Permanent Total Disability Indemnity Benefits in Louisiana Workers Compensation

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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 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.

Oftentimes, 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 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 wood worker up near Monroe, Louisiana, who cannot return to his job as a timber worker, and cannot work at any other jobs available in the reasonable geographic region near Monroe.

This timber wood worker 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 wood worker could work as a sedentary security guard, he would suffer substantial pain while at such 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 wood worker 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 very serious accident resulting 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 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 is able to 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.

Oftentimes, 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 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 Louisiana Statute for Permanent Total Disability (“PTD”) Indemnity Benefits

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

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

(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.

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