Proof of an Employee's Disability in Louisiana Workers Compensation

Fullsizeoutput 3066

Disability in Louisiana Workers Compensation Is Defined by Wage Loss

Louisiana law provides for several types of disability, including total disability and disability which is less than total:

    1. Total disability is defined as the inability “to engage in any self-employment or occupation for wages.”
    2. Disability which is less than total is defined as the inability “to earn wages equal to ninety percent or more of wages at time of injury,” a standard which measures disability entirely in economic terms rather than physical terms. 

So in this sense, Louisiana courts have consistently held that disability is denied by and thus related to wage loss, as opposed to the specific physical injury or infirmity.

In short, disability is the event of being incapacitated from the performance of normal labor.

If there is no loss of earning capacity, then there is no disability within the meaning of the Louisiana workers compensation (except for the scheduled benefits).

In other words, an employee is disabled if he or she cannot fully return to work, not if the employee is injured (no matter how bad the injury).

But Disability in Louisiana Workers Compensation Is Determined Mostly by Medical Testimony

So the question of whether or not an employee is disabled is determined by whether or not the employee is able to fully return to work.

But the question of whether or not the employee can fully return to work is likely to be answered mostly by medical testimony provided by doctors.

Technically speaking, the Louisiana Supreme Court has described the question of disability as a “hybrid quasi-medical concept, in which are commingled in many complex combinations the inability to perform, and the inability to get suitable work.”

Basically, this means that disability is determined partly by medical evidence and partly by non-medical evidence.

So non-medical testimony (especially concerning the types of occupations available to the injured employee) may be helpful.

But no evidence is more important than the expert medical testimony provided by the treating physician when establishing whether a disability exists or not.

Conflicting Medical Opinions When Determining Disability in Louisiana Workers Compensation

However, many times the workers compensation insurance company will hire its own doctor to dispute the finds or recommendations of the employee's treating physician.

However, just because there are conflicting medical opinions does not mean that the employee will not recover workers compensation benefits.

Louisiana courts have provided some rough guidelines for weighing conflicting medical testimony.  

Treating Versus Non-Treating Physicians

The most common of these rules is the rule that the testimony of the treating physician is to be strongly considered and usually believed over the testimony of a non-treating physician.  

This is because the treating physician typically will have been able to observe the employee patient for an extended period of time, while often, the insurance company's doctor will only perform a one-time evaluation.

So, fortunately, the bottom line here is that the edge typically goes to the employee's own treating physician, and not to the insurance company's doctor who did a one-time examination.  

Specialist Versus Non-Specialist Physicians

Another very common rule set forth in Louisiana courts is the rule that the testimony of the specialist doctor may be preferred over the testimony of the general practitioner.  

This is typically because a specialist is generally considered better qualified to offer an opinion on a specific injury, given his or her specialized training and background.

More often than not, the testimony of the treating physician is more likely believed, even when the treating physician and a separate specialist physician disagree.

Physicians Treating Immediately After the Injury

A third common rule set forth in Louisiana courts is the rule that the testimony of a physician who examined the employee immediately after injury is generally preferred to the opinion of a physician who examined the employee at a later time.

The Importance of Choosing the Right Physician

Of course, the workers compensation Court will make its decision on the basis of all relevant medical evidence and will give weight to all of the above factors that are present. These determinations are fact-sensitive and vary from case to case, based on the specific circumstances of each particular case.

But when a Louisiana workers compensation judge does attempt to resolve conflicting expert medical opinions, the medical position which appears more reasonable and more probable in the light of common sense is likely to be chosen as the correct testimony.  

So for an employee, it is extremely important who the employee's treating physician is, and an experienced workers compensation attorney can often be extremely helpful in choosing the right doctor. 

Presumptions and Burden of Proof of Disability in Louisiana Workers Compensation

The use of “any presumption of disability” is not permitted under Louisiana law.

Also, Louisiana law provides that if an employee is not engaged in any type of employment and claims total and permanent disability, he must prove “by clear and convincing evidence, unaided by any presumption of disability,” that he is “physically unable to engage in any employment."

Proof of disability sufficient to be entitled to Supplemental Earning Benefits (SEBs) is also burdensome for the employee. If an employee is not engaged in any employment, or is earning lower wages than he was prior to injury, the amount of post-injury wages which will go into the calculation for SEBs is the amount that he “would have earned in any employment … which he was physically able to perform” and which was offered to him or proven available to him. 

In order to prevent the inclusion of wages which he or she “could have earned” in the calculation, the employee must under Louisiana law establish “by clear and convincing evidence, unaided by any presumption of disability, that solely as a consequence of substantial pain,” that he or she cannot perform the tendered or available employment.

So all these requirements must be met by a standard of "clear and convincing evidence," which is a medium-high bar that is often not easily met.

Basically, "clear and convincing” means that the evidence is highly and substantially more likely to be true than untrue, or in other words, that something is "highly probable."  

For comparison, clear and convincing evidence is a medium level of burden of proof which is a more difficult standard to meet than the preponderance of the evidence standard (which is more likely than not), but a less difficult standard to meet than proving evidence beyond a reasonable doubt (which is the burden of proof used in criminal cases). 

Lay (Or Non-Expert or Non-Medical) Testimony for Proof of Disability in Louisiana Workers Compensation

The testimony of the medical experts may be supported by the evidence of the employee or other "lay" witnesses.

Lay witnesses or lay testimony refers to witnesses or testimony other than that of experts or doctors.

In other words, lay witnesses are just regular people, such a family members or co-workers of the injured employee.

Louisiana courts have held that "lay evidence must be weighed with consideration for the medical fact to be established, of the conclusiveness and validity of the medical evidence and the materiality, relevance, and reliability of the particular lay evidence, according to its focus, foundation, and its source."

But the courts also point out that great weight was still to be given to un-contradicted medical evidence, “almost to the point of exclusion of other evidence,” when the question involved is a complex scientific one.

But lay testimony is often strongly considered on the issue of whether a worker is disabled, because disability is not necessarily a complex scientific question.

Types and Examples of Lay Testimony When Determining Disability in Louisiana Workers Compensation

Lay testimony regarding disability can take several forms.

The employee will usually describe his or her symptoms and their effect on the employee's ability to work or the effect on other activities.

Usually, the employee, with the support of the medical witnesses, will be able to succeed in showing some objective symptoms of injury.

But sometimes, however, and particularly in connection with back conditions, the evidence may fail to show that there was any objective symptom to prove the employee's disability or demonstrate the employee's pain. But recovery is not arbitrarily denied in such cases, because in many cases, the proof of the occurrence of the accident itself usually satisfies the requirement of objective conditions of symptoms.

Additionally, lay testimony is often important when determining the question of pain. Often, for purposes of receiving supplemental earnings benefits, the employee may need to establish the fact of pain.

Establishing the history of pain is usually be done through the lay testimony of the injured employee and his or her relatives and friends, and supported by the evidence of the medical experts that the objective conditions are the kind that usually produces pain.

Photographs and Videotapes for Proof of Disability in Louisiana Workers Compensation

The workers compensation insurance companies very frequently hire investigators to take pictures and videos of the injured employee in order to deny the employee workers compensation benefits.

These workers compensation insurance companies will obtain certain photographs or videos secretly taken by the investigator, and then assert that the employee is not disabled and is actually committing fraud.

Often - but not always- these photographs or videos will be held admissible in Louisiana workers compensation courts. That means that the judge will see and use them. 

Pictures also may be introduced in court, but could possibly be excluded or minimized, because pictures are often merely a depiction of an isolated incident.

Occasionally, the pictures or videos will show that the employee is, in fact, disabled, and thus strengthen the employee's claim of disability.

The workers compensation judge will want:

    1. The identity of the injured employee to be clearly established;
    2. The movements of the injured employee to be continuous and not isolated actions over a long period of time; and
    3. The injured employee to be able to offer an explanation.

The employee - or preferably the employee's attorney - is entitled to receive any and all such pictures and/or videotapes prior to the hearing in front of the judge.

In fact, the employee - or preferably the employee's attorney - should receive any and all such pictures and/or videotapes prior to any depositions of the employee or other witnesses.

The Louisiana Statute for Proof of Disability in Louisiana Workers Compensation

The Louisiana lost wage statute is La. R.S. 23:1221. Concerning proof of disability, 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.

Putting Our Clients First

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

A Proven Track Record of Success

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

Menu