BASIC (09-08)

A. Types of WC payments

1. Temporary Total (TT)

Maximum period is duration of the disability. TT is subject to unemployment income benefit offset.

2. Permanent Total (PT)

Maximum period is duration of the disability. See also DI 52120.105E. below.

3. Supplemental earnings benefits (SEB) – (code as TP)

Maximum period is 520 weeks

4. Permanent Partial (PP)

Maximum period for unscheduled injury is 520 weeks. Additional benefits of $30,000.00 for catastrophic injuries, payable 1 year after injury.

NOTE: Tort payments are not WC and do not cause offset. Tort payments are awarded based on civil lawsuits. For a list of payments not considered WC, see DI 52105.015.

B. Cost-of-living adjustments (COLAs)

Louisiana does not provide for cost of living increases for any type of WC payment.

C. Attorney fees

Attorneys can charge "statutory fees for back compensation" in addition to attorney fees and expenses. Attorneys are permitted to withhold a percentage of any amounts recovered by a workers' compensation claimant.

Reference: Louisiana Revised Statutes, (R.S.) 23:1143 http://www.legis.state.la.us/lss/lss.asp?doc=83380

D. Retirement insurance benefit (RIB) considerations

Louisiana does not offset its WC for SSA retirement benefits.

E. Reverse offset provision

• Louisiana State WC law provides for a reverse offset plan for permanent total (PT) under certain conditions.

• Both offset and reverse offset can apply to the same DIB case.

  • NOTE: Prior to 04/03/2002, Louisiana WC also applied reverse WC offset to RIB but Louisiana Supreme Court declared that statute to be unconstitutional.

1. Claims adjudicated on or after 01/1988

1. Before reverse offset applies, the following three conditions are required:

   • Disabled worker receives periodic PT or lump sum (LS) PT and Social Security disability insurance benefits (DIB).

   • WC injury occurred on or after 09/08/1978.

   • The carrier must show evidence of “judicial demand” and approval of the reverse offset statute.

     Reference: RS 23-1225a; http://www.legis.state.la.us/lss/lss.asp?doc=83451

2. Judicial demand is when the carrier specifically alleges its’ right in court or, as of 01/01/1990, with Louisiana WC Administrative Hearings Officers, to offset WC under Louisiana reverse offset statute due to the worker’s receipt of Social Security Administration (SSA) DIB.

3. Offset applies up to the date of judicial demand.

4. Offset should be removed when all three conditions are met, but only beginning with the date the carrier makes judicial demand.

5. Offset cannot be removed prior to the date of judicial demand.

2. Evidence of judicial demand

a. Effective 01/01/1990 through 11/12/1991

• Between 01/01/1990, and 11/12/1991, the hearing officers used a free form document to record their decisions. The documents did not contain language regarding "judicial demand" or permission for reverse offset shown in the Judicial Demand (see DI 52120.105G. Exhibit 1).

• SSA will honor these judgments as a request for judicial demand and permission for reverse offset only when signed and dated by one of the administrative hearings officers named below between 01/01/1990, and 11/12/1991:

• G. Walton Caire

  Norbert Ray Ford

  Walton Caire

  Kathryn Fouler Van Hoof

  Nancy Griswold

  Sheral Keller

  Pam Moses

  Milton Osborne

  Carolyn Perry

  Robert Varnado

  Mark Zimmerman

b. Effective 11/13/1991

Effective 11/13/1991, hearings officers are not limited to those named above.

c. Effective 08/1992

Effective 08/1992, a new form called the Louisiana Offset-Standard Form (see DI 52120.105G. Exhibit 2) replaced the Judicial Demand form in Exhibit 1.

3. Bellard motion and order

• Since 01/01/1990, some carriers have taken an offset without obtaining judicial demand based on a ruling by the appeals court in the Bellard vs So. Louisiana Const. Case. That decision was overturned.

• In these cases, the employer/insurer must obtain judicial demand by submitting a Louisiana Workers' Compensation Agency form Louisiana Offset-Exhibit-Bellard Motion (see DI 52120.105G. Exhibit 3) to an administrative hearings judge.

• The administrative hearings judge grants judicial demand by issuing a Louisiana Offset-Bellard Order (see DI 52120.105G. Exhibit 4). The employer/insurer presents the "Bellard Order" to a Social Security office. A technician then does an ICF WC/PDB input to remove the WC offset effective with the date shown on the "Bellard Order" and fax it into NRed. The date may be retroactive.  

  NOTE: The Bellard Motion and Order forms had a destruction date of 12/31/1992.

• If offset applies to the worker’s benefits, and the worker cannot obtain the judicial demand through the employer, insurer or attorney, the worker may complete LDOL-WC-1008 and forward it to the Workers' Compensation Agency. The Workers' Compensation Agency will provide judicial demand either by requiring the employer or insurer to file a "Bellard Motion" or by the granting of judicial demand by the judge.

• Disputed Claim for Compensation, LDOL-WC-1008, collects data concerning the employee, insurer, doctors, dependent, attorney, injury, and the basis of the dispute. It also contains an authorization for the release of medical records. LDOL-WC-1008: http://www.laworks.net/Downloads/OWC/1008form.pdf

4. Cases worked before 01/1988

• Judicial demand was not required

• SSA removed offset based solely on the receipt of PT WC

• When offset has been removed per those instructions, SSA will not retroactively re-impose offset due to the lack of “judicial demand”

  NOTE: The Louisiana Workers Compensation Commission may also ask the SSA FO employee to complete Form LDOL-WC-1004. This form is used to gather information from SSA to allow calculation of the amount by which to offset the PT.

  Form LDOL-WC-1004: http://www.laworks.net/Downloads/OWC/1004form.pdf

F. Continuation of WC payments

Generally, benefits continue until the lump sum settlement has been approved by the judge as required by RS 23:1271 and 1272. In Louisiana, an employer and/or its workers' compensation insurance carrier may discontinue benefits for good cause; however, not simply because a settlement has been reached. Benefits are usually cut off due to some act or omission by the worker. However, the party cutting off benefits assumes the risk that the court will determine that the discontinuation was arbitrary and capricious. Such a finding results in an award of penalties and attorney fees.

Reference: RS 23:1201; www.legis.state.la.us/lss/lss.asp?doc=83428

G. Exhibits

1. Exhibit 1: Order Recognizing Right to Social Security Offset

2. Exhibit 2: Order Recognizing Right to Social Security Offset

3. Exhibit 3: Motion for Recognition of Right to Social Security Offset under the Bellard Case

4. Exhibit 4: Order Recognizing Right to Social Security Offset under the Bellard Case

a. Exhibit 1: Order Recognizing Right to Social Security Offset

STATE OF LOUISIANA
DEPARTMENT OF EMPLOYMENT AND TRAINING
OFFICE OF WORKER'S COMPENSATION

ORDER RECOGNIZING RIGHT TO SOCIAL SECURITY OFFSET

This matter is before the court on the motion of the employer/insurer for recognition of their right to claim the social security offset in this case. The hearing officer finds that the claimant is receiving permanent and total disability benefits under the provisions of the Louisiana Workers' Compensation Act in addition to benefits under 42 U.S.C. Chapter 7, Subchapter II. Entitled Federal Old Age, Survivors, and Disability Insurance Benefits. The Hearing Officer further finds that under the provisions of La. R. S. 23:1225(A) the employer/insurer has claimed and is entitled to a reduction in the amount of the Workers' Compensation Benefits paid to claimant.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that employer/insurer is hereby allowed to offset the Workers' Compensation Benefits paid to claimant in accordance with the provisions of La. R. S. 23:1225(A).

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the offset be allowed from the date of this order only, and shall have no retroactive effect.

IT IS ORDERED, ADJUDGED AND DECREED that Social Security Administration provide to employer/insurer information concerning the claimant's average current earning total family benefits.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Social Security Administration remove its social security offset effective on the date of this order.

Read rendered and signed this ______ day of ______________________________
_________________________ Parish, Louisiana.

b. Exhibit 2: Order Recognizing Right to Social Security Offset

STATE OF LOUISIANA
DEPARTMENT OF EMPLOYMENT AND TRAINING
OFFICE OF WORKERS' COMPENSATION

ORDER RECOGNIZING RIGHT TO SOCIAL SECURITY OFFSET

This matter is before the court on the motion of the employer/insurer for recognition of their right to claim the social security offset in this case. The Hearing Officer finds that the claimant is receiving permanent and total disability benefits under the provisions of the Louisiana Workers' Compensation Act in addition to benefits under 42 U.S.C. Chapter 7, Subchapter II, entitled Federal Old Age, Survivors, and Disability Insurance Benefits. The Hearing Officer further finds that under the provisions of La. R. S. 23:1225 (A) the employer/insurer has claimed and is entitled to a reduction in the amount of the Workers' Compensation Benefits paid to the claimant.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that employer/insurer is hereby allowed to offset the Workers' Compensation Benefits paid to claimant in accordance with the provisions of La. R. S. 23:1225 (A).

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the employer/insurer be allowed to take the offset beginning ________________, 199__, the date of employer/insurer's judicial demand.

READ, RENDERED AND SIGNED this the ____________ day of ____________, 199____ at ____________________________ Parish, Louisiana.

c. Exhibit 3: Motion for Recognition of Right to Social Security Offset under the Bellard Case

STATE OF LOUISIANA
DEPARTMENT OF EMPLOYMENT AND TRAINING
OFFICE OF WORKERS' COMPENSATION

MOTION FOR RECOGNITION OF RIGHT TO SOCIAL SECURITY OFFSET

UNDER THE BELLARD CASE

NOW INTO COURT as undersigned comes _______________________________, employer/insured in the referenced case, and requests the Hearing Officer to enter an order recognizing its right to unilaterally take the reverse offset, since the claimant in this matter is receiving benefits under 42 U.S.C. Chapter 7, Subchapter II, entitled Federal Old Age, Survivors, and Disability Insurance Benefits. Mover further states that it began unilaterally offsetting its state Workers' Compensation benefits on the _____________ day of _____________________, 199 ___.

d. Exhibit 4: Order Recognizing Right to Social Security Offset under the Bellard Case

STATE OF LOUISIANA
DEPARTMENT OF EMPLOYMENT AND TRAINING
OFFICE OF WORKERS' OMPENSATION

ORDER RECOGNIZING RIGHT TO SOCIAL SECURITY OFFSET
UNDER THE BELLARD CASE

CONSIDERING the motion of the employer/insurer for recognition of their right to claim the social security offset in this case unilaterally under the case of Bellard versus South Louisiana Contractors Inc., 563 So. 2d 1319 (La. App. 3d Cir., 1990), and finding that the claimant is receiving permanent and total disability benefits under the provisions of the Louisiana Workers' Compensation Act in addition to benefits under 42 U.S.C. Chapter 7, Subchapter II, entitled Federal Old Age, Survivors, and Disability Insurance Benefits, and that under the provisions of La. R. S. 23:1225 (A) the employer/insurer has claimed and is entitled to a reduction in the amount of the Workers' Compensation Benefits paid to claimant.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that employer/insurer is hereby allowed the Workers' Compensation Benefits paid to claimant in accordance with the provisions of La. R. S. 23:1225(A).

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the employer/insurer be allowed to take the offset beginning _____________________, 199___, the date employer/insurer unilaterally began taking the offset.

READ, RENDERED AND SIGNED this the __________day of _________________ 199____ at ___________________________ Parish, Louisiana.

H. References

• Louisiana Workers' Compensation site:
  http://www.laworks.net/WorkersComp/OWC_MainMenu.asp

• Louisiana Revised Statutes (R.S.) Title 23, Labor and Worker’s Compensation, (R.S. 23:1221, Subpart B. Disability):

  http://www.legis.state.la.us/lss/lss.asp?doc=83447