Does the Employee Have a Louisiana Workers Compensation Claim?

City Park, New Orleans, Louisiana

Most Injured Employees Are Covered by Workers Compensation in Louisiana

Louisiana law requires employers to provide workers compensation insurance coverage, even if they have only one employee. 

In general, an employee in Louisiana is covered for workers compensation purposes from the day they start on a job.  So even if an employee is injured during his or her training period, the employee is entitled to full workers compensation benefits.  The injured employee would still have all his or her medical bills paid, and his or her lost wages would simply be calculated based on the expected earnings for his or her position.

Employees in Louisiana are covered under workers compensation regardless if they are full-time, part-time, seasonal workers, or minors.  So part-time employees will have all their medical bills paid.  Since lost wages in workers compensation are calculated based on the employee's earnings, income replacement benefits for part-time employees will be affected by the number of hours the employee typically works per week.

Workers Compensation Benefits in Louisiana

Louisiana workers compensation covers injuries that are a result of an on-the-job accident, as well as occupational diseases and illness related to employment.  

Louisiana workers compensation covers some mental and emotional injuries, but only when these mental and emotional injuries are connected to a severe accident or traumatic event that happened at work.

Additionally, pre-existing conditions may be covered if the condition was aggravated by a work-related accident.

Under Louisiana workers compensation, injured employees are entitled to the following benefits:

    • Medical Benefits;
    • Indemnity (Lost Wages) Benefits;
    • Vocational Rehabilitation Benefits; and
    • Death Benefits.

Also, injured employees are entitled to a "mileage" reimbursement for transportation costs.

Did the Employee Have An Accident?

For an injured worker to recover workers compensation benefits in Louisiana, the employee must prove that a work-related accident occurred and that an injury was sustained.  

So basically, besides occupational disease and other types of work-related illnesses, there must have been a specific accident for an injured employee to recover under Louisiana workers compensation.

The employee must show that a work-related accident occurred by the legal standard of proof of preponderance of the evidence.  That simply means that the injured employee must show it is more likely than not likely that a work-related accident occurred.  In other words, being 51% sure is good enough.

Last, Louisiana workers compensation does not cover an injury or illness, which is simply a gradual deterioration or progressive degeneration.  That means that degenerative conditions - such as degenerative disc disease - are not covered under Louisiana workers compensation. 

However, an aggravation of a degenerative condition - such as degenerative disc disease - is covered if there was a work-related accident which aggravated the degenerative condition. 

For example, if an employee has a pre-existing history of low back pain, but then that back pain suddenly changes or gets worse following some accident at work, then the employee should be able to recover under Louisiana workers compensation. 

Was There an Actual Injury?

An injury in Louisiana workers compensation cases is defined as a personal injury by accident arising out of in the course of employment.

In workers compensation cases, a disability is presumed to be the result of a work-related accident if, before the accident, the injured person was in good health, but beginning with the accident, the symptoms of the disability appear and continue.  

But there should be medical evidence to show a reasonable possibility of a causal connection between the accident and the disability, or that the nature of the accident, when combined with other facts of the situation, appears to show a causal connection.  The phrase causal connection means simply that one thing caused another thing.

Moreover, the fact that an employee does not realize or diagnose the full extent of his or her injury immediately after an accident should not prevent hat employee from making a recovery under Louisiana workers compensation. 

What About Pre-existing Conditions In A Louisiana Workers Compensation Claim?

Pre-existing conditions or disease or infirmity of an employee do not prevent a workers compensation claim if the work-related injury aggravated, accelerated, or combined with the disease or infirmity to produce the disability for which compensation is claimed.

When an employee proves that before the accident he or she had not shown any disabling symptoms, but that beginning with the accident the disabling symptoms appeared, and there is either medical or circumstantial evidence indicating a reasonable possibility of a causal connection between the accident and the disabling condition, then the employee's work injury is presumed to have been aggravated, accelerated, or combined with his pre-existing disease or infirmity to produce his disability. 

So again, it does not matter for an employee's workers compensation claim whether he or she had a pre-existing condition, so long as the accident aggravated the condition.  

The employer must take the employee as he finds him or her.  It the employee is frail or accident prone or has a pre-existing condition, that is the employer's problem, not the problem of the employee.

Were There Symptoms Before the Accident?

Therefore, in a Louisiana workers compensation pre-existing condition aggravation case, the critical factors to look for are:

    1. Whether the condition was asymptomatic prior to the alleged incident;
    2. The sudden onset of symptoms; and
    3. The ability to identify some instigating incident at or during work.

And also, in workers compensation cases, a disability is presumed to be the result of a work-related accident if, before the accident, the injured person was in good health, but beginning with the accident, the symptoms of the disability appear and continue.  

But there should be medical evidence to show a reasonable possibility of a causal connection between the accident and the disability, or that the nature of the accident, when combined with other facts of the situation, appears to show a causal connection.  

The phrase causal connection means simply that one thing caused another thing.

So the bottom line of all this is: if an employee had preexisting back problems but no symptoms prior to his or her work-related accident, then that employee's back injuries should be covered under Louisiana workers compensation.

Mental and Emotional Injuries Can Be Covered by Workers Compensation in Louisiana

Louisiana workers compensation covers some mental and emotional injuries, but these injuries need to be connected to a serious accident or traumatic event that happened at work.

Such a covered mental injury could be a mental injury that was caused by mental stress, if the mental injury was the result of a sudden, unexpected, and extraordinary stress related to employment.  Or the mental injury could be a mental injury caused by physical injury.  

Either way, the mental injury or illness must be diagnosed by a licensed psychiatrist or psychologist.  A licensed social worker or counselor is not sufficient to trigger benefits.  

So essentially, there are two types of "mental and emotional stress" claims: (1) mental or emotional injury caused solely by mental stress, and (2) mental or emotional injury caused by a physical injury or trauma.

Occupational Diseases Can Be Covered by Workers Compensation in Louisiana

Occupational diseases are diseases that are characteristic and peculiar to the employer's business.  

Occupational diseases are illnesses, not injuries caused by accidents.  

Common examples of occupational diseases include carpal tunnel syndrome, asbestosis, and silicosis.  By comparison, typical examples of injuries are broken bones, sprained ankles, and concussions.

In Louisiana, every employee who is disabled because of an occupational disease is entitled to the same compensation benefits that an employee would receive if the employee were injured by a physical personal injury by accident arising out of and in the course of employment.  Also, every dependent of an employee whose death is caused by an occupational disease is entitled to the same compensation that a dependent of an employee whose death is caused by a physical personal injury by accident arising out of and in the course of employment.  

So basically, an employee gets the same benefits, whether the employee has an occupational disease (such as carpal tunnel syndrome) or an actual injury (such as a broken wrist).

Under Louisiana workers compensation, there exists a presumption that an occupational disease that appears in the first 12 months of employment is not related to that employment.  That means that any occupational disease contracted by an employee while performing work for a particular employer in which he has been engaged for less than twelve months shall be presumed not to have been contracted in the course of and arising out of such employment.  

Since an occupational disease is generally considered to be one that is "characteristic of and peculiar to employment," medical testimony (usually from a doctor) is typically required to prove such.

Also, to prove a claim of occupational disease, the employee must show a causal link between his work and the disease. That is, the employee must show that the job caused the disease.  Again, medical testimony (usually from a doctor) is typically required to prove that the job caused the disease.

The prescriptive period - or time limit in which a claim must be filed - is one year from the date that the disease has manifested itself, the employee learns he is disabled, and the employee knows or has reason to believe that the disease is related to his occupation.  

Again, one year from the date that:

    1. The disease manifested itself (or simply appeared);
    2. The employee is disabled from working as a result of the disease; and
    3. The employee knows or has reasonable grounds to believe that the disease is occupationally related.

All three requirements must be present for the one-year time limit to start.  So the one year clock only starts ticking when the disease has appeared, the employee learns he is disabled, and the employee knows or has reason to believe that the disease is related to his occupation.  

Did the Accident Cause the Injury?

The employee in a workers compensation claim must prove that his or her disability was caused by a work-related accident. The employee must prove that his or her disability was caused by a work-related accident by a preponderance of the evidence, which simply means that it is more likely than not that the disability was caused by a work-related accident.

In fact, in order for the employee to recover worker compensation benefits, it must be determined that the employment somehow caused or contributed to the disability, but it is not necessary that the exact cause is found.

The Employee's Presumption of Causation

In Louisiana workers compensation cases, an employee's disability is presumed to have resulted from an accident; however, if before the accident, the employee was in good health, but beginning with the accident, the disability symptoms appear and remain.  

Also, there must be sufficient medical evidence to show a reasonable possibility of causal connection between the accident and the disability, or that the nature of the accident, when combined with the other facts of the case, raises a natural inference of such a causal connection.

A causal connection simply means that one thing caused another thing.

Once the disabled employee establishes the presumption of a causal relationship, the party denying the existence of the presumed fact assumes both the burden of producing evidence and the burden of persuasion on the issue.  In other words, in order for the party denying the existence of the presumed causal relationship to prevail on the issue, that party (usually the insurance company) must produce evidence and persuade the judge that it is more probable than not that the work-injury did not accelerate, aggravate or combine with the preexisting disease or infirmity to produce his disability. 

How Does An Employee Prove that the Accident Caused the Injury?

The employee in a worker compensation proceeding must prove that the conditions under which the employee worked did, in fact, injure him or bring about his death. 

Proving that the accident caused the injury usually occurs in two stages. First, the facts must be established. For example: did the employee fall, or receive a blow, or perform heavy work at the time in question, or be exposed to heat or poisonous gases or substances?  

In most workers compensation cases, testimony by the employee, co-workers, and other witnesses to the actual accident or related facts is used in the first stage of the inquiry where the facts are assembled.

Second, once the facts have been assembled, the employee must demonstrate that there was a causal connection between the events on the job and the disabling injury (that the accident caused the injury). This process is difficult to define because the fact of causation can never be absolutely 100% determined and must depend on probabilities.  The question to be answered here is whether some employment event caused the employee to be disabled.  

In most workers compensation cases, medical testimony by doctors must be used at the second stage where the fact of causation is established.  Again, the employee will usually need his or her physician to testify or produce records that conclude that the accident caused the injury.  

In the Course and Scope of Employment

In order for an employee to be covered under Louisiana workers compensation, the employee's accident must “arise out of employment” and occur “in the course of employment.”  

The phrase “scope” of employment" is a simpler way of saying “arising out of the employment.”  Thus, instead of “arising out of" and “in the course of” employment,” it is often said that in workers compensation, the employee's accident must simply occur in the “course and scope of employment.” 

The "scope of the employment" (or “arising out of employment”) relates to the character or origin of the injury suffered by the employee and whether this injury was connected to the employment.  

This simply means that the workers compensation injury will not be covered unless it is related to the employment.  

Also, an injury occurs in the scope of the employment if the risk from which the injury resulted was greater for the employee than for a person not engaged in the employment. 

The “course of employment” means that the employee sustained an injury while actively engaged in the performance of his duties during work hours, either on the employer's premises or at other places where employment activities take the employee.  Thus, the important questions for the course of employment are:

    1. When did the accident happen?
    2. Where did the accident happen?
    3. What was the employee doing when the accident happened?

Basically, if the employee suffered an accident during work hours, or while actually doing his or her job, or at the employee's place of employment, then in all likelihood, the employee will be covered by workers compensation.

In the Course of Employment

So again, if the employee suffers an accident during work hours, or while actually doing the duties of his or her job, or while at the employee's place of employment, then the employee will be covered by workers compensation because the employee is clearly within the course of employment. 

But whether the employee is in the course of employment is not always so clear.  For example, what if the employee:

    1. Is injured traveling to or from work?
    2. Is injured at a dangerous place adjacent to the employer's premises?
    3. Is injured while using the employer's transportation?
    4. Is injured while moving between places of work?
    5. Is injured while traveling for work?
    6. Is injured on the employer's premises before or after working hours?
    7. Is injured during an authorized lunch hour or rest period?
    8. Is injured while standing by or doing recreational activities?
    9. Is performing personal errands for the employer?
    10. Is injured during an emergency or attempted rescue?
    11. Is injured while violating instructions?
    12. Is injured while involved in horseplay or an assault, or a personal dispute?

Generally speaking, the employee is considered to be in the course of employment for a reasonable time both before and after work hours. 

If the employer requires the employee to participate in an activity outside of work hours or away from the employer's premises, then the employee will be considered in the course of employment.

Or if the employer derives substantial, direct benefit from an employee's activity, then the employee will be considered in the course of employment. 

Also, accidents occurring either going to work from home or vice versa generally are not covered by workers compensation.  But travel in-between places of work is covered by Louisiana workers compensation.

In short, many of these questionable scenarios regarding the course of employment contain factual questions that need to be determined on a case-by-case basis.

But Louisiana law has provided general rules and guidelines and laws in order to answer these specific questions regarding a particular course of employment scenarios. 

In the Scope of (or Arising Out of) Employment

So again, if the employee suffers an accident during work hours, or while actually doing the duties of his or her job, or while at the employee's place of employment, then the employee will be covered by workers compensation because the employee is clearly within the course of employment. 

But is an employee who is injured during the course of her employment protected only against some accident risks and not against others?

In other words, is an employee covered under workers compensation if the employee is injured by lightning or a tornado, or assaulted by a stranger, or burned while lighting a cigarette, or breaks an arm while scuffling with a fellow worker?  

Louisiana courts have primarily insisted that the risk that brought about the accident must bear some relationship to the nature of the employment.

Specifically, it ought to be good enough that the nature of the employment was such that the risk from which the injury resulted was greater for the employee than for a non-employee.

In other words, the employee's accident must be the result of some risk to which the employee is subjected in the course of his employment, and to which he would not have been subjected had he not been so employed.  

Are Independent Contractors Covered By Workers Compensation in Louisiana?

Independent contractors are not usually eligible for workers compensation benefits in Louisiana.  

This is because the Louisiana workers' compensation system exists for the purpose of compensating employees for injuries resulting from their employment. Workers compensation is therefore limited to those who are actually employees of the enterprise in question, or whose functions are those of employees.

Unfortunately, this means that independent contractors are not usually eligible for workers compensation benefits in Louisiana.  

In other words, if a genuine independent contractor suffers an injury while carrying out the contracted task, his own company should bear the loss caused by his injury, since compensation against the employer's enterprise is limited to his employees. In fact, many independent contractors are self-employed small business owners who do work for several or many businesses at the same time.

Of course, distinctions between the employee and the independent contractor are seldom as easy as might be thought.

The distinction between employee and independent contractor status, for the purpose of workers' compensation benefits, is a factual determination to be decided on a case-by-case basis.

There are instances where subcontractors and some independent contractors can be found to be employees when they are involved in the pursuit of the employer's trade, business or occupation or when their job is found to include the performance of substantial manual labor.  

So it really does matter how an employee is classified - as either an employee or an independent contractor - and sadly, employers often attempt to misclassify the worker in order to escape workers compensation liability.

Is the Injured Worker An Employee or An Independent Contractor?

As noted above, employees are eligible for Louisiana workers compensation, while independent contractors are not usually eligible for workers compensation benefits in Louisiana.  

Typically, it is assumed that workers begin with an assumption that they are employees, and not independent contractors, unless there is particular evidence which shows otherwise. 

However, this presumption of employment status can be rebutted by either:

    1. Establishing that the services were not pursuant to any trade, business, or occupation, such as the construction of one's private residence; or
    2. Proving that the individual was performing services but was doing so as an independent contractor.

So who decides if you are an employee or an independent contractor?  Surprisingly, the employer cannot determine on its own if a worker is an employee or an independent contractor.  Instead, this classification is a legal determination, which will most likely be determined by a workers compensation Judge unless all the parties are in full agreement.

To determine whether an injured worker is an employee or an independent contractor, a fact-specific determination will often be made based on the specific circumstances surrounding the nature of the working relationship.

Typically, an employee:

    • Receives a salary or a fixed hourly rate;
    • Performs work on an ongoing basis;
    • Has taxes taken out of his or her paycheck;
    • Receives employer-provided benefits such as health insurance or a retirement plan; 
    • Has an exclusive working relationship with a single business;
    • Is provided with the tools and supplies required to do the job;
    • Is equipped with training on how to perform the job; and
    • Has a supervisor who decides the specifics of the work to be done. 

In comparison, typically, an independent contractor:

    • Is paid per completion of a particular project, or on commission;
    • Performs work that is temporary in nature;
    • Does not have taxes taken out of his or her paycheck;
    • Does not receive employer-provided benefits such as health insurance or a retirement plan;
    • Regularly works with more than one business at a time;
    • Provides his or her own tools and supplies;
    • Does not need training because he or she already has the necessary skills to do the work; and
    • Works with little or no supervision. 

Also, in a workers' compensation claim, determining whether the worker is an employee or an independent contractor, Louisiana courts consider the following factors:

    1. If there is a valid contract between the parties;
    2. If the work being done is of an independent nature such that the contractor may employ non-exclusive means in accomplishing it;
    3. If the contract calls for specific piecework as a unit to be done according to the independent contractor's own methods without being subject to the control and direction of the principal, except as to the result of the services to be rendered;
    4. If there is a specific price for the overall undertaking; and
    5. If a specific time or duration is agreed upon and not subject to termination at the will of either side without liability for breach.

Last, the ability of a workers' compensation claimant to hire helpers and assistants is characteristic of an independent contractor.

The Louisiana Statutes on Employee Claims in Louisiana Workers Compensation

The primary Louisiana statutes on employee claims are La. R.S. 23:1021, La. R.S. 23:1031, La. R.S. 23:1031.1, La. R.S. 23:1032, La. R.S. 23:1035, La. R.S. 23:1044, La. R.S. 23:1061, La. R.S. 23:1062, and La. R.S. 23:1063, which read as follows: 

§1021. Terms defined

As used in this Chapter, unless the context clearly indicates otherwise, the following terms shall be given the meaning ascribed to them in this Section:

(1) "Accident" means an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.

(2) "Brother" and "sister" includes step-brothers and step-sisters, and brothers and sisters by adoption.

(3) "Child" or "children" covers only children born of marriage, step-children, posthumous children, adopted children, and children born outside of marriage who have been acknowledged under the provisions of the Civil Code.

(4) "Dependent" means the person or persons to whom, under the provisions of Part II of this Chapter, compensation shall be paid upon the death of the injured employee.

(5) "Assistant secretary" means the assistant secretary of the office of workers' compensation administration.

(6) "Health care provider" means a hospital, a person, corporation, facility, or institution licensed by the state to provide health care or professional services as a physician, hospital, dentist, registered or licensed practical nurse, pharmacist, optometrist, podiatrist, chiropractor, physical therapist, occupational therapist, psychologist, graduate social worker or licensed clinical social worker, psychiatrist, or licensed professional counselor, and any officer, employee, or agent thereby acting in the course and scope of his employment.

(7) "Independent contractor" means any person who renders service, other than manual labor, for a specified recompense for a specified result either as a unit or as a whole, under the control of his principal as to results of his work only, and not as to the means by which such result is accomplished, and are expressly excluded from the provisions of this Chapter unless a substantial part of the work time of an independent contractor is spent in manual labor by him in carrying out the terms of the contract, in which case the independent contractor is expressly covered by the provisions of this Chapter. The operation of a truck tractor or truck tractor trailer, including fueling, driving, connecting and disconnecting electrical lines and air hoses, hooking and unhooking trailers, and vehicle inspections are not manual labor within the meaning of this Chapter.

(8)(a) "Injury" and "personal injuries" include only injuries by violence to the physical structure of the body and such disease or infections as naturally result therefrom. These terms shall in no case be construed to include any other form of disease or derangement, however caused or contracted.

(b) Mental injury caused by mental stress. Mental injury or illness resulting from work-related stress shall not be considered a personal injury by accident arising out of and in the course of employment and is not compensable pursuant to this Chapter, unless the mental injury was the result of a sudden, unexpected, and extraordinary stress related to the employment and is demonstrated by clear and convincing evidence.

(c) Mental injury caused by physical injury. A mental injury or illness caused by a physical injury to the employee's body shall not be considered a personal injury by accident arising out of and in the course of employment and is not compensable pursuant to this Chapter unless it is demonstrated by clear and convincing evidence.

(d) No mental injury or illness shall be compensable under either Subparagraph (b) or (c) unless the mental injury or illness is diagnosed by a licensed psychiatrist or psychologist and the diagnosis of the condition meets the criteria as established in the most current issue of the Diagnostic and Statistical Manual of Mental Disorders presented by the American Psychiatric Association.

(e) Heart-related or perivascular injuries. A heart-related or perivascular injury, illness, or death shall not be considered a personal injury by accident arising out of and in the course of employment and is not compensable pursuant to this Chapter unless it is demonstrated by clear and convincing evidence that:

(i) The physical work stress was extraordinary and unusual in comparison to the stress or exertion experienced by the average employee in that occupation, and

(ii) The physical work stress or exertion, and not some other source of stress or preexisting condition, was the predominant and major cause of the heart-related or perivascular injury, illness, or death.

(9) "Office" means the office of workers' compensation administration established pursuant to R.S. 23:1291.

(10) "Owner operator" means a person who provides trucking transportation services under written contract to a common carrier, contract carrier, or exempt haulers which transportation services include the lease of equipment or a driver to the common carrier, contract carrier, or exempt hauler. An owner operator, and the drivers provided by an owner operator, are not employees of any such common carrier or exempt hauler for the purposes of this Chapter if the owner operator has entered into a written agreement with the carrier or hauler that evidences a relationship in which the owner operator identifies itself as an independent contractor. For purposes of this Chapter, owner operator does not include an individual driver who purchases his equipment from the carrier or hauler, and then directly leases the equipment back to the carrier or hauler with the purchasing driver.

(11) "Part-time employee" means an employee who as a condition of his hiring knowingly accepts employment that (a) customarily provides for less than forty hours per work week, and (b) that is classified by the employer as a part-time position.

(12) "Payor" means the entity responsible, whether by law or contract, for the payment of benefits incurred by a claimant as a result of a work related injury.

(13) "Wages" means average weekly wage at the time of the accident. The average weekly wage shall be determined as follows:

(a) Hourly wages.

(i) If the employee is paid on an hourly basis and the employee is employed for forty hours or more, his hourly wage rate multiplied by the average actual hours worked in the four full weeks preceding the date of the accident or forty hours, whichever is greater; or

(ii) If the employee is paid on an hourly basis and the employee was offered employment for forty hours or more but regularly, and at his own discretion, works less than forty hours per week for whatever reason, then, the average of his total earnings per week for the four full weeks preceding the date of the accident; or

(iii) If the employee is paid on an hourly basis and the employee is a part-time employee, his hourly wage rate multiplied by the average actual hours worked in the four full weeks preceding the date of the injury.

(iv) A part-time employee, as defined in R.S. 23:1021(9) and who is employed by two or more different employers in two or more successive employments, shall be entitled to receive benefits as follows:

(aa) If an employee is employed by two or more different employers in two or more successive employments and the employee incurs a compensable injury under the provisions of this Chapter in one of the employments, the employer in whose service the employee was injured shall pay the benefits due the employee as provided in this Chapter.

(bb) If the employee is a part-time employee in one of the successive employments, is injured in that employment, but as a result of the injury also incurs loss of income from other successive employments, that employee shall be entitled to benefits computed by determining wages under the provisions of this Subsection using his hourly rate in employment at the time of injury and using the total hours worked for all employers of the part-time employee, but not to exceed his average, actual weekly hours worked or forty hours weekly, whichever is less.

(v) For an employee in seasonal employment, his annual income divided by fifty-two.

(aa) For purposes of this Subparagraph, seasonal employment shall be any employment customarily operating only during regularly recurring periods of less than forty-four weeks annually.

(bb) If the employee was not engaged in the seasonal employment more than one year prior to the accident, his annual income shall be the average annual income of other employees of the same or most similar class working in the same or most similar employment for the same employer or, in the event that the employee was the only individual engaged in that specific employment, then his annual income shall be the average annual income of other employees of the same or most similar class working for a neighboring employer engaged in the same or similar employment.

(b) Monthly wages. If the employee is paid on a monthly basis, his monthly salary multiplied by twelve then divided by fifty-two.

(c) Annual wages. If the employee is employed at an annual salary, his annual salary divided by fifty-two.

(d) Other wages. If the employee is employed on a unit, piecework, commission, or other basis, his gross earnings from the employer for the twenty-six week period immediately preceding the accident divided by the number of days the employee actually worked for the employer during said twenty-six week period and multiplied by the average number of days worked per week; however, if such an employee has worked for the employer for less than a twenty-six week period immediately preceding the accident, his gross earnings from the employer for the period immediately preceding the accident divided by the number of days the employee actually worked for the employer during said period and multiplied by the average number of days worked per week.

(e) Exceptions. For municipal police officers, additional compensation paid by the state pursuant to R.S. 40:1667.3 shall not be included in the calculation and computation of total salary or average weekly wage to the extent such officer continues to receive such additional compensation during the period of his disability.

(f) Income tax. In the determination of "wages" and the average weekly wage at the time of the accident, no amount shall be included for any benefit or form of compensation which is not taxable to an employee for federal income tax purposes; however, any amount withheld by the employer to fund any nontaxable or tax-deferred benefit provided by the employer and which was elected by the employee in lieu of taxable earnings shall be included in the calculation of the employee's wage and average weekly wage including but not limited to any amount withheld by the employer to fund any health insurance benefit provided by the employer and which was elected by the employee in lieu of taxable earnings shall be included in the calculation of the employee's wage and average weekly wage.

(g) Date of accident. In occupational disease claims the date of the accident for purposes of determining the employee's average weekly wage shall be the date of the employee's last employment with the employer from whom benefits are claimed or the date of his last injurious exposure to conditions in his employment, whichever date occurs later.

Amended by Acts 1968, Ex. Sess., No. 25, §1; Acts 1975, No. 583, §1, eff. Sept. 1, 1975; Acts 1983, 1st Ex. Sess., No. 1, §§1, 6; eff. July 1, 1983; Acts 1987, No. 396, §1; Acts 1987, No. 494, §1; Acts 1988, No. 938, §1, eff. Jan. 1, 1989, and July 1, 1989; Acts 1989, No. 260, §1, eff. Jan. 1, 1990; Acts 1989, No. 454, §1, eff. Jan. 1, 1990; Acts 1991, No. 468, §1; Acts 1991, No. 565, §1; Acts 1993, No. 928, §2, eff. June 25, 1993; Acts 1995, No. 1137, §1, eff. June 29, 1995; Acts 1997, No. 423, §1; Acts 1997, No. 536, §1; Acts 1997, No. 1172, §4, eff. June 30, 1997; Acts 1999, No. 751, §1; Acts 1999, No. 1309, §5, eff. Jan. 1, 2000; Acts 2001, No. 288, §2; Acts 2001, No. 486, §2, eff. June 21, 2001; Acts 2001, No. 546, §1; Acts 2001, No. 1014, §§1 and 2, eff. June 27, 2001; Acts 2004, No. 26, §10; Acts 2004, No. 188, §1, eff. June 10, 2004; Acts 2004, No. 561, §1; Acts 2013, No. 337, §1; Acts 2014, No. 158, §§3 and 7.

§1031.  Employee's right of action; joint employers, extent of liability; borrowed employees

A.  If an employee not otherwise eliminated from the benefits of this Chapter receives personal injury by accident arising out of and in the course of his employment, his employer shall pay compensation in the amounts, on the conditions, and to the person or persons hereinafter designated.

B.  In case any employee for whose injury or death payments are due is, at the time of the injury, employed and paid jointly by two or more employers subject to the provisions of this Chapter, such employers shall contribute to such payments in proportion to their several wage liabilities to the employee; but nothing in this Section shall prevent any arrangement between the employers for different distribution, as between themselves, of the ultimate burden of such payments.  If one or more but not all the employers are subject to this Chapter, then the liability of such of them as are so subject shall be to pay that proportion of the entire payments which their proportionate wage liability bears to the entire wages of the employee; but such payment by the employers subject to this Chapter shall not bar the right of recovery against any other joint employer.

C.  In the case of any employee for whose injury or death payments are due and who is, at the time of the injury, employed by a borrowing employer in this Section referred to as a "special employer", and is under the control and direction of the special employer in the performance of the work, both the special employer and the immediate employer, referred to in this Section as a "general employer", shall be liable jointly and in solido to pay benefits as provided under this Chapter.  As between the special and general employers, each shall have the right to seek contribution from the other for any payments made on behalf of the employee unless there is a contract between them expressing a different method of sharing the liability.  Where compensation is claimed from, or proceedings are taken against, the special employer, then, in the application of this Chapter, reference to the special employer shall be substituted for reference to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the employee under the general employer by whom he is immediately employed.  The special and the general employers shall be entitled to the exclusive remedy protections provided in R.S. 23:1032.

D.  An injury by accident shall not be considered as having arisen out of the employment and is thereby not covered by the provisions of this Chapter if the injured employee was engaged in horseplay at the time of the injury.

E.  An injury by accident should not be considered as having arisen out of the employment and thereby not covered by the provisions of this Chapter if the employer can establish that the injury arose out of a dispute with another person or employee over matters unrelated to the injured employee's employment.

Acts 1989, No. 454, §2, eff. Jan. 1, 1990; Acts 1997, No. 315, §1, eff. June 17, 1997.

§1031.1.  Occupational disease

A.  Every employee who is disabled because of the contraction of an occupational disease as herein defined, or the dependent of an employee whose death is caused by an occupational disease, as herein defined, shall be entitled to the compensation provided in this Chapter the same as if said employee received personal injury by accident arising out of and in the course of his employment.

B.  An occupational disease means only that disease or illness which is due to causes and conditions characteristic of and peculiar to the particular trade, occupation, process, or employment in which the employee is exposed to such disease.  Occupational disease shall include injuries due to work-related carpal tunnel syndrome.  Degenerative disc disease, spinal stenosis, arthritis of any type, mental illness, and heart-related or perivascular disease are specifically excluded from the classification of an occupational disease for the purpose of this Section.

C.  Notwithstanding the limitations of Subsection B hereof, every laboratory technician who is disabled because of the contraction of any disease, diseased condition, or poisoning which disease, diseased condition, or poisoning is a result, whether directly or indirectly, of the nature of the work performed, or the dependent of a laboratory technician whose death is the result of a disease, diseased condition, or poisoning, whether directly or indirectly, of the nature of the work performed shall be entitled to the compensation provided in this Chapter the same as if said laboratory technician received personal injury by accident arising out of and in the course of his employment.

As used herein, the phrase "laboratory technician" shall mean any person who, because of his skills in the technical details of his work, is employed in a place devoted to experimental study in any branch of the natural or applied sciences; to the application of scientific principles of examination, testing, or analysis by instruments, apparatus, chemical or biological reactions or other scientific processes for the purposes of the natural or applied sciences; to the preparation, usually on a small scale, of drugs, chemicals, explosives, or other products or substances for experimental or analytical purposes; or in any other similar place of employment.

Except as otherwise provided in this Subsection, any disability or death claim arising under the provisions of this Subsection shall be handled in the same manner and considered the same as disability or death claims arising due to occupational diseases.

D.  Any occupational disease contracted by an employee while performing work for a particular employer in which he has been engaged for less than twelve months shall be presumed not to have been contracted in the course of and arising out of such employment, provided, however, that any such occupational disease so contracted within the twelve months' limitation as set out herein shall become compensable when the occupational disease shall have been proved to have been contracted during the course of the prior twelve months' employment by a preponderance of evidence.

E.  All claims for disability arising from an occupational disease are barred unless the employee files a claim as provided in this Chapter within one year of the date that:

(1)  The disease manifested itself.

(2)  The employee is disabled from working as a result of the disease.

(3)  The employee knows or has reasonable grounds to believe that the disease is occupationally related.

F.  All claims for death arising from an occupational disease are barred unless the dependent or dependents as set out herein file a claim as provided in this Chapter within one year of the date of death of such employee or within one year of the date the claimant has reasonable grounds to believe that the death resulted from an occupational disease.

G.  Compensation shall not be payable hereunder to an employee or his dependents on account of disability or death arising from disease suffered by an employee who, at the time of entering into the employment from which the disease is claimed to have resulted, shall have willfully and falsely represented himself as not having previously suffered from such disease.

H.  The rights and remedies herein granted to an employee or his dependent on account of an occupational disease for which he is entitled to compensation under this Chapter shall be exclusive of all other rights and remedies of such employee, his personal representatives, dependents or relatives.

I.  Notice of the time limitation in which claims may be filed for occupational disease or death resulting from occupational disease shall be posted by the employer at some convenient and conspicuous point about the place of business.  If the employer fails to post this notice, the time in which a claim may be filed shall be extended for an additional six months.

Acts 1952, No. 532, §1; Acts 1958, No. 39, §1; Acts 1975, No. 583, §2, eff. Sept. 1, 1975; Acts 1975, No. 644, §§1, 2; Acts 1980, No. 666, §§1, 2, eff. July 24, 1980; Acts 1989, No. 454, §2, eff. Jan. 1, 1990; Acts 1990, No. 943, §1; Acts 2001, No. 1189, §1, eff. June 29, 2001; Acts 2003, No. 733, §1.

§1032.  Exclusiveness of rights and remedies; employer's liability to prosecution under other laws

A.(1)(a)  Except for intentional acts provided for in Subsection B, the rights and remedies herein granted to an employee or his dependent on account of an injury, or compensable sickness or disease for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights, remedies, and claims for damages, including but not limited to punitive or exemplary damages, unless such rights, remedies, and damages are created by a statute, whether now existing or created in the future, expressly establishing same as available to such employee, his personal representatives, dependents, or relations, as against his employer, or any principal or any officer, director, stockholder, partner, or employee of such employer or principal, for said injury, or compensable sickness or disease.

(b)  This exclusive remedy is exclusive of all claims, including any claims that might arise against his employer, or any principal or any officer, director, stockholder, partner, or employee of such employer or principal under any dual capacity theory or doctrine.

(2)  For purposes of this Section, the word "principal" shall be defined as any person who undertakes to execute any work which is a part of his trade, business, or occupation in which he was engaged at the time of the injury, or which he had contracted to perform and contracts with any person for the execution thereof.

B.  Nothing in this Chapter shall affect the liability of the employer, or any officer, director, stockholder, partner, or employee of such employer or principal to a fine or penalty under any other statute or the liability, civil or criminal, resulting from an intentional act.

C.  The immunity from civil liability provided by this Section shall not extend to:

(1)  Any officer, director, stockholder, partner, or employee of such employer or principal who is not engaged at the time of the injury in the normal course and scope of his employment; and

(2)  To the liability of any partner in a partnership which has been formed for the purpose of evading any of the provisions of this Section.

Amended by Acts 1976, No. 147, §1; Acts 1989, No. 454, §2, eff. Jan. 1, 1990; Acts 1995, No. 432, §1, eff. June 17, 1995.

§1035.  Employees covered

A.  The provisions of this Chapter shall also apply to every person performing services arising out of and incidental to his employment in the course of his own trade, business, or occupation, or in the course of his employer's trade, business, or occupation, except that the bona fide president, vice president, secretary, or treasurer of a corporation who owns not less than ten percent of the stock therein, or a partner with respect to a partnership employing him, or a member of a limited liability company as defined in R.S. 12:1301(A)(13) who owns not less than a ten percent membership interest therein, or a sole proprietor with respect to such sole proprietorship may by written agreement with his insurer or group self-insurance fund elect not to be covered by the provisions of this Chapter.  Such election shall not be limited, but shall apply to all trades, businesses, or occupations conducted by said corporation, partnership, limited liability company, or sole proprietorship.  Such an election shall be binding upon the employing corporation, partnership, limited liability company, and sole proprietor and the surviving spouse, relatives, personal representative, heirs, or dependents of the officer, partner, member, or sole proprietor so electing.  No salary or compensation received by any such bona fide corporate officer, partner, member, or sole proprietor so electing shall be used in computing the premium rate for workers' compensation insurance.

B.(1)  There is exempt from coverage under this Chapter all labor, work, or services performed by any employee of a private residential householder in connection with the private residential premises of such householder or any employee of a private unincorporated farm, in connection with cultivating the soil, or in connection with raising or harvesting of any agricultural commodity, including the management of livestock, when the employee's annual net earnings for labor, work, or services amounts to one thousand dollars or less and the total net earnings of all employees of such farm do not exceed two thousand five hundred dollars and which labor, work, or services are not incidental to and do not arise out of any trade, business, or occupation of such householder or private unincorporated farm.  With respect to such labor, work, or services and any employee performing the same, a private residential householder or a private unincorporated farmer, shall have no liability under the provisions of this Chapter either as employer or as a principal; however, any person who is engaged in the trade, business, or occupation of furnishing labor, work, or services to private residential premises or farms, shall be liable under the provisions of this Chapter to his employees or their dependents for injury or death arising from and incidental to their employment in rendering such labor, work, or services.

(2)  There is also exempt from coverage under this Chapter, musicians and performers who are rendering services pursuant to a performance contract.

C.  Where applicable, an employee may seek tort recovery for injuries arising out of such labor, work, or services, or recovery from any insurance policy that the homeowner or employer may have which extends coverage to persons injured on the homeowner's or employer's premises, regardless of the employee's employment status, provided that the labor, work, or services performed by such employee are exempt from the provisions of this Chapter.

Amended by Acts 1975, No. 583, §1, eff. Sept.  1, 1975; Acts 1976, No. 177, §1; Acts 1979, No. 465, §1; Acts 1981, No. 827, §1; Acts 1983, 1st Ex. Sess., No. 1, §6; Acts 1995, No. 246, §1, eff. June 14, 1995; Acts 1997, No. 920, §1, eff. July 10, 1997; Acts 2001, No. 1014, §1, eff. June 27, 2001; Acts 2001, No. 1100, §1; Acts 2010, No. 120, §1.

§1044.  Presumption of employee status

A person rendering service for another in any trades, businesses or occupations covered by this Chapter is presumed to be an employee under this Chapter.

Every executive officer elected or appointed and empowered in accordance with the charter and by-laws of a corporation, other than a charitable, religious, educational or other non-profit corporation or an official of the state or other political subdivision thereof or of any incorporated public board or commission, shall be an employee of such corporation under this Chapter.

Amended by Acts 1958, No. 306, §1.

§1061.  Principal contractors; liability

A.(1)  Subject to the provisions of Paragraphs (2) and (3) of this Subsection, when any "principal" as defined in R.S. 23:1032(A)(2), undertakes to execute any work, which is a part of his trade, business, or occupation and contracts with any person, in this Section referred to as the "contractor", for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal, as a statutory employer, shall be granted the exclusive remedy protections of R.S. 23:1032 and shall be liable to pay to any employee employed in the execution of the work or to his dependent, any compensation under this Chapter which he would have been liable to pay if the employee had been immediately employed by him; and where compensation is claimed from, or proceedings are taken against, the principal, then, in the application of this Chapter reference to the principal shall be substituted for reference to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the employee under the employer by whom he is immediately employed.  For purposes of this Section, work shall be considered part of the principal's trade, business, or occupation if it is an integral part of or essential to the ability of the principal to generate that individual principal's goods, products, or services.

(2)  A statutory employer relationship shall exist whenever the services or work provided by the immediate employer is contemplated by or included in a contract between the principal and any person or entity other than the employee's immediate employer.

(3)  Except in those instances covered by Paragraph (2) of this Subsection, a statutory employer relationship shall not exist between the principal and the contractor's employees, whether they are direct employees or statutory employees, unless there is a written contract between the principal and a contractor which is the employee's immediate employer or his statutory employer, which recognizes the principal as a statutory employer.  When the contract recognizes a statutory employer relationship, there shall be a rebuttable presumption of a statutory employer relationship between the principal and the contractor's employees, whether direct or statutory employees.  This presumption may be overcome only by showing that the work is not an integral part of or essential to the ability of the principal to generate that individual principal's goods, products, or services.

B.  When the principal is liable to pay compensation under this Section, he shall be entitled to indemnity from any person who independently of this Section would have been liable to pay compensation to the employee or his dependent, and shall have a cause of action therefor.

Acts 1989, No. 454, §3, eff. Jan. 1, 1990; Acts 1997, No. 315, §1, eff. June 17, 1997.

§1062.  Sub-contractors; liability

Nothing in R.S. 23:1061 shall be construed as preventing an employee or his dependent from recovering compensation under this Chapter from the contractor instead of from the principal.

§1063.  Suits against principal contractors; subcontractors as co-defendants

A.  A principal contractor, when sued by an employee of a subcontractor or his dependent, may call that contractor, or any intermediate contractor or contractors, as a co-defendant, and the principal contractor shall be entitled to indemnity from his subcontractor for compensation payments paid by the principal contractor on account of an accidental injury to the employee of the subcontractor.

B.  A principal contractor, when sued pursuant to the provisions of R.S. 23:1021(6)* by an independent contractor who is a sole proprietor and who has elected by written agreement not to be covered by the provisions of this Chapter in accordance with R.S. 23:1035 or his dependent, may call such independent contractor as a co-defendant, and the principal contractor shall be entitled to indemnity from his independent contractor for compensation payments paid by the principal contractor on account of an accidental injury to the independent contractor.

Acts 2001, No. 1014, §1, eff. June 27, 2001.

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