For a moment, let’s imagine that Arnold Schwartzenegger has joined forces with your TPA or insurance company to help you Terminate your SEB claims (not your claimants). What weapons would he use to bring an end to the SEB payments? The following is a checklist of events which the Workers’ Compensation Act [La. Rev. Stat. 23:1221(3)] has established as terminating points for Supplemental Earnings Benefits (these DO NOT APPLY TO PERMANENT AND TOTAL DISABILITY BENEFITS).
YOU MAY TERMINATE SEB WHEN:
1. You have paid a total of 520 weeks of benefits.
- The Credit for Temporary Total Disability Benefits – For all payments of TTD after January 1, 1990, you may take a credit for the TTD payments against your SEB obligation [Cline v. St. Jude Medical Center, Inc., 619 So.2d 712 (La. App. 4th Cir. 1993); La. Rev. Stat. 23:1223]. According to the Louisiana Supreme Court, this credit does not apply to any TTD payments made PRIOR to January 1, 1990 [Thibodeaux v. Diamond M. Drilling Co., 93-C-2963 (La. 2/18/94) 632 So.2d 736].
- ALL SEB payments are counted in reducing the 520 weeks owed even if the payments were made BEFORE January 1, 1990.
2. The employee is earning or is ABLE to earn 90% of his pre-accident average monthly wage. The adjuster should send the claimant the form Employee’s Report of Monthly Earnings. This is also a useful method of establishing fraud should you later discover that the claimant gave false information on the form.
3. When you no longer have KNOWLEDGE of a wage loss.
- An employer is only obligated to pay SEB when the employer has knowledge of the compensable SEB claim [La. Rev. Stat. 23:1201C].
- The employee has the affirmative duty to report his wage loss to the employer on the form Employee’s Report of Monthly Earnings [La. Rev. Stat. 23:1221(3)(f)].
4. As of the end of any two-year period commencing after termination of temporary total disability, unless during such two-year period SEB have been payable during at least 13 consecutive weeks. Although the prescription period for making a claim for SEB is three years from the last payment of any benefits (or one year from the accident if no benefits have been paid), the RIGHT to these benefits is terminated unless during this two year period after TTD the employee has a full quarter in which he has a claim for SEB for each of those weeks.
5. There have been no payments of any weekly benefits for three years (this is the prescriptive period under La. Rev. Stat. 23:1209].
6. When employee retires provided claimant has received at least 104 weeks of SEB. CAUTION: Receipt of private retirement benefits alone does not necessarily mean the employee has retired. [Allen v. City of Shreveport, 93-2928 (La. 5/23/94), 637 So.2d 123.] Note: The statute also states that you can terminate benefits when the employee begins to receive social security old age benefits. HOWEVER, the Louisiana Supreme Court has declared this provision unconstitutional.