Offsets and Credits in Louisiana Workers Compensation

An Overview of the Credits and Offsets Available in Louisiana Workers Compensation

Louisiana provides for the following offsets and credits against the obligation of the workers compensation insurance company to pay workers compensation benefits:

(1)        Offsets for Social Security Disability Insurance (SSDI) benefits (in limited situations);

(2)        Credits for unemployment benefits;

(3)        Credits for disability benefits funded by an employer;

(4)        Credits for workers compensation benefits already paid from the obligation to pay SEBs or PPD benefits;

(5)        Offsets for certain medical expenses;

(6)        Credits for voluntary payments of benefits that were not due and payable when made; and

(7)        Credits for certain recoveries in third-party claims.

First, when an injured worker in Louisiana is receiving both Louisiana workers compensation lost wage benefits and Social Security Disability Insurance (SSDI) benefits at the same time, this injured worker in Louisiana can not receive a total combined benefit of more than 80% of the gross income that this worker was earning before he or she became disabled.   

Second, no workers compensation benefits (whether for total disability or SEB payments) are payable for any week in which the employee has received unemployment compensation benefits.

Third, an employee's Louisiana compensation benefits are reduced to the extent necessary to limit the employee to two-thirds of his or her average weekly wage at the time of injury, if the employee is receiving payments from benefits under disability benefit plans that are funded by the employer, or other workers compensation benefits already paid from its obligation to pay SEBs or PPD benefits

The workers compensation insurance company can also receive credits for:

    1. Medical expenses in certain situations;
    2. Voluntary payments of benefits that were not due and payable when made; and
    3. Credits for third-party Claims.

However, Louisiana law does not permit the workers compensation insurance company to take any credits for retirement benefits.

Lastly, with the social security benefit offset, the workers compensation insurance company has the burden of proof on the issue of the appropriate credit.

Offsets for Social Security Disability Benefits in Louisiana Workers Compensation

Under Louisiana workers compensation law and United States federal Social Security law, an injured worker in Louisiana can receive both Louisiana workers compensation lost wage benefits and Social Security Disability Insurance (SSDI) benefits at the same time.

However, when an injured worker in Louisiana is receiving both Louisiana workers compensation lost wage benefits and Social Security Disability Insurance (SSDI) benefits at the same time, this injured worker in Louisiana can not receive a total combined benefit of more than 80% of the gross income that this worker was earning before he or she became disabled.   

So when an injured employee is receiving Louisiana workers compensation lost wage benefits, this employee's social security benefits may be reduced - or "offset" - so that the combined benefits do not exceed 80% of the employee's "average current wage" as calculated by the Social Security Administration (SSA).

This Social Security Disability (SSDI) Offset only occurs when the injured worker is permanently and totally disabled.

But also, the workers compensation insurance company can request that the Louisiana workers compensation Court reverse this offset - in other words, claim a social security "reverse-offset" - if the OWC Court concludes that the injured worker is entitled to Permanently Total Disability (PTD) benefits. 

To make matters even more complex, it must be understood that Louisiana workers compensation and the Social Security Administration (SSA) calculate the amount of income that the injured employee was earning before his or her disability in much different ways.

Specifically, Louisiana workers compensation law calculates the amount of income that the injured employee was earning before his or her disability as the employee's "average weekly wage," which is typically two-thirds of a weekly wage (subject to a minimum and a maximum cap) for the last four full weeks before the employee's accident.

But the Social Security Administration (SSA) calculates the amount of income that the injured employee was earning before his or her disability as the injured worker's "average current wage," which is the largest amount under the following three options:

    1. The average lifetime earnings of the injured employee;
    2. The average earnings during the five years before the injured employee became disabled; and
    3. The average earnings during the one year before the injured employee became disabled.

Additionally, Social Security Disability Insurance (SSDI) benefits can NOT be reduced due to the receipt of social security old-age retirement benefits.

Finally, the workers compensation insurance company is entitled to a credit for the amount that the total benefits (workers compensation benefits plus employer-funded disability benefits or other workers compensation lost wage benefits) exceed two-thirds of the injured worker's Average Weekly Wage.

However, if the injured worker's compensation rate is less than the maximum compensation rate, this credit will be in the amount of the employer-funded disability benefits or other workers compensation lost wage benefits. 

And, if the injured worker's compensation rate is the maximum compensation rate, this credit will be less than the amount of the employer-funded disability benefits or other workers compensation lost wage benefits. 

Concerning the procedure for obtaining a Social Security Disability Offset, the workers compensation insurance company must petition the workers compensation Court to request a Social Security Disability Offset; it cannot unilaterally take the Social Security Disability Offset.

Credits for Unemployment Benefits in Louisiana Workers Compensation

Under Louisiana law, for any week in which an injured employee is receiving unemployment compensation benefits, that employee cannot receive:

    1. Temporary Total Disability (TTD) benefits;
    2. Permanent Total Disability (PTD) benefits; or 
    3. Supplemental Earnings Benefits (SEBs).

However, an injured employee may still receive Permanent Partial Disability (PPD) indemnity benefits at the same time as the employee is receiving unemployment benefits.

It does not matter if the employee receives less in unemployment benefits than the amount that the employee otherwise would have received in indemnity (lost wage) benefits, the employe still cannot recover any Temporary Total Disability (TTD) benefits, Permanent Total Disability (TTD) benefits, or Supplemental Earnings Benefits (SEBs) during that week.

The credit to the workers compensation insurance company for unemployment benefits occurs on a week to week basis. 

Credits for Disability Benefits Funded by the Employer in Louisiana Workers Compensation

Under Louisiana workers compensation law, the workers compensation insurance company and the employer are entitled to a credit for the amount of benefits the injured employee receives from a private disability plan, in the proportion that this private disability plan was funded by the employer.

Additionally, if an employee is receiving both workers compensation benefits and disability benefits subject to a plan providing for reduction of disability benefits, the reduction of workers compensation benefits shall be made by taking into account the full amount of employer-funded disability benefits, pursuant to plan provisions, before any reduction of disability benefits are made.

If a conflict exists between Louisiana law and an insurance contract, then Louisiana law controls.

In other words, the workers compensation insurance company's statutory credit takes precedence over the disability insurer's contractual credit.

However, the workers compensation insurance company does not receive any credit for any Social Security old-age retirement benefits because such a credit would discriminate on the basis of age.

Credits for Indemnity Benefits Already Paid from the Obligation to Pay PPD Benefits or SEBs in Louisiana Workers Compensation

No credit to the workers compensation insurance company is allowed for Permanent Partial Disability (PPD) catastrophic injuries.

Credits Toward Permanent Partial Disability (PPD) Benefits

However, under Louisiana workers compensation law, the workers compensation insurance company can deduct from the number of weeks of compensation allowed for Permanent Partial Disability (PPD) indemnity benefits or for death benefits, any and all of the following:

    1. The number of weeks that Temporary Total Disability (TTD) benefits were paid;
    2. The number of weeks that Permanent Total Disability (PTD) benefits were paid; and
    3. The number of weeks that Supplemental Earnings Benefits (SEBs) were paid.]

These credits are taken on a week-to-week basis.

For Permanent Partial Disability (PPD) indemnity benefits, Louisiana law provides a specific schedule of benefits that are due for the total loss of specific body parts.

Specifically, in the following cases, workers compensation benefits shall be solely for anatomical loss of use or amputation and shall be paid to the injured worker as follows:

    1. For the loss of a thumb, 66.67% of wages during 50 weeks.
    2. For the loss of a first finger, commonly called the index finger, 66.67% of wages during 30 weeks.
    3. For the loss of any other finger or a big toe, 66.67%of wages during 20 weeks.
    4. For the loss of any toe, other than a big toe, 66.67% of wages during 10 weeks.
    5. For the loss of a hand, 66.67% of wages during 150 weeks.
    6. For the loss of an arm, 66.67% of wages during 200 weeks.
    7. For the loss of a foot, 66.67% of wages during 125 weeks.
    8. For the loss of a leg, 66.67% of wages during 175 weeks.
    9. For the loss of an eye, 66.67% of wages during 100 weeks.
    10. 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 a permanent total disability.
    11. 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.
    12. 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.
    13. 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.
    14. A permanent total anatomical loss of the use of a member is equivalent to the amputation of the member.

In all these situations listed above (which involve a permanent partial anatomical loss of use or amputation), the injured worker will receive compensation based on the percentage of impairment to the body part; so if the injured worker has a 50% impairment rating, then the worker will receive 50% of the allowed weekly benefits listed above.

However, the employer or the workers compensation insurance company may be entitled to a credit for other disability benefits paid against any amount of permanent partial disability.

So, for example, if an injured worker's accident results in the total loss of that worker's arm, the employee would be entitled to 200 weeks of permanent partial disability benefits; and if this accident resulted in a 50% loss of use of that employee's arm, then the employee would be entitled to 50% of that 200 weeks assigned to the hand, or 100 weeks.

But remember, the workers compensation insurance company will receive a credit against these PPD benefits for any other indemnity payments which it previously paid.

So in this sense, permanent partial disability benefits merely provide a minimum level of benefits for certain types of injuries, and not necessarily the total amount of benefits the employee will receive.

Credits Toward Supplemental Earnings Benefits (SEBs) 

Additionally, under Louisiana workers compensation law, the workers compensation insurance company can deduct from the number of weeks of compensation allowed for Supplemental Earnings Benefits (SEBs) indemnity benefits or for death benefits, any and all of the following:

    1. The number of weeks that Temporary Total Disability (TTD) benefits were paid;
    2. The number of weeks that Permanent Total Disability (PTD) benefits were paid; and
    3. The number of weeks that Permanent Partial Disability (PPD) benefits were paid.

These credits are also taken on a week-to-week basis.

So, for Supplemental Earnings Benefits (SEBs), the injured worker can only be paid for a total of 520 weeks (or ten years) where the employee remains disabled because of a work injury.

But, when calculating this 520-week limit, the employer and its workers compensation insurer will receive a credit for the number of weeks of Temporary Total Disability (TTD) benefits, Permanent Total Disability (PTD) benefits or Permanent Partial Disability (PPD) benefits were paid.  

Therefore, if an employee receives six years of Temporary Total Disability (TTD) benefits, and then switches over to Supplemental Earnings Benefits (SEBs), then the employee would be limited to only four years of Supplemental Earnings Benefits (SEBs), not ten years.

This is a week-for-week credit off of those 520 weeks for any week in which the employee already received any amount of any other type of income benefits (but usually Temporary Total Disability (TTD)) benefits.

Offsets for Certain Medical Expenses in Louisiana Workers Compensation

Payment of any medical bill or expense of an injured employee by any person or entity shall extinguish the claim against the workers compensation insurance company for those medical expenses, unless that other person or entity is:

    1. The employee;
    2. A relative or friend of the employee;
    3. Medicaid; or
    4. Any other state medical assistance program.

If the employee or the employee's spouse actually pays premiums for health insurance, either as direct payments or as itemized deductions from their salaries, then this offset will only apply in the same percentage, if any, that the employer of the employee or the employer of his spouse paid the health insurance premiums.

Any health insurance company for an employee has a right of reimbursement against the workers compensation insurance company if the health insurance company paid health care benefits for which the workers compensation insurance company is liable.

However, the amount of reimbursement to this health insurance company cannot exceed the amount of the workers compensation insurance company's liability for the workers compensation medical benefit.  

Also, payments by Medicaid or other state medical assistance programs shall not extinguish these claims; any payments made by Medicaid or other state medical assistance programs shall be subject to recovery by the state against the employer or the workers compensation insurance company.

Last, the workers compensation insurance company has the burden of proof on the issue of a credit for any of these medical expenses. 

Credits for the Voluntary Payments of Benefits Not Due in Louisiana Workers Compensation

The workers compensation insurance company will receive a credit for any voluntary payment or unearned wages paid by the employer or the workers compensation insurance company, when that voluntary payment or unearned wages were not due and payable when made.

This credit for voluntary payments or unearned wages is a dollar for dollar credit.

Unfortunately, credit for voluntary payments or unearned wages applies even when the overpayment is due to an error by the workers compensation insurance company or the employer. 

Typically, in order to obtain reimbursement of the credit, Louisiana workers compensation Courts favor a reduction in future benefits as opposed to a suspension of benefits.

However, this credit for voluntary payments or unearned wages only applies to future lost wage benefits and cannot be used for past lost wage benefits.        

The credit does not apply to the payment of medical expenses which were not owed.   

Also, this credit for voluntary payments or unearned wages does not apply to payments owed under a Court Judgment or Court order.

Credits for Recoveries in Certain Third-Party Claims in Louisiana Workers Compensation

Sometimes, an employee is injured while at work due to the actions of someone other than the employer or co-worker.

In such a situation, the injured employee will likely have a workers compensation claim AND a "third-party claim" against the individual (other than the employer or co-worker) who was responsible for the accident or the injury.

But both the employee, the employer, and the workers compensation insurance company may have valid claims against the third party.

So, under Louisiana law, the employee is entitled to proceed both by claiming workers compensation benefits from the employer and its workers compensation insurance company, while at the same time filing a claim or lawsuit for damages against a third-party wrongdoer.

However, the employee will not be able to recover for the same damages twice - otherwise known as "double recovery" - because the employer and its workers compensation insurance company are entitled to "intervene" in the employee's third-party lawsuit and require that the judgment be in favor of the employer to the extent required to reimburse or indemnify the employer and its workers compensation insurance company.

In other words, the employer and its workers compensation insurance company will be reimbursed for what they had to pay in workers compensation benefits, and only the excess amount will go to the employee.

In some cases, the “recovery” of the employer and its workers compensation insurance company takes the form of a credit against future workers compensation benefits owed, which then permits the suspension of those future payments.

Credits Against Future Workers Compensation Obligations

In addition to reimbursement for the amounts actually paid to the employee or on his behalf up to the date of trial, the employer and its workers compensation insurance company are often entitled to a credit against the tort recovery for amounts for future workers compensation payments or medical expenses to be undertaken.

In other words, the employer and its workers compensation insurance company are entitled to reimbursement for not only those amounts already paid, but those amounts it will become obligated to pay in the future.

So if the damages awarded in a third-party lawsuit are greater than the amount of the lien of the employer or its workers compensation insurance company, the employer or its workers compensation insurance company is entitled to a credit against its future workers compensation obligation in the amount of the plaintiff's net recovery - which mean the recovery after attorney's fees and court costs are deducted - discounted at 6%.

But, if the plaintiff's recovery is reduced in percentage by application of comparative negligence or comparative fault, then the intervenor is to recover on its lien in the same percentage.

So, for example, if the plaintiff employee is awarded 80% of his damages because of the plaintiff's 20% comparative negligence, then the workers compensation insurance company would only recover 80% of its lien.

However, the workers compensation insurance company is not entitled to a credit if it was aware that the employee filed a third-party lawsuit but it failed to file an intervention.

The Louisiana Statutes for Offsets and Credits in Louisiana Workers Compensation

The primary Louisiana statutes regarding offsets and credits in Louisiana Workers Compensation are La. R.S. 23:1101, La. R.S. 23:1102, La. R.S. 23:1103, La. R.S. 23:1104, La. R.S. 23:1032, La. R.S. 23:1205, La. R.S. 23:1206, La. R.S. 23:1212, La. R.S. 23:1221, La. R.S. 23:1223, and La. R.S. 23:1225, which read as follows:

§1101.  Employee and employer suits against third persons; effect on right to compensation

A.  When an injury or compensable sickness or disease for which compensation is payable under this Chapter has occurred under circumstances creating in some person (in this Section referred to as "third person") other than those persons against whom the said employee's rights and remedies are limited in R.S. 23:1032, a legal liability to pay damages in respect thereto, the aforesaid employee or his dependents may claim compensation under this Chapter and the payment or award of compensation hereunder shall not affect the claim or right of action of the said employee or his dependents, relations, or personal representatives against such third person, nor be regarded as establishing a measure of damages for the claim; and such employee or his dependents, relations, or personal representatives may obtain damages from or proceed at law against such third person to recover damages for the injury, or compensable sickness or disease.

B.  Any person having paid or having become obligated to pay compensation under the provisions of this Chapter may bring suit in district court against such third person to recover any amount which he has paid or becomes obligated to pay as compensation to such employee or his dependents.  The recovery allowed herein shall be identical in percentage to the recovery of the employee or his dependents against the third person, and where the recovery of the employee is decreased as a result of comparative negligence, the recovery of the person who has paid compensation or has become obligated to pay compensation shall be reduced by the same percentage.  The amount of any credit due the employer may be set in the judgment of the district court if agreed to by the parties; otherwise, it will be determined pursuant to the provisions of R.S. 23:1102(A).

C.  For purposes of this Section, "third person" shall include any party who causes injury to an employee at the time of his employment or at any time thereafter provided the employer is obligated to pay benefits under this Chapter because the injury by the third party has aggravated the employment related injury.

D.  Repealed by Acts 2005, No. 267, §2.

Acts 1976, No. 147, §2; Acts 1985, No. 931, §1; Acts 1989, No. 454, §4, eff. Jan. 1, 1990; Acts 1990, No. 973, §1; Acts 1997, No. 1354, §1, eff. July 15, 1997; Acts 2005, No. 257, §§1, 2.

§1102.  Employee or employer suits against third persons causing injury; notice of filing

A.(1)  If either the employee or his dependent or the employer or insurer brings suit against a third person as provided in R.S. 23:1101, he shall forthwith notify the other in writing of such fact and of the name of the court in which the suit is filed, and such other may intervene as party plaintiff in the suit.

(2)  Any dispute between the employer and the employee regarding the calculation of the employer's credit may be filed with the office of workers' compensation and tried before a workers' compensation judge.  However, any determination of the employer's credit shall not affect any rights granted to the employer or the employee pursuant to R.S. 23:1103(C).

B.  If a compromise with such third person is made by the employee or his dependents, the employer or insurer shall be liable to the employee or his dependents for any benefits under this Chapter which are in excess of the full amount paid by such third person, only after the employer or the insurer receives a dollar for dollar credit against the full amount paid in compromise, less attorney fees and costs paid by the employee in prosecution of the third-party claim and only if written approval of such compromise is obtained from the employer or insurer by the employee or his dependent, at the time of or prior to such compromise.  Written approval of the compromise must be obtained from the employer if the employer is self-insured, either in whole or in part.  If the employee or his dependent fails to notify the employer or insurer of the suit against the third person or fails to obtain written approval of the compromise from the employer and insurer at the time of or prior to such compromise, the employee or his dependent shall forfeit the right to future compensation, including medical expenses.  Notwithstanding the failure of the employer to approve such compromise, the employee's or dependent's right to future compensation in excess of the amount recovered from the compromise shall be reserved upon payment to the employer or insurer of the total amount of compensation benefits, and medical benefits, previously paid to or on behalf of the employee, exclusive of attorney fees arising out of the compromise; except in no event shall the amount paid to the employer or insurer exceed fifty percent of the total amount recovered from the compromise.  Such reservation shall only apply after the employer or insurer receives a dollar for dollar credit against the full amount paid in compromise, less attorney fees and costs paid by the employee in prosecution of the third-party claim.

C.(1)  When a suit has been filed against a third-party defendant in which the employer or his insurer has intervened, if the third party defendant or his insurer fails to obtain written approval of the compromise from the employer or his insurer at the time of or prior to such compromise and the employee fails to pay to the employer or his insurer the total amount of compensation benefits and medical benefits out of the funds received as a result of the compromise, the third-party defendant or his insurer shall be required to reimburse the employer or his insurer to the extent of the total amount of compensation benefits and medical benefits previously paid to or on behalf of the employee to the extent said amounts have not been previously paid to the employer or his insurer by the employee pursuant to the provisions of Subsection B of this Section.  Notwithstanding such payment, all rights of the employer or his insurer to assert the defense provided herein against the employee's claim for future compensation or medical benefits shall be reserved.

(2)  Nothing herein shall be interpreted to affect the rights of the employer or his insurer to otherwise seek reimbursement for past or future compensation benefits and medical benefits against a third-party defendant or his insurer without regard to the actions of the employee on whose behalf said compensation and medical benefits were paid.

(3)  Repealed by Acts 1989, No. 454, §10, eff. Jan. 1, 1990.

Amended by Acts 1983, 1st Ex. Sess., No. 1, §1, eff. July 1, 1983.  Acts 1984, No. 852, §1; Acts 1985, No. 926, §1, eff. Jan. 1, 1986; Acts 1989, No. 454, §§4, 10, eff. Jan. 1, 1990; Acts 1997, No. 1354, §1, eff. July 15, 1997; Acts 2005, No. 257, §1.

§1103. Damages; apportionment of between employer and employee in suits against third persons; compromise of claims; credit

A.(1) In the event that the employer or the employee or his dependent becomes party plaintiff in a suit against a third person, as provided in R.S. 23:1102, and damages are recovered, such damages shall be so apportioned in the judgment that the claim of the employer for the compensation actually paid shall take precedence over that of the injured employee or his dependents; and if the damages are not sufficient or are sufficient only to reimburse the employer for the compensation which he has actually paid, such damages shall be assessed solely in his favor; but if the damages are more than sufficient to so reimburse the employer, the excess shall be assessed in favor of the injured employee or his dependent, and upon payment thereof to the employee or his dependent, the liability of the employer for compensation shall cease for such part of the compensation due, computed at six percent per annum, and shall be satisfied by such payment. The employer's credit against its future compensation obligation shall be reduced by the amount of attorney fees and court costs paid by the employee in the third party suit.

(2) No compromise with such third person by either the employer or the injured employee or his dependents shall be binding upon or affect the rights of the others unless assented to by him.

(3) Any dispute between the employer and the employee regarding the calculation of the employer's credit may be filed with the office of workers' compensation and tried before a workers' compensation judge. If a third party action has been filed in a district court, such dispute shall be filed in the district court and tried before a district judge unless the parties agree otherwise. However, any determination of the employer's credit shall not affect any rights granted to the employer or the employee pursuant to R.S. 23:1103(C).

B. The claim of the employer shall be satisfied in the manner described above from the first dollar of the judgment without regard to how the damages have been itemized or classified by the judge or jury. Such first dollar satisfaction shall be paid from the entire judgment, regardless of whether the judgment includes compensation for losses other than medical expenses and lost wages.

C.(1) If either the employer or employee intervenes in the third party suit filed by the other, the intervenor shall only be responsible for a share of the reasonable legal fees and costs incurred by the attorney retained by the plaintiff, which portion shall not exceed one-third of the intervenor's recovery for prejudgment payments or prejudgment damages. The amount of the portion of attorney fees shall be determined by the district court based on the proportionate services of the attorneys which benefitted or augmented the recovery from the third party. The employee as intervenor shall not be responsible for the employer's attorney fees attributable to post-judgment damages nor will the employer as intervenor be responsible for the attorney fees attributable to the credit given to the employer under Subsection A of this Section. Costs shall include taxable court costs as well as the fees of experts retained by the plaintiff. The pro-rata share of the intervenor's costs shall be based on the intervenor's recovery of prejudgment payments or prejudgment damages.

(2) When recovery of damages from a third party is made without filing of a suit, the employer shall be responsible for an amount, not to exceed one-third of his recovery on pre-compromise payments, for reasonable legal fees and costs incurred by the attorney retained by the employee or his dependents in pursuit of the third party matter. The responsibility for payment of this amount shall exist only if there is written approval of the compromise by the employer, his compensation carrier, or the compensation payor.

D. An insurer shall grant its insured a dollar-for-dollar credit for any amount on any claim paid pursuant to this Chapter on the employer's behalf and recovered in the current year, less any reasonable expenses incurred in the recovery by the insurer, in an action or compromise pursuant to this Section and R.S. 23:1102. The credit shall be used by the insurer in the calculation of the loss experience modifier promulgated by and in accordance with the rules of the National Council on Compensation Insurance, to be applied in determining the annual premium paid by the employer for workers' compensation insurance under this Chapter. The group self-insurance fund shall apply the loss experience modifier authorized by R.S. 23:1196.

Amended by Acts 1958, No. 109, §1; Acts 1989, No. 454, §4, eff. Jan. 1, 1990; Acts 1997, No. 53, §1; Acts 1997, No. 59, §1; Acts 1997, No. 1354, §1, eff. July 15, 1997; Acts 2016, No. 470, §1.

§1104.  Quantification of employer fault

In a suit brought pursuant to R.S. 23:1101, the fault of persons immune from suit in tort under R.S. 23:1032 shall be assessed as a percentage of the aggregate fault of all persons causing or contributing to the employee's injury, and the fault so assessed shall not be reallocated to any other person or party.  The recovery had in such a suit by the employer or any other person having paid or having become obligated to pay compensation shall be reduced by the fault so assessed.  This reduction is in addition to but not duplicative of any reduction made pursuant to Civil Code Articles 2323, 2324, and 2324.2 and R.S. 23:1101(B).

Acts 1996, 1st Ex. Sess., No. 15, §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.

§1205.  Claim for payments; privilege of employee; non-assignability; exemption from seizure; payment of denied medical expenses

A.  Claims or payments due under this Chapter shall have the same preference and priority for the whole thereof against the assets of the employer as is allowed by law for any unpaid wages of the laborer; and shall not be assignable, and shall be exempt from all claims of creditors and from levy or execution or attachment or garnishment, except under a judgment for alimony in favor of a wife, or an ascendant or descendant.

B.  Any company which contracts for health care benefits for an employee shall have a right of reimbursement against the entity responsible for the payment of workers' compensation benefits for such employee if the company paid health care benefits for which such entity is liable.  The amount of reimbursement shall not exceed the amount of the entity's liability for the workers' compensation benefit.  In the event the company seeks recovery for such in conjunction with a claim against any other party brought by the employee, the company may be charged with a proportionate share of the reasonable and necessary costs, including attorney fees, incurred by the employee in the advancement of his claim or suit.

C.(1)  In the event that the workers' compensation payor has denied that the employee's injury is compensable under this Chapter, then any health insurer which contracts to provide health care benefits for an employee shall be responsible for the payment of all medical benefits pursuant to the terms of the health insurer's policy.  Any health insurer which contracts to provide health care benefits for an employee who violates the provisions of this Subsection shall be liable to the employee or health care provider for reasonable attorney fees and costs related to the dispute and to the employee for any health benefits payable.

(2)  The payment of medical expenses shall be recoverable pursuant to and in accordance with Subsection B of this Section.  However, if it is determined that the worker's compensation payor was responsible for payment of medical benefits that have been paid by the health insurer, the obligation of the worker's compensation payor for such benefits shall be to reimburse the health insurer one hundred percent of the benefits it paid.  If it is determined that the worker's compensation payor was responsible for payment of benefits and its denial of responsibility is determined to be arbitrary and capricious, then the health insurer shall also be entitled to recover legal interest on any benefits it paid, calculated from the date such benefits were due.

(3)  Any claim filed against the worker's compensation carrier by the health insurer or health providers in accordance with this provision shall not be subject to timely filing requirements, nor does prescription run until such time as the workers' compensation claim reaches a resolution by final judgment or settlement.

(4)  Any claim filed by a health care provider against a health insurer pursuant to this Section shall be filed no later than one hundred eighty days after the denial by the worker's compensation payor.

Acts 1995, No. 449, §1; Acts 2004, No. 554, §1. 

§1206.  Voluntary payments; deductions from benefits

Any voluntary payment or unearned wages paid by the employer or insurer either in money or otherwise, to the employee or dependent, and accepted by the employee, which were not due and payable when made, may be deducted from the payments to be made as compensation.

Amended by Acts 1983, 1st Ex. Sess., No. 1, §1, eff. July 1, 1983.

§1212.  Medical expense offset

A.  Except as provided in Subsection B, payment by any person or entity, other than a direct payment by the employee, a relative or friend of the employee, or by Medicaid or other state medical assistance programs of medical expenses that are owed under this Chapter, shall extinguish the claim against the employer or insurer for those medical expenses.  This Section shall not be regarded as a violation of R.S. 23:1163.  If the employee or the employee's spouse actually pays premiums for health insurance, either as direct payments or as itemized deductions from their salaries, then this offset will only apply in the same percentage, if any, that the employer of the employee or the employer of his spouse paid the health insurance premiums.

B.  Payments by Medicaid or other state medical assistance programs shall not extinguish these claims and any payments made by such entities shall be subject to recovery by the state against the employer or insurer.

Acts 1989, No. 454, §5, eff. Jan. 1, 1990; Acts 2001, No. 1062, §1.

§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.

§1223.  Deductions from benefits

A.  Except as provided in R.S. 23:1221(4)(s), when compensation has been paid under R.S. 23:1221(1), (2), or (3), the number of weeks of compensation paid shall be deducted from the number of weeks of compensation allowed under R.S. 23:1221(4) or Subpart C of this Part.

B.  Except as provided in R.S. 23:1221(4)(s), when compensation has been paid under R.S. 23:1221(1), (2), or (4), the number of weeks of compensation paid shall be deducted from the number of weeks of compensation allowed under R.S. 23:1221(3) or Subpart C of this Part.

Amended by Acts 1983, 1st Ex. Sess., No. 1, §1, eff. July 1, 1983; Acts 1989, No. 454, §6, eff. Jan. 1, 1990; Acts 1996, 1st Ex. Sess., No. 31, §1, eff. May 1, 1996; Acts 1999, No. 126, §1.

§1225.  Reductions when other benefits payable

A.  The benefits provided for in this Subpart for injuries producing permanent total disability shall be reduced when the person receiving benefits under this Chapter is entitled to and receiving benefits under 42 U.S.C. Chapter 7, Subchapter II, entitled Federal Old Age, Survivors, and Disability Insurance Benefits, on the basis of the wages and self-employment income of an individual entitled to and receiving benefits under 42 U.S.C. §423; provided that this reduction shall be made only to the extent that the amount of the combined federal and workers' compensation benefits would otherwise cause or result in a reduction of the benefits payable under the Federal Old-Age, Survivors, and Disability Insurance Act pursuant to 42 U.S.C. §424a, and in no event will the benefits provided in this Subpart, together with those provided under the federal law, exceed those that would have been payable had the benefits provided under the federal law been subject to reduction under 42 U.S.C. §424a.  However, there shall be no reduction in benefits provided under this Section for the cost-of-living increases granted under federal law after the date of the employee's injury.

B.  No compensation benefits shall be payable for temporary or permanent total disability or supplemental earnings benefits under this Chapter for any week in which the employee has received or is receiving unemployment compensation benefits.

C.(1)  If an employee receives remuneration from:

(a)  Benefits under the Louisiana Workers' Compensation Law.

(b)  Repealed by Acts 2003, No. 616, §1.

(c)  Benefits under disability benefit plans in the proportion funded by an employer.

(d)  Any other workers' compensation benefits, then compensation benefits under this Chapter shall be reduced, unless there is an agreement to the contrary between the employee and the employer liable for payment of the workers' compensation benefit so that the aggregate remuneration from Subparagraphs (a) through (d) of this Paragraph shall not exceed sixty-six and two-thirds percent of his average weekly wage.

(2)  Notwithstanding the provisions of Paragraph (1) of this Subsection, benefits payable for injury to an employee under this Chapter shall not be reduced by the receipt of benefits under this Chapter or any other laws for injury or death sustained by another person.

(3)  If an employee is receiving both workers' compensation benefits and disability benefits subject to a plan providing for reduction of disability benefits, the reduction of workers' compensation benefits required by Paragraph (1) of this Subsection shall be made by taking into account the full amount of employer-funded disability benefits, pursuant to plan provisions, before any reduction of disability benefits are made.

(4)  If a conflict arises between the application of the provisions of this Section and those of any other Louisiana law or contract of insurance, the provisions of this Section shall control.

D.  Repealed by Acts 2004, No. 561, §1.

Added by Acts 1978, No. 750, §1; Acts 1983, 1st Ex. Sess., No. 1, §1, eff. July 1, 1983; Acts 1985, No. 926, §1, eff. Jan. 1, 1986; Acts 1989, No. 454, §§6, 10, eff. Jan. 1, 1990; Acts 1991, No. 469, §1; Acts 1993, No. 928, §2, eff. June 25, 1993; Acts 1995, No. 1284, §2; Acts 2003, No. 616, §1; Acts 2004, No. 561, §1.

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