RS 23:1378

§1378. Determination of liability of fund A. An employer operating under the provisions of this Chapter who knowingly employs, re-employs, or retains in his employment an employee who has a permanent partial disability, as defined in R.S. 23:1371.1, shall qualify for reimbursement from the Second Injury Fund, if the employee incurs a subsequent injury arising out of and in the course of his employment resulting in a greater liability due to the merger of the subsequent injury with the preexisting permanent partial disability. The employer or, if insured, his insurer shall pay all benefits provided in this Chapter, but the employer or, if insured, his insurer thereafter shall be reimbursed by the Second Injury Fund for all indemnity and medical benefit payments as follows: Date of Injury Reimbursement Schedule Before July 1, 2004 & on/ after July 1, 2009, but before July 1, 2010 INDEMNITY • TTD/SEB/PTD After the first 104 weeks of payment of benefits • Death benefits after the first 175 weeks of payment of benefits MEDICAL • 50% of all reasonable and necessary medical expenses actually paid which exceed $5,000.00, but no less than $10,000.00 • 100% of all reasonable and necessary medical expenses actually paid which exceed $10,000.00 On/after July 1, 2004 & before July 1, 2009 INDEMNITY • After the first 130 weeks of payment of benefits MEDICAL • 100% of all reasonable and necessary medical expenses actually paid which exceed $25,000.00 • On/after July 1, 2010 INDEMNITY • After the first 104 weeks of indemnity MEDICAL • 100% of all reasonable and necessary medical expenses actually paid which exceed $25,000.00, including reasonable and necessary Vocational Rehabilitation expenses, if such expenses are directly related to services provided in the actual retention or reemployment of employees (1) Such payments shall be reimbursed provided they are submitted to the board within one year of the approval for reimbursement or within one year of the payment of such weekly compensation payments, whichever occurs later. (2) No employer or insurer shall be entitled to reimbursement unless it is clearly established that the employer had actual knowledge of the employee's preexisting permanent partial disability prior to the subsequent injury. For injuries occurring after December 31, 2010, actual knowledge shall be established only by any one of the following circumstances: (a) The employee's preexisting permanent partial disability was caused by a compensable workers' compensation accident or occupational disease while employed by the same employer seeking reimbursement from the Second Injury Fund. (b) Prior to the second injury, the employee disclosed to the employer the employee's preexisting permanent partial disability on a form promulgated by the office of workers' compensation. (c) The employer employs, retains, or re-employs employees from the PPD employee registry maintained by Louisiana Works and which is created and maintained in accordance with rules promulgated by the office of workers' compensation. (d) The employer provides an affidavit, on a form promulgated by the office of workers' compensation, which shall set forth all of the following: (i) An attestation as to hire and fire authority as defined in R.S. 23:1371.1. (ii) An attestation as to how and when knowledge was acquired. (iii) An attestation as to the actual permanent partial disability existing. (iv) An attestation of how the permanent partial disability, if not a presumed condition as listed in Subsection F of this Section, was a hindrance and obstacle to employment. (v) An attestation certifying that false statements used in the affidavit may result in penalties pursuant to R.S. 23:1208. (3) The Second Injury Fund shall be credited or reimbursed for sums recovered by the employer or the insurer from third parties in an amount equal to a pro rata share of the net amount recovered based upon the amounts paid by the fund, and the amounts paid by the self-insurer or insurer which have not been reimbursed by the fund, to or on behalf of the injured employee for medical benefits, workers' compensation indemnity benefits, and vocational rehabilitation services. The employer or the insurer shall advise the board of any subrogation action against third parties on any claim submitted to the board. The failure of the employer or insurer to notify the board of any pending subrogation action prior to receipt of payment from the board shall subject the employer or the insurer to a penalty of twenty percent of the amount otherwise claimed by the employer or insurer as payable from the Second Injury Fund, as well as a return of all amounts paid by the board to the extent these amounts are recovered in the subrogation action. Except as provided in this Subsection the Second Injury Fund shall not be required to reimburse vocational rehabilitation expenses. (4)(a) The Second Injury Fund shall not be liable for reimbursement or be obligated to give credit for any amounts paid by an employer or carrier as attorney fees, penalties, or interest, nor for any sums paid under the Jones Act or Longshoremen and Harbor Workers Compensation Act. (b) For settlements occurring after July 1, 2007, the Second Injury Fund shall be liable for reimbursement or be obligated to give credit for attorney fees paid pursuant to R.S. 23:1141, but shall not be liable for reimbursement or be obligated to give credit for attorney fees paid pursuant to R.S. 23:1201 or any other penalty provision provided for in Chapter 10 of this Title. (5) Upon the board's approval of a claim for reimbursement, and on an annual basis thereafter, the insurer shall report to the board an estimate of the future medical and indemnity liability to the injured employee on a form promulgated by the assistant secretary. The report shall be submitted to the board each year at the same time the annual report required by R.S. 23:1291.1 is submitted to the office of workers' compensation administration. (a) Upon the board's approval of a claim for reimbursement, the insurer shall immediately certify to the board that the medical reserve and the weekly disability benefits (indemnity) reserve do not exceed the threshold limits provided in the reimbursement schedule set forth in this Subsection. No reimbursement will be made to the insurer unless such insurer complies with the provisions of this Paragraph: (i) As a prerequisite to reimbursement from the fund, the insurer shall be required to certify that the medical and indemnity reserves have been reduced to the threshold limits of reimbursement and report in accordance with the National Council on Compensation Insurance Workers' Compensation Statistical Plan. (ii) The Second Injury Fund director shall quarterly submit to the National Council on Compensation Insurance information regarding the Second Injury Fund accepted claims. (iii) The National Council on Compensation Insurance shall submit a report of any discrepancies pursuant to regulations established by the Department of Insurance. The Department of Insurance is directed to establish regulations concerning Second Injury Fund discrepancies. (b) The Louisiana Insurance Guaranty Association shall be entitled to reimbursement, but only to the extent of the proportion of the Second Injury Fund assessment paid by insurance companies. (6)(a)(i) For an accident occurring on or after October 1, 1995, the employer, if self-insured, or the insurer shall obtain written approval from the board of any lump sum or compromise settlement of an approved claim before such settlement is submitted for approval, as provided in Part III of this Chapter. (ii) If written approval is obtained, an order approving the settlement shall be obtained within one hundred eighty days from the date that approval is issued after which time the written approval shall be null and the self-insurer or insurer must again obtain written approval to settle the claim. The board shall respond to requests for written approval within forty-five days of receipt of the request. (iii) If an employer, if self-insured, or the insurer seeks authority to enter into a compromise settlement in connection with the settlement of a third-party claim, the board shall respond within three working days unless the settlement contemplates payment by the insurer or self-insurer of additional amounts which exceed fifty thousand dollars. If the settlement contemplates additional amounts which exceed fifty thousand dollars, the board shall respond within forty-five days of receipt of the request. (iv) If the board does not issue a written response within the time provided in Items (ii) and (iii), the request shall be deemed approved unless the employer or insurer does not comply with rules promulgated pursuant to Item (v) of this Paragraph. (v) The assistant secretary of the Office of Workers' Compensation Administration shall establish and promulgate, in accordance with the Administrative Procedure Act, such rules and regulations governing the submission of requests for approval as well as response from the board as may be deemed necessary and which are not inconsistent with the laws of this state. (b)(i) Except in cases of a settlement in connection with the settlement of a third-party claim, if the self-insurer or insurer fails to obtain written approval from the board as provided in Subparagraph (a) of this Paragraph or fails to submit the settlement to the judge for approval as provided in Subparagraph (a) of this Paragraph, the fund shall not reimburse such self-insurer or insurer for the final settlement amount. (ii) In cases of a settlement in connection with the settlement of a third-party claim, if the self-insurer or insurer fails to obtain written approval from the board as provided in Subparagraph (a) of this Paragraph or fails to submit the settlement to the judge for approval as provided in Subparagraph (a) of this Paragraph, the fund shall not reimburse such self-insurer or insurer for the final settlement amount and twenty-five percent of the unpaid reimbursements due or ten thousand dollars, whichever is greater. (iii) As used in this Section, "final settlement amount" shall mean only additional funds contemplated to be paid by the insurer or self-insurer. (c) The board shall not be a party to any lump sum compromise settlement with the employee. (d) In the event that the board issues a written denial of the settlement, the property or casualty insurer, self-insured employer, or group self-insurance fund may appeal pursuant to Subsection E of this Section. The appeal shall be placed on the preference docket of the appropriate district court and shall be heard on the earliest practicable date. B.(1) Except as provided in Paragraph (2) of this Subsection, the employer or his insurer, whichever of them makes the payments or becomes liable, shall within one year after the first payment of either compensation or medical benefits, whichever occurs first, notify the board in writing of such facts and furnish such other information as may be required by the board to determine if the employer or his insurer is qualified for reimbursement from the Workers' Compensation Second Injury Fund. Except as provided in Paragraph (2) of this Subsection, no employer, insurer, servicing agent, or self-insured association shall be reimbursed unless the board is notified within one year from the date of the first payment of either compensation or medical benefits whichever occurs first. Employers which are self-insured for workers' compensation benefits, but have not received a certificate of authority from the commissioner of insurance as provided for in R.S. 23:1197 or authorization from the assistant secretary pursuant to R.S. 23:1168(A)(2) or (3) shall not be entitled to reimbursement from the fund. (2) When R.S. 23:1209(A)(3) is applicable to a claim against an employer, the employer or his insurer, whichever of them makes the payments or becomes liable, shall within one year after the first payment of either compensation or medical benefits, whichever occurs later, notify the board in writing of such facts and furnish such other information as may be required by the board to determine if the employer or his insurer is qualified for reimbursement from the Workers' Compensation Second Injury Fund. C.(1) Upon receipt of a notice as provided in Subsection B of this Section, the board may conduct an investigation into all phases of the matter and take any and all other actions necessary to permit it to determine whether or not the employer or his insurer is entitled to reimbursement from the Workers' Compensation Second Injury Fund. (2) The board may call a hearing, and in such case the employer and insurer, if any, shall be notified of the date, time, and place at least ten days before the date set for the hearing. Hearings may be had in the parish wherein the accident occurred or in any other parish that the board determines to be more convenient. The board shall establish rules for the conduct of such hearings. The board may issue subpoenas for witnesses in its behalf or for witnesses deemed necessary to a proper determination of the case. It shall issue subpoenas for witnesses at the request of the employer or insurer. At such hearings, the board shall not make a determination which would create, provide, diminish, or affect any workers' compensation benefits due to an injured employee but shall limit itself to the determination of whether the fund is liable to reimburse the employer, or, if insured, the insurer. D. If the board finds that the employer or, if insured, his insurer is entitled to reimbursement, as provided in this Part, from the Workers' Compensation Second Injury Fund, the board shall issue its warrant to the state treasurer for payments to be made at such intervals as the board directs from the Workers' Compensation Second Injury Fund to such employer or insurer for the amount provided in Subsection A of this Section. In the event the employer or insurer makes a compromise or a lump-sum payment as provided in R.S. 23:1271 through 1274, the board shall have the discretion of paying in a lump sum or in periodic payments of three-month intervals for the amount that would have been due the employee for that period from the date the compromise or lump-sum settlement agreement is received in the board's office. E. Written notice of the decision of the board shall be given to all parties to the hearing and the representatives designated by the party on the reimbursement form submitted to the board. The decision of the board shall be final; however, an appeal therefrom may be taken by any of the parties within thirty days after the date of the decision of the board. If an appeal is taken, the board shall be made party defendant, and service and citation shall be made in accordance with applicable law upon the attorney general or one of his assistants. The appeal shall be to the Nineteenth Judicial District Court, parish of East Baton Rouge. All appeals in all such cases shall be tried de novo. F. Where the employer establishes that he had knowledge of the preexisting permanent partial disability prior to the subsequent injury, and diagnosis of the condition was made by qualified physicians within the scope of their practice or other persons properly licensed and certified to make such a diagnosis, there shall be a presumption that the employer considered the condition to be permanent and to be or likely to be a hindrance or obstacle to employment where the condition is one of the following: (1) Seizure disorder. (2) Diabetes mellitus. (3) Coronary artery disease or congestive heart failure. (4) Arthritis. (5) Amputated foot, leg, arm, or hand, or total or partial of at least fifty percent loss of use thereof. (6) Loss of sight of one or both eyes or legal blindness. (7) Residual disability from poliomyelitis. (8) Cerebral palsy. (9) Multiple sclerosis. (10) Parkinson's disease. (11) Cerebral vascular accident. (12) Tuberculosis. (13) Pneumoconiosis. (14) Psychoneurosis or psychosis following treatment in a recognized medical or mental institution. (15) Bleeding disorder. (16) Chronic osteomyelitis. (17) Ankylosis of joints. (18) Muscular dystrophy. (19) Arteriosclerosis. (20) Thrombophlebitis. (21) Varicose veins. (22) Heavy metal poisoning. (23) Ionizing radiation injury. (24) Compressed air sequelae. (25) Ruptured or herniated intervertebral disc. (26) Brain damage. (27) Spinal surgery including fusion, partial, or total discectomy or microdiscectomy. (28) Chronic obstructive pulmonary disease (COPD). (29) Post traumatic stress disorder syndrome (PTSD). (30) Post concussive syndrome. (31) Alzheimer's disease. (32) Sickle cell anemia. (33) Joint replacement surgery. (34) Intellectual disability, (a) Provided the diagnosis of an intellectual disability shall be made on the basis of the following: (i) Significantly subnormal intellectual functioning, defined as an objective measure of cognitive status which falls at least two standard deviations below the mean of the national standardization sample based on valid results of a recognized individually administered test of intellectual function. (ii) Objective evidence of concurrent impairment of adaptive functioning in at least two areas of functional behavior as measured by standardized, norm reference measures of adaptive function. (iii) Evidence of an onset before the age of eighteen years. (b) It shall not be necessary for the employer to know the employee's actual intelligence quotient or actual relative ranking in relation to the intelligence quotient of the general population. (c) Diagnosis of an intellectual disability shall be made by a psychiatrist, psychologist, or other person properly licensed and certified to make such a diagnosis. Acts 1974, No. 165, §1; Acts 1976, No. 267, §2, eff. Oct. 1, 1977; Acts 1976, No. 298, §1; Acts 1976, No. 299, §§1, 2; Acts 1977, No. 267, §§2, 3, eff. Oct. 1, 1977; Acts 1976, No. 50, §1; Acts 1983, 1st Ex. Sess., No. 1, §§1, 6, eff. July 1, 1983; Acts 1985, No. 697, §1, eff. Oct. 1, 1985; Acts 1988, No. 938, §1, eff. July 1, 1989; Acts 1988, No. 997, §1; Acts 1989, No. 23, §1, eff. June 15, 1989; Acts 1989, No. 260, §1, eff. Jan. 1, 1990; Acts 1991, No. 892, §1; Acts 1992, No. 767, §1; Acts 1995, No. 245, §1, eff. June 14, 1995; Acts 2004, No. 227, §1, eff. June 14, 2004; Acts 2004, No. 256, §1, eff. June 15, 2004; Acts 2004, No. 258, §1, eff. June 15, 2004; Acts 2004, No. 293, §1, eff. July 1, 2004; Acts 2005, No. 257, §1; Acts 2006, No. 453, §1, eff. June 15, 2006; Acts 2007, No. 332, §1, eff. July 9, 2007; Acts 2008, No. 220, §8, eff. June 14, 2008; Acts 2010, No. 799, §1, eff. June 30, 2010; Acts 2014, No. 811, §12, eff. June 23, 2014; Acts 2015, No. 254, §1, eff. June 29, 2015. NOTE: Acts 1991, No. 892, §2 provided R.S. 23:1378(e) shall apply only to decisions of the second injury board issued on or after September 6, 1991.