La. Stat. Ann. § 23:1221

Section 23:1221(3)(a) provides SEBs when a work-related injury leaves an employee unable to earn 90% of pre-injury wages; under (3)(c)(i), the employer must then prove a suitable available job, while (3)(d)(iii) limits a retired employee’s SEBs to 104 weeks.

Lyman L. Smith v. Packaging Corporation of America · filed 2022-11-30(3)(a), (3)(c)(i), (3)(d)(iii)

The purpose of SEBs is to compensate the injured employee for the wage earning capacity he has lost as a result of his accident. ... La.R.S. 23:1221(3)(a) provides that an employee is entitled to receive SEBs if he sustains a work-related injury that results in his inability to earn 90% or more of his average pre-injury wage. ... Once the employee’s burden is met, the burden shifts to the employer who, in order to defeat the employee’s claim for SEBs, must prove, by a preponderance of the evidence, that the employee is physically able to perform a certain job and that the job was offered to the employee or that the job was available to the employee in his or the employer’s community or reasonable geographic region. La.R.S. 23:1221(3)(c)(i); Poissenot, 56 So.3d at 174; Banks, 696 So.2d at 551. ... Like Mr. Adams, who initially retired for reasons other than his occupational disease, Mr. Smith’s similar retirement does not preclude him from seeking an SEB award. Rather, his retirement only limits the length of his recovery.

Section 23:1221(3)(C)(ii) deems an employee incapable of performing offered, tendered, or available employment when the employee proves by clear and convincing evidence that solely substantial pain prevents the work.

Soniat v. Crown Buick & Risk Mgmt. Servs. · filed 2018-12-12(3)(C)(ii)

However, under La. R.S. 23:1221(3)(C)(ii), "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." Thus, if Ms. Frazier had presented clear and convincing evidence that her pain prevented her from performing her job she would be "deemed incapable of performing such employment."

Section 23:1221(3)(a)(i) measures supplemental-earnings-benefit eligibility against the employee’s ability to earn 90% of pre-injury wages, using wages at the time of injury, while § 23:1221(4)(s)(iii)(bb) requires clear and convincing proof of third-degree burns covering at least 40% of total body surface for the $50,000 benefit.

Jose Flores Moran Versus Amtrust North America and Jacques-Imo Cafe, LLC · filed 2023-03-01(3)(a)(i); (4)(s)(iii)(bb)

La. R.S. 23:1221(3)(a)(i) is clear that the benchmark for the purpose of calculating earning capacity in a workers’ compensation claim begins with the amount of wages “at the time of injury,” not after. ... Nowhere in the record, however, is an explanation provided of which part of the total area consisted of third-degree burns versus second-degree burns. As discussed above, the distinction is significant for the purposes of recovery under La. R.S. 23:1221. ... Accordingly, it makes Dr. Carter’s prediction about Mr. Moran’s future potential scarring to be that much more speculative. We see no error in the OWC Judge’s ruling that this portion of Mr. Moran’s claim was not supported by clear and convincing evidence.

Section 23:1221(3) does not require a partial disability claimant to lose employment because of a work-related injury.

Dauzat v. Gregory & Cook, Inc. · filed 1984-06-25(3)

La. R.S. 23:1221(3) [5] does not require a partial disability claimant to prove loss of employment because of a work-related injury.

Section 23:1221(3)(c)(i) requires an employer to prove that a job is available before reducing supplemental earnings benefits based on the employee’s earning capacity.

Shubert v. City of New Orleans · filed 2025-03-28(3)(c)(i)

Louisiana Revised Statutes 23:1221(3)(c)(i) sets forth the requirement that an employer must prove a job is available in order to validate reducing benefits. ... Thus, in light of the foregoing, we do not find that the WCJ erred in finding that the City improperly reduced Mr. Shubert’s SEB and that he is entitled to have his benefits reinstated back to the date of modification at a rate of six hundred thirty dollars ($630.00) per week at a zero-earning capacity.