Permanently and Totally Disabled (“PTD”)
Lawyers representing injured workers whose claims fall under the Louisiana Workers Compensation Act know that Permanent and Total Disability Benefits are paid at a rate of 2/3 the injured worker’s Average Weekly Wage. The weekly rate is capped at a maximum weekly rate for the year of injury.
To receive Permanent and Total Disability Benefits, the injured worker must not engage in any employment or self-employment and must prove by clear and convincing (highly probable) evidence that the employee is physically unable to engage in any employment or self-employment. The statute governing PTD benefits is found at LA-R.S. 23:1221. PTD benefits can last a lifetime.
PTD benefits is governed by La. R.S. 23:1221(2)(c), which provides:
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.
However, “a disability due to chronic pain does not meet the requirements of ‘physical’ disability under La. R.S. 23:1221(2)(c).” Hand v. City of New Orleans, 2004-0845, p. 7 (La.App. 4 Cir. 12/22/04), 892 So.2d 609, 613.
Factors that favor a court finding of Permeant and Total Disability under the Louisiana Workers Compensation Act include, but are not limited to, the following:
- Unsuccessful rehabilitation attempts (including the lack of ability to be educated or retrained);
- Physical incapacity due to permanent injuries;
- Opinion of a vocational rehabilitation counselor’s that injured workers is unemployable and would never again be able to work;
- Opinion of treating physician that injured worker is permanently disabled from any and all types of gainful employment that is supported by objective medical evidence; and
- Age, lack of education, low intellectual capacity, work experience only as a laborer, severe functional restrictions requiring the injured worker to lie down periodically throughout the day, lack of transferable skills, narcotic medications taken and permanent nature of the symptoms.
If you need help or have any questions about your job injury, call me, a Louisiana workers’ compensation lawyer, at 866-558-9151, or submit your inquiry online. Please be advised that you may be facing important legal deadlines, so don’t delay.