The Drug and Alcohol Intoxication Defense in Louisiana Workers Compensation

Img 2749

Accidents Involving Drug or Alcohol Intoxication in Louisiana Workers Compensation

Under Louisiana workers compensation law, if an employee was intoxicated at the time of the employee's injury, and the intoxication caused the injury, then the workers compensation insurance company is not required to pay workers compensation benefits to that employee.

However, the intoxicated employee will be entitled to workers compensation benefits if:

    1. The intoxication results from activities in pursuit of the employer's interests; or
    2. The intoxication results from activities in which the employer procured and encouraged the use of the beverage or substance during work hours.

Good examples of these exceptions that allow coverage are business luncheons or parties.

Louisiana law permits the employer to administer drug and alcohol testing immediately after an alleged job accident or injury. 

Additionally, Louisiana law allows the use of blood alcohol tests to establish intoxication, according to the following standards:

    • If the blood alcohol reading is less than 0.05, then it is presumed that the employee was not intoxicated.
    • If the blood alcohol reading is between 0.05 and 0.8, then there are no presumptions and the test is simply evidence to be considered.
    • If the blood alcohol reading is over 0.8, then intoxication is presumed.

An injured employee's refusal to submit to a blood test also results in a presumption of intoxication.

Also, if the employee tests positive for a legal but non-prescribed controlled substance (such as prescription pain medications), then intoxication is presumed if the employee had no prescription.

If an employee tests positive, then the employee has the right to be retested immediately afterwards at own the employee's own expense.

The Shifting Burden of Proof

If an employee tests positive, then the workers compensation court will presume that:

    1. The employee was intoxicated at the time of the accident; and
    2. The employee's intoxication was the cause of the accident.

So, once the employer or the workers compensation insurance company establishes that employee was intoxicated at the time of the accident, then the burden will shift to the employee to prove that the intoxication was not a contributing cause of the accident, in order to defeat the intoxication defense of the workers compensation insurance company.

Therefore, there are basically two presumptions at work during the intoxication defense:

    1. The presumption of intoxication, based on the blood alcohol content percentages or drug readings; and
    2. The presumption that the intoxication of the employee was a cause of the accident.

However, once these presumptions are established, either presumption can be rebutted by the employee.

Emergency Medical Care

If an injured employee receives emergency care following the employee's accident or injury, but is later found intoxicated at the time of the accident, the workers compensation insurance company is only liable for the reasonable medical care provided the worker until such time as he is stabilized and ready for discharge from the acute care facility, at which time the employer's responsibility shall end for medical and compensation benefits.

In other words, even if the workers compensation insurance company is successful on an intoxication defense, the workers compensation insurance company is still responsible for covering the employee's emergency medical care and treatment.

But, under an intoxication defense, once the injured employee is released from the acute care facility (such as an emergency room), then at that point the workers compensation insurance company is no longer responsible for covering or paying for any of the employee's medical care or treatments. 

The Presumption of Intoxication in Louisiana Workers Compensation

As noted above, there are two presumptions at work during the intoxication defense:

    1. The presumption of intoxication, based on the blood alcohol content percentages or drug readings; and
    2. The presumption that the intoxication of the employee was a cause of the accident.

And again, once these presumptions are established, either presumption can be rebutted by the employee.

For alcohol intoxication, the following presumptions apply:

    1. If there was, at the time of the accident, 0.05 percent or less by weight of alcohol in the employee's blood, it shall be presumed that the employee was not intoxicated.
    2. If there was, at the time of the accident, in excess of 0.05 percent but less than 0.08 percent by weight of alcohol in the employee's blood, such fact shall not give rise to any presumption that the employee was or was not intoxicated, but such fact may be considered with other competent evidence in determining whether the employee was intoxicated.
    3. If there was, at the time of the accident, 0.08 percent or more by weight of alcohol in the employee's blood, it shall be presumed that the employee was intoxicated.
    4. If the employee refuses to submit to  alcohol testing immediately after the alleged job accident, then it shall be presumed that the employee was intoxicated at the time of the accident.

Percent by weight of alcohol in the blood shall be based upon grams of alcohol per one hundred cubic centimeters of blood.

For drug use intoxication, the following presumptions apply:

    1. If there was, at the time of the accident, evidence of either on or off the job use of a non-prescribed controlled substance, it shall be presumed that the employee was intoxicated.
    2. If the employee refuses to submit himself to drug testing immediately after the alleged job accident, then it shall be presumed that the employee was intoxicated at the time of the accident.

In order to support a finding of intoxication due to drug use, and a presumption of causation due to such intoxication, the employer must prove the employee's use of the controlled substance only by a preponderance of the evidence.

In meeting this burden, the results of employer-administered tests shall be considered admissible evidence when those tests are the result of the testing for drug usage done by the employer pursuant to a written and promulgated substance abuse rule or policy established by the employer.

But the injured employee can certainly rebut (or overturn) the presumption of intoxication, for example by:

    1. Offering testimony from family, friends or co-workers who had observed the employee before, after and during the alleged accident, but did not see anything unusual or which would lead them to conclude that the employee was intoxicated;
    2. Offering testimony from co-workers who were in a position to testify that the employee did not appear to be intoxicated immediately prior to the accident because the employee was performing his or her job duties in a normal manner and without problem;
    3. Offering testimony from a toxicology expert that the amount of marijuana by-product in the urine could have come from passive inhalation;
    4. Offering testimony from a toxicology expert that the amount of by-product in the urine indicated drug use days or weeks earlier, but not on the day of the accident;
    5. Offering testimony from the employee denying drug use on the day of the accident but admitting to drug use days or weeks earlier; and
    6. Offering evidence that the testing was not performed immediately after the accident.

However, if the workers compensation insurance company does meet its burden of proving intoxication, it will presumed that the accident was caused by the intoxication, and the burden of proof then shifts to the employee to prove that the intoxication was not a contributing cause of the accident.

In other words, it will then be up to the employee to convince the workers compensation Judge that the alcohol or drug use was not a cause of the accident. 

The Presumption that the Intoxication Caused the Accident in Louisiana Workers Compensation

Once the workers compensation insurance company has met the burden of proving intoxication, it is presumed that the accident was caused by the intoxication, and the burden of proof then shifts to the employee to prove that the intoxication was not a contributing cause of the accident.

So again, at that point, it will be up to the employee to convince the workers compensation Judge that the alcohol or drug use was not a cause of the accident.

But the injured employee can certainly rebut (or overturn) the presumption that the intoxication caused the accident, for example by offing testimony or evidence that:

    1. The employee did not appear to be intoxicated on the day of the accident;
    2. The conduct of the employee was not improper or illegal in any manner;
    3. The work being done by the employee was not improper or illegal in any manner; and
    4. The employee was simply just in the wrong place at the wrong time.

Really the best way for the employee to convince the workers compensation Judge that the intoxication was not a cause of the accident is for the employee to show that the accident had nothing to do with the actions of the employee.

So for example, if an intoxicated employee gets injured when the building that he or she is in collapses, then this employee should be able to rebut and overcome an intoxication defense because the employee did not do anything that caused the building to collapse and injure the employee.  That employee was just in the wrong place at the wrong time, and the employee's intoxication was irrelevant.

Or, in another example, if an intoxicated employee gets injured while he or she was a passenger in a vehicle while at work that gets in a motor vehicle accident, then this employee should also be able to rebut and overcome an intoxication defense because this employee could not have done anything to have caused the accident and the employee's injuries.  Once again, that employee was just in the wrong place at the wrong time, and the employee's intoxication was irrelevant to the accident.

The Promulgated Written Drug and Alcohol Testing Policy in Louisiana Workers Compensation

Under Louisiana law, the employer is granted the right to administer drug and alcohol testing, and the employer gets to set forth the testing standards and protocols to be used.

However, the drug and alcohol testing must be pursuant to a written and promulgated substance abuse rule or policy established by the employer.

A written and promulgated substance abuse policy means that the policy must be written down and specifically communicated to the employee.

That means that the employee must receive a copy of the written policy, so that the employee knows and understands the consequences of failing a drug or alcohol test. Usually the employee is asked to sign a documents stating that he or she has received and read the company's drug and alcohol testing policy.

This written and promulgated substance abuse rule or policy must be specific, meaning that a simple statement of zero tolerance is insufficient. 

Louisiana courts define a drug and alcohol policy as “a definite course or method of action selected from among alternatives and in light of given conditions to guide and determine present and future decisions” which must:

    1. Set forth any method for drug testing;
    2. Select from various testing methods; and
    3. Specify under what circumstances an employee may be required to submit to a test.

Also, this written and promulgated substance abuse policy must set out the specific testing protocols and procedures to be valid, and the drug and alcohol testing procedures must comply with the Office of Workers Compensation's drug testing rules and the Louisiana Drug Testing Statute, La. R.S. 49:1001 et seq.

If the employee's drug and/or alcohol testing was not performed pursuant to a written and promulgated substance abuse rule or policy established by the employer, then the workers compensation insurance company cannot use the intoxication defense.

In other words, if the employer does not specifically provide and communicate a written drug testing policy to the employee, then the employee's drug and alcohol test will be thrown out and not considered at all by the workers compensation court.

Collection of the Testing Sample in Louisiana Workers Compensation

Employers have the right to administer drug and alcohol testing immediately after the job accident.

But a drug screen which is run several days after the accident will be useless.

And the workers compensation insurance company can establish the use of illegal drugs by introducing the results of an employer-administered urine test pursuant to a written and promulgated substance abuse rule or policy estab­lished by the employer.

But these drug programs and testing procedures must comply with the Louisiana Office of Workers Compensation's drug testing rules, including:

    1. The rules about the collection of the sample itself; and
    2. The rules about the chain of custody of the sample itself.

For example:

    • The collection of samples shall be performed under reasonably sanitary conditions.
    • Samples shall be collected and tested with due regard to the privacy of the individual being tested, and in a manner reasonably calculated to prevent substitutions or interference with the collection or testing of reliable samples.
    • Sample collection shall be documented, and the documentation procedures shall include:
      • Labeling of samples so as reasonably to preclude the probability of erroneous identification of test result; and
      • An opportunity for the employee to provide notification of any information which he considers relevant to the test, including identification of currently or recently used prescription or nonprescription drugs, or other relevant medical information.
    • Sample collection, storage, and transportation to the place of testing shall be performed so as reasonably to preclude the probability of sample contamination or adulteration.

So, if the employer, the workers compensation insurance company, and their medical representatives cannot demonstrate that the employee was given a valid and proper drug or alcohol test, and that the chain of custody rules were followed for handling the blood or urine sample itself, then the workers compensation insurance company cannot use those test results in an intoxication defense.

Instead, those improper test results will be thrown out of court as inadmissible, and not considered at all by the workers compensation Judge.

Toxicology Reports in Louisiana Workers Compensation

As noted above, the workers compensation insurance company can establish the use of illegal drugs by introducing the results of an employer-administered blood or urine test pursuant to a written and promulgated substance abuse policy estab­lished by the employer.

The results of drug and alcohol testing are set forth in a written toxicology report, which will be provided to the workers compensation Judge.

However, the employee may need a toxicology expert to testify about the toxicology report and the effect of its findings, particularly if the employee challenges the intoxication presumption.

Of note, for an alcohol test, the standard unit of measurement for blood alcohol level should be in “g/cm.3” which is grams of alcohol per one hundred cubic centimeters of blood.

Also, the toxicology report must contain a confirmation test which was administered by gas chromatography, gas chromatography-mass spectroscopy (GC-MS). If not, the workers compensation insurance company may not be able to even use the toxicology report.

And, sample testing shall conform to scientifically accepted analytical methods and procedures, which means that the toxicology report should include verification or confirmation of any positive test result by gas chromatography, gas chromatography-mass spectroscopy, or other comparably reliable analytical method, before the result of any test may be used as a basis for any disqualification.

Also, the toxicology report should not exclude the possibility of passive inhalation of marijuana, if the result is to be used as a basis for any disqualification.  However, test results which indicate that the concentration of total urinary cannabinoids as determined by immunoassay equals or exceeds fifty nanograms/ml shall exclude the possibility of passive inhalation.

Finally, it is important to recognize that while urine tests work for most substances, they do not conclusively establish the influence of marijuana. So, a blood test is essentially required to conclusively establish the influence of marijuana.

For example, a toxicology expert witness can use a toxicology report to testify and prove that the presence of THC (marijuana by-product) in the urine specimen might confirm that an employee was exposed to marijuana sometime in the past, but it cannot prove that the employee was under the influence of marijuana at the time of the accident. 

Failing a Return-to-Work Drug Test in Louisiana Workers Compensation

Under Louisiana workers compensation law, lost wage (indemnity) benefits - including Supplemental Employment Benefits (SEBs) - can be terminated if the employee fails a return-to-work drug screen.

Of course, to terminate such lost wage benefits, the employer must maintain an established written and promulgated substance abuse policy which requires employer-administered drug testing prior to employment or return to work.

However, even if the employee fails a return-to-work drug screen, while the employee will likely lose his or her lost wage (indemnity) benefits, the employee will not lose his or her right to receive reasonable and necessary medical treatment and benefits.

And, an injured employee should keep in mind that he or she can fail a return-to-work drug screen, not just on the basis of illegal drugs, but also on the basis of testing positive for prescription pain medications that were never prescribed to the employee.

How to Overcome and Defeat a Drug and Alcohol Intoxication Defense in Louisiana Workers Compensation

If an injured employee fails a drug or alcohol test after an accident, this employee may still be able receive workers compensation benefits.

For example, despite failing a drug or alcohol test, an injured employee may still be able to receive workers compensation benefits for the following reasons:

    • The employee's intoxication resulted from activities that were in pursuit of the employer's interests.
    • The employee's intoxication resulted from activities in which the employer procured and encouraged the use of the beverage or substance during work hours (such as business luncheons or parties).
    • The drug and alcohol testing was not performed immediately after the accident.
    • A urine test, instead of a blood test, was used to establish the influence of marijuana.
    • The employee did not use drugs on the day of the accident, but did use drugs days or weeks earlier, and a toxicology expert can testify that this is what the toxicology report shows.
    • The employee did not smoke marijuana, but may have passively inhaled second-hand marijuana smoke, and a toxicology expert can testify that this is what the toxicology report shows.
    • The employee actually has a prescription for the prescription drug medications that appeared positive on the drug test.
    • Sworn testimony - from the employee's family, friends or co-workers who had observed the employee before, after and during the alleged accident - demonstrates that these family, friends or co-workers did not see anything unusual or which would lead them to conclude that the employee was intoxicated.
    • Sworn testimony from the employee's co-workers demonstrates that the employee did not appear to be intoxicated immediately prior to the accident because the employee was performing his or her job duties in a normal manner and without problem.
    • The evidence shows that the intoxication did not cause the accident, for example, because: 
        1. The employee did not appear to be intoxicated on the day of the accident;
        2. The conduct of the employee was not improper or illegal in any manner;
        3. The work being done by the employee was not improper or illegal in any manner;
        4. The employee was simply just in the wrong place at the wrong time; or
        5. The accident had nothing to do with the actions of the employee.
    • The employer did not have a written policy prohibiting drug and alcohol intoxication at work that also stated the specific consequences such as denial of workers compensation benefits and the termination of benefits.
    • The employer did not have a written specific drug and alcohol testing policy which:
        1. Is more than a simple statement of zero tolerance;
        2. Sets out the specific testing protocols and procedures;
        3. Provides a definite course or method of action selected from among testing alternatives;
        4. Sets forth a specific method or methods for drug testing;
        5. Selects from various testing methods;
        6. Specifies under what circumstances an employee may be required to submit to a test; and
        7. Complies with the Office of Workers Compensation's drug testing rules and the Louisiana Drug Testing Statute.
    • The written drug and alcohol use policy and the written drug and alcohol testing policy were not specifically communicated and provided to the employee.
    • The drug or alcohol test failed to follow the Office of Workers Compensation's rules for collecting the sample itself or the rules for proper chain of custody procedures, because: 
        1. The collection of samples was not performed under reasonably sanitary conditions;
        2. The samples were not collected and tested with due regard to the privacy of the individual being tested, and in a manner reasonably calculated to prevent substitutions or interference with the collection or testing of reliable samples;
        3. The sample collection was not documented, or the documentation procedures did not include labeling of samples so as reasonably to preclude the probability of erroneous identification of test result, and an opportunity for the employee to provide notification of any information which he considers relevant to the test, including identification of currently or recently used prescription or nonprescription drugs, or other relevant medical information; and
        4. The sample collection, storage, and transportation to the place of testing was not performed so as reasonably to preclude the probability of sample contamination or adulteration.

And again, even if an employee tests positive for drugs or alcohol, the employee can still receive workers compensation benefits if the employee can rebut and overturn either the presumption that the employee was intoxicated at the time of the accident or the presumption that the employee's intoxication was a cause of the accident.

The Louisiana Statutes for Drug and Alcohol Intoxication in Louisiana Workers Compensation

The primary Louisiana statutes regarding drug and alcohol intoxication are La. R.S. 23:1081 and La. R.S. 23:1221, which read as follows:

§1081. Defenses

(1) No compensation shall be allowed for an injury caused:

(a) by the injured employee's willful intention to injure himself or to injure another, or

(b) by the injured employee's intoxication at the time of the injury, unless the employee's intoxication resulted from activities which were in pursuit of the employer's interests or in which the employer procured the intoxicating beverage or substance and encouraged its use during the employee's work hours, or

(c) to the initial physical aggressor in an unprovoked physical altercation, unless excessive force was used in retaliation against the initial aggressor.

(2) In determining whether or not an employer shall be exempt from and relieved of paying compensation because of injury sustained by an employee for any cause or reason set forth in this Subsection, the burden of proof shall be upon the employer.

(3) For purposes of proving intoxication, the employer may avail himself of the following presumptions:

(a) If there was, at the time of the accident, 0.05 percent or less by weight of alcohol in the employee's blood, it shall be presumed that the employee was not intoxicated.

(b) If there was, at the time of the accident, in excess of 0.05 percent but less than 0.08 percent by weight of alcohol in the employee's blood, such fact shall not give rise to any presumption that the employee was or was not intoxicated, but such fact may be considered with other competent evidence in determining whether the employee was intoxicated.

(c) If there was, at the time of the accident, 0.08 percent or more by weight of alcohol in the employee's blood, it shall be presumed that the employee was intoxicated.

(4) Percent by weight of alcohol in the blood shall be based upon grams of alcohol per one hundred cubic centimeters of blood.

(5) If there was, at the time of the accident, evidence of either on or off the job use of a nonprescribed controlled substance as defined in 21 U.S.C. 812, Schedules I, II, III, IV, and V, it shall be presumed that the employee was intoxicated.

(6) The foregoing provisions of this Section shall not be construed as limiting the introduction of any other competent evidence bearing upon the question of whether the employee was under the influence of alcoholic beverages or any illegal or controlled substance.

(7)(a) For purposes of this Section, the employer has the right to administer drug and alcohol testing or demand that the employee submit himself to drug and alcohol testing immediately after the alleged job accident.

(b) If the employee refuses to submit himself to drug and alcohol testing immediately after the alleged job accident, then it shall be presumed that the employee was intoxicated at the time of the accident.

(8) In order to support a finding of intoxication due to drug use, and a presumption of causation due to such intoxication, the employer must prove the employee's use of the controlled substance only by a preponderance of the evidence. In meeting this burden, the results of employer-administered tests shall be considered admissible evidence when those tests are the result of the testing for drug usage done by the employer pursuant to a written and promulgated substance abuse rule or policy established by the employer.

(9) All sample collection and testing for drugs under this Chapter shall be performed in accordance with rules and regulations adopted by the assistant secretary which ensure the following:

(a) The collection of samples shall be performed under reasonably sanitary conditions.

(b) Samples shall be collected and tested with due regard to the privacy of the individual being tested, and in a manner reasonably calculated to prevent substitutions or interference with the collection or testing of reliable samples.

(c) Sample collection shall be documented, and the documentation procedures shall include:

(i) Labeling of samples so as reasonably to preclude the probability of erroneous identification of test result; and

(ii) An opportunity for the employee to provide notification of any information which he considers relevant to the test, including identification of currently or recently used prescription or nonprescription drugs, or other relevant medical information.

(d) Sample collection, storage, and transportation to the place of testing shall be performed so as reasonably to preclude the probability of sample contamination or adulteration; and

(e) Sample testing shall conform to scientifically accepted analytical methods and procedures. Testing shall include verification or confirmation of any positive test result by gas chromatography, gas chromatography-mass spectroscopy, or other comparably reliable analytical method, before the result of any test may be used as a basis for any disqualification pursuant to this Section. Test results which do not exclude the possibility of passive inhalation of marijuana may not be used as a basis for disqualification under this Chapter. However, test results which indicate that the concentration of total urinary cannabinoids as determined by immunoassay equals or exceeds fifty nanograms/ml shall exclude the possibility of passive inhalation.

(10) All information, interviews, reports, statements, memoranda, or test results received by the employer through its drug testing program are confidential communications and may not be used or received in evidence, obtained in discovery, or disclosed in any public or private proceeding, except in a proceeding related to an action under R.S. 23:1021 et seq. or R.S. 23:1601(10) in a claim for unemployment compensation proceeding, hearing, or civil litigation when drug use by the tested employee is relevant.

(11) No cause of action for defamation of character, libel, slander, or damage to reputation arises in favor of any person against an employer who has established a program of drug or alcohol testing in accordance with this Chapter and rules and regulations adopted pursuant thereto, unless:

(a) The results of that test were disclosed to any person other than the employer, an authorized employee or agent of the employer, the tested employee, or the tested prospective employee or appropriate governmental agency or court.

(b) The information disclosed was based on a false test result; and

(c) All elements of an action for defamation of character, libel, slander, or damage to reputation as established by statute or jurisprudence, are satisfied.

(12) Notwithstanding any language to the contrary, once the employer has met the burden of proving intoxication at the time of the accident, it shall be presumed that the accident was caused by the intoxication. The burden of proof then is placed upon the employee to prove that the intoxication was not a contributing cause of the accident in order to defeat the intoxication defense of the employer.

(13) In the event a health care provider delivers emergency care to an injured worker later presumed or found to be intoxicated under this Section, the employer shall be responsible for the reasonable medical care provided the worker until such time as he is stabilized and ready for discharge from the acute care facility, at which time the employer's responsibility shall end for medical and compensation benefits.

Acts 1983, 1st Ex. Sess., No. 1, §1, eff. July 1, 1983; Acts 1989, No. 454, §3, eff. Jan. 1, 1990; Acts 1990, No. 958, §1; Acts 2001, No. 781, §2, eff. Sept. 30, 2003; Acts 2001, No. 1014, §§1 and 2, eff. June 27, 2001.

NOTE: Section 6 of Acts 2001, No. 781 provides that the provisions of the Act shall become null and of no effect if and when Section 351 of P.L. 106-346 regarding the withholding of federal highway funds for failure to enact a 0.08 percent blood alcohol level is repealed or invalidated for any reason.

§1221. Temporary total disability; permanent total disability; supplemental earnings benefits; permanent partial disability; schedule of payments

Compensation shall be paid under this Chapter in accordance with the following schedule of payments:

(1) Temporary total.

(a) For any injury producing 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, sixty-six and two-thirds percent of wages during the period of such disability.

(b) For purposes of Subparagraph (1)(a) of this Paragraph, 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.

(c) For purposes of Subparagraph (1)(a) of this Paragraph, whenever the employee is not engaged in any employment or self-employment as described in Subparagraph (1)(b) of this Paragraph, compensation for temporary total disability shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including but not limited to any and all odd-lot employment, sheltered employment, or employment while working in any pain, notwithstanding the location or availability of any such employment or self-employment.

(d) An award of benefits based on temporary total disability shall cease when the physical condition of the employee has resolved itself to the point that a reasonably reliable determination of the extent of disability of the employee may be made and the employee's physical condition has improved to the point that continued, regular treatment by a physician is not required.

(2) Permanent total.

(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.

(b) For purposes of Subparagraph (2)(a) of this Paragraph, compensation for permanent total disability shall not be awarded if the employee is engaged in any employment or self-employment regardless of the nature or character of the employment or self-employment including but not limited to any and all odd-lot employment, sheltered employment, or employment while working in any pain.

(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.

(d) Notwithstanding any judgment or determination that an employee is permanently and totally disabled, if such employee subsequently has or receives any earnings, including, but not limited to, earnings from odd-lot employment, sheltered employment, or employment while working in any pain, such employee shall not receive benefits pursuant to this Paragraph but may receive benefits computed pursuant to Paragraph (3) of this Section, if applicable.

(e) The issue of permanent total disability provided herein shall not be adjudicated or determined while the employee is engaged in employment pursuant to R.S. 23:1226(G), but such employment shall not prevent adjudication or determination of the employee's right to any other benefits otherwise provided in this Chapter; however, the employee shall not by virtue of employment pursuant to R.S. 23:1226(G) be deprived of the right to determination or adjudication of permanent total disability herein at a time when he is not engaged in such employment.

(3) Supplemental earnings benefits.

(a)(i) 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, payable monthly, equal to sixty-six and two-thirds percent of the difference between the average monthly wages at time of injury and average monthly wages earned or average monthly wages the employee is able to earn in any month thereafter in any employment or self-employment, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee at the time of the injury was particularly fitted by reason of education, training, and experience, such comparison to be made on a monthly basis. Average monthly wages shall be computed by multiplying his wages by fifty-two and then dividing the product by twelve.

(ii) When the employee is entitled to monthly supplemental earnings benefits pursuant to this Subsection, but is not receiving any income from employment or self-employment and the employer has not established earning capacity pursuant to R.S. 23:1226, payments of supplemental earning benefits shall be made in the manner provided for in R.S. 23:1201(A)(1).

(b) For purposes of Subparagraph (3)(a), of this Paragraph, the amount determined to be the wages the employee is able to earn in any month shall in no case be less than the sums actually received by the employee, including, but not limited to, earnings from odd-lot employment, sheltered employment, and employment while working in any pain.

(c)(i) Notwithstanding the provisions of Subparagraph (b) of this Paragraph, for purposes of Subparagraph (a) of this Paragraph, if the employee is not engaged in any employment or self-employment, as described in Subparagraph (b) of this Paragraph, or is earning wages less than the employee is able to earn, the amount determined to be the wages the employee is able to earn in any month shall in no case be less than the sum the employee would have earned in any employment or self-employment, as described in Subparagraph (b) of this Paragraph, which he was physically able to perform, and (1) which he was offered or tendered by the employer or any other employer, or (2) which is proven available to the employee in the employee's or employer's community or reasonable geographic region.

(ii) For purposes of Subsubparagraph (i) of this Subparagraph, if the employee establishes by clear and convincing evidence, unaided by any presumption of disability, that solely as a consequence of substantial pain, the employee cannot perform employment offered, tendered, or otherwise proven to be available to him, the employee shall be deemed incapable of performing such employment.

(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; or

(ii) After receipt of a maximum of five hundred twenty weeks of benefits, provided that for any week during which the employee is paid any compensation under this Paragraph, the employer shall be entitled to a reduction of one full week of compensation against the maximum number of weeks for which compensation is payable under this Paragraph; however, for any week during which the employee is paid no supplemental earnings benefits, the employer shall not be entitled to a reduction against the maximum number of weeks payable under this Paragraph; or

(iii) When the employee retires; however, the period during which supplemental earnings benefits may be payable shall not be less than one hundred four weeks.

(e)(i) The fact that an employee has suffered previous disability, impairment, or disease, or received compensation therefor, shall not preclude him from receiving benefits for a subsequent injury or preclude benefits for death resulting therefrom.

(ii) If an employee receiving supplemental earnings benefits suffers a subsequent injury causing the payment of temporary total disability, permanent total disability, or supplemental earnings benefits, the combined benefits payable shall not exceed the maximum compensation rate in effect for temporary total disability at the time of the subsequent injury. Any reduction in benefits due to such limit shall be applied first to the supplemental earnings benefits payable as a result of the prior injury.

(f) Any compensable supplemental earnings benefits loss shall be reported by the employee to the insurer or self-insured employer within thirty days after the termination of the week for which such loss is claimed. The assistant secretary shall provide by rule for the reporting of supplemental earnings benefits loss by the injured worker and for the reporting of supplemental earnings benefits and payment of supplemental earnings benefits by the employer or insurer to the office and may prescribe forms for such reporting. The office, upon request by the employer or insurer, shall provide verification through unemployment compensation records under the Louisiana Employment Security Law of any claimed supplemental earnings benefits loss and shall obtain such verification from other states, if applicable.

(g) When an injured employee has been released to return to work with or without restrictions, and the employer maintains an established written and promulgated substance abuse policy which requires employer-administered drug testing prior to employment or return to work, upon the employee's failure to meet the requirements of such employer's established policy and inability to qualify for the position for that reason, the obligation for all benefits pursuant to this Chapter, with the sole exception of the obligation to provide reasonable and necessary medical treatment, shall be terminated and the employee shall be subject to the terms and conditions established in the employer's promulgated drug testing policy and program. The provisions of this Subparagraph shall not apply to prescription medication prescribed for the employee in the dosages so prescribed by a physician.

(4) Permanent partial disability. In the following cases, compensation shall be solely for anatomical loss of use or amputation and shall be as follows:

(a) For the loss of a thumb, sixty-six and two-thirds percent of wages during fifty weeks.

(b) For the loss of a first finger, commonly called the index finger, sixty-six and two-thirds percent of wages during thirty weeks.

(c) For the loss of any other finger, or a big toe, sixty-six and two-thirds percent of wages during twenty weeks.

(d) For the loss of any toe, other than a big toe, sixty-six and two-thirds percent of wages during ten weeks.

(e) For the loss of a hand, sixty-six and two-thirds percent of wages during one hundred fifty weeks.

(f) For the loss of an arm, sixty-six and two-thirds percent of wages during two hundred weeks.

(g) For the loss of a foot, sixty-six and two-thirds percent of wages during one hundred twenty-five weeks.

(h) For the loss of a leg, sixty-six and two-thirds percent of wages during one hundred seventy-five weeks.

(i) For the loss of an eye, sixty-six and two-thirds percent of wages during one hundred weeks.

(j) Loss of both hands, or both arms, or both feet, or both legs, or both eyes, or one hand and one foot, or any of two thereof, or paraplegia, or quadriplegia shall, in the absence of conclusive proof of a substantial earning capacity, constitute permanent total disability.

(k) The loss of the first phalanx of the thumb or big toe, or two phalanges of any finger or toe, shall be considered to be equal to the loss of one-half of such member, and the compensation shall be one-half of the amount above specified.

(l) The loss of more than one phalanx of a thumb, or more than two phalanges of any finger or toe shall be considered as the loss of the entire member; provided, however, that in no case shall the amount received for more than one finger exceed the amount provided in this schedule for the loss of a hand, or the amount received for the loss of more than one toe exceed the amount provided in this schedule for the loss of a foot.

(m) Amputation between the elbow and the wrist shall be considered as equivalent to the loss of a hand and amputation between the knee and the ankle shall be equivalent to the loss of a foot.

(n) A permanent total anatomical loss of the use of a member is equivalent to the amputation of the member.

(o) In all cases involving a permanent partial anatomical loss of use or amputation of the members mentioned hereinabove, compensation shall bear such proportion to the number of weeks provided for herein for the total loss of such members as the percentage loss or impairment to such members bears to the total loss of the member, provided that in no case shall compensation for an injury to a member exceed the compensation payable for the loss of such member.

(p) In cases not falling within any of the provisions already made, where the employee is seriously and permanently disfigured or suffers a permanent hearing loss solely due to a single traumatic accident, or where the usefulness of the physical function of the respiratory system, gastrointestinal system, or genito-urinary system, as contained within the thoracic or abdominal cavities, is seriously and permanently impaired, compensation not to exceed sixty-six and two-thirds percent of wages for a period not to exceed one hundred weeks may be awarded. In cases where compensation is so awarded, when the disability is susceptible to percentage determination, compensation shall be established in the proportions set forth in Subparagraph (o) of this Paragraph. In cases where compensation is so awarded, when the disability is not susceptible to percentage determination, compensation as is reasonable shall be established in proportion to the compensation hereinabove specifically provided in the cases of specific disability.

(q) No benefits shall be awarded or payable in this Paragraph unless the percentage of the anatomical loss of use or amputation, as provided in Subparagraphs (a) through (o) of this Paragraph or the percentage of the loss of physical function as provided in Subparagraph (p) or (s) of this Paragraph is as established in the most recent edition of the American Medical Association's "Guides to the Evaluation of Permanent Impairment".

(r)(i) In all claims for inguinal hernia, it must be established by a preponderance of the evidence that the hernia resulted from injury by accident arising out of and in the course and scope of employment; that the accident was reported promptly to the employer, and that the employee was attended by a licensed physician within thirty days thereafter.

(ii) If the employee submits to treatment, including surgery, recommended by a competent physician or surgeon, the employer or insurer shall pay compensation benefits as elsewhere fixed by this Chapter.

(iii) If the employee refuses to submit to such recommended treatment, including surgery, and establishes by a preponderance of the evidence that his refusal is based upon his conscientious religious objection thereto or that such recommended treatment, including surgery, involves an unusual and serious danger to him, the employer or insurer shall pay compensation benefits as elsewhere fixed by this Chapter. In all other cases of the employee's refusal to submit to such recommended treatment, including surgery, the employer shall provide all necessary first aid and medical treatment and supply the necessary truss, support, or other mechanical appliance at a total cost not in excess of six hundred dollars. In addition, the employer shall pay compensation for a period not to exceed twenty-six weeks.

(iv) Recurrence of the hernia following surgery shall be considered as a separate hernia, and the provisions and limitations of this Subparagraph shall apply.

(s)(i) In addition to any other benefits to which an injured employee may be entitled under this Chapter, any employee suffering an injury as a result of an accident arising out of and in the course and scope of his employment shall be entitled to a sum of fifty thousand dollars, payable within one year after the date of the injury. Interest on such payment shall not commence to accrue until after it becomes payable. Such payment shall not be subject to any offset for payment of any other benefit under this Chapter. Such payment shall not be subject to a claim for attorney fees; however, attorney fees may be awarded in a claim to collect such payment pursuant to R.S. 23:1201.2.

(ii) In any claim for an injury, it must be established by clear and convincing evidence that the employee suffers an injury and that such resulted from an accident arising out of and in the course and scope of his employment. Nothing herein shall limit the right of any party to obtain a second medical opinion or, in appropriate cases, the opinion of an additional medical opinion medical examiner pursuant to R.S. 23:1123.

(iii) Only the following injuries shall be considered injuries for which benefits pursuant to this Subparagraph may be claimed:

(aa) Paraplegia or quadriplegia or the total anatomical loss of both hands, or both arms, or both feet, or both legs, or both eyes, or one hand and one foot, or any of two thereof; however, functional loss or loss of use shall not constitute anatomical loss.

(bb) Third degree burns of forty percent or more of the total body surface.

(iv) Notwithstanding the provisions of R.S. 23:1291.1 and 1377, any benefit paid pursuant to this Subparagraph shall be reported to the office separately from any other benefit paid pursuant to this Chapter and shall not be subject to assessment by the office or by the Louisiana Workers' Compensation Second Injury Board.

(v) Repealed by Acts 2006, No. 494, §1.

Amended by Acts 1996, 1st Ex. Sess., No. 31, §1, eff. May 1, 1996; Acts 1997, No. 1172, §4, eff. June 30, 1997; Acts 1999, No. 444, §1, eff. June 18, 1999; Acts 1999, No. 702, §1; Acts 1999, No. 776, §1; Acts 2001, No. 522, §1; Acts 2001, No. 1014, §1, eff. June 27, 2001; Acts 2001, No. 1070, §1; Acts 2003, No. 306, §1; Acts 2006, No. 494, §1; Acts 2012, No. 860, §1; Acts 2017, No. 381, §2, eff. June 23, 2017. 

Putting Our Clients First

Our clients always come first. Putting our clients first means we always offer free consultations, and free off-street parking, just one block off the highway in New Orleans. Putting our clients first also means we have a strict 24-hour communications policy, wherein our clients’ phone calls are always returned within 24 hours, if not sooner. That also means that our clients never have an issue getting through to their attorney, whether on the phone or in person.

A Proven Track Record of Success

We have successfully recovered millions of dollars in settlements for our clients in personal injury claims, auto accidents, and insurance claims. The reason that our opponents settle our clients’ cases for full value is because they know we prepare all our clients’ cases for trial from the start. In fact, we are known for not being afraid to take cases to trial, and thus our opponents know they are in for a fight when going against our clients.

Menu