La. Stat. Ann. § 23:1221

Section 23:1221(3)(d)(i) sets a two-year period for supplemental earnings benefits, but that period does not govern when the three-year period in § 23:1209(A) applies.

Louisiana Workers' Compensation Corp. v. Cook · filed 2003-06-06(3)(d)(i)

Writ Granted. The judgment of the Office of Workers’ Compensation granting the exception of prescription and dismissing the plaintiffs claim for supplemental earnings benefits based on the two year period of La. R.S. 23:1221(3)(d)(i), rather than the three year period of La. R.S. 23:1209(A), and the judgment of the Court of Appeal affirming that judgment, are hereby reversed. See, Dufrene v. Video Co-op, 2002-1147 (La.4/9/03), 843 So.2d 1066.

Section 23:1221(3)(a) entitles an employee to supplemental earnings benefits when a work-related injury leaves her unable to earn at least 90 percent of her average preinjury wage, and the employee bears the burden of proving that entitlement by a preponderance of the evidence.

Cannedy v. Yarborough · filed 2003-06-27(3)(a)

Under the provisions of La. R.S. 23:1221(3)(a), an employee is entitled to receive SEB if she sustains a work-related injury that results in her inability to earn ninety percent or more of her average preinjury wage. Initially, the claimant bears the burden on proving, by a preponderance of the evidence, that the injury resulted in her inability to earn that amount under the facts and circumstances of the individual case.

Section 23:1221(3)(a) provides supplemental earnings benefits when a work injury leaves the employee unable to earn at least ninety percent of pre-injury wages; under Paragraph (3)(c)(i), after the employee proves that threshold, the employer must prove the employee can perform an offered or geographically available job, or establish the employee’s earning capacity.

Ware v. Allen Parish School Bd. · filed 2003-09-24(3)(a), (3)(c)(i)

If the employee fails to prove that she is entitled to temporary total disability benefits, then she still may receive supplemental earnings benefits (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). She carries the burden of proof, which is by a preponderance of the evidence. Freeman v. Poulan/Weed Eater, 93-1530 (La.1/14/94), 630 So.2d 733. "Th[is] analysis is necessarily a facts and circumstances one in which the court is mindful of the jurisprudential tenet that worker's compensation law is to be liberally construed in favor of coverage." Daigle v. Sherwin-Williams Co., 545 So.2d 1005, 1007 (La.1989). 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 her 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. If the employer prevails in this instance, it will either defeat the employee's claims for SEBs or establish her earning capacity. ... Additionally, the School Board has failed to present any evidence regarding Ware's earning capacity; thus, we award her SEBs based on zero monthly earnings.

Paragraph (3) governs supplemental earnings benefits, and an employee capable of earning more than 90% of pre-employment wages is not entitled to SEBs.

Central Lumber Company v. Duhon · filed 2003-11-12(3)

Louisiana Revised Statute 23:1202(A)(2) sets a minimum weekly wage payable under the workers’ compensation statutes, but states that there shall be no minimum for benefits paid under La.R.S. 23:1221(3), which covers SEBs. ... Because the appellant is capable of earning more than 90% of his pre-employment wages, he is not entitled to SEBs.

Section 23:1221(3) covers supplemental earnings benefits, and an employee capable of earning more than 90% of pre-employment wages is not entitled to those benefits.

Central Lumber Co. v. Duhon · filed 2003-11-12(3)

Louisiana Revised Statute 23:1202(A)(2) sets a minimum weekly wage payable under the workers' compensation statutes, but states that there shall be no minimum for benefits paid under La.R.S. 23:1221(3), which covers SEBs. Duhon's pre-employment wages are $90.00 per week. The position offered to him by Central Lumber, and approved by his doctors, pays $103.00 per week based on a twenty-hour week. Because the appellant is capable of earning more than 90% of his pre-employment wages, he is not entitled to SEBs.

Section 23:1221(3)(a) requires a claimant seeking supplemental earnings benefits to prove by a preponderance of the evidence that a work-related injury leaves the claimant unable to earn ninety percent of pre-injury wages, considering all factors bearing on the claimant’s ability to earn.

Thomas v. Westaff, Inc. · filed 2004-05-12(3)(a)

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.” ... La.R.S. 23:1221(3)(a).

Section 23:1221(3)(a) provides supplemental earnings benefits when a work-related injury leaves an employee unable to earn at least 90 percent of the average pre-injury wage, with the employee bearing the initial burden to prove that inability by a preponderance of the evidence.

Adams v. Burger King · filed 2005-02-11(3)(a)

Under the provisions of La. R.S. 23:1221(3)(a), an employee is entitled to receive SEB if she sustains a work-related injury that results in her inability to earn ninety percent or more of her average pre-injury wage. Initially, the claimant bears the burden of proving, by a preponderance of the evidence, the injury resulted in her inability to earn that amount under the facts and circumstances of the individual case.

Section 23:1221(3)(a) makes an employee eligible for supplemental earnings benefits when a work-related injury leaves the employee unable to earn at least 90 percent of the average pre-injury wage, with the employee initially bearing the burden of proving that inability.

Smith v. Bossier Parish School Bd. · filed 2005-04-06(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 90 percent or more of his average pre-injury wage.

Section 23:1221(3) calculates supplemental earnings benefits as the difference between the employee’s pre-injury average monthly wage and post-injury earning capacity; the employer must prove that capacity and suitable job availability.

Metoyer v. Roy O. Martin, Inc. · filed 2004-12-01(3)

Thus, the SEB rate is the difference between the claimant’s average monthly wage before the injury and her monthly earning capacity after the injury. The employer has the burden of proving any post-injury earning capacity. The employer can meet this burden by showing that the employee is physically able to perform a certain job and that the job was offered or available to the employee in her or the employer’s community or reasonable geographic region.

Section 23:1221(3) requires an employee seeking supplemental earnings benefits to prove that the injury leaves him unable to earn at least 90% of his pre-injury wages, with benefits based on the wage difference.

Hughes v. New Orleans Saints & LWCC · filed 2006-02-27(3)(a)

La. R.S. 23:1221(3) places the initial burden to prove disability on the claimant. In order to recover, the employee must first prove by a preponderance of the evidence that he is unable to earn wages equal to ninety percent or more of the wages he earned before the accident. Smith v. Louisiana Dept. of Corrections , 93-1305 (La.2/38/94), 633 So.2d 129, 132. ... Our review of the evidence again reveals that Hughes' pre-injury wages earned from his pre-season participation in Saints' training camps and work-outs was $33,182.93. Thus, Hughes is only entitled to supplemental earnings if he can prove that he cannot earn 90% of $33,182.93. The record reflects that, although the claimant cannot return to play professional football, he has been working as a loan officer since six weeks after his injury earning more than 90% of $33,182.93. Accordingly, we find the claimant is not, therefore, entitled to supplemental earnings benefits.

Section 23:1221(3)(a) provides supplemental earnings benefits when a work injury leaves an employee unable to earn at least 90% of the pre-injury wage, and subsection (3)(c)(i) requires the employer then to prove physical ability and a suitable job offer or availability.

Johnson v. Orleans Parish School Bd. · filed 2006-05-03(3)(a), (3)(c)(i)

La. R.S. 23:1221(3)(a) mandates that an employee is entitled to SEB if he or she sustains a work-related injury resulting in an inability to earn 90% or more of his or her average pre-injury wage. ... Once the burden shifts, the employer "must prove, by a preponderance of the evidence, that the employee is physically able to perform a certain job and that the job was offered to the employee or that the job was available to the employee in his or the employer's community or reasonable geographic region."

Section 23:1221(3)(a) provides supplemental earnings benefits when a work injury leaves an employee unable to earn at least 90 percent of the average pre-injury wage, with the injured worker initially bearing the burden to prove that inability.

Hunter v. Alliance Compressors · filed 2006-06-21(3)(a)

Entitlement to SEB is based upon an employee sustaining a work-related injury that results in the inability to earn 90 percent or more of his or her average pre-injury wage. La.R.S. 23:1221(3)(a). According to the supreme court, “[t]he purpose of SEBs is to compensate the injured employee for the wage earning capacity he has lost as a result of his accident.” ... The burden of proving entitlement to SEB initially rests with the injured worker who must establish, by a preponderance of the evidence, that his or her injury resulted in the inability to earn those wages.

Section 23:1221(3) requires an injured worker seeking supplemental earnings benefits to prove an inability to earn at least 90% of pre-injury wages, after which § 23:1221(3)(c)(i) shifts the burden to the employer to prove that a physically suitable job was offered or available.

Bordelon v. Cox Communications · filed 2005-05-31(3), (3)(c)(i)

In order to obtain SEBs, the claimant must prove, by a preponderance of the evidence, that the work related injury prevents him from earning 90% or more of his pre-injury wages. ... Initially, the employee bears the burden of proving, by a preponderance of the evidence, that the injury resulted in an inability to earn that amount under the facts and circumstances of the individual case. ... Once the employee’s burden is met, the burden shifts to the employer who, in order to defeat the claim for SEBs or establish the employee’s earning capacity, must prove by a preponderance of the evidence that the worker is physically able to perform a certain job, which was offered to the employee or was available in the community or reasonable geographic region.

Section 23:1221(3)(a) provides supplemental earnings benefits when a work-related injury leaves an employee unable to earn at least 90 percent of the average pre-injury wage, with the employee bearing the burden of proving that loss.

Hebert v. C.G. Logan Construction, Inc. · filed 2006-11-02(3)(a)

An employee is entitled to receive SEB if he sustains a work-related injury that results in his inability to earn ninety percent or more of his average pre-injury wage. La.R.S. 23:1221(3)(a). The employee bears the burden of proving, by a preponderance of the evidence, that the work-related injury resulted in his inability to earn that amount under the facts and circumstances of the individual case.

Subsection (3) provides supplemental earnings benefits when a work-related injury prevents the 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.

Lanthier v. Family Dollar Store · filed 2006-11-02(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) calculates supplemental earnings benefits as two-thirds of the difference between the employee's average monthly wage at injury and the average monthly wage earned or earnable afterward, with average monthly wages computed by multiplying wages by fifty-two and dividing by twelve.

Cotton v. First Fleet · filed 2007-05-02(3)(a)

SEBs are calculated by taking: sixty-six and two-thirds percent of the difference between the average monthly wages at time of injury and average monthly wages earned or average monthly wages the employee is able to earn in any month thereafter in any employment or self-employment. . . . Average monthly wages shall be computed by multiplying his "wages" by fifty-two and then dividing the quotient by twelve. La.R.S. 23:1221(3)(a). Wages in this case, as has been stated above, must be calculated by dividing the employees' gross earnings for the twenty-six week period prior to the injury by the actual number of days worked in the twenty-six week period prior to the injury. See La.R.S. 12:1021(12)(d). Since we do not know the number of days Mrs. Cotton worked in that period, "wages" cannot be calculated. If "wages" cannot be calculated, the average monthly wage cannot be calculated, and thus, SEBs cannot be calculated. Therefore, the judgment rendered herein is vague in that it is not possible to determine the amount of supplemental earnings benefits payable.

Section 23:1221(3)(a) provides supplemental earnings benefits when a work injury leaves an employee unable to earn at least 90% of the pre-injury wage and measures them by the difference between pre-injury wages and post-injury earning capacity, while § 23:1221(3)(c)(ii) requires clear and convincing proof when the disability is solely caused by substantial pain.

TALYOR v. Penney · filed 2007-05-23(3)(a), (3)(c)(ii)

Under the provisions of La. R.S. 23:1221(3)(a), an employee is entitled to receive SEBs if the employee sustains a work-related injury that results in an inability to earn ninety percent or more of the average pre-injury wage. Initially, the employee bears the burden of proving by a preponderance of the evidence that the injury resulted in her inability to earn that amount under the facts and circumstances of the individual case. ... The amount of an award of SEBs is based upon the difference between the claimant's pre-injury average monthly wage and the claimant's proven post-injury monthly earning capacity. See La. R.S. 23:1221(3)(a). ... We are reminded in Banks [v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 p. 8 (La.7/1/97); 696 So.2d 551, 556] of "the jurisprudential tenet that worker's [sic] compensation is to be liberally construed in favor of coverage," but we are also bound by La. R.S. 23:1221(3)(c)(ii) which provides that the burden on claimant is not a mere preponderance of the evidence, but one of "clear and convincing evidence" where the disability is "solely as a consequence of substantial pain."

Section 23:1221(3)(a) provides supplemental earnings benefits when a work injury leaves an employee unable to earn at least 90% of pre-injury wages.

McCray v. Intralox, Inc. · filed 2008-05-27(3)(a)

La. R.S. 23:1221(3)(a) states that an employee may be entitled to supplemental earnings benefits for an injury resulting in his inability to earn wages equal to 90% or more of the wages he earned at the time of the injury.

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

Adams v. Sysco Food Service of New Orleans · filed 2008-06-30(3)(a)

Supplemental earnings benefits (SEBs) are established by La.R.S. 23:1221(3), which states, in pertinent part: (a) For injury resulting in the employee's inability to earn wages equal to ninety percent or more of wages at time of injury, supplemental earnings benefits equal to sixty-six and two-thirds percent of the difference between the average monthly wages at time of injury and average monthly wages earned or average monthly wages the employee is able to earn in any month thereafter in any employment or self-employment, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee at the time of the injury was particularly fitted by reason of education, training, and experience, such comparison to be made on a monthly basis.... Thus, to be entitled to SEBs, the employee must be unable to earn 90% or more of the wages he received at the time of his injury.

Section 23:1221 requires income from a claimant’s active post-injury business involvement to be treated as post-injury earnings that offset supplemental earnings benefits.

Delahoussaye v. Live Oak Gardens, Ltd. · filed 2009-10-07

We conclude, therefore, that the type of business income generated by Delahoussaye must be treated as any other post-injury business earnings. It should have been disclosed on a Form 1020. It will be used to offset supplemental earnings benefits as the law provides in La.R.S. 23:1221.

Section 23:1221(3)(a) provides supplemental earnings benefits when an injured employee cannot earn at least 90% of pre-injury wages, calculated as two-thirds of the wage difference, while subsection (3)(d)(i) limits the entitlement to 520 weeks.

Farquhar v. New Orleans Saints · filed 2009-05-26(3)(a), (3)(d)(i)

In accordance with La. R.S. 23:1221(3)(a), Farquhar was entitled to two years supplemental earnings benefits if he could prove he was unable to earn wages equal to ninety percent or more of his wages at the time of injury. If Farquhar proved his entitlement to supplemental earnings benefits, he would receive sixty-six and two-thirds percent of the difference between the average monthly wages at the time of injury and the average monthly wages he was earning, or able to earn, in any employment. Additionally, in accordance with La. R.S. 23:1221(3)(d)(i), Farquhar had a right to supplemental benefits earnings for a maximum of five hundred twenty weeks.

Section 23:1221(3) provides supplemental earnings benefits equal to sixty-six and two-thirds percent of the difference between pre-injury earnings and post-injury earning ability, subject to a maximum limitation.

Meier v. New Orleans Saints · filed 2009-03-12(3)

Thus, he qualifies for Supplemental Earnings Benefits pursuant to La. R.S. 23:1221(3). La. R.S. 23:1221(3) provides for payments of “sixty-six and two-thirds percent of the ... difference between” what the employee was earning before he was injured and what he is able to earn after injury subject to a maximum limitation.

Section 23:1221(3) provides supplemental earnings benefits when an injury leaves an employee unable to earn at least 90 percent of pre-injury wages, and claims for those benefits are subject to a three-year period from the last compensation payment.

Neese v. PAPA JOHN'S PIZZA · filed 2010-06-29(3)

Read together, La. R.S. 23:1209(A) and La. R.S. 23:1221(3) provide that worker’s compensation claims are barred unless filed within: (1) one year from the date of the accident or death of the claimant; (2) one year from the date of the last compensation payment; or (3) three years from the date of the last payment where the payment sought is an SEB payment.

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

Williams v. State of Louisiana, Thru the Dept. of Social Services · filed 2011-10-05(3)

Supplemental earnings benefits are awarded when a work-related injury prevents the injured worker from earning ninety percent of his pre-injury wages. La.R.S. 23:1221(3). ... In conjunction with the State’s failure to produce any evidence of an available job within her physical restrictions, the OWC did not err in finding Plaintiff was entitled to SEB.

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 employee’s average pre-injury wage.

Richard v. Calcasieu Parish School Board · filed 2011-10-05(3)(a)

Pursuant to La.R.S. 23:1221(3)(a),1 an employee is entitled to receive SEB if the employee sustains a work-related injury that results in an inability to earn ninety percent or more of his/her average pre-injury wage.

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

Williams v. State Ex Rel. Department of Social Services · filed 2011-10-05(3)

Supplemental earnings benefits are awarded when a work-related injury prevents the injured worker from earning ninety percent of his pre-injury wages. La.R.S. 23:1221(3). ... The testimony of Dr. Sunderhaus clearly establishes that Plaintiff was not declared permanently and totally disabled, but was restricted to sedentary duty. When asked whether Plaintiff was permanently and totally disabled, Dr. Sunderhaus stated “[r]eally, she can do sedentary employment.” In conjunction with the State’s failure to produce any evidence of an available job within her physical restrictions, the OWC did not err in finding Plaintiff was entitled to SEB.

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

Bell v. Mid City Printers, Inc. · filed 2010-12-22(3)(a)

To qualify for SEB, a claimant is required to prove by a preponderance of evidence that a work-related injury resulted in the inability to earn ninety percent or more of his average pre-injury wage. ... Under the circumstances presented here, Mr. Bell did not carry his burden of proof that his injury resulted in his inability to earn ninety percent or more of the wages he earned at the time of his injury.

Section 23:1221(3)(a) calculates supplemental earnings benefits from the difference between the claimant’s pre-injury average wage and proven post-injury monthly earning capacity.

Williams v. Orleans Parish School Board · filed 2011-02-09(3)(a)

The amount of an award of supplemental earnings benefits is based upon the differences between the claimant’s pre-injury average wage and the claimant’s proven post-injury monthly earning capacity.

Section 23:1221(3)(a) provides supplemental earnings benefits when a work injury leaves an employee unable to earn wages equal to at least 90 percent of the wages at the time of injury.

Coleman v. Walter Industries, Inc./Jim Walter Homes · filed 2011-02-11(3)(a)

The purpose of SEB is to compensate the injured employee for wage earning capacity she has lost as a result of an accident. La. R.S. 23:1221(3)(a) |aprovides that SEB shall be paid “[f]or injury resulting in the employee’s inability to earn wages equal to ninety percent or more of wages at time of injury.”

Section 23:1221(3) requires an employee's injury to leave the employee unable to earn at least 90 percent of the wages earned at the time of injury to qualify for supplemental earnings benefits.

Briscoe v. McNeese State University · filed 2011-12-07(3)

Entitlement to SEB is provided by La.R.S. 23:1221(3), under which the threshold prerequisite to recovery is that the employee’s injury results in his inability to earn wages equal to ninety percent of the wages he was earning at the time of the injury.

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

Richert v. Schindler Elevator Corp. · filed 2012-06-28(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 (90%) or more of his average pre-injury wage. La. R.S. 23:1221(3)(a).

Section 23:1221(3)(a) makes supplemental earnings benefits available when a work injury leaves an employee unable to earn at least 90 percent of pre-injury wages.

Wolf v. City of Baton Rouge · filed 2012-11-02(3)(a)

A claimant is entitled to SEB if the injury has resulted in the employee’s inability to earn wages equal to ninety percent or more of wages at the time of the injury. La. R.S. 23:1221(3)(a). ... We conclude, as did the WCJ, that Ms. Wolfs work injury is not what prevented her from working or earning at least ninety percent of her pre-injury wages (except during the eight-week period where her restrictions were different from the requirements for the available job). Rather,' it was her suspension and termination for violation of City/Parish personnel policies that prevented her from working.

Section 23:1221(3)(a) requires an employee seeking supplemental earnings benefits to prove that a work-related injury caused an inability to earn at least 90% of the pre-injury wage; the court applied that requirement to deny benefits where the claimant resigned before becoming disabled.

Gleason v. Lafayette General Medical Center · filed 2012-12-12(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 (90%) or more of his average pre-injury wage. La.R.S. 23:1221(3)(a). Initially, the employee bears the burden of proving, by a preponderance of the evidence, that the injury resulted in his inability to earn that amount under the facts and circumstances of the individual case. ... Gleason voluntarily resigned his position with LGMC to seek other employment. At the time, he had a job earning his full wage and had been conditionally accepted for another position. Gleason’s disability status did not change until three weeks after he had resigned from LGMC. While workers’ compensation laws are to be liberally construed in favor of compensation, we cannot say that the social contract extends to providing compensation for employees who voluntarily leave and later become disabled. In this case, Gleason has failed to establish that he is entitled to SEBs. The workers’ compensation judge’s award of SEBs is reversed.

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 wages received at the time of injury.

Duplechain v. Town of Church Point · filed 2012-12-19(3)(a)

Pursuant to La.R.S. 23:1221(3)(a), an employee is entitled to receive SEB if the employee sustains a work-related “injury resulting in the employee‟s inability to earn wages equal to ninety percent or more of wages at time of injury[.]”

Section 23:1221(3)(a) provides supplemental earnings benefits when a work-related injury leaves an employee unable to earn at least 90% of pre-accident wages.

Hahn v. X-Cel Air Conditioning, Inc. · filed 2013-01-09(3)(a)

An employee is entitled to receive supplemental earnings benefits if he sustains a work-related injury that results in his inability to earn ninety percent or more of his pre-accident wage.

Section 23:1221(3) provides supplemental earnings benefits when a work-related accident leaves an employee unable to earn at least 90% of the pre-injury wage, and § 23:1221(3)(c)(i) shifts the burden to the employer after the employee makes that showing.

Redmann v. Bridgefield Casualty Insurance · filed 2012-02-28(3), (3)(c)(i)

An employee is entitled to receive SEB if she sustains a work-related accident that results in her inability to earn 90% or more of her average pre-injury wage. ... Only when the employee makes this initial showing does the burden shift to the employer to prove that the employee is physically able to perform a certain job and that the job was offered to the employee or that the job was available to the employee in her or the employer’s community or reasonable geographic area.

Section 23:1221(3)(a) provides supplemental earnings benefits when a work injury leaves an employee unable to earn 90% or more of the pre-injury average wage; entitlement is assessed using the broader facts and circumstances bearing on earning capacity, not the statutory four-week wage figure alone.

Roach v. Libbey Glass, Inc. · filed 2012-11-14(3)(a)

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

Section 23:1221(3)(a)(i) requires the injured employee to prove by a preponderance that the injury reduced earning capacity below 90% of pre-injury wages; under (3)(c)(ii), the employee must then prove by clear and convincing evidence that substantial pain prevents the offered or available employment.

Garcia v. Hico, Inc. · filed 2013-03-18(3)(a)(i), (3)(c)(ii)

Under Louisiana Revised Statute 23:1221(3)(a), the injured employee has the initial burden of proving by a preponderance of the evidence that the work-related injury rendered the injured employee unable to earn 90% of the injured employee’s pre-injury wages. ... The burden then shifts back to the injured employee to prove by clear and convincing evidence, unaided by any presumption of disability, that he is unable to perform the employment offered or available solely due to substantial pain.

Section 23:1221(3) provides supplemental earnings benefits when a work-related injury leaves an employee unable to earn at least 90% of the pre-injury wage, after which the employer must show that the employee can perform a suitable job that was offered or was available in the relevant community.

Alpizar v. Dollar General Corp. · filed 2014-03-05(3)(a), (3)(c)(i)

“The purpose of [SEBs] is to compensate the injured employee for the wage earning capacity he has lost as a result of his accident.” ... “An employee is entitled to receive SEBs if he sustains a work-related injury that results in his inability to earn ninety percent (90%) or more of his average pre-injury wage. La. R.S. 23:1221 (3) (a). Initially, the employee bears the burden of proving, by a preponderance of the evidence, that the injury resulted in his inability to earn that amount under the facts and circumstances of the individual case. Banks, supra at 556. “In determining if an injured employee has made out a prima facie case of entitlement to [SEBs], the trial court may and should take into account all those factors which might bear on an employee’s ability to earn a wage.” ... It is only when the employee overcomes this initial step that the burden shifts to the employer to prove, by a preponderance of the evidence, that the employee is physically able to perform a certain job and that the job was offered to the employee or that job was available to the employee in his or the employee’s community or reasonable geographic location. La. R.S. 23:1221 (3) (c) (i); Banks, supra at 556; Daigle, supra at 1009.

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

Our Lady of the Lake Hospital, Inc. v. Jackson · filed 2014-06-06(3)(a)

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

Section 23:1221(3) provides supplemental earnings benefits when a work accident reduces an employee's earning capacity, allocates the burdens of proof regarding available work and substantial pain, and preserves benefits despite prior disability, impairment, or disease.

Futch v. Horseshoe Casino · filed 2014-07-23(3)(a), (3)(c)(ii), (3)(e)(i)

An employee is entitled to receive SEB if she sustains a work-related accident that results in her inability to earn 90% or more of her average pre-injury wage. La. R.S. 23:1221(3)(a). Initially, the employee bears the burden of proving by a preponderance of the evidence that the injury resulted in her inability to earn that amount under the facts and circumstances of the individual case. ... Finally, if the employee establishes by clear and convincing evidence, unaided by any presumption of disability, that solely as a consequence of substantial pain, she cannot perform employment offered, tendered or otherwise proven to be available to her, then the employee is deemed incapable of performing such employment. La. R.S. 23:1221(3)(c)(ii); ... However, “the fact that an employee has suffered previous disability, impairment, or disease” does not preclude her from receiving benefits for a subsequent injury. La. R.S. 23:1221(3)(e)(i).

Section 23:1221 provides supplemental earnings benefits when a work injury leaves an employee unable to earn at least ninety percent of the wages earned before the injury.

Groover v. Lafitte's Boudoir, Inc. · filed 2015-03-18(3)

Pursuant to La.Rev.Stat. Ann. 23:1221(8), an employee who sustains an “injury resulting in the [his] inability to earn wages equal to ninety percent or more of wages at time of injury,” is entitled to “supplemental earnings benefits, payable |17monthiy, equal to sixty-six and two-thirds percent of the difference between the average monthly wages at time of injury and average monthly wages earned or average monthly wages the employee is able to earn in any month thereafter in any employment or self-employment....”

Section 23:1221(3) entitles a claimant to supplemental earnings benefits upon proving by a preponderance of the evidence that a work-related injury caused an inability to earn ninety percent of pre-injury wages, after which the employer must prove suitable available work and its expected wages.

Ruebush v. Office of Risk Management & the Care Center of Dequincy · filed 2015-04-08(3)

Otherwise relevant to this claim, and pursuant to La.R.S. 23:1221(3), a claimant is entitled to SEB benefits upon a showing, by a preponderance of the evidence, that a work-related injury resulted in his or her inability to earn ninety percent of his pre-injury wages. Winford v. Conerly Corp., 04-1278 (La. 3/11/05), 897 So.2d 560. If the claimant meets this initial burden, the employer must prove, by competent evidence: 1) the existence of a suitable job within the prescribed physical capabilities and within the claimant’s community/reasonable geographic region; 2) the amount of wages a similarly situated employee can be expected to earn in the job; and 3) an actual position available for that particular job at the time that the claimant received notification of the job’s existence. Banks v. Indus. Roofing & Sheet Metal Works, Inc., 96-2840 (La. 7/1/97), 696 So.2d 551.

Section 23:1221(3)(a)(i) provides supplemental earnings benefits when a work injury leaves an employee unable to earn at least 90% of pre-injury wages, and requires proof by a preponderance of the evidence that the injury caused that inability.

Weaver v. Louisiana Wholesale Drug Co., Inc. · filed 2016-03-02(3)(a)(i)

SEB are available when an injury renders an employee unable to earn at least 90% of wages at the time of the injury. La.R.S. 23:1221(3)(a)(i). In order to show entitlement to SEB, an injured employee must show, by a preponderance of the evidence, “that the injury resulted in his inability to earn that amount under the facts and circumstances of the individual case.”

Section 23:1221(3) provides supplemental earnings benefits when an injured worker can no longer perform the primary job and earns less than 90% of pre-injury wages.

Verges v. AmTrust North America Community Leaders Advocacy for Success · filed 2016-08-31(3)

Also, although Ms. Verges continued to work her second job at Destiny Services following the incident,' she could no longer work at her primary job as a special education teacher; therefore, she was earning far less than 90% of her pre-incident wages and entitled to supplemental earnings benefits pursuant to La. R.S. 23:1221(3).

Section 23:1221(3)(a) provides supplemental earnings benefits when a work injury leaves an employee unable to earn at least 90% of the pre-injury wage, while (3)(c)(i) requires the employer to prove that the employee can perform a physically suitable job offered or available in the relevant community to defeat the claim.

McCoy v. W.A. Kendall & Co. · filed 2015-11-25(3)(a), (3)(c)(i)

An employee is entitled to receive SEBs if he or she sustains a work-related injury that results in his inability to earn ninety percent (90%) or more of his or her average pre-injury wage. ... In order to defeat McCoy’s claim for SEBs or establish his earning capacity, Kendall must prove, by a preponderance of the evidence, that McCoy is physically able to perform -a certain job and that the job was offered to, or proven to be available to, him in his or Kendall’s community or reasonable geographic region.

Section 23:1221(3)(a) provides supplemental earnings benefits when a work-related injury leaves an employee unable to earn 90% or more of the average pre-injury wage, while § 23:1221(3)(c)(i) shifts the burden to the employer to prove the employee can perform an offered or available job.

Johnson v. Lofton Staffing Services, Inc. · filed 2022-05-04(3)(a), (3)(c)(i)

La. R.S. 23:1221(3)(a) provides that an employee is entitled to receive SEBs if he sustains a work-related injury that results in his inability to earn 90% or more of his average pre-injury wage. Initially, the employee bears the burden of proving, by a preponderance of the evidence, that the injury resulted in his inability to earn that amount under the facts and circumstances of the individual case. ... Once the employee’s burden is met, the burden shifts to the employer who, in order to defeat the employee’s claim for SEBs, must prove, by a preponderance of the evidence, that the employee is physically able to perform a certain job and that the job was offered to the employee or that the job was available to the employee in his or the employer’s community or reasonable geographic region.

Section 23:1221(3)(a) makes an employee eligible for supplemental earnings benefits when a work-related injury leaves the employee unable to earn at least 90% of the average pre-injury wage, while § 23:1221(3)(C)(iii) deems the employee incapable of offered employment if clear and convincing evidence shows that substantial pain alone prevents performance.

Frazier v. Covenant Services Worldwide · filed 2017-05-31(3)(a) (3)(C)(iii)

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 (90%) or more of his average pre-injury wage. ... However, under La. R.S. 23:1221(3)(C)(iii), “if the employee establishes by .clear and convincing evidence, ,that solely as a consequence of substantial pain, the employee cannot perform employment offered, tendered, or otherwise proven to be available to him, the employee shall be deemed incapable of performing such employment.”

Section 23:1221(3)(c)(i) shifts the burden to the employer, after the employee shows an inability to earn at least 90% of pre-injury wages, to prove the employee can physically perform a job that was offered or was available within a reasonable geographic area.

Jones v. Craft Resource Solution & Accident Fund Ins. Company of America · filed 2025-04-09(3)(c)(i)

Louisiana Revised Statutes 23:1221(3) provides that an injured employee who is entitled to SEB when the work-related injury results in an inability to earn at least ninety percent (90%) or more of his pre-injury wage. “The employee bears the initial burden of proof to show that the injury resulted in an inability to earn that amount.” Guillory v. St. Michael PFU, LLC, 23-674, p. 9 (La.App. 3 Cir. 4/17/24), 389 So.3d 140, 147. If the employee meets this burden, “the burden shifts to the employer who must prove that the employee is physically able to perform a certain job and that such a job was offered to the employee or available to the employee in her or the employer’s reasonable geographic location.” Id. citing La.R.S. 23:1221(3)(c)(i). ... Jones’ earning capacity of $551.60 exceeds that amount. ... We find no manifest error in the WCJ’s findings of fact and consequential denial of SEB.

Supplemental earnings benefits require an injury that reduces the worker’s earning capacity below 90% of pre-injury wages; earning less despite the ability to earn that amount does not qualify.

Killen v. Continental Ins. Co. · filed 1987-10-28(3)

Thus, any worker able to earn, but not earning, 90% or more of the former wage is not entitled to supplemental earnings benefits.

An employer seeking to reduce benefits to supplemental earnings benefits must prove that the employee can physically perform an available job.

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

The burden of proof herein rests with the School Board to establish by a preponderance of the evidence that Ms. Richard was physically able to perform a particular job and that that job was available to her.

Section 23:1221(3)(d)(iii) concerns the duration of supplemental earnings benefits when a worker permanently leaves the workforce; resignation alone does not establish that the worker has done so.

Gleason v. Lafayette General Medical Center · filed 2012-12-12(3)(d)(iii)

Resignation from a job is not the relevant issue here; and, resignation alone can never be used to deny a claimant benefits. It is also irrelevant that Gleason worked for fourteen months and earned more than 90% of his pre-injury wages. The only time “resignation,” which the courts often equate with the term retirement, becomes significant is when an employer asserts the employee has |4permanently left the workforce; and thus, the employer is relying on R.S. 23:1221(3)(d)(iii) to escape payment of the full 520 weeks of SEB as opposed to only 104 weeks.

An employee seeking supplemental earnings benefits must prove that the injury left them unable to earn at least 90% of their wages at the time of injury.

Racca v. Acme Truck Lines, Inc. · filed 2013-06-12(3)(a)(i)

However, given that Racca had never “met his initial burden of proving entitlement to SEB,” it was incumbent upon him to show that he was entitled to SEBs. It is clear that the WCJ found that he failed to carry that burden, and the record before us supports that finding.

Undistributed earnings of a separately maintained corporation and rent paid for equipment are excluded from its shareholder’s supplemental earnings benefits calculation.

Simmons v. Luba Worker's Comp. · filed 2016-11-02(3)

Accordingly, the WCJ did not err in refusing to attribute SCI’s earnings to James for the purpose of calculating James’s SEBs. ... Accordingly, we find no error with the WCJ’s refusal to include SCI’s rental payments in James’s SEBs calculation.

Section 23:1221(3)(a) measures supplemental earnings benefits by the difference between pre-injury average monthly wages and proven post-injury earning capacity, and § 23:1221(3)(c)(i) requires the employer to prove both the employee's physical ability to perform a job and that the job was offered or available in the relevant community or geographic region.

Britton v. City of Natchitoches · filed 1998-02-11(3)(a), (3)(c)(i)

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). ... Rather, an employer "must prove, by a preponderance of the evidence, that the employee is [1] physically able to perform a certain job and that the [2] 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." Banks, 696 So.2d at 556 (emphasis added); La.R.S. 23:1221(3)(c)(i).

For calculating supplemental earnings benefits, a claimant who proves by clear and convincing evidence that substantial pain prevents work is deemed incapable of performing that employment.

Kaufman v. Fishery Products of Louisiana, Inc. · filed 2003-10-22(3)(c)(ii)

Subsection (ii) states that for purposes of subsection (i) [figuring what the subtraction is from the weekly earnings], if claimant proves by clear and convincing evidence that due to substantial pain, he or she cannot work, that claimant shall be deemed incapable of performing such employment.

Section 23:1221 provides supplemental earnings benefits when a worker cannot earn at least 90% of pre-injury wages, and the post-injury earning capacity used to calculate benefits must reflect the lowest wage of physically suitable employment offered or available in the relevant community, subject to the statute's rules on actual earnings.

Thompson v. City of New Orleans · filed 2006-05-24(3), (3)(a), (3)(b), (3)(c)(ii)

La. R.S. 23:1221(3) sets forth the amount of compensation that a worker with a permanent partial disability is entitled to be paid. ... La. R.S. 23:1221(3)(b) further provides that the amount of wages an employee is able to earn after an injury shall not be less than the amounts actually received in earnings. [5] La. R.S. 23:1221(3)(c)(ii), however, states that notwithstanding the provisions of La. R.S. 23:1221(3)(b), if an employee who was injured is not engaged in any employment or is earning wages less than the employee is able to earn, the determination of the wages that the employee is able to earn shall be no less than the amount the employee would have received in any employment the employee was physically able to perform that was (1) offered to the employee by an employer or (2) available to the employee in the employee's or the original employer's community or reasonable geographic region.

Section 23:1221(3)(c)(i) sets the employee’s earning capacity for supplemental earnings benefits at no less than wages from employment the employee was physically able to perform and was offered or tendered.

Russell v. Sewerage & Water Board New Orleans · filed 2016-02-17(3)(c)(i)

If, as here, the employee is not engaged in any employment or self-employment, 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 (1) which he was offered or tendered by the employer or any other employer ...” La. R.S. 23:1221(3)(c)(i).

Section 23:1221(3) calculates supplemental earnings benefits as 66.67 percent of the difference between pre-injury wages and post-injury earning capacity, and suitable part-time work reduces the benefit rather than eliminating it.

Guillory v. St. Michael Pfu, LLC, Dba the Care Center of Dequincy · filed 2024-04-17(3)(a)(i), (3)(c)(i), (3)

An employee is entitled to receive SEBs when she sustains a work-related injury that results in an inability to earn at least ninety percent or more of her pre-injury wage. La.R.S. 23:1221(3)(a)(i); see also Banks v. Indus. Roofing & Sheet Metal Works, Inc., 96-2840 (La. 7/1/97), 696 So.2d 551. ... Once this burden is met, the burden shifts to the employer who must prove that the employee is physically able to perform a certain job and that such a job was offered to the employee or available to the employee in her or the employer’s reasonable geographic location. La.R.S. 23:1221(3)(c)(i); Banks, 696 So.2d 551. ... However, the WCJ did err when it found that Guillory was not entitled to any indemnity benefits after she “abandoned” that position. Although The Care Center proved the availability of a job within Guillory’s restrictions, the job was limited to six hours a week—far less than the amount of hours she worked pre-injury and thus resulting in far less wages. Under the applicable statutory laws, it was legal error for the WCJ to find that Guillory was not entitled to reinstatement of any amount of indemnity benefits. Simply put, the WCJ incorrectly applied the statute. ... SEBs are calculated based on the difference between the average monthly wages at the time of injury and the average monthly wages that an employee earns, or is able to earn, after the injury, multiplied by 66.67 percent. La.R.S. 23:1221(3)(a)(i). ... In Russell, 187 So.2d at 102 (emphasis in original), the court explained that a refusal to accept or engage in part-time work merely reduces the amount of SEBs owed rather than eliminates an award of SEBs: “Because there was part-time work offered to [the claimant] that he was physically able to do, the [employer] is entitled here to reduce the amount of his weekly supplemental earnings benefit but not to restrict or eliminate an award of SEBs.” ... Here, too, the WCJ determined that Guillory should have been able to earn the wages set forth in the four-week modified position, which meant that Guillory’s SEBs should have been reduced, not eliminated. ... Under La.R.S. 23:1221(3), Guillory is entitled to 66.67 percent of the difference between her pre-injury weekly wage of $498.92 and the weekly amount she is able to earn of $52.50.

Section 23:1221 requires clear and convincing proof that an employee cannot perform any employment for temporary total disability benefits, while supplemental earnings benefits use shifting proof burdens concerning reduced earning capacity, available work, and inability to work because of substantial pain.

Scherer v. Interior Plant Design · filed 1998-10-28(1)(c), (3)(a), (3)(c)(i), (3)(c)(ii)

For an employee to establish entitlement to TTD benefits, he or she must prove "by clear and convincing evidence, unaided by any presumption of disability, that [he or she] is physically unable to engage in any employment or self-employment...." La.R.S. 23:1221(1)(c). The burden of proving the existence of a fact by clear and convincing evidence requires that its existence must be "highly probable, that is, much more probable tha[n] its non-existence." Comeaux v. Sam Broussard Trucking, 94-1631, p. 8 (La.App. 3 Cir. 5/31/95); 657 So.2d 449, 454, quoting Succession of Bartie, 472 So.2d 578, 582 (La.1985). There must be objective medical evidence of the employee's disability to satisfy La.R.S. 23:1221(1)(c)'s standard of clear and convincing evidence. Id. An employee's disability status is a legal question, with the determination of disability being made after evaluating all lay and medical testimony. Fritz v. Home Furniture-Lafayette, 95-1705 (La.App. 3 Cir. 7/24/96); 677 So.2d 1132 citing Walker v. Halliburton Services, Inc., 93-722 (La.App. 3 Cir. 3/1/95); 654 So.2d 365, writ denied, 95-1507 (La.9/22/95); 660 So.2d 481. This is a factual finding and, therefore, the workers' compensation judge's determination is subject to the manifest error-clearly wrong standard of review. Id. Entitlement to SEB benefits involves shifting burdens of proof. Initially, the employee must prove his inability to earn ninety percent of the wages he was earning at the time of his injury by a preponderance of the evidence. La.R.S. 23:1221(3)(a); Comeaux, 94-1631; 657 So.2d 449. Once the employee establishes his prima facie case, the employer must then prove that the employee is capable of earning more wages than he is presently earning. This can be established by demonstrating by a preponderance of the evidence that the employee is, in fact, physically capable of engaging in a specific type of employment and that the job was either "offered or tendered by the employer or any other employer," or the job "is proven available to the employee in the employee's or employer's community or reasonable geographic region." La.R.S. 23:1221(3)(c)(i); Id. The employee may then prove his incapacity of engaging in that employment "if [he or she] establishes by clear and convincing evidence, unaided by any presumption of disability, that solely as a consequence of substantial pain, [he or she] cannot perform employment offered, tendered, or otherwise proven to be available to him...." La.R.S. 23:1221(3)(c)(ii); Id.

Section 23:1221(1)(c) requires clear and convincing proof that an employee is physically unable to engage in any employment for temporary total disability benefits, while § 23:1221(3)(a) provides supplemental earnings benefits when a work-related injury prevents earning at least ninety percent of the pre-accident wage, calculated as two-thirds of the wage difference.

Bolton v. Grant Parish School Bd. · filed 1999-04-05(1)(c), (3)(a)

A claimant who seeks worker's compensation benefits on the basis 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. La. R.S. 23:1221(1)(c) [5] ; Bailey v. Smelser Oil & Gas, Inc., 620 So.2d 277 (La.1993). ... An employee is entitled to receive supplemental earnings benefits if he sustains a work-related injury that results in his inability to earn ninety percent or more of his pre-accident wage. La. R.S. 23:1221(3)(a). ... If the hearing officer determined that claimant was able to perform the work as a receptionist (a determination that is supported by the record), he should have awarded supplemental earnings benefits equal to sixty-six and two-thirds percent of the difference between the average monthly wages at the time of the injury and the average monthly wages claimant was able to earn as a receptionist. La. R.S. 23:1221(3)(a).

Section 23:1221(1)(c) requires clear and convincing proof, without a presumption of disability, that an unemployed employee is physically unable to perform any employment for temporary total disability benefits; § 23:1221(3)(c) governs proof concerning available work and substantial pain for supplemental earnings benefits, and § 23:1221(3)(d)(i)'s two-year termination rule does not cut off benefits when supplemental earnings benefits were payable for at least thirteen consecutive weeks during that period.

Jackson v. Domtar Industries, Inc. · filed 1999-04-07(1)(c), (3), (3)(c)(i), (3)(c)(ii), (3)(d)(i)

Regarding entitlement to TTD benefits, La.R.S. 23:1221(1)(c) provides, in pertinent part, as follows: For purposes of Subparagraph (1)(a) of this Paragraph, whenever the employee is not engaged in any employment or self-employment ..., compensation for total temporary 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. ... To satisfy the burden of proving, by clear and convincing evidence, his physical inability to engage in any employment, Plaintiff was required to introduce objective medical evidence of his disabling condition. ... Accordingly, Plaintiff has failed to present objective medical evidence of his disability. We, therefore, find this portion of the assignment without merit. ... We observe that Plaintiff has failed to counter with "clear and convincing evidence, unaided by any presumption of disability" that he is incapable of performing the tendered employment "solely as a consequence of "substantial pain." La.R.S. 23:1221(3)(c)(ii). ... Therefore, this portion of the assignment is also without merit. ... We note that the workers' compensation judge referred to a two-year period within which to claim SEBs. That period is provided for in La.R.S. 23:1221(3)(d)(i), which provision states as follows: (d) The right to supplemental earnings benefits pursuant to this Paragraph shall in no event exceed a maximum of five hundred twenty weeks, but shall terminate: (i) As of the end of any two-year period commencing after termination of temporary total disability, unless during such two-year period supplemental earnings benefits have been payable during at least thirteen consecutive weeks. However, we find that the three-year period provided for in La.R.S. 23:1209(A) is applicable, as Defendant paid Plaintiff SEBs for more than thirteen consecutive weeks.

Section 23:1221(1) provides temporary total disability benefits for a work-related injury that prevents all work, requires a nonworking employee to prove that inability by clear and convincing evidence, and ends those benefits when the condition stabilizes enough to determine disability and continued regular medical treatment is unnecessary.

Nolan v. Rawls Farming Co. · filed 2001-10-31(1)(a), (1)(c), (1)(d)

An employee 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 the employee was customarily engaged when injured, and whether or not an occupation for which the employee at the time of the injury was particularly fitted by reason of education, training or experience[.]" La. R.S. 23:1221(1)(a). When such an employee is not working, TTD compensation is proper "only if the employee proves by clear and convincing evidence, unaided by any presumption of disability," that he is physically unable to engage in any employment or self-employment, "including but not limited to any and all odd-lot employment, sheltered employment, or employment while working in any pain[.]" La. R.S. 23:1221(1)(c); Fisher v. Lincoln Timber Co., 31,430 (La.App.2d Cir.01/24/99), 730 So.2d 973. ... As for the termination of TTD benefits, they "shall cease when the physical condition of the employee has resolved itself to the point that a reasonably reliable determination of the extent of disability of the employee may be made and the employee's physical condition has improved to the point that continued regular treatment by a physician is not required." La.R.S. 23:1221(1)(d); Fisher, supra . In light of our determination that Nolan did not commit fraud during his testimony, see discussion infra, he is entitled to continued TTD benefits during the time that he receives the conservative treatment recommended by Dr. Liles and until it is determined by the WCJ that he is no longer eligible for such benefits.

Section 23:1221(3)(a) provides supplemental earnings benefits when a work injury prevents an employee from earning at least 90% of the pre-injury wage, while Section 23:1221(3)(c)(i) places on the employer the burden to show the employee can physically perform a suitable job that was offered or available in the relevant community.

Foster v. Rabalais Masonry, Inc. · filed 2002-03-06(3)(a), (3)(c)(i)

An employee is entitled to receive supplemental earnings benefits if he sustains a work-related injury that results in his inability to earn ninety percent (90%) or more of his average pre-injury wage. La.R.S. 23:1221(3)(a). Initially, the employee bears the burden of proving, by a preponderance of the evidence, that the injury resulted in his inability to earn that amount under the facts and circumstances of the individual case. Freeman v. Poulan/Weed Eater, 93-1530 (La.1/14/94); 630 So.2d 733. "The analysis is necessarily a facts and circumstances one in which the court is mindful of the jurisprudential tenet that workers' compensation law is to be liberally construed in favor of coverage." Daigle v. Sherwin-Williams Co., 545 So.2d 1005, 1007 (La.1989). Once the employee's burden is met, the burden shifts to the employer who, in order to defeat the employee's claim for SEB or establish the employee's earning capacity, must prove, by a preponderance of the evidence, that the employee is physically able to perform a certain job and that the job was offered to the employee, or that the job was available to the employee in his or the employer's community or reasonable geographic region. La.R.S. 23:1221(3)(c)(i); Daigle, 545 So.2d 1005.

Section 23:1221(1)(c) requires clear and convincing proof that the worker cannot perform any employment for temporary total disability benefits; Section 23:1221(3)(a) provides supplemental earnings benefits when the injury prevents the worker from earning at least ninety percent of pre-injury wages and measures the award by lost earning capacity; and Section 23:1221(3)(c)(i) shifts the burden to the employer to prove that suitable work was offered or available.

Moore v. City of New Orleans · filed 2003-01-29(1)(c), (3)(a), (3)(c)(i)

For an employee to establish entitlement to temporary total disability benefits, he must prove by clear and convincing evidence, unaided by an 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). ... Pursuant to the provisions of La. R.S. 23:1221(3)(a), an employee is entitled to receive supplemental earnings benefits if he sustains a work-related injury that results in his inability to earn ninety percent (90%) or more of his average pre-injury wage. ... Once the employee's burden is met, the burden shifts to the employer who, in order to defeat the employee's claim for supplemental earnings benefits or establish the employee's earning capacity, must prove, by a preponderance of the evidence, that the employee is physically able to perform a certain job and that the job was offered to the employee or that the job was available to the employee in his or the employer's community or reasonable geographic region. La. R.S. 23:1221(3)(c)(i); Daigle, 545 So.2d at 1009. Actual job placement is not required. Seal, 97-0688 at p. 8, 704 So.2d at 1166. The amount of an award of supplemental earnings benefits is based upon the difference between the claimant's pre-injury average monthly wage and the claimant's proven post-injury monthly earning capacity. La. R.S. 23:1221(3)(a).

Section 23:1221(1)(c) requires clear and convincing proof that an employee cannot perform any employment for temporary total disability benefits; § 23:1221(3)(a) covers an injury-caused inability to earn at least 90% of pre-injury wages, and § 23:1221(3)(c)(i) describes the employer’s burden after that showing.

Daniels v. Keller Supply, Inc. · filed 2003-08-06(1)(c), (3)(a), and (3)(c)(i)

For an employee to establish entitlement to temporary total disability 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, regardless of its nature, and including employment while working in pain. La. R.S. 23:1221(1)(c). ... Pursuant to the provisions of La. R.S. 23:1221(3)(a), an employee is entitled to receive supplemental earnings benefits if he sustains a work-related injury that results in his inability to earn ninety percent (90%) or more of his average pre-injury wage. ... Once the employee's burden is met, the burden shifts to the employer who, in order to defeat the employee's claim for supplemental earnings benefits or establish the employee's earning capacity, must prove, by a preponderance of the evidence, that the employee is physically able to perform a certain job and that the job was offered to the employee or that the job was available to the employee in his or the employer's community or reasonable geographic region. La. R.S. 23:1221(3)(c)(i); Daigle, 545 So.2d at 1009. ... After considering the evidence in the record, we find Daniels did not prove by a preponderance of the evidence that he was physically unable to engage in any employment or that the injury resulted in his inability to earn ninety percent (90%) of his average pre-injury wage. ... Thus, the workers' compensation judge did not err in finding that Daniels was entitled to neither temporary total disability benefits nor supplemental earnings benefits.

Section 23:1221(1)(c) requires clear and convincing proof that a claimant is physically unable to engage in any employment for temporary total disability, while § 23:1221(3) requires proof by a preponderance that the injury reduced earning capacity below 90 percent and then shifts the burden to the employer to show suitable available work.

Anderson v. Eckerd Corp. · filed 2005-05-06(1)(c), (3)

To be entitled to disability benefits, the work-related injury must be disabling, whether it be temporary or permanent. Pursuant to La. R.S. 23:1221(1)(c), a claimant has the burden of proving a temporary, total disability by clear and convincing evidence. In the absence of clear and convincing evidence that the claimant is physically unable to engage in any employment, the claimant's demand for temporary, total disability benefits fails. ... In order to recover supplemental earnings benefits (SEBs), a claimant must first prove by a preponderance of the evidence that a work-related injury has resulted in his inability to earn 90 percent or more of his average pre-injury wage. La. R.S. 23:1221(3). 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 claimant'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(1)(c) requires clear and convincing proof, without a presumption of disability, that the claimant cannot engage in any employment for TTD benefits; § 23:1221(3)(c)(ii) allows proof that substantial pain alone prevents the claimant from performing offered employment for SEB purposes.

Brantley v. Delta Ridge Implement, Inc. · filed 2006-06-28(1)(c), (3)(c)(ii)

To obtain an award of TTD's, a claimant must prove by clear and convincing evidence, unaided by any presumption of disability, that he is physically unable to engage in any employment or self-employment. La. R.S. 23:1221(1)(c). ... As the WCJ found, the medical evidence does not clearly and convincingly show that the claimant could not return to some type of employment. ... The employee is deemed incapable of performing the employment offered 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. La. R.S. 23:1221(3)(c)(ii). ... There was thus no evidence that the claimant could not have performed the employment offered. Hence, the WCJ correctly found that he failed to prove that he was entitled to SEB's.

Maximum medical improvement alone does not terminate or determine eligibility for TTD benefits; after maximum medical improvement, a worker able to return to work is limited to SEB, which requires proving that the injury caused an inability to earn 90% or more of pre-injury wages.

Lee v. Kenyan Enterprises · filed 2006-08-23(l)(d) and (3)(a)

Since the 1989 amendment to La. R.S. 23:1221(l)(d), maximum medical improvement alone has not been the standard for the termination or eligibility of TTD benefits. ... 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 supplemental earnings benefits (SEB’s). ... To qualify for SEB’s, a plaintiff is required to prove by a preponderance of the evidence that a work-related injury resulted in the inability to earn 90% or more of the pre-injury wages.

Section 23:1221(l)(c) requires clear and convincing proof that the employee is physically unable to engage in any employment for temporary total disability benefits, while Paragraph (3) requires proof of an inability to earn 90% of pre-injury wages and shifts the burden to the employer to show suitable available work.

Bridges v. Gaten's Adventures Unlimited, L.L.C. · filed 2015-04-02(l)(c), (3)(a), (3)(c)(i)

A claimant seeking temporary total disability benefits bears the burden of proving, by clear and convincing evidence, that she is “physically unable to engage in any employment.” ... An employee is not entitled to temporary total disability benefits if she can engage in light duty work. ... An employee is entitled to receive supplemental earnings benefits if she sustains a work-related injury that results in her inability to earn ninety percent (90%) or more of her average pre-injury wage. ... Initially, the employee bears the burden of proving, by a preponderance of the evidence, that the injury resulted in her inability to earn that amount. If the employee satisfies that burden of proof, the burden shifts to the employer to prove, by a preponderance of the evidence, that the employee is physically able to perform a certain job and that the job was offered to the employee or that the job was available to the employee in his or the employee’s community or reasonable geographic location. ... The burden of proof does not shift to the employer merely because an employee proves she is unemployed at the time of trial or unable to obtain the same type of job as before the accident. ... As explained by the supreme court, “The statute clearly places its focus on the amount of wages earned before and after the accident, not the type of occupation or the type of work performed.”

For supplemental earnings benefits, the employee must prove that the work injury caused an inability to earn at least ninety percent of the pre-injury wage; the employer may defeat the claim by proving physical ability and an offered or available job, after which the employee must prove by clear and convincing evidence an inability to engage in any employment.

Summers v. Ritz-Carlton New Orleans · filed 2015-05-28(3)(a)(i), (3)(c)(i), (3)(e)(ii)

The purpose of supplemental earnings benefits is to compensate an injured employee for the wage earning capacity she has lost as a result of her accident. ... If an employee sustains a work-related injury that results in an inability to earn ninety percent (90%) or more of her average pre-injury wage, then the employee, is entitled to receive supplemental earnings benefits. La. R.S. 23:1221(3) (a)(i). ... Initially, the employee bears the burden of proving by a preponderance of the evidence that the injury caused her inability to earn ninety percent (90%) or more of her average pre-injury wage. ... Once an employee meets this burden, the burden shifts to the employer who, in - order to defeat the employee’s claim for supplemental earnings benefits, must prove by a preponderance of evidence that the employee is physically able to perform a certain job, and that the job was offered to the employee or was available to the employee in her or the employer’s community or reasonable geographic region. ... If the employer meets this burden, then the employee must establish by clear and convincing evidence that she is unable to engage in any employment. La. R.S. 23:1221(3)(e)(ii); ...

Section 23:1221(2)(a) defines temporary total disability as inability to engage in any gainful occupation, while § 23:1221(3) provides supplemental earnings benefits when a work injury prevents the employee from earning at least 90 percent of the pre-injury wage and allocates the proof burdens.

SR v. St. Tammany Parish Hosp. · filed 2018-10-31(2)(a), (3)

Temporary total disability means the inability to engage in any gainful occupation, whether or not it is the same or one similar to that in which the employee was customarily engaged when injured. La. R.S. 23:1221(2)(a). A workers' compensation claimant seeking temporary total disability benefits bears the burden of proving, by clear and convincing evidence, his inability to engage in any type of employment. ... An employee is entitled to receive SEB indemnity benefits if he sustains a work-related injury that results in his inability to earn 90 percent or more of his average pre-injury wage. ... It is only when the employee overcomes this initial step that the burden shifts to the employer to prove, by a preponderance of the evidence, that the employee is physically able to perform a certain job and that the job was offered to the employee or that the job was available to the employee in his or the employer's community or reasonable geographic location. ... Thus, Mr. Neal failed to sustain his burden of proving that it was the work-related injury that resulted in his inability to earn 90 percent of his pre-injury wages.

Section 23:1221(1)(c) requires clear and convincing proof, without a presumption of disability, that an injury prevents any employment for temporary total disability benefits; § 23:1221(3)(a)(i) requires proof that the injury caused an inability to earn 90% or more of the pre-injury wage for supplemental earnings benefits, and § 23:1221(3)(c)(ii) requires clear and convincing proof that the employee cannot engage in offered or available employment after the employer meets its burden.

Ruver Moya Versus Michael Lucas · filed 2021-03-24(1)(c), (3)(a)(i), (3)(c)(ii)

Pursuant to La. R.S. 23:1221(1)(c), in order to establish entitlement to temporary total disability benefits, a claimant must prove by clear and convincing evidence, unaided by any presumption of disability, that he is physically unable to engage in any employment or self-employment due to his injury, regardless of the nature of the employment, including working in pain. ... An employee is entitled to receive SEBs if he sustains a work-related accident that results in his inability to earn ninety percent (90%) or more of his pre-injury wage. Id.; La. R.S. 23:1221(3)(a)(i). ... If the employer meets his burden, then the employee must establish by clear and convincing evidence that he is unable to engage in the employment. La. R.S. 23:1221(3)(c)(ii).

Section 23:1221(1) requires clear and convincing proof that an employee is physically unable to perform any employment for temporary total disability benefits, while § 23:1221(3)(a)(i) requires proof that the employee cannot earn at least ninety percent of pre-injury wages before the employer’s burden to defeat supplemental earnings benefits arises.

Patt v. Amerigas Propane, Inc. and Ndemnity Insurance Company of North America · filed 2026-04-29(1), (3)(a)(i)

Subparagraph (1)(C) of that statute states in relevant part: ... [C]ompensation for temporary total disability shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including but not limited to any and all odd-lot employment, sheltered employment, or employment while working in any pain, notwithstanding the location or availability of any such employment or self-employment. ... In the end, the evidence clearly shows that Ray’s treating physician did not release him for work—any kind of work—until July 11, 2023. Thus, the WCJ did not manifestly err in finding that Ray was totally disabled from December 31, 2022, through July 10, 2023, and in awarding him temporary total disability benefits for that time. ... Put simply, the burden of proof does not shift to the employer until the employee proves an inability to earn ninety percent or more of his pre-injury wages. ... To summarize, the WCJ concluded that Ray met his threshold burden by showing two things: first, that he was restricted to sedentary and light jobs. And second, that this work restriction prevented him from returning to his former job at Amerigas. But this is plainly insufficient under the statute. Instead, the initial inquiry is whether Ray presented prima facie evidence that he was unable to earn ninety percent or more of his pre-accident average weekly wage from another job—any job. ... In conclusion, Ray did not satisfy his initial burden of proof for supplemental earnings benefits; the burden never shifted to Defendants. Thus, the WCJ’s award of these benefits to Ray is reversed.

Section 23:1221 provides permanent-partial-disability benefits for qualifying anatomical loss with clear-and-convincing proof, supplemental-earnings benefits when the injury prevents earning at least 90% of pre-injury wages at two-thirds of the wage difference, and temporary-total-disability benefits when the employee is clearly and convincingly unable to engage in any employment or self-employment.

Parkes v. Prien Pines Nursery · filed 1998-11-04(4)(p), (4)(s)(ii), (3)(a), (3), (1)(c)

Permanent partial disability benefits are awarded solely as a compensation for the loss of anatomical use. La.R.S. 23:1221(4)(p) & (q) provide, in relevant parts, that when the genito-urinary system's permanent impairment is greater than twenty-five percent as provided by the American Medical Association "Guides to the Evaluation of Permanent Impairment," (1984), the employee is entitled to compensation not to exceed sixty-six and two-thirds percent of wages for a period not to exceed one hundred weeks. La.R.S. 23:1221(4)(s)(ii) also provides that a claim for permanent partial disability must be established by clear and convincing evidence. ... The threshold requirement for recovery of SEB is that the employee's injury results in her inability to earn at least ninety percent of what she earned prior to the injury. La.R.S. 23:1221(3)(a); Banks, 696 So.2d 551. ... La.R.S. 23:1221(3) provides that SEB payments should equal sixty-six and two-thirds percent of the difference between the plaintiff's average monthly wages at the time of the injury and the average monthly wages actually earned thereafter. ... An employee is entitled to receive temporary total disability benefits only if she proves, by clear and convincing evidence, that she "is physically unable to engage in any employment or self-employment." La.R.S. 23:1221(1)(c); Watkins, 685 So.2d 393.

Section 23:1221(4)(q) requires an anatomical loss-of-use determination to be based on the American Medical Association's Guide to the Evaluation of Permanent Impairment.

Ashley v. Stelly's Cajun Yams · filed 1998-12-11(4)(q)

The hearing officer and Court of Appeal erred as a matter of law in determining an anatomical loss of use not based on the American Medical Association “Guide to the Evaluation of Permanent Impairment” as mandated in La.R.S. 23:1221(4)(q).

Section 23:1221(4)(p) covers serious permanent disfigurement and serious permanent impairment of the genito-urinary system, including loss of a testicle, but permits compensation under only one of those alternatives.

Causby v. Perque Floor Covering · filed 1997-04-09(4)(p)

We do not believe the legislature, in amending LSA-23:1221(4)(p), intended to exclude the male reproductive organs from coverage under the Act. ... In this case, plaintiff suffered the loss of one testicle, which is a loss of function or impairment of that part of the body. Thus, we find that the hearing officer did not err in finding plaintiff entitled to benefits. ... However, plaintiff is not entitled to benefits for both disfigurement and serious impairment of use. ... This provision gives plaintiff a right to benefits for either one or the other, but not both.

Section 23:1221(2)(b) and (d) govern permanent and total disability, and a worker is not permanently and totally disabled on that basis when the worker is employed, even if working causes substantial pain.

Gray v. Hospital Services of Louisiana, Inc. · filed 1998-06-10(2)(b) and (d)

Thus, under La.R.S. 23:1221(2)(b) and (d), Gray was no longer permanently and totally disabled because of her employment with Hendrick Medical Center, even though she worked while in substantial pain.

Section 23:1221(2)(b) and (d) deny permanent and total disability when an employee is engaged in employment, including employment performed while in substantial pain; the odd-lot and substantial-pain doctrines do not preserve that status.

Natchitoches Parish Hospital v. Jennings · filed 2000-03-01(2)(b) and (d)

Donna Gray Jennings (Donna) is appealing a ruling of the Office of Workers’ Compensation finding that her physical condition has changed and that she is no longer totally and permanently disabled under La.R.S. 23:1221(2)(b), based upon her ability to engage in employment. We affirm. ... Although there is some evidence in this record that would support a finding that Donna remains totally and permanently disabled, that evidence is not clear and convincing. The undisputed facts are that she has been working. The trial court’s factual determination cannot be reversed except for clear error. We find no error.

Section 23:1221(2) requires a totality of factors—including access to employment, physical condition, age, race, literacy, and experience—to determine whether a claimant is permanently and totally disabled.

Comeaux v. City of Crowley · filed 2000-12-06(2)

Louisiana Revised Statutes 23:1221(2) should be interpreted to include a totality of factors when determining whether a claimant is totally and permanently disabled such as access to employment, physical factors, age, race, literacy, and experience.

For permanent total disability, an employee who is not engaged in employment or self-employment must prove by clear and convincing evidence that the employee is physically unable to engage in any employment or self-employment, including odd-lot or sheltered work or work while in pain.

Jones v. Walpole Tire Service, Inc. · filed 2004-03-03(2)(c)

A claimant is entitled to receive workers’ compensation benefits for any injury which produces permanent total disability of an employee to engage in any self-employment or occupation for wages, whether or not the same or similar occupation as that in which the worker was engaged when injured. La. R.S. 23:1221(2)(a). PTD benefits shall not be awarded if the claimant is engaged in any employment or self-employment. La. 13R.S. 23:1221(2)(b). When the employee is not engaged in any employment or self-employment, PTD compensation shall be awarded only if the employee proves by clear and convincing evidence that the employee is physically unable to engage in any employment or self-employment, including any and all odd-lot or sheltered employment or while working in pain. La. R.S. 23:1221(2)(c).

Section 23:1221(2) provides permanent and total disability benefits when a claimant proves by clear and convincing evidence that she is physically unable to engage in any employment or self-employment, after rehabilitation is found not to be a viable option.

Lynch v. New Medico Rehab Center · filed 2004-04-02(2)

Before determining whether Ms. Lynch is permanently and totally disabled under La. R.S. 23:1221(2), this court must determine whether there is a reasonable probability that with appropriate training or education Ms. Lynch may be rehabilitated to the extent that she can achieve suitable gainful employment, and whether it is in her best interest to undertake same. La. R.S. 23:1226(D). ... Based on their opinions and Ms. Lynch’s testimony, the court finds that Ms. Lynch has proven by clear and convincing evidence that she is physically unable to engage in any employment or self-employment. ... Based on these facts, the court finds that rehabilitation is not a viable option for Ms. Lynch, and as such she is entitled to permanent and total disability benefits in the amount of $249.00 per week.

Section 23:1221(2)(a) defines permanent total disability as inability to engage in any self-employment or wage-earning occupation, and Section 23:1221(2)(c) requires an unemployed claimant to prove by clear and convincing evidence physical inability to perform any employment, including odd-lot, sheltered, or painful employment.

Young v. Physicians & Surgeons Hosp. · filed 2005-03-02(2)(a), (2)(c)

Permanent total disability is defined in La. R.S. 23:1221(2)(a) as: [D]isability of an employee to engage in any self-employment or occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured, and whether or not an occupation for which the employee at the time of injury was particularly fitted by reason of education, training, and experience[.] When the claimant is not employed, the burden of proof is that set forth in La. R.S. 23:1221(2)(c): For purposes of Subparagraph (2)(a) of this Paragraph, whenever the employee is not engaged in any employment or self-employment * * *, compensation for permanent total disability shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment 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.

Permanent total disability compensation requires clear and convincing proof, without any presumption of disability, that the employee is physically unable to engage in any employment, including odd-lot, sheltered, or painful work.

Poole v. Terrell Musgrove Siding & Gutter · filed 2005-11-29(2)(a), (2)(c)

La. R.S. 23:1221(2)(a) provides, in pertinent part, that compensation for permanent total disability shall be paid: ... For any injury producing permanent total disability of an employee to engage in any self-employment or occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured, and whether or not an occupation for which the employee at the time of injury was particularly fitted by reason of education, training, and experience ... La. R.S. 23:1221(2)(c) further provides, in pertinent part, that: ... 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. (emphasis added) ... In our case, we conclude that plaintiff failed to carry the burden of presenting clear and convincing evidence, unaided by any presumption of disability, that he is physically unable to engage in any employment, regardless of the nature or character of the employment.

Section 23:1221 requires a claimant seeking workers’ compensation disability benefits to prove by clear and convincing evidence that the injury arose from employment, that the claimant is disabled, and that the disability was caused by the employment-related injury; objective medical evidence is required to establish disability.

Robbins v. State, Department of Culture, Recreation & Tourism · filed 2006-02-01

To prevail at a workers’ compensation hearing, a claimant seeking benefits must establish by “clear and convincing” evidence that 1) he sustained an injury in the course and scope of his employment; 2) he is disabled; and 3) a causal connection between his disability and the employment-related injury exists. Wilkerson v. City of New Orleans Fire Dept., 03-1550, p. 2 (La.App. 4 Cir. 3/3/04), 871 So.2d 375, 377, citing, Daniel v. New Orleans Public Service, 02-2427, p. 5 (La.App. 4 Cir. 12/3/03), 861 So.2d 721, 725. Our own jurisprudence further instructs that in order to carry the burden of proving disability by clear and convincing evidence, the claimant must present “objective medical evidence.” Daniel, 02-2427, p. 6, 861 So.2d at 726. It is undisputed that Robbins did not present any objective medical evidence to substantiate his claim for disability benefits.

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

City of Covington v. Walker · filed 2006-09-15(2)(c)

The evidence in the record amply supports the OWC's findings that: (1) there is no reasonable probability that, with appropriate training or education, Walker might be rehabilitated to the extent he can achieve suitable gainful employment and that it is not in his best interests to undertake such training or education; (2) Walker was totally and permanently disabled under La. R.S. 23:1221(2); and (3) Walker was totally and permanently disabled due to his work-related back injury.

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 perform any employment or self-employment, including odd-lot, sheltered, or painful work.

Tillery v. STATE, DEPT. OF PUBLIC SAFETY · 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). ... Hence, we find that the evidence presented was sufficient to meet Mr. Tillery's burden of proving by clear and convincing evidence that he is permanently and totally disabled in accordance with La. R.S. 23:1221(2) and 1226(D).

Subsection (2) provides permanent-total-disability benefits when an injury prevents the employee from engaging in any wage-earning occupation, and requires clear and convincing proof of physical inability when the employee is not working.

Johnson v. Bossier Parish School Board · filed 2009-01-21(2)(a), (2)(c)

The relevant provisions regarding permanent total disability are found in La. R.S. 23:1221(2), which states: ... (a) For any injury producing permanent total disability of an employee to engage in any self-employment or occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured, and whether or not an occupation for which the employee at the time of injury was particularly fitted by reason of education, training, and experience, sixty-six and two-thirds percent of wages during the period of such disability. ... (c) For purposes of Subparagraph (2)(a) of this Paragraph, whenever the employee is not engaged in any employment or self-employment as described in Subparagraph (2)(b) of this Paragraph, compensation for permanent total disability shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including, but not limited to, any and all odd-lot employment, sheltered employment, or employment while working in any pain, notwithstanding the location or availability of any such employment or self-employment. ... Based upon this record, we cannot conclude that the WCJ was clearly wrong in finding that Johnson was permanently and totally disabled as a result of the 1999 accident.

Section 23:1221(2) requires permanent-total-disability compensation to be denied to an employee engaged in any employment and otherwise requires clear and convincing proof of physical inability to perform any employment.

Freeman v. Elliott Co. · filed 2010-02-09(2)(a), (2)(b), (2)(c)

La. R.S. 23:1221(2)(a) defines permanent total disability as the inability of an employee “to engage in any self-employment or occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured, and whether or not an occupation for which the employee at the time of injury was particularly fitted by reason of education, training, and experience.” ... Under the language of La. R.S. 23:1221, the workers’ compensation judge did not err in finding that Freeman is not permanently and totally disabled. The judge’s factual findings are not clearly wrong.

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 employment.

Brown v. a M Logging · filed 2011-08-04(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). ... Based on the entirety of the evidence presented, we find it was sufficient to meet Brown’s burden of proving by clear and convincing evidence that he is permanently and totally disabled in accordance with La. R.S. 23:1221(2) and 1226(D).

Section 23:1221(2)(c) requires an unemployed employee seeking permanent total disability benefits to prove by clear and convincing evidence, without a presumption of disability, that the employee cannot perform any employment or self-employment.

Rouly v. Perero Company, Inc. · filed 2016-11-02(2)(c)

A finding of total and permanent disability is only possible if an employee is unemployed and proves, ―by clear and convincing evidence, unaided by any presumption of disability,‖ that he ―is physically unable to engage in any employment or self-employment[.]‖ La.R.S. 23:1221(2)(c); ... Accordingly, the supreme court held that La.R.S. 23:1221(2)(c) and La.R.S. 23:1226(D) must be read in pari materia before an employee may be classified as permanently and totally disabled. Id. Thus, the burden in this matter is on Mr. Rouly to establish be clear and convincing evidence that he is totally disabled, and that there is no reasonable probability that, even ―with appropriate training or education,‖ he cannot be rehabilitated to the extent that he ―can achieve suitable gainful employment[.]‖ La.R.S. 23:1226(D). We find that the evidence supports the finding of the WCJ in this regard.

Section 23:1221(2) requires a claimant seeking permanent-total-disability benefits to prove by clear and convincing evidence that he is unable to engage in any type of employment.

Smith v. Highlines Construction Co. · filed 2016-07-06(2)

A claimant seeking PTD benefits bears the burden of proving, by clear and convincing evidence, his inability to engage in any type of employment.

Subparagraph (2)(a) defines permanent total disability as an injury that permanently prevents an employee from engaging in self-employment or any occupation for wages; entitlement to supplemental earnings benefits therefore precludes permanent total disability.

Joseph v. At&t · filed 2023-03-01(2)(a)

In order to be entitled to PTD, the injury must produce the “permanent disability of an employee to engage in any self-employment or occupation for wages[.]” La.R.S. 23:1221(2)(a). The WCJ’s reasons for ruling and judgment do not state that Ms. Joseph’s request for permanent disability was denied. However, the WCJ modified Ms. Joseph’s benefits from TTD to SEB. By finding Ms. Joseph was entitled to SEB, the WCJ determined that she was capable of returning to gainful employment, which ipso facto precludes a finding that she is permanently and totally disabled. Thus, we find no merit to this argument.

Section 23:1221(2)’s odd lot doctrine requires a physical impairment that is at least partly responsible for the claimant’s limitations in the labor market.

Harris v. Board of Supervisors · filed 1984-06-26(2)

The trial court was correct in concluding that the “odd lot” doctrine applies only when the claimant has a physical impairment. The injury or physical condition must be at least partially responsible for the limitations placed on the claimant.

Section 23:1221(2) permits permanent total disability benefits under the odd-lot doctrine when a worker's pain and limited job prospects make steady employment unrealistic.

Guerrero v. Tico · filed 1983-06-28(2)

Under the "odd-lot doctrine," if a claimant's pain appreciably limits the type of work available to him and greatly diminishes his ability to compete in the labor market, he is classified as permanently disabled unless realistically there are jobs available to him in which the claimant can earn wages. ... We find plaintiff's pain in combination with her lack of work experience, language skills, and job training prevent her stable employment in work she is capable of performing. ... We affirm the trial court's award for total and permanent disability but recognize the defendants' right to modify the award under La.R.S. 23:1331 should circumstances change.

Section 23:1221(2)(c) requires a claimant who is not working to prove by clear and convincing evidence that she is physically unable to do any work to receive permanent total disability benefits.

Smith v. Season's Manufacturing · filed 2002-02-06(2)(c)

Considering the totality of the factors, we hold that Smith has met her burden of proof required by La.R.S. 23:1221(2). Her medical condition prevents her from being rehabilitated or returning to gainful employment. She is permanently, totally disabled, and she is not required to meet with Seasons’ vocational counselor.

Section 23:1221 bars temporary and permanent total-disability benefits while the employee is working, requires clear-and-convincing proof of physical inability to perform any employment when not working, and places on an SEB claimant the initial burden to show an inability to earn at least 90% of the pre-injury wage.

Degrasse v. Elevating Boats, Inc. · filed 1999-05-19(1)(b), (2)(b), (1)(c), (2)(c), (3)

As to the period from February 5, 1996 to September 9, 1997, Mr. Degrasse cannot receive either temporary total disability compensation benefits or permanent total disability compensation benefits because he was employed. ... Thus, to the extent that the Hearing Officer awarded compensation benefits for the time period during which Mr. Degrasse was employed, the award must be vacated. ... Mr. Degrasse is entitled to either temporary total disability compensation benefits or permanent total disability compensation benefits only if he proved by clear and convincing evidence that he was (and is) physically unable to work. ... Thus, it is simply impossible to conclude from the record in this case that Mr. Degrasse has proved by clear and convincing evidence that he was "physically unable" to engage in "any" employment as required by the statute. La. R.S. 23:1221(1)(c) and 23:1221(2)(c). ... To be entitled to SEB, the plaintiff has the initial burden of proving that, as a result of his injury, he cannot earn at lest 90% of his pre-injury wage. La.R.S. 23:1221(3); Clark v. Atlantic Painting Co., 521 So.2d 505, 509-510 (La.App. 4th Cir. 1988); Workers' Compensation Law and Practice § 276.

Section 23:1221(3)(d)(iii)'s limitation on supplemental earnings benefits for employees who retire or begin receiving Social Security old-age benefits unconstitutionally discriminates against persons age 62 and older.

Pierce v. Lafourche Parish Council · filed 1999-06-25(3)(d)(iii)

We find that Louisiana Revised Statute 23:1221(3)(d)(iii) arbitrarily, capriciously, and unreasonably discriminates against persons age 62 and older and unconstitutionally denies them equal protection of the laws under article I, section 3 of the Louisiana Constitution.

Section 23:1221(3)(d)(iii) unconstitutionally terminates supplemental earnings benefits after 104 weeks when an employee begins receiving Social Security old-age benefits, because that provision discriminates on the basis of age without substantially furthering an appropriate governmental objective.

Pierce v. Lafourche Parish Council · filed 2000-05-16(3)(d)(iii)

In sum, we conclude that the part of La. R.S. 23:1221(3)(d)(iii) which provides that supplemental earnings benefits shall terminate "when an employee begins to receive old age insurance benefits under Title II of the Social Security Act" after having received not less than one hundred four weeks of supplemental earnings benefits unconstitutionally denies plaintiff equal protection of the laws under article I, § 3 of the Louisiana Constitution.

Section 23:1221(1)(c) requires clear and convincing proof that an employee is physically unable to engage in any employment for temporary-total-disability benefits, while Section 23:1221(1)(d) permits those benefits to continue until the employee's condition permits a reliable disability determination and no longer requires continued regular medical treatment.

Brister v. Sears Authorized Retail Dealer · filed 1999-12-08(1)(c), (1)(d)

Concerning the extent of disability, La. R.S. 23:1221(1)(c) provides in part: (c) ... [C]ompensation for temporary total disability shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including but not limited to any and all odd-lot employment, sheltered employment, or employment while working in any pain, notwithstanding the location or availability of any such employment or self-employment. ... Thus, we do not find that a de novo review is required, and we find no manifest error in the workers' compensation judge's finding that Brister is physically unable to engage in any employment for purposes of temporary total disability status. ... We agree that once a claimant reaches maximum medical improvement and has been released to return to work, temporary total disability benefits are no longer due. However, in the instant case, Brister has not been released to return to work. ... Thus, Brister's physical condition has not improved to the point that "continued, regular treatment by a physician is not required." In light of the foregoing, we find no manifest error in the workers' compensation judge's determination that Brister's disability is temporary and total.

Subparagraphs (1)(b) and (1)(c) limit temporary total disability benefits by excluding odd-lot, sheltered, or pain-tolerant employment and requiring clear and convincing proof that an unemployed employee is physically unable to engage in any employment.

Waggoner v. McDonalds and LUBA Workers Comp · filed 2025-04-09(1)(b), (1)(c)

Benefits for temporary total disability benefits (“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). Further, La. R.S. 23:1221(1)(c) provides: ... As the WCJ correctly noted, Waggoner was not entitled to TTD benefits when she returned to work on February 22, 2022, through December 8, 2022, when she was terminated. Waggoner was not only released back to work at full capacity during this time, but she also demonstrated that regardless of her pain, she could still engage in some form of physical work, even though she voluntarily scaled back her work hours. However, we find that the WCJ erred in awarding benefits from December 20, 2022, when Dr. Ballard released Waggoner from work, until February 28, 2024. ... Additionally, while Dr. Ballard released Waggoner from work, he did not provide that Waggoner’s pain was so debilitating she was incapable of ever returning to or engaging in any form of employment or self-employment such that she would be entitled to TTD during this time.

Section 23:1221 authorizes attorney fees to help injured workers retain effective counsel.

Balthazar v. Guillory Racing Farms · filed 2001-03-07

La.R.S. 23:1221, which authorizes attorney fees, encourages the retention of effective counsel by a Plaintiff who is injured, unemployed and unable to pay for capable representation. ... Considering these goals of workers' compensation, we find that an increase in attorney[ ]fees is warranted.

Section 23:1221(3)(a) provides supplemental earnings benefits when a work injury leaves an employee unable to earn at least 90% of pre-injury wages, while subsection (3)(c)(i) does not require actual job placement and instead calls for a realistic appraisal of access to employment.

Chaney v. Masonry Specialist · filed 2000-01-26(3)(a), (3)(c)(i)

Under the provisions of La.R.S. 23:1221(3)(a), an employee is entitled to receive SEB if he sustains a work-related injury that results in his inability to earn ninety percent (90%) or more of his average pre-injury wage. ... Actual job placement is not required. Courts should look to the totality of factors related to a realistic appraisal of access to employment.

Sections 23:1221(l)(c) and (2)(c) prohibit a presumption of disability and require clear and convincing proof without relying on one.

Moore v. Miciotto · filed 2003-01-29(l)(c) and (2)(c)

Such a presumption is expressly prohibited by statute which requires proof by clear and convincing evidence "unaided by any presumption of disability.” La. R.S. 23:1221(l)(c) and (2)(c). Accordingly, that argument is without merit.

Section 23:1221(3) allows supplemental earnings benefits when a work-related injury leaves an employee unable to earn at least 90 percent of former wages; under (3)(c)(i), the employer may avoid the award by proving that the employee can perform offered or locally available work.

Davis v. Cippriani's Italian Restaurant · filed 2003-02-14(3), (3)(c)(i)

To recover SEBs, an employee must prove he has been injured in a work-related accident, which rendered him disabled from earning ninety percent or more of his former earnings. La. R.S. 23:1221(3). ... Once the employee's burden is met, the burden shifts to the employer who, in order to preclude an award of SEBs, must prove by a preponderance of the evidence 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) requires an injured employee to prove inability to earn 90% of pre-injury wages for supplemental earnings benefits; if that burden is met, Section 23:1221(3)(c)(i) shifts to the employer the burden to prove a physically suitable job was offered or available in the relevant community or geographic region.

Tuckerson v. Holiday Retirement Corp. · filed 2004-12-28(3)(a), (3)(c)(i)

Entitlement to supplemental earnings benefits is governed by La. R.S. 23:1221(3). ... If the employee meets his or her burden of proof, the burden shifts to the employer who, in order to defeat the employee’s claim for supplemental earnings benefits or establish the employee’s earning capacity, must prove by a preponderance of the evidence that the employee is physically able to perform a certain job and that the job was offered to the employee or that the job was available to the employee in his or the employer’s community or reasonable geographic region.

Section 23:1221(3)(a) provides supplemental earnings benefits when a work injury leaves an employee unable to earn at least 90% of pre-injury wages, and paragraph (3)(c)(i) requires the employer to prove a physically suitable and available job to defeat that claim.

City of Eunice v. Carrier · filed 2003-02-19(3)(a), (3)(c)(i)

An employee is entitled to receive SEBs if he sustains a work-related injury that results in his inability to earn ninety percent (90%) or more of his average pre-injury wage. La.R.S. 23:1221(3)(a). "Initially, the employee bears the burden of proving, by a preponderance of the evidence, that the injury resulted in his inability to earn that amount under the facts and circumstances of the individual case." Freeman v. Poulan/Weed Eater, 93-1530 p. 7 (La.1/14/94); 630 So.2d 733, 739. Once the employee's burden is met, the burden shifts to the employer. In order to defeat the employee's claim for SEBs or establish the employee's earning capacity, the employer must prove, by a preponderance of the evidence, that the employee is physically able to perform a certain job. In addition, the employer must prove that the job was offered to the employee or that the job was available to the employee in his or the employer's community or reasonable geographic region. La.R.S. 23:1221(3)(c)(i); Daigle v. Sherwin-Williams Co., 545 So.2d 1005 (La.1989). Actual job placement is not required. ... The City has failed to carry its burden of proving by a preponderance of the evidence that Mr. Carrier is capable of performing the job offered.

Section 23:1221(3) provides supplemental earnings benefits based on lost wage-earning capacity, and the employer must prove post-injury earning capacity by showing a physically suitable job was offered or available in the relevant geographic area.

Metoyer v. Roy O. Martin, Inc. · filed 2005-03-23(3)

"The purpose of SEBs is to compensate the injured employee for the wage earning capacity he has lost as a result of his accident." [5] Thus, the SEB rate is the difference between the claimant's average monthly wage before the injury and her monthly earning capacity after the injury. [6] The employer has the burden of proving any post-injury earning capacity. [7] The employer can meet this burden by showing that the employee is physically able to perform a certain job and that the job was offered or available to the employee in her or the employer's community or reasonable geographic region. [8] ... Thus, Martco has not sufficiently discharged its burden of proving job availability.

Section 23:1221(3)(a) provides supplemental earnings benefits when a work injury prevents the employee from earning at least 90% of pre-injury wages; under Paragraph (3)(c)(i), once the employee proves that inability, the employer must prove a suitable offered or available job and its earning capacity to defeat the claim.

Lee v. Heritage Manor of Bossier City · filed 2007-03-14(3)(a), (3)(c)(i)

SEBs are awarded when a work-related injury prevents the employee from earning 90% or more of his pre-injury wages. La. R.S. 23:1221(3)(a). The employee has the initial burden of proving, by a preponderance of the evidence, that the injury resulted in his inability to earn that amount under the facts and circumstances of the individual case. Banks, supra . "Th[is] analysis is necessarily a facts and circumstances one in which the court is mindful of the jurisprudential tenet that workers' compensation law is to be liberally construed in favor of coverage." Daigle v. Sherwin-Williams Co., 545 So.2d 1005, 1007 (La.1989). See Seal v. Gaylord Container Corp., 97-0688 (La.12/2/97), 704 So.2d 1161, and Kahlden v. Horseshoe Entertainment, 30,277 (La.App.2d Cir.2/25/98), 709 So.2d 873. Once the employee's burden is met, the burden shifts to the employer who, in order to defeat the employee's claim for SEBs or establish the employee's earning capacity, must prove, by a preponderance of the evidence, that the employee is physically able to perform a certain job and that the job was offered to the employee or that the job was available to the employee in his or the employer's community or reasonable geographic region. La. R.S. 23:1221(3)(c)(i); Daigle, supra . Actual job placement is not required. Banks, supra .

For supplemental earnings benefits, an employer proves job availability by showing a suitable job, its expected wages, and an actual opening when the claimant is notified; the job must remain available when medically approved.

Freeman v. Chase · filed 2007-12-05(3)(c)(i)

In the context of SEB, La. R.S. 23:1221(3)(c)(i), an employer may discharge its burden of proving job availability by showing (1) the existence of a suitable job within the claimant's physical capabilities and within the claimant's or the jemployer'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 job position available for that particular job at the time that the claimant received notification of the job's existence. ... The job must still be available when the physician approves it.

Section 23:1221(3)(a) provides supplemental earnings benefits when a work injury leaves the employee unable to earn at least 90% of pre-injury wages, and § 23:1221(3)(c) allows the employer to defeat or reduce benefits by proving the employee can perform a suitable offered or available job; actual job placement is unnecessary.

Morrison v. First Baptist Church of West Monroe · filed 2010-05-19(3)(a), (3)(c)

An employee is entitled to receive SEB if he sustains a work-related injury that results in his inability to earn ninety percent (90%) or more of his average pre-injury wage. ... Actual job placement is not required.

Section 23:1221(3) provides supplemental earnings benefits when a work injury leaves an employee unable to earn at least 90% of the pre-injury wage, subject to the employer proving the employee can perform a suitable offered or available job; a voluntary retirement from the workforce can also limit entitlement.

Roberts v. State/Office of Family Support · filed 2012-07-05(3)(a), (3)(c), (3)(c)(i)

La. R.S. 23:1221(3)(a) provides that an employee is entitled to receive SEBs if he sustains a work-related injury that results in his inability to earn ninety percent (90%) or more of his average pre-injury wage. Initially, the employee bears the burden of proving by a preponderance of the evidence that the injury resulted in his inability to earn that amount under the facts and circumstances of the individual case. ... Once the employee’s burden is met, the burden shifts to the employer who, in order to defeat the employee’s claim for SEBs, must Improve, by a preponderance of the evidence, that the employee is physically able to perform a certain job and that the job was offered to the employee or that the job was available to the employee in her or the employer’s community or reasonable geographic region. ... an employee who expresses his intention to both retire, or stop working, and not look for other employment and who makes no effort to find another job has retired within the meaning of La. R.S. 23:1221. ... When the injury and a doctor’s failure to release an employee to return to work cause the employee to decide to stop work or failure to return to work, such a withdrawal from the work force is not voluntary.

For supplemental earnings benefits, an employer can satisfy the job-availability requirement by proving that a suitable job was available in the employee’s geographic region; an actual job offer is not required.

Clay v. Our Lady of Lourdes Regional Medical Center, Inc. · filed 2012-05-08(3)(c)(i)

La. R.S. 23:1221(3) provides that jobs identified by the employer must be proved to be either (1) offered by an employer, or (2) available to the employee in his geographic region. The court of appeal’s decision essentially requires employers to prove a job was offered to an employee in order to prove that a job is “proven available.” Such an interpretation effectively renders the second part of the statute meaningless.

Section 23:1221(3)(a) makes an employee eligible for supplemental earnings benefits when a work injury leaves the employee unable to earn at least 90% of the pre-injury wage, while paragraph (3)(c)(i) permits the employer to defeat or reduce the claim by proving physical ability and a suitable job offered or available in the community or reasonable geographic region.

Harris v. City of Bastrop · filed 2015-01-14(3)(a), (3)(c)(i)

An employee is entitled to receive SEBs if he sustains a work-related accident that results in his inability to earn 90% or more of his average pre-injury wage. La. R.S. 23:1221(3)(a). Initially, the employee bears the burden of proving, by a preponderance of the evidence, that the injury resulted in his inability to earn that amount under the facts and circumstances of the individual case. ... Once the employee’s burden is met, the burden shifts to the employer who, in order to defeat the employee’s claim for SEBs or to 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 community or reasonable geographic region. La. R.S. 23:1221(3)(c)(i); ... Actual job placement is not required.

Section 23:1221(3) provides supplemental earnings benefits when a work-related injury prevents an employee from earning at least 90% of the pre-injury wage, and requires the employer to prove the availability of a physically suitable job to defeat the claim or establish earning capacity.

Massey v. Fresenius Medical Care Holding · filed 2014-11-19(3)(a), (3)(c)(i)

An employee is entitled to receive SEB if he or she sustains a work-related injury that results in his inability to earn ninety percent (90%) or more of his or her average pre-injury wage. La. R.S. 23:1221(3)(a). ... Once the employee’s burden is met, the burden shifts to the employer who, in order to defeat the employee’s claim for 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, or proven to be available to, the employee in his or the employer’s community or reasonable geographic region. La. R.S. 23:1221(3)(c)(i).

Under § 23:1221(3)(c)(i), an employer may defeat an SEB claim or establish earning capacity by proving by a preponderance of the evidence that the employee can physically perform a suitable job offered or available in the relevant community; actual job placement is not required.

Clark v. CMS · filed 2015-11-25(3)(c)(i)

Once the employee’s burden is met, the burden shifts to the employer who, in order to-defeat the employee’s claim for SEBs or establish the employee’s earning capacity, must prove, by a preponderance of the evidence, that the employee is physically able to perform a certain job and that the job was offered to the employee or- that the job was ... available to the employee in his or the employer’s community or reasonable geographic region. LA.REV.STAT. ANN. § 23:1221(3)(c)(i) (West Supp.1997); ... Actual job placement is not required. ... The amount of SEBs is based upon the difference between the claimant’s pre-injury average monthly wage and the claimant’ proven post-injury monthly earning capacity. LA.REV.STAT.ANN. § 23:1221(3)(a) (West Supp.1997).

Section 23:1221(3)(c)(i) requires an employer defeating SEBs to prove the worker can physically perform a suitable job that was offered or available, while Paragraph (ii) requires the worker then to prove by clear and convincing evidence, without a disability presumption, that substantial pain alone prevents performing it.

Doane v. Omni Royal Orleans Hotel · filed 2016-10-26(3)(c)(i) (3)(c)(ii)

Once the employee has established that she is entitled to SEBs by showing that she is unable to earn at least 90 percent of her pre-injury wage, the burden | ^shifts to the employer who, in order to defeat the employee’s claim for SEBs, must prove, by a preponderance of the evidence, that: (1) the employee is physically able to perform a certain job; and (2) the job was offered to the employee or that the job was available to the employee in her or the employer’s community or reasonable geographic region. ... Finally, if the employer is successful in sustaining its burden, the' burden shifts back to the employee to show by clear and convincing evidence, unaided by any presumption of disability, that she is unable to perform the employment offered solely as a consequence of substantial pain.

Section 23:1221(4)(p) treats the work-related loss of natural teeth as serious and permanent disfigurement qualifying for permanent partial disability benefits, even when a pre-existing dental disease contributed to the loss.

Dordain v. Anthony Seafood & Lobster House · filed 2003-11-05(4)(p)

It is well established in our jurisprudence that the loss of a natural tooth is considered a permanent disfigurement under the workers’ compensation statute. ... In the present case, we find that the award of permanent partial disability is consistent with the above jurisprudence. ... The jurisprudence has positively established that the loss of teeth in itself is sufficient to qualify for benefits under La. R.S. 23:1221(4)(p).

Section 23:1221(4)(q) requires the percentage of anatomical loss of use used to award permanent partial disability benefits to be established according to the most recent edition of the AMA Guides.

Lanoue v. All Star Chevrolet · filed 2003-11-07(4)(q)

Louisiana Revised Statutes 23:1221(4)(q) specifically requires that the percentage of anatomical loss of use as provided in subparagraph ( o ) must be "as established in the most recent edition of the American Medical Association's "Guides to the Evaluation of Permanent Impairment" " in order for benefits to be awarded under La. R.S. 23:1221(4). Since Dr. Morgan indicated that his rating was based simply on his orthopedic surgeon's manual, benefits for permanent partial disability cannot be awarded on the basis of this evidence.

Section 23:1221(3)(c)(i) requires an employer seeking to establish an employee’s earning capacity to prove that the employee can physically perform a job and that the job was offered or available in the relevant community or reasonable geographic region.

Teilla L. Noel v. Home Health Care 2000 · filed 2004-03-03(3)(c)(i)

Additionally, in order for an employer to establish the employee’s earning capacity, the employer must prove, by a preponderance of the evidence, that the employee is physically able to perform a certain job and that the job was offered to the employee or available to the employee in the employee’s or employer’s community or reasonable geographic region. La.R.S. 23:1221(3)(c)(i); Banks v. Indus. Roofing & Sheet Metal Works, Inc., 96-2840 (La. 7/1/97), 696 So.2d 551. ... We hold that such factors should be considered in determining the “suitability” of and thus the “availability” of a job. Certainly the job was theoretically “available” to her or available “on paper” according to the trial testimony, but it was not suitable for her and thus not practically “available” due to the actions of the Walkers.

Section 23:1221(3)(c)(i) requires an employer seeking to establish earning capacity to prove that the employee can physically perform a suitable job and that the job was offered or available in the relevant community or geographic region.

Noel v. Home Health Care 2000, Inc. · filed 2004-03-03(3)(c)(i)

Additionally, in order for an employer to establish the employee’s earning capacity, the employer must prove, by a preponderance of the evidence, that the employee is physically able to perform a certain job and that the job was offered to the employee or available to the employee in the employee’s or employer’s community or reasonable geographic region. La.R.S. 23:1221(3)(c)(i); ... A “suitable job” has been described as “a job that claimant is not only physically capable of performing, but one that also falls within the limits of claimant’s age, experience, and education.” ... We hold that such factors should be considered in determining the “suitability” of and thus the “availability” of a job. ... Simply put, the offer of her former job under these circumstances is sham rehabilitation. ... our holding is that the job is not available to Ms. Noel, regardless of her abilities, because of the actions of her former employers.

Section 23:1221(3)(c)(i) requires an employer seeking to limit supplemental earnings benefits based on alternative work to prove that a physically suitable job was available to the employee in the employee’s community or reasonable geographic region.

Clay v. Our Lady of Lourdes Regional Medical Center, Inc. · filed 2010-06-02(3)(c)(i)

Accordingly, as Ms. Clay argues, the clear language of the statute requires that the jobs be “proven available to the employee.” ... Based upon the foregoing, we find that the positions submitted to and applied for by Ms. Clay were not suitable for her and were, therefore, unavailable to her under La.R.S. 23:1221 and under Banks.

Under § 23:1221(3)(c)(i), an employer proving that work is available must account for all factors affecting the claimant’s ability to perform the offered employment.

Perrilloux v. Uniforms by Kajan, Inc. · filed 2013-12-27(3)(c)(i)

As part of the determination of whether an employer has carried its burden under La. 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.

Section 23:1221(3) provides supplemental earnings benefits when a work-related partial disability leaves an employee unable to earn at least 90% of pre-injury wages; the employee must first prove that entitlement, after which the employer must show physical capacity and suitable work offered or available in the relevant geographic area.

Timberlake v. Christus Health Central Louisiana D/B/A Fara Insurance Services · filed 2013-10-30(3)(a), (3)(c)(i)

The employee bears the initial burden of proving by a preponderance of the evidence that he or she is disabled due to a work-related injury that rendered him or her unable to earn ninety percent of the pre-injury wages. Banks v. Ind. Roofing & Sheet Metal Works, Inc., 96-2840 (La. 7/1/97), 696 So.2d 551. “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), quoting Gaspard v. St. Paul Fire & Marine Ins. Co., 488 So.2d 1037 (La.App. 3 Cir. 1985); see also La.R.S. 23:1221(3)(a). Once the employee seeking SEB establishes a prima facie case, the burden shifts to the employer to show 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).

Subsection (3)(a) provides SEB when a work-related partial disability leaves an employee unable to earn at least 90% of pre-injury wages, while (3)(c)(i) shifts the burden to the employer to show the employee is capable of work that was offered or available in the relevant community or region.

Timberlake v. Christus Health Central · filed 2013-10-30(3)(a), (3)(c)(i)

Supplemental earnings benefits were established in 1983 as a method of replacement of lost wages for partially disabled employees. The benefits are designed to replace lost earning capacity of workers who do not fall under the definition of total disability. When an injured employee is able to engage in a gainful occupation, but because of his work-related disability is unable to earn wages at the level he was earning prior to his injury, he is classified as partially disabled. And when the partial disability reaches the level that the employee is unable to earn wages equal to ninety percent or more of the wages he was earning at the time of the injury, he is entitled to supplemental earnings benefits, calculated according to a formula relating to his pre-injury wages and the wages he “is able to earn” in any employment or self-employment after the injury. La.Rev.Stat. 23:1221(3)(a). ... Once the employee seeking SEB establishes a prima facie case, the burden shifts to the employer to show 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).

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

Ledford v. New Orleans Saints · filed 2009-04-29(3)(a), (3)(d)(i)

La. R.S. 23:1221(3) places the initial burden to prove disability on the claimant. To qualify for Supplemental Earnings Benefits, a plaintiff is required to prove by a preponderance of the evidence that a work related injury resulted in the inability to earn 90% or more of the pre-injury wages.

An employer may defeat supplemental earnings benefits by proving that the employee can physically perform a job that was offered or is available in the employee’s or employer’s community or reasonable geographic region.

Chapman v. Coushatta Tribe of Louisiana · filed 2013-03-06(3)(c)(i)

Significantly, La.R.S. 23:1221(3)(c)(i) provides only that the employer must demonstrate that a job is “available to the employee in the employee’s or employer’s community or reasonable geographic region.” (Emphasis added.)

Section 23:1221(3)(d)(iii) terminates supplemental earnings benefits when an employee retires, meaning the employee withdraws from the workforce with no intention of returning regardless of disability, while the statute guarantees at least 104 weeks of benefits.

Oestringer v. City of New Orleans · filed 2004-06-02(3)(d)(iii)

In Allen v. City of Shreveport, 93-2928 (La.5/23/94), 637 So.2d 123, the Court held that a worker retires under La. R.S. 23:1221(3)(d)(iii) when: (1) the worker withdraws from the work force; or (2) the worker draws old age social security benefits, whichever comes first. Id. at 126. When La. R.S. 23:1221(3)(d)(iii) speaks of retiring, it is not referring to the failure to work because of disability. It is referring to the worker who has no intention of returning to work regardless of disability. Id.

Section 23:1221(3)(d)(iii) ends supplemental earnings benefits when the employee retires, but retirement means having no intention of returning to work regardless of disability, not inability to work because of disability.

McDonald v. City of Bastrop · filed 2018-09-26(3)(d)(iii)

The retirement referred to by La. R.S. 23:1221(3)(d)(iii) is not the failure to work because of disability. Instead, it refers to the worker who has no intention of returning to work regardless of disability.

For temporary total and supplemental earnings benefits, an offered position must constitute actual employment within the statute before it can be used to determine the worker’s benefit entitlement.

Maynard v. Grey Wolf Drilling · filed 2004-10-20(1)(c), (3)(a), (3)(c)(i)

Without commenting on whether the program offered to Mr. Maynard would constitute adequate rehabilitation, a question not before the court, we find no manifest error in the conclusion that the offered positions were not “employment” within the terms of La.R.S. 23:1221.

Section 23:1221(1)(b) bars temporary-disability compensation when the employee is engaged in any employment or self-employment, regardless of its nature, including odd-lot, sheltered, or painful work.

Johnson v. Aecom Amentum Government Services · filed 2025-12-18(1)(b)

When an employee continues to work and earn wages after an injury, however, the LWCL explicitly provides that he is not entitled to benefits. Louisiana Revised Statute 23:1221 (1)(b) states that “compensation for temporary 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 any pain.” (Emphasis added).

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

Delatte v. Wash. Parish Sch. Bd. · filed 2018-12-21(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 she 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).

Section 23:1221 requires an employee seeking indemnity benefits to prove entitlement by clear and convincing evidence.

Dietz v. Lowe's Home Centers, Inc. · filed 2014-11-05

The workers’ compensation judge did not terminate benefits as of March 2011. Instead, she determined that the claimant was not entitled to continuation of those benefits. This determination is consistent with La.R.S. 23:1221, which provides that an employee seeking indemnity benefits must prove his or her entitlement by clear and convincing evidence.

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, and requires a claimant seeking supplemental earnings benefits to prove by clear and convincing evidence that substantial pain alone prevents available employment.

Sanchez v. Caesar's Entertainment, Inc. · filed 2015-06-24(1)(c); (3)(c)(ii)

A workers’ compensation claimant seeking temporary total disability benefits bears the burden of proving by clear and convincing evidence that he or she is physically unable to engage in any employment. La. R.S. 23:1221(l)(c). A workers’ compensation claimant seeking supplemental earnings benefits bears the burden of proving by clear and convincing evidence that solely as a consequence of substantial pain, he or she cannot perform employment offered, tendered or otherwise proven to be available to him or her. La. R.S. 23:1221(3) (c) (ii).

Section 23:1221(3)(a) requires an injured employee seeking supplemental earnings benefits to prove by a preponderance that the work injury prevents earning at least 90% of pre-injury wages; after that showing, § 23:1221(3)(c)(i) shifts the burden to the employer to prove suitable available work, while § 23:1221(1)(c) requires clear and convincing proof of inability to perform any employment for temporary or permanent total disability.

Brown v. Offshore Energy Service, Inc. · filed 2012-08-08(3)(a), (3)(c)(i), (1)(c)

The purpose of SEB is to compensate an injured employee for the wage-earning capacity he has lost as a result of his accident. ... An employee is entitled to SEB if he sustains a work-related accident that results in his inability to earn 90% or more of his pre-injury wage. La. R.S. 23:1221(3)(a). Initially, the employee bears the burden of proving by a preponderance of the evidence that the injury resulted in his inability to earn that amount under the facts and circumstances of the individual case. ... Only when the employee makes this initial showing does the burden shift to the employer to prove that the employee is physically able to perform a certain job and that the job was offered to the employee or that the job was available to the employee in his or the employer’s community or reasonable geographic area. La. R.S. 23:1221(3)(c)(i); ... A claim for TTD or PTD requires proof “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, including, but not limited to, * * * employment while working in any pain[.]” La. R.S. 23:1221(l)(c), (2)(c).

Section 23:1221 requires clear and convincing proof that a claimant is physically unable to engage in any employment for temporary or permanent total disability benefits, but only a preponderance showing that the injury reduced earning capacity below 90 percent of pre-disability wages for supplemental earnings benefits.

Gibson v. Shaw Global Energy Services · filed 2004-10-27(1)(c), (2)(c), and (3)(c)(i)

Louisiana Revised Statutes 23:1221 establishes different types of disabilities for which wage benefits may be awarded, inter alia, temporary total disability, permanent total disability, and supplemental earnings benefits. See La.R.S. 23:1221(1), (2), and (3), respectively. Louisiana Revised Statutes 23:1221(1) and (2) define temporary total disability and permanent total disability as a claimant’s inability to engage in any employment, whether temporarily or permanently, as the case may be. ... In order to prove entitlement to temporary total disability benefits or to permanent total disability benefits, a claimant must demonstrate by clear and convincing evidence that he is physically unable to engage in any employment, including working while in any pain. La.R.S. 23:1221(1)(c) and (2)(c). ... Moreover, in order to prove entitlement to supplemental earnings benefits, a claimant must show by a preponderance of the evidence that his work-related injury resulted in an inability to earn wages equal to at least ninety percent of pre-disability wages. La.R.S. 23:1221(3)(c)(i).

Section 23:1221(A) requires a claimant seeking supplemental earnings benefits to prove a work-related accident, an injury caused by that accident, and resulting inability to earn at least 90 percent of pre-injury wages.

Tusa v. City of Kenner Police Department · filed 2011-05-10(A)

In order to prove entitlement to supplemental earnings benefits, the claimant must establish that the accident was work-related, that the accident caused injury, and that the injury rendered him incapable of earning 90% of his pre-injury wages. La. R.S. 23:1221(A); McCray v. Intralox, Inc., 07-1036 (La.App. 5 Cir. 5/28/08), 987 So.2d 267.

Section 23:1221(l)(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 Corp. · filed 2010-11-03(l)(c)

A finding of disability requires proof by clear and convincing evidence. La.R.S. 23:1221(l)(c); ... The claimant must support her claim of disability with objective medical evidence.

Section 23:1221(3)(a)(i) requires a claimant seeking supplemental earnings benefits to prove by a preponderance of the evidence that a work-related injury leaves the claimant unable to earn at least 90 percent of the pre-injury wage, after which the burden shifts to the employer to prove suitable available work.

Shreve v. Bio-Lab, Inc. · filed 2024-12-11(3)(a)(i)

Louisiana Revised Statutes 23:1221(3)(a)(i) requires that a claimant prove by a preponderance of the evidence that he is unable to earn wages equal to ninety percent or more of wages he was earning at the time of injury “whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured[.]”

Section 23:1221(3)(a) provides supplemental earnings benefits when a work injury prevents an employee from earning at least 90 percent of pre-injury wages, subsection (3)(c)(i) requires the employer to prove suitable available work to defeat that claim, and subsection (4)(p) permits compensation for a permanent, materially disfiguring injury.

LaFleur v. Alec Elec. · filed 2004-12-30(3)(a), (3)(c)(i), (4)(p)

The purpose of SEB is to compensate the injured employee for the wage-earning capacity he has lost as a result of his accident. An employee is entitled to receive SEB if he sustains a work-related injury that results in his inability to earn ninety percent or more of his average pre-injury wage. La. R.S. 23:1221(3)(a). ... Once the employee's burden is met, the burden shifts to the employer who, in order to defeat the employee's claim for SEB or establish the employee's earning capacity, must prove, by a preponderance of the evidence, that the employee is physically able to perform a certain job and that the job was offered to the employee or that the job was available to the employee in his or the employer's community or reasonable geographic region. La. R.S. 23:1221(3)(c)(i). ... According to La. R.S. 23:1221(4)(p), where the employee is seriously and permanently disfigured, compensation not to exceed sixty-six and two-thirds percent of the wages for a period not to exceed one hundred weeks may be awarded. ... It is well settled that in order to recover for scarring and disfigurement under La. R.S. 23:1221(4)(p), the injury must be materially disfiguring and permanent in nature. ... The fact that the scar may have improved somewhat by the time of trial does not take away from the WCJ's finding of fact that as of the date of trial, Lafleur's scar was permanent and materially disfiguring.

For supplemental earnings benefits, § 23:1221(3)(c)(i) requires proof of a suitable, actually available job within the claimant’s physical and vocational limits, while § 23:1221(3)(d)(iii) ends benefits upon genuine retirement, meaning withdrawal from the workforce without an intent to return.

Peters v. General Motors Corp. · filed 2005-01-26(3)(c)(i), (3)(d)(iii)

With GM seeking to terminate a prior award of SEB, the issue is whether the WCJ erred in finding that the employer, GM, failed to prove the availability of a job that satisfies the criteria set forth in La. R.S. 23:1221(3)(c)(i). ... The Banks court further held that a "suitable job" was a position that claimant was not only physically capable of performing, but one that also fell within the limits of claimant's age, experience, and education, unless the employer or potential employer was willing to provide any additional necessary training or education. ... This position, although available, was simply not suitable for Peters, given his physical restrictions, and the WCJ correctly found that GM failed to carry its burden under La. R.S. 23:1221(3)(c)(i). ... The retirement referred to by La. R.S. 23:1221(3)(d)(iii) is not the failure to work because of disability. ... Instead, it refers to the worker who has no intention of returning to work regardless of disability. ... Where a worker has retired from a heavy work duty job but is still willing to take on light duty employment within the scope of the limitations imposed by his disabilities, then that worker is said not to have withdrawn from the workforce and is not considered to have retired under the statute. ... On the other hand, an employee who expresses his intention to both retire or stop working and not look for other employment, and who makes no effort to find another job, has retired within the meaning of La. R.S. 23:1221.

Section 23:1221(3)(a) provides supplemental earnings benefits when an injured employee cannot earn at least 90% of pre-injury wages, while § 23:1221(3)(c)(i) requires the employer to prove the employee can perform a suitable job that was offered or available in the relevant geographic area.

Broussard v. Lafayette Parish School Bd. · filed 2006-04-05(3)(a), (3)(c)(i)

An employee is entitled to SEBs where he is unable to earn 90% or more of his pre-injury wage. La.R.S. 23:1221(3)(a). ... Once the claimant proves this, the burden shifts to the employer to prove that the employee is physically able to perform a certain job, that the job was offered to the employee, or that it was available, and that it was in the employee's or employer's community or reasonable geographic region. La.R.S. 23:1221(3)(c)(i); Daigle v. Sherwin-Williams Co., 545 So.2d 1005 (La.1989). ... The amount of SEBs is based on the difference between the average weekly wage earned by the employee before the accident and the employee's earning capacity after the accident. La.R.S. 23:1221(3)(a). We find that the trial court was correct in finding that Adrian Broussard was entitled to SEBs based upon zero, as none of the positions identified by Ms. Herron were suitable.

Section 23:1221(3)(a) provides supplemental earnings benefits when a work-related injury leaves an employee unable to earn 90% or more of the pre-injury average wage, and § 23:1221(3) does not preclude an order continuing those benefits until further order because the benefits may require later modification.

Adams v. Dependable Source Corp. · filed 2007-05-04(3)(a), (3)

An employee is entitled to receive SEB if he sustains a work-related injury that results in his inability to earn 90% or more of his average pre-injury wage. La. R.S. 23:1221(3)(a). The SEB statute does not permit a claimant to choose not to work and still collect SEB when he is physically able to work and suitable jobs are available. Blanchard v. Federal Exp. Corp., 95-0349, p. 4 (La.App. 1 Cir. 11/9/95), 665 So.2d 11, 13. However, a "suitable job" is one that the claimant is not only physically capable of performing, but one that also falls within the limits of the claimant's age experience, and education. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, p. 11 (La.7/1/97), 696 So.2d 551, 557. ... Accordingly, we conclude that the OWC did not err in awarding SEB to Adams because he was not employed in a suitable job. ... The very terms of the Workers' Compensation Act contemplates SEB modification. An injured employee's release for full-time work, his being declared totally and permanently disabled, or his death, would all require modification. Accordingly, we interpret the "until further orders by the court" language to represent the court's reasonable case management strategy. La. R.S. 23:1221(3), does not preclude such language.

Section 23:1221(3)(c)(i) places on the employer the burden to prove the injured employee can physically perform an offered or available job, while § 23:1221(3)(d)(iii) caps supplemental earnings benefits at 104 weeks when the employee retires.

Finister v. Golden Nugget Lake Charles, LLC · filed 2024-03-20(3)(c)(i), (3)(d)(iii)

After a review of the record, we find that it was not manifestly erroneous for the WCJ to find the March 5, 2020 offered position to be unsuitable employment for Ms. Finister, and that GNLC therefore failed to meet its burden under La.R.S. 23:1221(3)(c)(i) of proving that Ms. Finister was physically able to perform the EVS supervisor graveyard position. ... Under La.R.S. 23:1221(3) and the jurisprudence’s interpretation of “retirement,” we find that Ms. Finister is retired. ... Therefore, we find that Ms. Finister is retired pursuant to La.R.S. 23:1221(3)(d)(iii), and as such the WCJ manifestly erred by not capping her SEB at 104 weeks.

Section 23:1221(3)(g) terminates nonmedical workers’ compensation benefits when a released employee fails an employer’s established written drug-testing policy and cannot qualify for the position, while preserving reasonable and necessary medical treatment.

Pousson v. United Parcel Service · filed 2005-12-30(3)(g)

After his August 28, 2003 release to return to work from Dr. Noble, the claimant was required by U.P.S. to take a drug screen, which was collected on September 23, 2003. ... The parties do not dispute that the claimant failed the drug screen. ... Based on our review of the record, we find no error in the workers’ compensation judge’s dismissal of Mr. Pousson’s claims for indemnity benefits, penalties and attorney’s fees. Accordingly, we affirm the judgment of the Office of Workers’ Compensation.

Subsection (4)(p) permits permanent partial disability benefits for serious and permanent respiratory impairment, while subsection (4)(q) requires evidence establishing the respiratory-system functional-loss percentage under the AMA Guides.

Amos v. Ouachita Parish Police Jury · filed 2008-06-18(4)(p), (4)(q)

Furthermore, La. R.S. 23:1221(4)(p) provides that claimant, based upon the serious and permanent impairment of his respiratory system, may be entitled to permanent partial disability benefits not to exceed 66 2/3% of his wages for a period not to exceed 100 weeks. However, La. R.S. 23:1221(4)(q) requires that we remand this matter to the WCJ for the taking of additional evidence to establish the percentage of the loss of the physical function of claimant's respiratory system as established in the American Medical Association's "Guides to the Evaluation of Permanent Impairment."

Section 23:1221(4)(p) allows up to 100 weeks of weekly benefits for a minor permanent lung impairment caused by asbestosis, with the weekly rate determined from the evidence.

Crump v. Hartford Accident & Indemnity Co. · filed 1978-04-11(4)(p)

The record does, however, support the conclusion that Crump has experienced a minor reduction of lung capacity as a result of asbestosis. This condition is, essentially, a non-disabling residual arising from minor, yet permanent, impairment of plaintiff’s lung function and does, therefore, entitle him to compensation under La.R.S. 23:1221(4)(p). ... Following the applicable provisions of La. R.S. 23:1221(4)(p), the trial court should render an award of weekly benefits, limited to one hundred weeks, at a weekly rate to be determined by a consideration of the evidence.

For an inguinal hernia claim, the employee must prove by a preponderance of the evidence that the hernia resulted from a work-related accident, was promptly reported to the employer, and was followed by treatment from a licensed physician within thirty days.

Flanigan v. City of Shreveport · filed 2010-10-27(4)(r)(i)

Based upon Flanigan’s delay in reporting the hernia to his physicians, as well as Dr. Werner stating that there was only a possibility that the 2006 accident caused the hernia, we conclude that the WCJ was clearly wrong in finding that the hernia was aggravated by the lifting of the containers.

Section 23:1221(3) provides supplemental earnings benefits when a work-related injury leaves an employee unable to earn 90% of pre-injury wages, shifts the burden to the employer to prove suitable available work, and guarantees at least 104 weeks of benefits after retirement.

Adams v. Georgia Gulf Lake Charles, LLC · filed 2018-06-27(3)(a), (3)(c)(i), (3)(d)(iii)

La. R.S. 23:1221(3)(a) provides that an employee is entitled to receive SEBs if he sustains a work-related injury that results in his inability to earn 90% or more of his average pre-injury wage. ... Once the employee’s burden is met, the burden shifts to the employer who, in order to defeat the employee’s claim for SEBs, must prove, by a preponderance of the evidence, that the employee is physically able to perform a certain job and that the job was offered to the employee or that the job was available to the employee in his or the employer’s community or reasonable geographic region. ... Under the provisions of La.R.S. 23:1221(3)(d)(iii), “[w]hen the employee retires . . . the period during which supplemental earnings benefits may be payable shall not be less than one hundred four weeks.”