Brain Injuries and Traumatic Brain Injuries (TBIs) in Louisiana Workers Compensation
Unfortunately, brain injuries occur fairly frequently in Louisiana workers compensation claims, especially in automobile accidents and work-place falls.
Though many of these brain injuries can be minor concussion-type injuries, some brain injuries are often debilitating. Brain injuries can occur in people of all ages and sizes.
Traumatic brain injuries – otherwise know as TBIs – are injuries to the brain caused by an external force. TBIs occur when an employee’s head is suddenly jolted or struck and can result in serious brain damage.
Sadly, these traumatic brain injuries (TBIs) can have lifelong effects that require lifelong monitoring and treatment.
Nonetheless, brain injuries and TBIs can be sustained without being diagnosed. The injury may not even show up on an MRI, and the only real way to diagnose it is to monitor the employee and look for warning signs.
Symptoms of brain injuries and TBIs may become apparent immediately or may develop over a period of days or weeks. Often, the worst effects do not arrive until much later after the accident.
SYMPTOMS OF TRAUMATIC BRAIN INJURIES
Symptoms of traumatic brain injuries (TBIs) include, but are not limited to, the following:
- Abnormal eye movements
- Balance or coordination problems
- Clear fluids draining from the nose or ears
- Convulsions or seizures
- Depression or anxiousness
- Dilation of one or both pupils of the eyes
- Dizziness or loss of balance
- Fatigue or drowsiness
- Headaches that get worse or do not go away
- Inability to sleep
- Inability to awaken from sleep
- Loss of consciousness
- Memory loss
- Mood changes or mood swings
- Repeated vomiting or nausea
- Ringing in the ears
- Sensitivity to light or sound
- Slurred speech
- Spinning Sensations
- Weakness or numbness in the arms and legs
TYPES OF TRAUMATIC BRAIN INJURIES
Traumatic brain injuries (TBIs) are either defined as open or closed. Open traumatic brain injuries (TBIs) are also referred to as penetrating brain injuries.
An open (penetrating) head injury is one in which something breaks the scalp and skull and enters the brain. Thus, the skull becomes fractured or penetrated, and bits of bone, debris, or shrapnel can become embedded in the brain tissue, causing further damage.
A closed brain injury is any injury that doesn’t break the skull. Unfortunately, closed brain injuries can be much more deadly, since the brain absorbs most of the impact due to the fact that the skull is not fractured. These brain injuries can easily result in bruising and tearing of brain tissue and blood vessels.
Also, closed brain injuries put the employee at a much higher risk for swelling and bleeding on the brain, which can result in blood clots, coma, and death.
THE SEVERITY OF TRAUMATIC BRAIN INJURIES
Traumatic brain injuries (TBIs) are evaluated by doctors based on the severity of the damage and symptoms the injured worker displays.
Traumatic brain injuries (TBIs) are evaluated by severity as:
- Moderate; or
This classification of traumatic brain injuries (TBIs) is based on what’s known as the Glasgow Coma Scale (GCS), which is a testing scale that assesses motor, verbal, and eye-opening responses.
The Glasgow Coma Scale runs from 3 to 15, where 3 is assigned to someone who is dead or comatose, and 15 is normal. Someone with a mild traumatic brain injury generally has a GCS of 13–15.
Typically, the severity of a traumatic brain injury is based on:
- The results of a positive computed tomography scan (CT scan or CAT scan) showing brain bleeding, bruising, or swelling;
- The length of the loss or alteration of consciousness;
- The length of memory loss; and
- The level of responsiveness of an injured individual following the injury.
Mild traumatic brain injuries (mTBIs) are also known as concussions, and typically are more challenging to identify than severe TBIs, because there may not be observable head injury, even on a CT scan.
Often, symptoms of mild traumatic brain injuries (mTBIs) are similar to symptoms from problems that occur following combat trauma, such as posttraumatic stress disorder (PTSD).
Moderate or severe traumatic brain injuries can disable an individual for life or could resolve eventually without any permanent side effects.
But if a traumatic brain injury is diagnosed as severe, it is likely that the injured individual will experience long term side effects, including the possibility of diseases like Alzheimer’s or Parkinson’s.
NECK AND BACK INJURIES IN LOUISIANA WORKERS COMPENSATION
Neck and back injuries are very common work-place injuries in Louisiana.
These injuries will often limit an injured worker’s ability to lift, twist, carry, or even sit or stand without extreme pain. For this reason, neck and back injuries frequently prevent injured employees from being able to perform their job.
If an employee even thinks that he or she has injured his or her neck or back, the injured employee should immediately report the injury to the employee or supervisor and should seek immediate medical attention.
SYMPTOMS OF NECK AND BACK INJURIES
Symptoms of a neck or back injury include, but are not limited to:
- Difficulty breathing or coughing
- Difficulty walking, bending, twisting, or standing straight
- Difficulty with balance
- Extreme back pain or pressure
- Impaired breathing
- Incoordination in any part of the body
- Involuntary muscle contractions
- Limited range of motion
- Loss of bladder or bowel control
- Loss of movement
- Loss of sensation in hands, fingers, feet or toes
- Loss of sexual function
- Muscle cramping
- Muscle spasms
- Numbness in hands, fingers, feet or toes
- Pain or discomfort that increases with movement
- Pain or discomfort without movement
- Paralysis in any part of the body
- Stinging sensations
- Tingling in hands, fingers, feet or toes
- Weakness in any part of the body
However, neck and back injuries can be elusive, and often go undetected.
In fact, in many cases, these injuries don’t appear until days or weeks after the accident. This is often because following an accident, the body releases adrenaline and endorphins which can limit a person’s ability to detect pain after an injury.
TYPES OF NECK AND BACK INJURIES
Types of neck and back injuries include, but are not limited to, the following:
- Cervical dislocations
- Chronic pain
- Herniated discs
- Nerve impingement
- Soft tissue injuries
- Spinal cord injuries
- Stingers and burners
However, injuries to the neck and back often do not occur in isolation. That is, if one part of the neck or back is injured, typically, another part of the neck or back can likely be injured as well.
This is because all the parts of the neck and back are connected. Bones, joints, tendons, muscles, ligaments, cartilage, soft tissue, and nerves in the neck and spine all work together. For example, whiplash may result in a muscle strain, ligament sprain, and a disc injury.
Fortunately, neck injuries mainly affect soft tissue (muscles, tendons, ligaments, fascia, etc.). However, other injuries involving the bones, joints, and discs will, unfortunately, also affect this soft tissue to some extent.
TREATMENT FOR NECK AND BACK INJURIES
As noted above, if an employee even thinks that he or she has injured his or her neck or back, the injured employee should immediately report the injury to the employee or supervisor and should seek immediate medical attention at the first sign of symptoms. In fact, neglecting a back injury can result in worse or prolonged pain and suffering.
Sometimes, a medical evaluation may just include a patient’s medical history and symptoms in order to make a diagnosis.
However, it is usually in the injured worker’s best interest to have specific specialized tests performed, including X-rays and an MRI, in order to provide a completely accurate diagnosis. This is because problems involving herniated and dislodged disks, nerve impingement, or any spinal cord injury are often extremely challenging to diagnose.
X-rays and MRIs are especially helpful in diagnosing more serious back injuries, such as a herniated disk or a spinal cord injury.
In addition to providing a proper medical diagnosis, which will be used to develop the best treatment plan for the injured employee, a medical visit should provide proper, complete, and accurate documentation, which will assist the employee with his or her workers compensation claim.
For these reasons, it is absolutely critical that an injured worker choose the right doctor. The best way to select the right doctor is to take the advice of a qualified Louisiana workers compensation attorney on selecting the doctor that is best both for the medical side of things, and the legal/claim side of things.
Remember, this same physician will be the deciding individual when it comes to whether the employee is injured, to what degree the employee is injured, and whether the employee can return to work. So again, it is extremely important for the injured worker to select the correct doctor for his or her treatment and workers compensation claim.
Nonetheless, some neck and back injuries can be treated effectively with a few doctor visits, medication, and possibly physical therapy or rehabilitation. However, other neck and back injuries ultimately require neck or back surgery, and some cause permanent disability.
SHOULDER, HIP AND KNEE INJURIES IN LOUISIANA WORKERS COMPENSATION
Injuries to the shoulders, hips, and knees occur very frequently in Louisiana workers compensation claims, especially with workers who lift and carry materials, drive and operate equipment, and perform other strenuous physical activities.
Types of shoulder, hip, and knee injuries include, but are not limited to, the following:
- Fractures or breaks of bones
- Torn knee ligaments (ACL or MCL)
- Torn meniscus
- Torn rotator cuffs
Also, workers compensation insurance companies very often claim that injuries to the shoulders, hips, and knees are pre-existing conditions.
However, pre-existing conditions or disease or infirmity of an employee do not prevent a workers compensation claim if the work-related injury aggravated, accelerated, or combined with the disease or infirmity to produce the disability for which compensation is claimed.
When an employee proves that before the accident he or she had not shown any disabling symptoms, but that beginning with the accident the disabling symptoms appeared, and there is either medical or circumstantial evidence indicating a reasonable possibility of a causal connection between the accident and the disabling condition, then the employee’s work injury is presumed to have been aggravated, accelerated, or combined with his or her pre-existing disease or infirmity to produce the disability.
So again, it does not matter for an employee’s workers compensation claim whether he or she had a pre-existing condition, so long as the accident aggravated the condition.
And also, in workers compensation cases, a disability is presumed to be the result of a work-related accident if, before the accident, the injured person was in good health, but beginning with the accident, the symptoms of the disability appear and continue.
Car, Truck and Automobile Accidents in Louisiana Workers Compensation
Frequently, employees in Louisiana are injured in car, truck, and automobile accident while on the job. Examples of such employees include:
- Commercial vehicle drivers;
- Construction workers;
- Delivery van drivers;
- Drivers and work-related passengers;
- Freight truck drivers;
- First Responders
- Sales personnel;
- Sanitation workers; and
- Truck drivers.
Typically, these injured employees will be covered by Louisiana workers compensation when they are injured on the road.
Accidents While Traveling to And from Work
Unfortunately, accidents that happen going to or from work from home (or commuting) generally are not covered by Louisiana workers compensation.
This general rule – sometimes called the “coming and going rule” – is so well accepted that in order for the employee to succeed in his or her case, the employee must show that he or she falls under an exception to this rule.
But there are certainly exceptions to the “coming and going rule.” These exceptions include the following circumstances:
- If the employer pays the employee for travel time, provides a company car, or reimburses the employee for travel costs.
- If the employee is injured traveling from one work site to the next.
- If the employee is injured traveling (even from home) with some duty, which he must perform for the employer en route.
- If the accident happens on the employer’s premises.
- If the operation of a motor vehicle is one of the employment duties of the employee.
- If the employee was injured at a dangerous place adjacent to his employer’s location (also known as the threshold doctrine).
So again, an injured employee will be covered by workers compensation if the employee is injured in an accident while commuting to work if the transportation is provided by the employer.
Also, if the employer is paying the travel expenses, then the employee is covered by workers compensation.
Even if the employer simply intended to reimburse the employee for his travel or to provide gasoline, the employee is still covered by workers compensation.
TRAVEL ACCIDENTS BETWEEN PLACES OF WORK OR WHILE PERFORMING JOB DUTIES
An injured employee will be covered by workers compensation if the employee is injured in an accident while following orders or performing the employee’s duties, even if the accident occurred away from the employer’s premises. This includes accidents when the employee is traveling between places of work.
In fact, it does not matter if the work being done at the time of accident was not within the scope of the employee’s job, so long as it was being performed pursuant to the orders of the employer (or the employer’s re[presentative).
So if a supervisor at work instructs an employee to do something, and the employee is injured doing it, then the employee is covered by Louisiana workers compensation.
AN EMPLOYEE INJURED IN A WORK-RELATED AUTOMOBILE ACCIDENT MAY ALSO HAVE A PERSONAL INJURY CLAIM
As noted above, an employee injured in a work-related automobile accident will be covered by workers compensation in Louisiana.
So, if an employee is injured in a work-related car accident, workers compensation will be the primary source of insurance for medical and wage-loss benefits.
However, the injured employee may also have a separate personal injury claim against a third party (another driver) for additional compensation.
Most importantly, the injured employee may be able to recover money for pain and suffering from the other driver, in addition to the workers compensation benefits from the worker’s employer.
It does not matter who is at fault in order to recover the workers compensation benefits, but in order for the injured employee to recover pain and suffering money from the other driver, then the injured employee must prove that the other driver was at fault.
CATASTROPHIC WORK-RELATED INJURIES IN LOUISIANA WORKERS COMPENSATION
Catastrophic injuries result in lifetime consequences.
Catastrophic injuries can drastically impact the quality of life of an injured employee, and perhaps even shorten his or her life.
However, if an employee is injured in a catastrophic work-related accident, then the injured employee may be entitled to receive lifetime benefits.
Common work-related catastrophic injuries at the workplace include, but are not limited to, the following:
- Brain injuries
- Burn injuries
- Permanent scarring
- Internal organ injuries
- Loss of hearing
- Loss of limbs
- Loss of vision
- Neurological disorders
- Severe or multiple fractures
- Spine, neck and back injuries
- Traumatic brain injuries
ONE TIME LUMP SUM PAYMENTS FOR CATASTROPHIC INJURIES IN LOUISIANA WORKERS COMPENSATION
For certain catastrophic injuries, the injured worker is entitled to a lump-sum payment of $50,000.00.
The following catastrophic injuries qualify for this payment:
- Paraplegia or quadriplegia;
- 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 two thereof; and
- Third-degree burns of forty percent or more of the total body surface.
This payment – which is due within one year of the accident – is not subject to any credit or reduction due to other workers compensation benefits paid to the injured employee.
CONSTRUCTION ACCIDENTS IN LOUISIANA WORKERS COMPENSATION
Work-related construction accidents are very common in and around New Orleans and throughout Louisiana.
Unfortunately, not only are these work-related construction accidents common, but they can produce devastating injuries due to heavy machinery and equipment, and potential safety hazards involved at construction sites, as well as the physically demanding and dangerous work itself.
Plus the strict deadlines, a large number of workers, and complex machinery and equipment all often cause accidents and lapses in safety procedures and protocol.
For these reasons, the construction industry has a far higher rate of accidents and injuries per worker than other industries.
Common injuries at construction sites include, but are not limited to, the following:
- Back injuries
- Brain injuries
- Broken bones
- Crush injuries
- Eye injuries
- Head injuries
- Joint injuries
- Knee and ankle injuries
- Neck injuries
- Repetitive motion injuries
- Spinal cord injuries
Common accidents at construction sites include, but are not limited to, the following:
- Electric shocks and electrocutions
- Exposure to harmful substances or environments including toxic chemicals
- Falls, slips, and trips
- Ladder accidents
- Overexertion injuries
- Physical contact with dangerous equipment or object
- Scaffolding injuries
- Transportation-related accidents
- Violence on the worksite
THE FATAL FOUR CONSTRUCTION ACCIDENTS
The construction industry can be so dangerous that the Occupational Safety and Health Administration (OSHA) has coined the term “The Fatal Four” to describe the four leading causes of death for construction workers.
These fatal four construction accidents are responsible for more than half of construction worker deaths:
- Struck by object
Caught-in/between refers to incidents where construction workers have been killed when caught-in or compressed by equipment or objects, and struck, caught or crushed in collapsing structure, equipment, or materials.
SAFETY VIOLATIONS AT CONSTRUCTION SITES IN LOUISIANA
Injuries and deaths occur despite written safety manuals, safety inspections, safety checklists, and weekly safety meetings.
In fact, inadequate safety equipment – such as harnesses, hard hats, and eye protection – can actually be the cause of accidents at construction sites.
The following were the top ten most frequently cited safety-related standards by the Occupational Safety and Health Administration (OSHA) in the fiscal year 2017:
- Fall protection, construction
- Hazard communication standard, general industry
- Scaffolding, general requirements, construction
- Respiratory protection, general industry
- Control of hazardous energy (lockout/tagout), general industry
- Ladders, construction
- Powered industrial trucks, general industry
- Machinery and Machine Guarding, general requirements
- Fall Protection–Training Requirements
- Electrical, wiring methods, components and equipment, general industry
The dangerous nature of construction work and construction sites leaves workers exposed to serious and life-changing injuries.
For this reason, safety regulations that can prevent catastrophic injuries must be fully and properly enforced.
Importantly, under Louisiana law, if a worker has been injured due to a violation of state or federal safety regulations, then the employer can be liable for damages; this is an exception to the general rule that employees cannot sue their employers directly for their injuries (outside of workers compensation benefits).
AN INJURED CONSTRUCTION WORKER MAY BE ENTITLED TO ADDITIONAL MONEY ON TOP OF WORKERS COMPENSATION BENEFITS
Generally, an injured worker cannot sue his or her own employer for any benefits – such as pain and suffering – besides the standard workers compensation benefits under the Louisiana Workers Compensation Act.
However, if the injured worker can successfully show that a third party was negligent in causing some (or all) of the worker’s injuries, then that third party can be held liable, and the injured worker can receive money from this third party – such as pain and suffering money – in addition to the standard workers compensation benefits from the employer’s workers compensation insurer.
The term “third-party” refers to any individual or business entity that is not the employer (or the employer’s workers compensation insurer) or the employee.
Some potential third parties may be the property owners, general contractors, subcontractors, construction managers, other workers, design engineers, inspectors, equipment manufacturers, and other related or involved individuals or businesses.
Additionally, as noted above, under Louisiana law, if a worker has been injured due to a violation of state or federal safety regulations, then the employer can be liable for damages; this is an exception to the general rule that employees cannot sue their employers directly for their injuries (outside of workers compensation).
LIFTING, PUSHING AND PULLING ACCIDENTS IN LOUISIANA WORKERS COMPENSATION
Lifting, pushing, and pulling injuries and accidents are very common in Louisiana workers compensation.
Though lifting, pushing, and pulling injuries and accidents can occur in almost every type of occupation, these injuries are most common in the following professions:
- Construction workers
- Daycare and childcare workers
- Freight, stock, and material movers
- Healthcare professionals
- Hospitality industry workers
- Nurses and nursing assistants
- Plant workers
- Refinery workers
- Restaurant workers
- Trailer-truck and heavy truck drivers
- Warehouse employees
Common injuries from lifting, pushing, and pulling accidents include, but are not limited to, the following:
- Back sprains and strains
- Herniated and bulging disks
- Leg strains
- Ligament or tendon tears and strains
- Muscle tearing
- Neck sprains and strains
- Nerve damage
- Pulled muscles
- Repetitive motion injuries
- Rotator cuff tears
- Shoulder impingement syndrome
- Shoulder sprains and strains
- Spinal cord strain
If an employee even thinks that he or she has been injured in a lifting, pushing, or pulling accident, the injured employee should immediately report the injury to the employee or supervisor and should seek immediate medical attention.
This is important because, in some cases, these injuries don’t appear until days or weeks after the accident.
REPETITIVE USE (OR OVERUSE) INJURIES IN LOUISIANA WORKERS COMPENSATION
Work-related injuries often occur in a single quick event – such as a fall, a vehicle accident, or an explosion.
However, many work-related injuries develop over time from the cumulative effect of repetitive movements or postures on the job. Such activities including tying at a keyboard, working on a factory assembly line, or hammering nails.
Even though the workers compensation insurance companies regularly try to deny them, these repetitive use injuries (injuries that develop over time from the cumulative effect of repetitive movements or postures on the job) are covered by Louisiana workers compensation.
The injured employee simply needs to be able to show that his or her work duties were to blame for the repetitive use injuries (also known as repetitive stress injuries).
The most common example of a repetitive use injury is carpal tunnel syndrome, which is a well-documented medical condition in which inflammation and pressure cause severe pain and weakness in a worker’s hands and wrists.
But there are many other examples of repetitive use injuries, such as debilitating back and knee conditions that finally become too much for the worker to endure.
WHO IS AT RISK FOR REPETITIVE USE INJURIES?
Though repetitive use injuries can occur in almost every type of occupation, these injuries are most common in the following professions:
- Agricultural and meat processing workers
- Assembly line workers
- Bus drivers
- Data entry workers
- Delivery workers
- Factory workers who use the same tools all-day
- Grocery and stock clerks
- Janitors and housekeeping cleaners
- Nurses and health care aides
- Office workers who spend all day typing on computer keyboards
- Packaging workers
- Plumbers and pipe-fitters
- Postal Workers
- Shelf stackers
WHAT ARE THE SYMPTOMS OF REPETITIVE USE INJURIES?
Repetitive use injuries may involve any or all of several different symptoms in the affected part of your body, including:
- Acute pains
- General Pain
- Loss of coordination
- Loss of strength
- Reduced flexibility
- Reduced range of motion
WHICH ARE THE MOST COMMON REPETITIVE USE INJURIES?
Some common repetitive stress injuries include the following:
- Back pain
- Carpal tunnel syndrome
- Chronic pain
- Cubital tunnel syndrome
- De Quervain syndrome
- Dupuytren’s contracture
- Hearing loss
- Intersection syndrome
- Lateral epicondylitis (tennis elbow)
- Medial epicondylitis (golfer’s elbow)
- Nerve injuries
- Radial tunnel syndrome
- Raynaud’s disease
- Reflex sympathetic dystrophy syndrome (RSDS)
- Rotator cuff injuries
- Stenosing tenosynovitis (trigger finger)
- Thoracic outlet syndrome
- Trigger finger
A repetitive use injury (also known as a repetitive stress injury or a repetitive motion injury) occurs when performing the same action over and over causes stress and strain that eventually results in injury.
So these repetitive stress injuries result from an action that would not typically be harmful to a worker’s health.
For example, simply typing on a keyboard for a couple of minutes is not something that would likely cause an injury. However, when performed all day every day, typing on a computer can eventually take a toll on the health of an employee.
Also, this fact – that repetitive stress injuries result from an action that would not typically be harmful to a worker’s health – is the reason that the workers compensation insurance companies constantly try to deny repetitive use injury claims.
So in most situations, an employee suffering from a repetitive use injury should hire an experienced Louisiana workers compensation attorney to handle a repetitive use injury claim.
The Louisiana Statute on Common Types of Injuries in Louisiana Workers Compensation
The primary Louisiana statute on common types of injuries is La. R.S. 23:1021, which read as follows:
§1021. Terms defined
As used in this Chapter, unless the context clearly indicates otherwise, the following terms shall be given the meaning ascribed to them in this Section:
(1) “Accident” means an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.
(2) “Brother” and “sister” includes step-brothers and step-sisters, and brothers and sisters by adoption.
(3) “Child” or “children” covers only children born of marriage, step-children, posthumous children, adopted children, and children born outside of marriage who have been acknowledged under the provisions of the Civil Code.
(4) “Dependent” means the person or persons to whom, under the provisions of Part II of this Chapter, compensation shall be paid upon the death of the injured employee.
(5) “Assistant secretary” means the assistant secretary of the office of workers compensation administration.
(6) “Health care provider” means a hospital, a person, corporation, facility, or institution licensed by the state to provide health care or professional services as a physician, hospital, dentist, registered or licensed practical nurse, pharmacist, optometrist, podiatrist, chiropractor, physical therapist, occupational therapist, psychologist, graduate social worker or licensed clinical social worker, psychiatrist, or licensed professional counselor, and any officer, employee, or agent thereby acting in the course and scope of his employment.
(7) “Independent contractor” means any person who renders service, other than manual labor, for a specified recompense for a specified result either as a unit or as a whole, under the control of his principal as to results of his work only, and not as to the means by which such result is accomplished, and are expressly excluded from the provisions of this Chapter unless a substantial part of the work time of an independent contractor is spent in manual labor by him in carrying out the terms of the contract, in which case the independent contractor is expressly covered by the provisions of this Chapter. The operation of a truck tractor or truck tractor trailer, including fueling, driving, connecting and disconnecting electrical lines and air hoses, hooking and unhooking trailers, and vehicle inspections are not manual labor within the meaning of this Chapter.
(8)(a) “Injury” and “personal injuries” include only injuries by violence to the physical structure of the body and such disease or infections as naturally result therefrom. These terms shall in no case be construed to include any other form of disease or derangement, however caused or contracted.
(b) Mental injury caused by mental stress. Mental injury or illness resulting from work-related stress shall not be considered a personal injury by accident arising out of and in the course of employment and is not compensable pursuant to this Chapter, unless the mental injury was the result of a sudden, unexpected, and extraordinary stress related to the employment and is demonstrated by clear and convincing evidence.
(c) Mental injury caused by physical injury. A mental injury or illness caused by a physical injury to the employee’s body shall not be considered a personal injury by accident arising out of and in the course of employment and is not compensable pursuant to this Chapter unless it is demonstrated by clear and convincing evidence.
(d) No mental injury or illness shall be compensable under either Subparagraph (b) or (c) unless the mental injury or illness is diagnosed by a licensed psychiatrist or psychologist and the diagnosis of the condition meets the criteria as established in the most current issue of the Diagnostic and Statistical Manual of Mental Disorders presented by the American Psychiatric Association.
(e) Heart-related or perivascular injuries. A heart-related or perivascular injury, illness, or death shall not be considered a personal injury by accident arising out of and in the course of employment and is not compensable pursuant to this Chapter unless it is demonstrated by clear and convincing evidence that:
(i) The physical work stress was extraordinary and unusual in comparison to the stress or exertion experienced by the average employee in that occupation, and
(ii) The physical work stress or exertion, and not some other source of stress or preexisting condition, was the predominant and major cause of the heart-related or perivascular injury, illness, or death.
(9) “Office” means the office of workers compensation administration established pursuant to R.S. 23:1291.
(10) “Owner operator” means a person who provides trucking transportation services under written contract to a common carrier, contract carrier, or exempt haulers which transportation services include the lease of equipment or a driver to the common carrier, contract carrier, or exempt hauler. An owner operator, and the drivers provided by an owner operator, are not employees of any such common carrier or exempt hauler for the purposes of this Chapter if the owner operator has entered into a written agreement with the carrier or hauler that evidences a relationship in which the owner operator identifies itself as an independent contractor. For purposes of this Chapter, owner operator does not include an individual driver who purchases his equipment from the carrier or hauler, and then directly leases the equipment back to the carrier or hauler with the purchasing driver.
(11) “Part-time employee” means an employee who as a condition of his hiring knowingly accepts employment that (a) customarily provides for less than forty hours per work week, and (b) that is classified by the employer as a part-time position.
(12) “Payor” means the entity responsible, whether by law or contract, for the payment of benefits incurred by a claimant as a result of a work related injury.
(13) “Wages” means average weekly wage at the time of the accident. The average weekly wage shall be determined as follows:
(a) Hourly wages.
(i) If the employee is paid on an hourly basis and the employee is employed for forty hours or more, his hourly wage rate multiplied by the average actual hours worked in the four full weeks preceding the date of the accident or forty hours, whichever is greater; or
(ii) If the employee is paid on an hourly basis and the employee was offered employment for forty hours or more but regularly, and at his own discretion, works less than forty hours per week for whatever reason, then, the average of his total earnings per week for the four full weeks preceding the date of the accident; or
(iii) If the employee is paid on an hourly basis and the employee is a part-time employee, his hourly wage rate multiplied by the average actual hours worked in the four full weeks preceding the date of the injury.
(iv) A part-time employee, as defined in R.S. 23:1021(9) and who is employed by two or more different employers in two or more successive employments, shall be entitled to receive benefits as follows:
(aa) If an employee is employed by two or more different employers in two or more successive employments and the employee incurs a compensable injury under the provisions of this Chapter in one of the employments, the employer in whose service the employee was injured shall pay the benefits due the employee as provided in this Chapter.
(bb) If the employee is a part-time employee in one of the successive employments, is injured in that employment, but as a result of the injury also incurs loss of income from other successive employments, that employee shall be entitled to benefits computed by determining wages under the provisions of this Subsection using his hourly rate in employment at the time of injury and using the total hours worked for all employers of the part-time employee, but not to exceed his average, actual weekly hours worked or forty hours weekly, whichever is less.
(v) For an employee in seasonal employment, his annual income divided by fifty-two.
(aa) For purposes of this Subparagraph, seasonal employment shall be any employment customarily operating only during regularly recurring periods of less than forty-four weeks annually.
(bb) If the employee was not engaged in the seasonal employment more than one year prior to the accident, his annual income shall be the average annual income of other employees of the same or most similar class working in the same or most similar employment for the same employer or, in the event that the employee was the only individual engaged in that specific employment, then his annual income shall be the average annual income of other employees of the same or most similar class working for a neighboring employer engaged in the same or similar employment.
(b) Monthly wages. If the employee is paid on a monthly basis, his monthly salary multiplied by twelve then divided by fifty-two.
(c) Annual wages. If the employee is employed at an annual salary, his annual salary divided by fifty-two.
(d) Other wages. If the employee is employed on a unit, piecework, commission, or other basis, his gross earnings from the employer for the twenty-six week period immediately preceding the accident divided by the number of days the employee actually worked for the employer during said twenty-six week period and multiplied by the average number of days worked per week; however, if such an employee has worked for the employer for less than a twenty-six week period immediately preceding the accident, his gross earnings from the employer for the period immediately preceding the accident divided by the number of days the employee actually worked for the employer during said period and multiplied by the average number of days worked per week.
(e) Exceptions. For municipal police officers, additional compensation paid by the state pursuant to R.S. 40:1667.3 shall not be included in the calculation and computation of total salary or average weekly wage to the extent such officer continues to receive such additional compensation during the period of his disability.
(f) Income tax. In the determination of “wages” and the average weekly wage at the time of the accident, no amount shall be included for any benefit or form of compensation which is not taxable to an employee for federal income tax purposes; however, any amount withheld by the employer to fund any nontaxable or tax-deferred benefit provided by the employer and which was elected by the employee in lieu of taxable earnings shall be included in the calculation of the employee’s wage and average weekly wage including but not limited to any amount withheld by the employer to fund any health insurance benefit provided by the employer and which was elected by the employee in lieu of taxable earnings shall be included in the calculation of the employee’s wage and average weekly wage.
(g) Date of accident. In occupational disease claims the date of the accident for purposes of determining the employee’s average weekly wage shall be the date of the employee’s last employment with the employer from whom benefits are claimed or the date of his last injurious exposure to conditions in his employment, whichever date occurs later.
Amended by Acts 1968, Ex. Sess., No. 25, §1; Acts 1975, No. 583, §1, eff. Sept. 1, 1975; Acts 1983, 1st Ex. Sess., No. 1, §§1, 6; eff. July 1, 1983; Acts 1987, No. 396, §1; Acts 1987, No. 494, §1; Acts 1988, No. 938, §1, eff. Jan. 1, 1989, and July 1, 1989; Acts 1989, No. 260, §1, eff. Jan. 1, 1990; Acts 1989, No. 454, §1, eff. Jan. 1, 1990; Acts 1991, No. 468, §1; Acts 1991, No. 565, §1; Acts 1993, No. 928, §2, eff. June 25, 1993; Acts 1995, No. 1137, §1, eff. June 29, 1995; Acts 1997, No. 423, §1; Acts 1997, No. 536, §1; Acts 1997, No. 1172, §4, eff. June 30, 1997; Acts 1999, No. 751, §1; Acts 1999, No. 1309, §5, eff. Jan. 1, 2000; Acts 2001, No. 288, §2; Acts 2001, No. 486, §2, eff. June 21, 2001; Acts 2001, No. 546, §1; Acts 2001, No. 1014, §§1 and 2, eff. June 27, 2001; Acts 2004, No. 26, §10; Acts 2004, No. 188, §1, eff. June 10, 2004; Acts 2004, No. 561, §1; Acts 2013, No. 337, §1; Acts 2014, No. 158, §§3 and 7.