By: Meghan E. Trahan
Recall that when an employee suffers a loss giving rise to the permanent partial anatomical loss of use of a particular body part, he is entitled to indemnity payments based on his level of disability. In our email blast from September 8, 2023, we walked you through how to calculate an employee’s Permanent Partial Disability (“PPD”) rating and corresponding payments in accordance with LSA-R.S. 23:1221(4). A link to the September 8, 2023 blast can be found here.
Subsection (p) of the same statute addresses PPD in the context of permanent disfigurement. Although the Louisiana Workers’ Compensation Act (“LWCA”) does not define “disfigurement”, Louisiana courts have defined it as “that which impairs or injures the beauty, symmetry, or appearance of a person or thing; that which renders unsightly, misshapen, or imperfect, or deforms in some manner.” Cases of this nature typically involve a scar or burn.
In order to recover for a scar, burn, or other permanent disfigurement, the employee must be considered “seriously permanently disfigured” in that the disfigurement must be both permanent and “of such a character that it substantially detracts from the appearance of the person disfigured.” For example, the Louisiana Third Circuit Court of Appeal found an employee to be entitled to PPD benefits for permanent disfigurement when he sustained work-related injuries which resulted in a burn scar covering the entirety of his chest and extending into his neck area. The court noted the burn area would never have a normal appearance and would be visible with any open shirt. However, the same court declined to award an employee benefits for disfigurement when the scar on his face was permanent but “hardly detectable” and did not “significantly mar [his] habitual facial expression [nor] attract attention of other persons.”
With regard to the payment of PPD benefits, when the disability is also susceptible to a percentage determination based on the percentage loss of use of the body part affected, benefits are to be calculated in accordance with LSA-R.S. 23:1221(4) as explained in our September 8, 2023 email blast. If; however, the disability is not susceptible to a percentage determination (i.e., there is no loss of use), reasonable compensation is owed with the only limitation being that payments are not to exceed 66 2/3% of wages for a period of no more than 100 weeks. This leaves the amount owed largely open to interpretation, which is why it is generally a determination to be made by the Court at trial.
However, PPD payments are due thirty (30) days after the workers’ compensation payor receives a medical report putting him on notice of the permanent disfigurement. Failure to timely pay benefits will result in the assessment of penalties and attorney fees.
How do you handle this when you do not know how much will be owed?
Do you wait to make payment until after the court assigns a percentage to avoid an overpayment or underpayment?
Do you estimate the percentage and make a reasonable payment within the thirty days to avoid a late payment?
We recommend that you request photographs as soon as practical after being put on notice of potential disfigurement. Then, keeping in mind the thirty-day delay for payment, provide those photographs to an attorney. The attorney can then evaluate the photographs and estimate a reasonable percentage based upon his/her experience with the venue and/or judge, so you can issue payment prior to thirty-day mark. If the amount estimated is less than the court’s final determination at trial, these actions could serve to show you acted reasonably and assist in mitigating against an award of penalties and attorney fees. If the amount estimated is greater than the court’s final determination, you would simply reduce future indemnity until such time that the overpayment is recouped.
Calculation of AWW With Less than Four Full Weeks on Earning History
In Carlos Juarez v. AJ Lazo Construction LLC and Louisiana Construction and Industry Self Insurer’s Fund (LCI), a September 20, 2023 decision out of the Louisiana Court of Appeal for the Fifth Circuit, the court was presented a case in which the injured employee only worked two consecutive weeks prior to his date of injury. No. 22-CA-575, 2003 WL 6139417. The workers’ compensation court originally calculated the employee’s average weekly wage (“AWW”) by averaging the actual wages the employee earned in those two weeks. The Fifth Circuit reversed this decision on appeal finding the workers’ compensation judge erred in calculating his AWW using the actual wages earned as opposed to the 40 Hour Presumption (i.e., hourly wage rate * 40 hours). In doing so, the court reasoned that the plain language of LSA-R.S. 23:1201(13)(a)(i) requires the AWW for a full-time, hourly employee to be calculated using “the average of the actual hours worked in the four full weeks prior to the accident, or 40 hours, whichever is greater.” Thus, because the employee had not worked four full weeks prior to the accident, his AWW must be calculated using the 40 Hour Presumption. At first glance, this seems like a substantial deviation from prior case law on the issue. However, as the court points out, in the 2004 case of Harrison v. Auto King, the First Circuit reached a similar determination finding that although an employee worked more than 16.5 hours of overtime in the one week he was employed by the employer, he had not worked four full weeks prior to the date of injury. 03-1620 (La. App. 1 Cir. 5/14/04), 879 SO.2d 796. Therefore, his AWW was to be calculated using the 40 Hour Presumption.