the hearing officer was manifestly erroneous in finding that Ms. Smith proved that she was temporarily totally disabled by clear and convincing evidence.

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

Huntsberry v. Martin Mills, Inc. · filed 1997-12-10(1)(c)

In order to prove entitlement to temporary total disability, an employee must prove by clear and convincing evidence, unaided by any presumption of disability, that he is physically unable to engage in any employment or self-employment. La.R.S. 23:1221(1)(c).

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

Boutte v. Langston Companies, Inc. · filed 1998-02-04(1)(c)

An employee is entitled to temporary total disability benefits only upon proof by clear and convincing evidence, unaided by any presumption of disability, that he is physically unable to engage in any employment or self-employment, including but not limited to employment while working in pain. La.R.S. 23:1221(1)(c).

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

Chambers v. LA PAC MFG., INC. · filed 1998-04-22(1)(c)

The burden of proof required of a claimant to recover temporary total disability benefits is set forth in La.R.S. 23:1221(1)(c), which provides in pertinent part: whenever the employee is not engaged in any employment or self-employment as described in Subparagraph (1)(b) of this Paragraph, compensation for temporary total disability shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including but not limited to any and all odd-lot employment, sheltered employment, or employment while working in any pain, notwithstanding the location or availability of any such employment or self-employment. (Emphasis added.)

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

Joseph v. Elmwood Medical Center · filed 1998-06-30(l)(c)

The trial court’s judgment is correct in awarding TTD benefits for the following periods: (1) January 19, 1995 until February 21, 1995, and (2) April 11, 1995 until May 1, Í995. However, the trial judge erred in awarding TTD benefits for any other period of time pursuant to La. R.S. 23:1221(l)(c). Joseph was not entitled to temporary total disability for any other period of time since she did not show by clear and convincing evidence that she was physically unable to engage in any employment or self-employ- . ment. Joseph only proved that she could not perform the specific position she was offered by Elmwood.

Section 23:1221(1)(c) provides temporary total disability benefits only when the employee proves by clear and convincing evidence that the employee is physically unable to perform any employment or self-employment; an employee able to perform light-duty work is not eligible for those benefits.

Holden v. International Paper Co. · filed 1998-10-28(1)(c)

[1] La. R.S. 23:1221(1)(c) allows "compensation for temporary total disability ... only if the employee proves by clear and convincing evidence ... that the employee is physically unable to engage in any employment or self-employment, ... notwithstanding the location or availability of such employment." Thus, a worker who can perform light duty work is not entitled to temporary total benefits.

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

Lemoine v. Harris Management Co. · filed 1997-10-22(l)(c)

Since Lemoine sought to change her status from SEB to TTD, she was required to meet the burden of proof required by La.R.S. 23:1221(l)(c).

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

Woodrum v. Olive Garden Restaurant · filed 1999-05-19(1)(c)

For purposes of Subparagraph (1)(a) of this Paragraph, whenever the employee is not engaged in any employment or self-employment as described in Subparagraph (1)(b) of this Paragraph, compensation for temporary total disability shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including but not limited to any and all odd-lot employment, sheltered employment, or employment while working in any pain, notwithstanding the location or availability of any such employment or self-employment. ... Based on the extensive testimony and mindful of our duty as reviewing court, we are unable to say the worker's compensation judge was clearly wrong in finding plaintiff had presented "clear and convincing evidence" of temporary total disability.

Section 23:1221(l)(c) requires an employee seeking temporary total disability benefits to prove by clear and convincing evidence that he is physically unable to engage in any employment, including employment while working in pain.

Horne v. Lowe's Home Improvement · filed 2002-02-27(l)(c)

An employee seeking TTD benefits must prove by clear and convincing evidence that he is physically unable to engage in any employment, regardless of its nature, and including employment while working in pain.

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

Springfield v. Wal-Mart 1266 · filed 2002-11-08(1)(c)

Further, a claimant who seeks workers’ compensation benefits on the basis of being temporarily totally disabled must prove by clear and convincing evidence, without taking pain into consideration, that he is unable to engage in any employment or selfjemploymentg. ... Accordingly, we conclude that the record does not establish by clear and convincing evidence that Springfield was temporarily totally disabled after December 23, 1997.

Section 23:1221(1) permits a claimant to establish inability to work through substantial pain, but pain alone is insufficient unless it makes gainful employment impossible, and entitlement to temporary total disability benefits requires clear and convincing objective medical evidence of a disabling injury.

Hilts v. Wal-Mart Stores, Inc. · filed 2003-04-02(1)(a)

Louisiana Revised Statute 23:1221(1)(a) provides that an employee is entitled to TTD when an injury disables an employee from engaging in any self-employment or occupation for wages "whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured, and whether or not an occupation for which the employee at the time of injury was particularly fitted by reason of education, training, or experience...." "An employee is not entitled to collect either temporary total disability or permanent total disability when he is physically able to engage in any employment." Spencer v. Gaylord Container Corp., 96-1230, p. 5 (La.App. 1 Cir. 3/27/97), 693 So.2d 818, 822. ... A claimant may prove an inability to engage in gainful employment due to substantial pain. 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). Whether the claimant's pain is substantial enough is a question of fact to be determined by the totality of circumstances. Furthermore, the factual conclusions of the trial court are entitled to great weight and will not be reversed absent manifest error. To meet his burden of proving entitlement to TTD benefits by clear and convincing evidence, a claimant must provide objective medical evidence of the disabling injury. Aymond v. R.J. Jones & Sons, 96-443, pp. 7-8 (La.App. 3 Cir. 11/20/96), 690 So.2d 769, 774 (citations omitted).

Section 23:1221(1)(c) requires clear and convincing proof, without a presumption of disability, that the employee is physically unable to engage in any employment, including work while in pain, to obtain temporary total disability benefits.

Alphonso v. Bridge Terminal Transport · filed 2003-07-09(1)(c)

For an employee to establish entitlement to temporary total disability benefits, he must prove by clear and convincing evidence, unaided by a presumption of disability, that he is physically unable to engage in any employment, regardless of its nature, and including employment while working in pain. La. R.S. 23:1221(1)(c).

Section 23:1221(l)(c) requires an employee seeking temporary total disability benefits to prove the disability by clear and convincing evidence.

Bordelon v. Thyssen Dover Elevators · filed 2003-11-07(l)(c)

Where an employee seeks workers’ compensation benefits on the basis of temporary total disability, the employee bears the burden of proving such disability by clear and convincing evidence. La. R.S. 23:1221(l)(c).

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

Daniel v. New Orleans Public Service, Inc. · filed 2003-12-03(2)(c)

At the time of Mr. Daniel's accidents in 1986, La. R.S. 23:1221(2)(c) provided, in pertinent part: ... [C]ompensation for permanent total disability shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including, but not limited to, any and all odd-lot employment, sheltered employment, or employment while working in any pain, notwithstanding the location or availability of any such employment or self-employment. ... Pursuant to this statute, even if a worker seeking permanent total disability is in pain, he must work unless he proves by clear and convincing evidence that he is physically unable to engage in any type of employment whatsoever, including self-employment.

Section 23:1221(1)(c) makes temporary total disability benefits available only when the employee proves by clear and convincing evidence, without any presumption of disability, that the employee is physically unable to engage in any employment or self-employment.

Hawthorne v. Louisiana Dept. of Agriculture & Forestry · filed 2004-02-04(1)(c)

Compensation for temporary total disability is available “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.” La.R.S. 23:1221(1)(c). ... Based on this evidence we cannot say that the WCJ was clearly wrong in finding that Hawthrone was able to return to work and denying temporary total disability benefits. The judgment of the Office of Workers’ Compensation is affirmed.

Section 23:1221(1) requires an employee seeking temporary total disability benefits to prove by clear and convincing evidence that she is physically unable to perform any employment, including work while in pain.

Lewis v. CHATEAU D'ARBONNE NURSE CARE CTR. · filed 2004-04-07(1)

An injured employee seeking temporary total disability benefits must prove by clear and convincing evidence that she is physically unable to engage in any employment, regardless of its nature, including employment while working in pain. La. R.S. 23:1221(1); Atwood v. Swing Timber, Inc., 34,045 (La.App.2d Cir. 12/15/00), 774 So.2d 1140, writ denied, XXXX-XXXX (La.5/11/01), 792 So.2d 733.

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

Barnett v. A & R Transportation · filed 2004-11-03(l)(e)

Pursuant to La. R.S. 23:1221(l)(e), a claimant has the burden of proving a temporary, total disability by clear and convincing evidence. Thus, it is proper for the OWC to reference this standard of review in connection with the indemnity benefit claim.

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

Alexander v. Autozone, Inc. · filed 2004-12-08(1)(c)

Louisiana Revised Statutes 23:1221(1)(c) establishes the criteria for awarding temporary total disability benefits. The employee must show “by clear and convincing evidence . . . that the employee is physically unable to engage in any employment or self-employment . . . .”

For temporary-total or permanent-total disability benefits, § 23:1221 requires clear and convincing proof, without a presumption, that the claimant is physically unable to perform any employment or self-employment; chronic pain alone is insufficient.

Bonvillain v. Preferred Industries and LWCC · filed 2005-05-27(1)(c) and (2)(c)

A claimant who seeks temporary total or permanent total disability benefits must prove by clear and convincing evidence, unaided by any presumption of disability, that he is physically unable to engage in any employment or self-employment, regardless of the nature or character of the work. La. R.S. 23:1221(1)(c) and (2)(c). ... However, in order for a claimant to establish that he is disabled such that he is unable to engage in any employment, he must introduce objective medical evidence supporting the existence of a disabling condition. ... And although Bonvillain testified he has been taking pain medication, even evidence of chronic pain is not enough to establish disability because chronic pain does not meet the requirements of "physical" disability under La. R.S. 23:1221(1)(c) or (2)(c).

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

Willie L. Lollis, Jr. v. Shaw Global Energy Services · filed 2007-10-03(1)(c)

In order to receive temporary total disability benefits, an employee must prove that he is unable to physically engage in any employment or self-employment as a result of his work-related injury. La.R.S. 23:1221(1)(c). The employee’s burden of proof is by clear and convincing evidence; thus, Lollis must prove that his disability is highly probable or much more probable than not. ... In the absence of a more definitive disability determination, we find no manifest error in the workers’ compensation judge’s finding that Lollis proved he was temporarily and totally disabled.

Section 23:1221(1)(c) requires a claimant seeking temporary total disability benefits to prove entitlement by clear and convincing evidence, supported by objective expert and personal testimony.

Jennings v. Ryan's Family Steak House · filed 2007-11-02(1)(c)

Pursuant to La.R.S. 23:1221(1)(c), a claimant has the burden of proving entitlement to TTD by clear and convincing evidence. Clear and convincing proof has been defined as an intermediate standard falling somewhere between the ordinary "preponderance of the evidence" civil standard and the "beyond reasonable doubt" criminal standard. Roussell v. St. Tammany Parish School Bd., 04-2622, p. 10 (La.App. 1 Cir. 8/23/06), 943 So.2d 449, 457-458. To meet this standard, the claimant must provide objective, expert testimony as to the medical condition, symptoms, pain, and treatment, in addition to personal testimony.

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

Tillery v. State ex rel. Department of Public Safety & Corrections · filed 2008-02-08(2)

In order to be awarded compensation for permanent total disability, an employee cannot be engaged in any employment or self-employment and must prove by clear and convincing evidence, unaided by any presumption of disability, that he is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including, but not limited to, any and all odd-lot employment, sheltered employment, or employment while working in any pain, notwithstanding the location or availability of any such employment or self-employment. La. R.S. 23:1221(2).

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

Hatfield v. AMETHYST CONST., INC. · filed 2008-12-03(1)(c)

To obtain an award of TTD benefits, a claimant must prove by clear and convincing evidence, unaided by any presumption of disability, that he is physically unable to engage in any employment or self employment. LSA-R.S. 23:1221(1); Lewis, supra .

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

Sevin v. Chevrolet · filed 2009-04-30(1), (1)(c)

To obtain an award of indemnity benefits, a claimant must prove by clear and convincing evidence, unaided by any presumption of disability, that she is physically unable to engage in any employment or self employment. La. R.S. 23:1221(1). ... A claimant who is unable to return to work as a result of a mental injury is entitled to temporary total disability benefits. ... Benefits for a temporary total disability shall be awarded only if a claimant proves by clear and convincing evidence that she is physically unable to engage in any employment. La. R.S. 23:1221(l)(c).

Section 23:1221(l)(c) requires clear and convincing proof, without a presumption of disability, that an employee is physically unable to engage in any employment or self-employment to receive temporary total disability benefits when not working.

Kendrick v. Solo Cup · filed 2009-06-03(l)(c)

(c) For purposes of Subparagraph (l)(a) of this Paragraph, whenever the employee is not engaged in any employment or self-employment as described in Subparagraph (l)(b) of this Paragraph, compensation for temporary total disability shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including, but not limited to, any and all odd-lot employment, sheltered employment, or employment while working in any pain, 1 notwithstanding the location or availability of any such employment or self-employment. ... Kendrick was restricted to modified duty work. The record fails to indicate that Solo Cup made any effort to provide Kendrick a light duty job to accommodate these work restrictions. Therefore, the award of benefits should be affirmed.

For temporary total disability benefits, an employee must prove by clear and convincing evidence, without considering pain, that the employee cannot engage in any employment or self-employment.

Decquir v. Acorn · filed 2009-08-12(1)(c)

Hence, as set forth in the statute above, a claimant who seeks workers’ compensation benefits on the basis that he is temporarily totally disabled must prove by clear and convincing evidence, without taking pain into consideration, that he is unable to engage in any employment or self-employment.

Section 23:1221(1)(c) requires clear and convincing proof, without a presumption of disability, that a claimant is physically unable to perform any employment, including odd-lot, sheltered, or painful work, to receive temporary total disability benefits.

McGee v. Brand Services, Inc. · filed 2010-09-30(1)(c)

The legislature, in La. R.S. 23:1221(l)(c), set a very strict and high standard for the award of benefits for TTD, a standard that does not allow exceptions for odd-lot employment, sheltered employment, or employment while working in any degree of pain.

Section 23:1221(1)(c) requires clear and convincing evidence that a claimant is physically unable to perform any employment, including odd-lot or sheltered work and work involving pain, to receive temporary total disability benefits.

McGee v. BRAND SERVICES, INC. · filed 2011-04-18(1)(c)

We find that the evidence adduced at the hearing offers reasonable support for the hearing officer’s finding of temporary total disability. It is clear from the hearing officer’s conclusions that he accepted the testimony of Mr. McGee and Dr. Bourgeois’ report restricting Mr. McGee from any work. While the legislature, in La. R.S. 23:1221(l)(c), set a very strict and high standard for the award of benefits for TTD, a standard that does not allow exceptions for odd-lot employment, sheltered employment, or employment while working in any degree of pain, we find that the record, when reviewed in its entirety, provides clear and convincing evidence of Mr. McGee’s inability to perform any work at all, whether or not in odd-lot jobs, sheltered employment, or any degree of pain, as required by the statute.

Section 23:1221(l)(c) requires a claimant seeking temporary-total-disability benefits to prove by clear and convincing, objective medical evidence that he is physically unable to perform any employment or self-employment, including work while in pain.

Griffin v. Interim LSU Public Hospital · filed 2012-07-11(l)(c)

La. R.S. 23:1221(l)(c) provides that a claimant who seeks workers’ compensation benefits on the basis that he is temporarily totally disabled must prove by clear and convincing evidence, unaided by any presumption of disability, that he is physically unable to engage in any employment or self-employment, regardless of its nature, including employment while working in pain.

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

Foy v. Amerisafe Risk Services, Inc. · filed 2013-03-20(C)(1)

A workers’ compensation claimant, in order to be entitled to TTD benefits, must prove “by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment. . . .” La.R.S. 23:1221 (1)(c) (emphasis added). ... Foy’s argument necessitates that this court to assume his disability, something La.R.S. 23:1221(C)(1) specifically prohibits. Accordingly, we find that no error by the WCJ in denying Foy TTD benefits from June 17, 2011 to October 19, 2011.

Section 23:1221(2)(c) requires clear and convincing proof that the worker is physically unable to engage in any employment, and pain alone is insufficient.

Phillips v. City of New Orleans · filed 2013-05-01(2)(c)

The finding that pain alone cannot justify an award of permanent total disability benefits, while it does not appear to be the court’s reason for its judgment, does not preclude Mr. Phillips’ claim because he has proven by clear and convincing evidence that he suffered physical injury to his spinal column, as documented in his doctors’ reports.

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

Royals v. Town of Richwood · filed 2015-04-29(2)(c)

A claimant seeking PTD benefits bears the burden of proving, by clear and convincing evidence, his inability to engage in any type of employment. ... After carefully reviewing the testimony and evidence presented, we find no manifest error in the WCJ’s determination that Royals failed to prove by clear and convincing evidence that the September 9, 2002, injury produced her current disability.

The statute requires clear and convincing proof, without any presumption of disability, that the employee is physically unable to perform any employment to receive temporary total disability benefits.

White v. WIS International · filed 2017-10-25(l)(c)

Louisiana Revised Statutes 23:1221(l)(c) provides that “compensation for temporary total disability shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-] 4employment[.]” ... As a result, we conclude White’s testimony alone was not sufficient proof that she was disabled before July 27, 2016, such that she was entitled to receive indemnity benefits from WIS before that time.

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

Bradley v. St. Francis Med. Ctr. · filed 2017-09-27(1)(c)

To obtain an award of TTD benefits, a claimant must prove by clear and convincing evidence, unaided by any presumption of disability, that he is physically unable to engage in any employment or self-employment.

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

White v. Wis International · filed 2017-10-25(1)(c)

Thus, White failed to offer into evidence any “objective medical evidence” from any of the healthcare providers that treated her before July 27, 2016, to “prov[e] by clear and convincing evidence, h[er] physical inability to engage in any employment[.]” See Jackson, 732 So.2d at 738; La.R.S. 23:1221(1)(c).

Section 23:1221(2)(c) requires an employee seeking permanent-total-disability benefits to prove by clear and convincing evidence, without a presumption of disability, physical inability to engage in any employment or self-employment, including odd-lot and sheltered work.

Tombrello v. State of Louisiana through LSUHSC · filed 2024-04-10(2)(c)

As set forth in La. R.S. 23:1221(2)(c), when an employee is not engaged in any employment or self-employment, compensation for permanent total disability “shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including, but not limited to, any and all odd-lot employment, sheltered employment, or employment while working in any pain, notwithstanding the location or availability of any such employment or self-employment.”

Section 23:1221(3)(d)(i) limits supplemental earnings benefits to two years after termination of temporary total disability unless such benefits were payable for at least thirteen consecutive weeks during that period.

Dufrene v. Video Co-Op · filed 2002-03-28(3)(d)(i)

In order to avail herself of the three-year prescriptive period to file a claim for supplemental earnings benefits as set forth in La. R.S. 23:1209(A), appellant first had to have been paid supplemental earnings benefits for thirteen consecutive weeks during the two-year period commencing after the termination of her temporary total disability benefits as set forth in La. R.S. 23:1221(3)(d)(i). Ms. Dufrene was never paid supplemental earnings benefits. Thus, she no longer has a right to indemnity benefits.

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

Louisiana Workers' Compensation Corp. v. Cook · filed 2002-10-02(3)(d)(i)

Here, the claim for SEBs is barred by the two-year limitation of La. R.S. 23:1221(3)(d)(i), which provides: ... SEBs were not payable to claimant for 13 weeks of the two-year period following the date TTD benefits were discontinued (May 19, 1998) because claimant worked from that time until June, 2000, at a higher salary than his average weekly wage made at the Rtime of the accident.

Under § 23:1221(3), an employer seeking to avoid supplemental earnings benefits based on an offered job must prove that the offer of employment was made to the employee; certified mail is not required.

Flagg v. Hixson Funeral Home · filed 2003-02-05(3)

Hixson argues that there is no requirement that an offer of employment be sent by certified mail for it to be valid. While we agree, we also find that it was Hixson’s responsibility to prove that an offer of employment was made to Flagg.

Section 23:1221(3)(c)(i) requires an employer seeking to reduce supplemental earnings benefits to prove that the employee can physically perform work available within the employee's or employer's community or reasonable geographic region, considering all factors affecting the employee's ability to engage in that work.

Joyner v. Davison Transport, Inc. · filed 1997-01-22(3)(c)(i)

As part of the determination of whether an employer has carried its burden under LSA-R.S. 23:1221(3)(c)(i) of proving work is available to the claimant, courts must consider all factors that affect the claimant's ability to engage in the offered or available employment. Daugherty, supra . In the present case, Joyner was offered a job which would require him to drive 42 miles to the Filmore station, work a twelve hour shift and drive 42 miles back to his home, four days a week. While all physicians testified that Joyner would physically be able to perform this job [1] , we conclude that the hearing officer was not clearly wrong in ruling that the job was not within Joyner's reasonable geographic area and that the job was not "immediately `available' to Joyner."

For supplemental earnings benefits, the wages an employee is deemed able to earn cannot be less than what the employee could earn in suitable work that was offered or proven available in the relevant community or region.

First Baptist Church of Lake Arthur v. Fontenot · filed 1999-02-03(3)(c)(i)

To defeat or reduce a claimant’s entitlement to SEBs, the employer must prove, by competent evidence, “the existence of a suitable job within claimant’s physical capabilities and within claimant’s or the employer’s community or reasonable geographic region[.]”

For supplemental earnings benefits, an employer must prove a suitable job, the wages the claimant can expect to earn, and an actual position available when the claimant is notified of it.

Montgomery v. Lafayette Parish School Board · filed 2010-04-07(3)(c)(i)

The parties acknowledged that Montgomery was receiving SEB and that the applicable statute regarding his entitlement to these benefits is La. R.S. 23:1221(3). ... With the School Board terminating Montgomery's SEB, the issue is whether the WCJ erred in finding the School Board failed to prove the availability of a job that satisfies the criteria set forth in La. R.S. 23:1221(3)(c)(i). ... In Banks, 696 So.2d at 557, the supreme court held an employer may discharge its burden of proving job availability by establishing, at a minimum, the following: (1) the existence of a suitable job within claimant's physical capabilities and within claimant's or the employer's community or reasonable geographic region; (2) the amount of wages that an employee with claimant's experience and training can be expected to earn in that job; and (3) an actual position available for that particular job at the time that the claimant received notification of the job's existence. ... Thus, this court has determined that it is within the province of the WCJ to negate jobs that are physician approved if the record supports a finding that the jobs are not truly "suitable" or "available" for the claimant. ... After a through review of the record, we cannot say the WCJ erred in finding the School Board did not establish the two security guard positions were "suitable" or "available" under the Banks standard.

A permanent hearing loss greater than 25 percent in one ear is compensable; the statute does not require a binaural loss.

Jacques v. Calcasieu Parish School Board · filed 1996-04-10(4)(p), (4)(q)

Accordingly, we find that a permanent hearing loss greater than 25 percent in one ear is compensable under the statute.

Section 23:1221(4)(p) does not make gradual occupational-noise hearing loss compensable merely because it seriously and permanently impairs a physical function; compensability requires a qualifying accident.

Becker v. Murphy Oil Corp. · filed 2011-06-02(4)(p)

Contrary to Murphy’s assertion, we do not find the court’s remark that “extraordinary physical stress and strain is not essential to the definition of disabling accident” stands for the proposition that Louisiana courts have determined that gradual hearing loss caused by occupational noise exposure is compensable under the LWCA.

Section 23:1221(4)(p) provides permanent partial disability benefits for permanent hearing loss only when it is solely due to a single traumatic accident, not gradual cumulative hearing loss.

Glenn Hankel Versus Jefferson Parish Fire Department · filed 2020-09-22(4)(p)

The plain language of La. R.S. 23:1221(4)(p) only provides benefits for permanent hearing losses resulting solely from a single traumatic accident.

Section 23:1221(4)(p) provides benefits for permanent hearing loss caused by a single traumatic accident, but does not provide those benefits for hearing loss caused by constant exposure to occupational noise.

Arrant v. Graphic Packaging International, Inc. · filed 2013-09-25(4)(p)

The Legislature’s provision for supplemental earnings benefits for permanent partial disability for hearing loss caused by a single traumatic accident, and its failure to provide for benefits for hearing loss caused by constant exposure to occupational noise levels sufficient to cause the same permanent partial disability, appear to have been an oversight which cannot be reconciled.

An employee may preserve entitlement to supplemental earnings benefits by proving by clear and convincing evidence that substantial pain prevents performance of the employment offered by the employer.

Landry v. City of New Iberia · filed 1997-02-05(3)(c)(ii)

If the employer succeeds in doing so, the employee can preserve his right to SEB by establishing by clear and convincing evidence that he cannot perform the tendered employment as a result of substantial pain. La.R.S. 23:1221(3)(c)(ii).

Section 23:1221(1) requires objective medical evidence to prove disability by clear and convincing evidence.

Gray v. Courtney Equipment Co. · filed 1997-02-05(1)

All of the above evidence constitutes objective medical evidence: the expert testimony, the results of the examinations, and the results of the tests performed.

The employee must prove by clear and convincing evidence that substantial pain makes the offered employment impossible; unsubstantiated lay testimony is insufficient when the medical and vocational evidence shows the employee can perform the work.

TEXACO INC. v. Foreman · filed 1997-04-02(1)(c), (3)(c)(ii)

The burden of proof to be met by Foreman under the facts of this case is clear and convincing. La. R.S. 23:1221(1)(c) and 23:1221(3)(c)(ii). ... Foreman's subjective belief that he cannot work does not satisfy the clear and convincing standard. See Augustine v. Paul Wall Truck Line, Inc., 603 So.2d 770 (La.App. 3 Cir.), writ denied 608 So.2d 193 (La.1992). ... We agree with Texaco that Foreman's unsubstantiated testimony in contradiction of all medical experts and vocational rehabilitation counselor does not meet the "clear and convincing" burden.

Section 23:1221 bases supplemental earnings benefits on the wages an underemployed employee is able to earn, while requiring the calculation to use at least the employee’s actual earnings when those are higher.

Jackson v. Creger Automotive Co., Inc. · filed 1997-04-02(3)(c)(i), (3)(b)

La. R.S. 23:1221(3)(c)(i) states that in determining SEB, when an employee "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[.]" (Emphasis added.) The statute does not provide for termination of SEB when an employee is voluntarily underemployed; instead, it provides for SEB in an amount based upon what the employee could have earned. Accordingly, although Jackson is underemployed as a pastor, he could have earned minimum wage in those jobs available to him and is entitled to SEB based upon such an amount. Therefore, we order SEB payments reinstated retroactive to the date of their termination. We note that in some months, Jackson has received higher monthly earnings than he possibly could have made at the minimum wage jobs. Thus, we remand this matter to the OWC for a calculation of unpaid SEB based on either the minimum wage, which he is able to earn, or his actual earnings as a pastor, whichever is greater. La.R.S. 23:1221(3)(b). Future payments of SEB shall also be calculated on the same basis established by § 1221(3)(b).

Section 23:1221(3)(c)(i) requires the wages an employee is able to earn for supplemental-earnings-benefit calculations to include at least the wages the employee would have earned in employment the employee was physically able to perform and the employer offered.

Bertsch v. South Gateway Tire · filed 1999-08-18(3)(c)(i)

For purposes of the SEB calculation, and particularly pertinent in this case, Section 1221(3)(c)(i) of the Worker’s Compensation Act (“Act”) specifically states that if the employee is earning 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 which he was physically able to perform and which he was offered by the employer.

Section 23:1221 denies total-disability benefits to an employee able to perform any employment and provides supplemental-earnings benefits when the injury reduces earning capacity below 90 percent, subject to the employer’s proof of available work.

Spencer v. Gaylord Container Corp. · filed 1997-05-28(1)(a), (1)(c), (2)(a), (2)(c), (3)(a), and (3)(c)(i)

An employee is not entitled to collect either temporary total disability or permanent total disability when he is physically able to engage in any employment. ... To recover workers' compensation supplemental earnings benefits, an employee must prove he has been injured in a work-related accident, which rendered him disabled from earning ninety (90%) percent or more of his former earnings. ... Once the employee has satisfied this burden, the employer may then preclude an award of supplemental earnings benefits by proving that the employee is physically able to perform work that was offered to him or that was available in the employee's or employer's community or a reasonable geographic location.

Section 23:1221(3)(a) supports supplemental earnings benefits when the employee is incapable of earning 90% of the pre-injury wage; the award may reflect the employee's reduced earning capacity.

Allen v. Louisiana Wood Moulding Corp. · filed 1998-01-23(3)(a)

Under these circumstances, the record clearly demonstrates that Allen, who needed daily therapy in July, 1995, was incapable of earning 90% of his pre-injury wage. Supplemental earnings benefits (SEB) are therefore appropriate. La. R.S. 23:1221(3)(a); Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-C-2840 (La.7/1/97), 696 So.2d 551. The difficulty in this case of determining in retrospect when the SEB payments may have ended is created by LWMC's action in refusing further medical benefits for therapy. By the time of trial, however, Allen admitted that the condition of his hand had improved, and he failed to show as of that time that he remained incapable of earning 90% of his former wage. Accordingly, we award SEB payments from July 10, 1995 through the date of trial on November 7, 1996 based upon Allen's ability to have earned only 70% of his former wage.

Section 23:1221(3) provides supplemental earnings benefits when a work-related injury leaves a claimant unable to earn at least 90% of pre-injury wages; the benefits continue during the disability for up to 520 weeks, subject to modification if the claimant's condition changes.

Mistrot v. York Intern. · filed 1998-04-22(3)

If a work-related injury results in a claimant's inability to earn at least 90% of his pre-injury wages, he is entitled to supplemental earnings benefits. ... An SEB award is payable during the period of disability up to a maximum of 520 weeks. La. R.S. 23:1221(3); Johnson v. Chateau Living Center, 96-1360 (La.9/13/96), 679 So.2d 95. ... Thus, we find SEB payments were the proper remedy based on the facts as they existed at the time of trial.

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; after that showing, subsection (3)(c)(i) requires the employer to prove the employee can physically perform a suitable job and that it was offered or available in the relevant community or geographic region.

Culbert v. Conagra, Inc. · filed 1998-06-03(3)(a), (3)(c)(i)

An employee is entitled to receive supplemental earnings benefits (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. ... LOnce 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.

Section 23:1221(3)(a) requires an SEB claimant to prove that a work injury leaves her unable to earn at least 90% of her pre-injury wages.

Lejeune v. Integrated Health Service · filed 1998-12-09(3)(a)

In order to recover SEB, Ms. Le-jeune must prove by a preponderance of the evidence that she is unable to earn wages equal to 90% or more of the wages she earned before her accident. Her inability to earn such wages must be proven to be the result of her work injury with IHS.

Section 23:1221(3)(a) provides supplemental earnings benefits when a work-related injury prevents an employee from earning at least 90% of pre-injury wages, while § 23:1221(3)(c)(i) places on the employer the burden to prove the employee can perform a suitable offered or available job; a position is unavailable when the employer-controlled licensing requirement prevents the employee from accepting it.

Wiley v. Grand Casino Avoyelles · filed 1999-04-21(3)(a), (3)(c)(i)

An employee, who is injured as the result of a work-related accident, is entitled to SEBs if her injury renders her unable to earn at least ninety percent of her pre-injury wages. La.R.S. 23:1221(3)(a). ... If the employee succeeds in carrying her burden of proof, the burden shifts 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 her or the employer's geographic region. La.R.S. 23:1221(3)(c)(i); Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97); 696 So.2d 551. Success in this endeavor will defeat the employee's claim for SEBs or, at the least, establish her earning capacity. Id. ... Under the particular facts and circumstances of this case, we find that the workers' compensation judge erred in determining that the position offered by Grand Casino to Wiley was available. ... Thus, we find that the workers' compensation judge erred by placing the burden on Wiley, instead of on Grand Casino.

Section 23:1221(3) authorizes supplemental earnings benefits when a work-related injury leaves an employee unable to earn 90% of the pre-injury wage; the employee must first prove that inability, after which the employer must show suitable employment is generally available within the claimant's physical and geographic limitations.

Taylor v. Columbian Chemicals · filed 1999-10-27(3)

When work-related injuries do not result in total disability, but rather leave the employee unable to earn 90% of her pre-injury wage, the statute authorizes an award of SEB. La. R.S. 23:1221(3). To prevail on an SEB claim, the employee must meet an initial burden of proving, by a preponderance of the evidence, that her work-related injury has resulted in an inability to earn that amount. Banks v. Industrial Roofing & Sheet Metal Inc., 96-2840 (La.7/1/97), 696 So.2d 551; Gilley v. Reeves Deli Mart, 30,355 (La.App. 2 Cir. 4/8/98), 711 So.2d 328. 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. Id.

Section 23:1221(3) entitles a claimant to supplemental earnings benefits when a work-related injury prevents the claimant from earning 90 percent of pre-injury wages, with entitlement determined from the individual facts and circumstances.

Burrell v. Evans Industries · filed 2000-04-25(3)

Furthermore, a claimant is entitled to supplemental earnings benefits when a work related injury prevents him from earning ninety percent of his pre-injury wage, La. R.S. 23:1221(3); and such a determination depends on 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 ninety percent of the preinjury wage, with the employee bearing the initial burden and the employer then bearing the burden to show suitable available work.

Braud v. First Nat. Bank of Gonzales · filed 2000-06-23(3)(a)

Under the provisions of La. R.S. 23:1221(3)(a), an employee is entitled to receive SEBs if he sustains a work-related injury that results in his inability to earn ninety percent or more of his average preinjury wage. The employee bears the burden of proof 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 able to perform a certain job and that the job was offered to the employee or that the job was available to the employee in his community or reasonable geographic location.

Section 23:1221(3)(a) entitles an employee to supplemental earnings benefits when a work-related injury leaves the employee unable to earn 90% or more of the average pre-injury wage.

Oubre v. Jacobs Engineering Group · filed 1999-06-29(3)(a)

An employee is entitled to receive SEB's if he sustains a work-related injury that results in his inability to earn 90% or more of his average pre-injury wage.

Section 23:1221(3)(a) requires an employee seeking supplemental earnings benefits to prove an inability to earn at least 90 percent of pre-injury wages, after which subsection (3)(c)(i) places on the employer the burden to show the employee can earn more through suitable available work.

Landry v. Physicians Practice Management · filed 2001-04-04(3)(a), (3)(c)(i)

"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 ninety percent or more of the wages he earned before the accident. ... When an 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 preinjury wages and the wages he is able to earn in any employment or self-employment after the injury. ... 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."

Section 23:1221(3) provides supplemental earnings benefits when a work-related injury leaves an employee unable to earn at least 90% of pre-injury wages, and entitlement requires determining the employee’s earning capacity and the date benefits should begin.

Matherne v. Brown · filed 2001-05-16(3)

La. R.S. 23:1221(3) provides: ... (3) Supplemental earnings benefits. ... It is unclear from the record whether Plaintiff can earn 90% or more of his previous wages. Further, the trial judge failed to establish a date for the benefits lifito commence. Thus, we find that the case must be remanded for a determination of Plaintiffs entitlement to SEBs.

Section 23:1221(3)(a) entitles an employee to supplemental earnings benefits when a work-related injury leaves the employee unable to earn at least 90 percent of the average pre-injury wage.

Grant v. Assumption Parish School Bd. · filed 2002-03-28(3)(a)

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).

When an employee proves an inability to earn ninety percent of pre-injury wages, Subparagraph (3)(c)(i) places the burden on the employer to prove the employee's earning capacity.

Lanthier v. Family Dollar Store · filed 2002-04-03(3)(c)(i)

Accordingly, since Lanthier proved that she was unable to earn ninety percent of her pre-injury wages, Family Dollar had the burden of proving her earning capacity. La.R.S. 23:1221(3)(c)(i). Since it failed to present any evidence showing this, we find that the average monthly wage Lanthier was able to earn after being released to light-duty status by Dr. Nason should be factored in as zero.

Section 23:1221(3)(a) provides supplemental earnings benefits when a work injury leaves an employee unable to earn at least 90 percent of pre-injury wages; under (3)(c), the employer may satisfy its burden by showing suitable available work, which the claimant may avoid only by clear and convincing proof that substantial pain prevents performance.

Bolton v. Mike Fleming Const. · filed 2002-12-11(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 he sustains a work-related injury that results in his inability to earn 90 percent 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. An employer can discharge its burden by establishing, by a preponderance of the evidence, (1) the existence of a suitable job within the claimant's physical capabilities, and within the claimant's or the employer's community or reasonable geographic region; (2) the amount of wages that an employee with claimant's experience and training can expect to earn in that job; and (3) an actual position available for that particular job at the time that the claimant received notification of the job's existence. Actual job placement is not required. La. R.S. 23:1221(3)(c)(i); Seal v. Gaylord Container Corporation, supra ; Figueroa v. Hardtner Medical Center, supra ; Payne v. Lawn Lourd Lawn Service, 35,491 (La. App.2d Cir.12/5/01), 803 So.2d 321; Marshall v. Louisiana Pacific Corporation, supra . If the employer meets this burden, then the claimant must show, by clear and convincing evidence, that he is unable to perform the offered or available work solely because of substantial pain. La. R.S. 23:1221(3)(c)(ii); Seal v. Gaylord Container Corporation, supra . ... Under these circumstances, the plaintiff has failed to show that, as a result of the accident and injury, he is unable to earn 90 percent or more of his pre-injury wage. Therefore, the WCJ did not err in denying Bolton's claim for SEBs.

Section 23:1221(3)(a) entitles an employee to supplemental earnings benefits when a work-related injury leaves her unable to earn 90% or more of her average pre-injury wage, subject initially to proof by a preponderance of the evidence.

Friedley v. Alexander Electrical, Inc. · filed 2002-12-20(3)(a)

Under the provisions of La. R.S. 23:1221(3)(a), an employee is entitled to receive supplemental earnings benefits ' (SEBs) if she sustains a work-related injury that results in her inability to earn ninety percent or more of her average pre-injury wage.

Section 23:1221(3)(a) requires a claimant seeking supplemental earnings benefits to show that, because of the work injury, the claimant was unable to earn at least 90% of the preaccident wages.

Langley v. Larco Environmental Services, Inc. · filed 2001-10-03(3)(a)

The record does not reveal that, during this period, Langley was unable to earn wages equal to ninety percent or more of his preaccident wages as a result of his work injury as required by La.R.S. 23:1221(3)(a).

Section 23:1221(3) requires the claimant to prove an inability to earn at least 90% of pre-injury wages, shifts the burden to the employer to show physical capacity and suitable available work, and treats refusal of that work—not termination alone—as defeating supplemental earnings benefits.

Palmer v. Schooner Petroleum Services · filed 2002-12-27(3)(a), (3)(c)(i), (3)(c)(ii)

Integral to an employee's claim for SEBs is his proof by a preponderance of the evidence that he is disabled due to a work-related injury that rendered him unable to earn ninety percent of his pre-injury wages. "In determining if an injured employee has made out a prima facie case of entitlement to supplemental earnings benefits, the trial court may and should take into account all those factors which might bear on an employee's ability to earn a wage." Daigle v. Sherwin-Williams Co., 545 So.2d 1005, 1007 (La. 1989). La.R.S. 23:1221(3)(a). Once the employee seeking SEB establishes his prima facie case, the burden shifts to the employer to show that the employee is physically capable of work and that the work was offered or available in the employee's or employer's community or reasonable geographic region. La.R.S. 23:1221(3)(c)(i). If the employer meets this burden of proof, then the employee must show by clear and convincing evidence, unaided by any presumption of disability, that he is unable to perform the employment offered or available solely as a consequence of substantial pain. La.R.S. 23:1221(3)(c)(ii); Moore v. Sanderson Farms, Inc., 95-2042, p. 8 (La.App. 1st Cir.5/10/96); 674 So.2d 478, 483, writ denied, 96-1399 (La.9/13/96); 679 So.2d 106. Essentially, Schooner argues that it met its burden of proof because it offered Palmer available work in the office where Palmer worked prior to his accident, and that termination of Palmer for his substandard work precludes the award of SEBs under La.R.S. 23:1221. We disagree. Contrary to Schooner's above argument, it is a claimant's refusal to accept employment that fits within his abilities and/or disabilities which is made available to him that precludes an award of SEBs. In other words, "[t]he 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." Blanchard v. Federal Express Corp., 95-0349, p. 13 (La.App. 1 Cir. 11/9/95); 665 So.2d 11, 13. There is no evidence in the record that Palmer refused the work offered to him; in fact, he worked with Schooner until Schooner terminated him. Termination does not destroy one's entitlement to SEB.

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.

Lee v. Schumpert · filed 2003-01-29(3)(a)

A claimant is entitled to receive supplemental earnings benefits if she 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). 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.

For a retired employee, supplemental earnings benefits are payable for no more than 104 weeks.

Lapeyrouse v. East Bank Consolidated Fire Department · filed 2003-02-25(3)(d)(iii)

R.S. 23:1221(3)(d) (iii) states that, “When the employee retires however, the period during which supplemental earnings benefits may be payable shall not be less than one hundred four weeks.” ... Furthermore, as there is no provision in the workers’ compensation law that permits a retired worker to receive more than 104 weeks of SEBs, we find that the workers’ compensation judge did not err in finding that the Plaintiff is not entitled to further benefits.

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 the employee unable to earn at least 90 percent of pre-injury wages.

Belaire v. Don Shetler Olds Buick Chevrolet · filed 2003-06-04(3)(a)

In order to recover SEBs, an employee must first prove by a preponderance of the evidence that, as a result of a work injury, he is unable to earn wages equal to ninety percent or more of the wages earned before the accident. La.R.S. 23:1221(3)(a); Daigle, 545 So.2d 1005.