Permanent Total Disability Indemnity Benefits in Louisiana Workers Compensation

What Are Permanent Total Disability Indemnity Benefits in Louisiana Workers Compensation?

Permanent Total Disability (PTD) benefits are lost wage benefits for the injured employee whose injury is so severe that he or she will never be able to work again.

Under Permanent Total Disability benefits, the injured employee will receive two-thirds (66 2/3%) of the employee's Average Weekly Wage.

There is no cap to the number of weeks in which an injured worker can receive Permanent Total Disability benefits.

That is, Permanent Total Disability (PTD) benefits will pay weekly income benefits indefinitely for life or until, for some reason, the injured worker can return to employment.

However, the amount of the monetary benefits is subject to a specific minimum and a specific maximum set under Louisiana law, depending on the year of the injury.

Often, the injured worker and the workers compensation insurance company agree to convert these weekly Permanent Total Disability benefits to a one-time lump-sum settlement payment, though this settlement must be approved by the workers compensation Judge. 

However, converting the employee's weekly Permanent Total Disability benefits to a one-time lump-sum settlement payment can impact future social security disability and Medicare benefits.

What is Considered Total and Permanent Disability in Louisiana Workers Compensation?

To receive Permanent Total Disability benefits, the injured employee must prove 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.

“Total and permanent disability” under workmen's compensation law means that total and permanent disability to do the same or work similar to that which employee was performing at the time of the accident.

The phrase “unable to engage in any gainful occupation for wages,” rendering an employee totally and permanently disabled under this section for workers compensation purposes, is not synonymous with “unable to obtain employment.”

In other words, to receive Permanent Total Disability benefits, the injured employee must be unable to work, not unable to find work.

The Difficulty of Obtaining Permanent Total Disability Benefits in Louisiana Workers Compensation

Unfortunately, Permanent Total Disability benefits are very difficult to obtain. This is because: 

    • Any injured worker who returns to work in any capacity and in whatever degree of pain will probably not be totally and permanently disabled; and
    • Any injured worker who does not return to work, but cannot discharge the burden of proving by clear and convincing evidence that there is work somewhere that he or she might be able to do (regardless of its actual availability) even though only in substantial pain, will also not be totally and permanently disabled.

For example, let's take the example case of a severely injured timber woodworker up near Monroe, Louisiana, who cannot return to his job as a timber worker, and cannot work at any other job available in the reasonable geographic region near Monroe.

This timber woodworker probably could handle completely sedentary jobs, such as working as a part-time security guard.

But no such sedentary security guard jobs are presently available at the moment in Monroe.

And even if this injured timber woodworker could work as a sedentary security guard, he would suffer substantial pain while at such a job.

Unfortunately, under Louisiana law, and under the literal interpretation of the total disability standard, unless this injured timber worker can prove by clear and convincing evidence that such jobs do not exist, he is not entitled to total and permanent disability benefits.

More likely, this injured timber woodworker would receive supplemental earnings benefits (SEBs). 

So the bottom line is that, while it is certainly possible to obtain Permanent Total Disability benefits, it is, in fact, very difficult.

Typical Types of Employees Obtaining Permanent Total Disability Benefits

So what are examples of injured workers who are entitled to Permanent Total Disability benefits?

One example of an injured worker who is entitled to permanent total disability benefits is the career physical laborer with extremely limited education who is involved in a very serious accident resulting in extreme head or spine injuries.

Another example of an injured worker who is entitled to Permanent Total Disability benefits is a worker who suffers greatly from mental illness, and then who is physically injured severely in a work-related accident. This worker may have always had serious difficulty functioning in a work-place setting regardless of his physical disability, but then finds it impossible to work following a severe physical injury on top of the mental illness.

Indemnity (Lost Wages) Payments Received Before and After Permanent Total Disability Benefits

No judgment of total and permanent disability may be entered prior to an evaluation of rehabilitation possibilities or during a rehabilitation program. 

And if the injured worker is in a rehabilitation program, then this worker is entitled only to Temporary Total Disability (TTD) benefits for the duration of the rehabilitation program.

Additionally, if an injured employee can get a judgment of total and permanent disability, Louisiana law still holds that if this worker subsequently receives “any earnings,” then he or she “shall not” receive the total and permanent disability benefits, but rather shall receive Supplemental Earnings Benefits (SEBs). 

The Burden of Proof for Obtaining Permanent Total Disability Benefits in Louisiana Workers Compensation

Permanent Total Disability (PTD) benefits must be proven by “clear and convincing” evidence, without any presumption of disability.

Specifically, in order for an injured employee to meet his or her burden of proof that he or she is entitled to Permanent Total Disability benefits, this injured employee must prove, by clear and convincing evidence, that he or she is physically unable to engage in any employment or self-employment whatsoever.

The clear and convincing standard required to prove entitlement to Permanent Total Disability benefits in a workers' compensation case is a heavier burden of proof than the usual civil preponderance of the evidence standard but less burdensome than the beyond a reasonable doubt standard used in criminal law.

This clear and convincing standard legal standard for Permanent Total Disability benefits is also a higher standard than the burden of proof needed for Temporary Total Disability (TTD) or Supplemental Earnings Benefits (SEBs).

This is because claims for Permanent Total Disability benefits are not as common as claims for Temporary Total Disability (TTD) or Supplemental Earnings Benefits (SEBs).

Plus, the benefits for Permanent Total Disability benefits are larger because they last indefinitely for life, while claims for Temporary Total Disability (TTD) or Supplemental Earnings Benefits (SEBs) are temporary and limited.

How to Prove Permanent Total Disability in Louisiana Workers Compensation

In order to obtain Permanent Total Disability (PTD) benefits, an injured employee must prove to the workers compensation Judge that the employee is physically unable to return to any type of employment.

So prior to the workers compensation judge finding in favor of Permanent Total Disability benefits, the judge must be convinced that there is no reasonable probability that, even with appropriate training or education, the employee may be rehabilitated to achieve any suitable employment.

The workers compensation judge will consider all of the facts of the case, but especially: 

    1. The work history and experience of the injured employee;
    2. The educational background of the injured employee;
    3. The age of the injured employee;
    4. The intellectual capacity of the injured employee;
    5. The physical capacity of the injured employee;
    6. The severity of the worker's medical conditions; 
    7. The permanent nature of the worker's medical conditions;
    8. The severity of the worker's functional restrictions;
    9. The permanent nature of the worker's functional restrictions;
    10. The medications which the employee must continue to take;
    11. The lack of transferrable work skills;
    12. The ability of re-training to allow the employee to re-enter the workforce;
    13. The ability of re-education to allow the employee to re-enter the workforce;
    14. The prior unsuccessful rehabilitation attempts of the injured employee;
    15. The opinion and assessment of the employee's treating physician;
    16. The opinions and assessments of other physicians;
    17. The opinions and assessments of vocational rehabilitation experts;
    18. All other objective medical evidence; and
    19. All other vocational rehabilitation evidence.

Last, to recover permanent disability benefits, objective medical evidence is required to meet the injured employee's burden of showing that the employee is permanently unable to engage in any type of employment.

Pain in Permanent Total Disability Benefits in Louisiana Workers Compensation

Louisiana law specifically prohibits a finding of total disability based upon “working in pain.”

In other words, if an employee is able to work in pain, then this employee will not be able to receive Permanent Total Disability (PTD) benefits.

In fact, the issue of “working in pain” is only relevant to the calculation of Supplemental Earnings Benefits. 

Social Security Disability and Permanent Total Disability Benefits in Louisiana Workers Compensation

Injured employees who are awarded Permanent Total Disability (PTD) benefits also usually qualify for Social Security Disability (SSD) benefits.

However, just because an injured employee qualifies for Social Security Disability (SSD) benefits, does not mean that this employee will automatically be awarded Permanent Total Disability (PTD) benefits in Louisiana workers compensation.

This is because the rules and qualifications for social security disability benefits are different from the rules and standards for Permanent Total Disability benefits in Louisiana workers compensation.

However, the workers compensation judge who determines if an injured worker is entitled to Permanent Total Disability benefits can consider and rely upon the Social Security Disability (SSD) decision and the Social Security Disability (SSD) case file as evidence of and helpful information concerning the worker's disability, but this Judge is certainly not bound to follow that determination and reach the same conclusion.

Often, the injured worker and the workers compensation insurance company agree to convert weekly Permanent Total Disability benefits to a one-time lump-sum settlement payment, though this settlement must be approved by the workers compensation Judge. 

However, converting the employee's weekly Permanent Total Disability benefits to a one-time lump-sum settlement payment can impact future social security disability and Medicare benefits.

Specifically, if an injured employee is awarded Permanent Total Disability benefits, the workers compensation insurance company may ask the judge to "reverse the offset" of these Permanent Total Disability benefits.

The workers compensation Judge may then instruct the Social Security Administration to "reverse the offset" of the employee's Social Security Disability benefits.

"Reversing the offset" simply means that the Social Security Administration will increase the employee's Social Security Disability benefits to the maximum level, and the workers compensation insurance company will reduce its payments to the employee by a corresponding amount.

The Statute for Permanent Total Disability (“PTD”) Indemnity Benefits in Louisiana Workers Compensation

The Louisiana lost wage statute is La. R.S. 23:1221. Concerning permanent total disability ("PTD") benefits, the statute reads as follows:

§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.

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