Causation in Heart-Related Disease, Perivascular Disease, and Strokes in Louisiana Workers Compensation

City Park, New Orleans, Louisiana

Heart-Related Disease, Perivascular Disease, and Strokes in Louisiana Workers Compensation

The area of heart disease and strokes in Louisiana workers compensation can be one of the more confusing and difficult areas in Louisiana workers compensation.  

This area of law includes heart disease, heart attacks, strokes, blood vessel conditions, and or perivascular disease. 

To begin with, the Louisiana Workers Compensation Act, contrary to common sense, specifically exclude heart-related or perivascular disease from the classification of an occupational disease.  

And second, the Louisiana Workers Compensation Act specifically includes heart-related or perivascular disease as a "personal injury by accident."

So basically, almost unbelievably, this means that under Louisiana workers compensation, heart disease and perivascular disease are not actually diseases, but instead injuries that happen in a single event. 

Most importantly, the Louisiana Workers Compensation Act specifically holds that heart-related and perivascular injuries are only compensable (meaning the employee will receive benefits) when it is shown by clear and convincing evidence that:

    1. The physical work stress was extraordinary and unusual in comparison to the stress or exertion experienced by the average employee in that occupation; and
    2. The physical work stress or exertion, and not some other source of stress or preexisting condition, was the predominant and major cause of the heart-related or perivascular injury, illness, or death.

Like a heart attack, a stroke constitutes “perivascular injury” under Louisiana "heart-related and perivascular injuries" workers compensation statute.

Also, in this "heart-related and perivascular injuries" workers compensation statute, the term “extraordinary” is defined as going beyond what is usual, regular or customary, and the term “unusual” is defined as not usual, uncommon and not in accordance with usage, custom or habit.  

However, if an employee's work requires physical effort and exertion and an employee's heart or other organ fails or suffers functional impairment while employee is engaged in performance of his or her usual and customary duties, it is an “accident” within Workmen's Compensation Act, and it is not necessary for employee to show that the disabling injury was the result of unusual physical effort.

The Burden of Proof for A Heart-Related Injury or Stroke in Louisiana Workers Compensation

One purpose of this "heart-related and perivascular injuries" workers compensation statute was to make the burden of proof regarding perivascular injuries high enough so as to exclude from coverage employees who just happen to suffer perivascular injuries at work.  

This is because heart attacks and strokes are ordinarily the result of natural causes, instead of the result of a traumatic injury or particular effort.  

Thus, since an employee typically has at least some minor amount of heart attack or stroke risk, the employment must be clearly shown to have increased the risk of heart attack or stroke in order for the employee to be covered. 

So in particular, the purpose of the heightened burden of proof - namely clear and convincing evidence rather than preponderance of the evidence - for an employe to recover workers compensation benefits for heart-related or perivascular injuries is to prevent the employer for having to pay for employees who just happen to suffer heart attack or stroke at work.  

This clear and convincing evidence standard is a heavier burden of proof than the usual civil case preponderance of the evidence (more likely than not) standard, but is less burdensome than the beyond a reasonable doubt standard of a criminal case.  

Basically, to prove a matter by clear and convincing evidence means to show that a disputed fact is "highly probable" and "much more probable than not."

Did the Employment Cause A Heart-Related Injury or Stroke in Louisiana Workers Compensation?

Under Louisiana workers compensation, the employment must be clearly shown to have increased the risk of injury before the employee can be compensated for heart-related or perivascular injuries or stroke.  

Also, the mere occurrence of a heart attack at work does not entitle an employee to compensation;  it must be shown that the heart attack is causally related to the disability, i.e., that it caused, contributed to or accelerated the heart disease.

The test as to whether there was a causal link between employee's work and heart attack (or whether the employment caused the heart attack of perivascular disease or stroke) is an objective one.  

That means that the  comparison is not between physical stress required of job and physical work stress encountered in non-employment activities of the average person, nor is the comparison with an employee's own unemployment life activities.

Instead, it simply means the comparison of the exertion of a worker to that experienced by the average employee in that occupation. 

Additionally, a workers' compensation claim based on a heart attack does not fail simply because the medical expert cannot definitively state the heart attack's primary cause. 

Pre-existing Heart Disease or Perivascular Disease in Louisiana Workers Compensation

The existence of a pre-existing heart condition or risk factor alone will not prevent the recovery of workers compensation benefits for a work-related heart attack.

In fact, workers compensation benefits are due in compensation cases involving heart conditions resulting in disability or death, whether or not the condition is pre-existing, when caused, precipitated, or accelerated by even usual and customary activities, exertions, and other factors directly connected with employment.

For example, the fact that an employee has a previously unknown but pre-existing high blood pressure condition will not prevent that employee from receiving workers compensation benefits if the employee has a stroke, so long as the employee's physical work stress or exertion (and not the pre-existing condition) was a major cause of his stroke. 

The Louisiana Statutes on Heart-Related Disease, Perivascular Disease, and Strokes in Louisiana Workers Compensation

The primary Louisiana statutes on heart-related disease, perivascular disease, and strokes are La. R.S. 23:1021 and La. R.S. 23:1031.1, which read as follows: 

§1021. Terms defined

As used in this Chapter, unless the context clearly indicates otherwise, the following terms shall be given the meaning ascribed to them in this Section:

(1) "Accident" means an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.

(2) "Brother" and "sister" includes step-brothers and step-sisters, and brothers and sisters by adoption.

(3) "Child" or "children" covers only children born of marriage, step-children, posthumous children, adopted children, and children born outside of marriage who have been acknowledged under the provisions of the Civil Code.

(4) "Dependent" means the person or persons to whom, under the provisions of Part II of this Chapter, compensation shall be paid upon the death of the injured employee.

(5) "Assistant secretary" means the assistant secretary of the office of workers' compensation administration.

(6) "Health care provider" means a hospital, a person, corporation, facility, or institution licensed by the state to provide health care or professional services as a physician, hospital, dentist, registered or licensed practical nurse, pharmacist, optometrist, podiatrist, chiropractor, physical therapist, occupational therapist, psychologist, graduate social worker or licensed clinical social worker, psychiatrist, or licensed professional counselor, and any officer, employee, or agent thereby acting in the course and scope of his employment.

(7) "Independent contractor" means any person who renders service, other than manual labor, for a specified recompense for a specified result either as a unit or as a whole, under the control of his principal as to results of his work only, and not as to the means by which such result is accomplished, and are expressly excluded from the provisions of this Chapter unless a substantial part of the work time of an independent contractor is spent in manual labor by him in carrying out the terms of the contract, in which case the independent contractor is expressly covered by the provisions of this Chapter. The operation of a truck tractor or truck tractor trailer, including fueling, driving, connecting and disconnecting electrical lines and air hoses, hooking and unhooking trailers, and vehicle inspections are not manual labor within the meaning of this Chapter.

(8)(a) "Injury" and "personal injuries" include only injuries by violence to the physical structure of the body and such disease or infections as naturally result therefrom. These terms shall in no case be construed to include any other form of disease or derangement, however caused or contracted.

(b) Mental injury caused by mental stress. Mental injury or illness resulting from work-related stress shall not be considered a personal injury by accident arising out of and in the course of employment and is not compensable pursuant to this Chapter, unless the mental injury was the result of a sudden, unexpected, and extraordinary stress related to the employment and is demonstrated by clear and convincing evidence.

(c) Mental injury caused by physical injury. A mental injury or illness caused by a physical injury to the employee's body shall not be considered a personal injury by accident arising out of and in the course of employment and is not compensable pursuant to this Chapter unless it is demonstrated by clear and convincing evidence.

(d) No mental injury or illness shall be compensable under either Subparagraph (b) or (c) unless the mental injury or illness is diagnosed by a licensed psychiatrist or psychologist and the diagnosis of the condition meets the criteria as established in the most current issue of the Diagnostic and Statistical Manual of Mental Disorders presented by the American Psychiatric Association.

(e) Heart-related or perivascular injuries. A heart-related or perivascular injury, illness, or death shall not be considered a personal injury by accident arising out of and in the course of employment and is not compensable pursuant to this Chapter unless it is demonstrated by clear and convincing evidence that:

(i) The physical work stress was extraordinary and unusual in comparison to the stress or exertion experienced by the average employee in that occupation, and

(ii) The physical work stress or exertion, and not some other source of stress or preexisting condition, was the predominant and major cause of the heart-related or perivascular injury, illness, or death.

(9) "Office" means the office of workers' compensation administration established pursuant to R.S. 23:1291.

(10) "Owner operator" means a person who provides trucking transportation services under written contract to a common carrier, contract carrier, or exempt haulers which transportation services include the lease of equipment or a driver to the common carrier, contract carrier, or exempt hauler. An owner operator, and the drivers provided by an owner operator, are not employees of any such common carrier or exempt hauler for the purposes of this Chapter if the owner operator has entered into a written agreement with the carrier or hauler that evidences a relationship in which the owner operator identifies itself as an independent contractor. For purposes of this Chapter, owner operator does not include an individual driver who purchases his equipment from the carrier or hauler, and then directly leases the equipment back to the carrier or hauler with the purchasing driver.

(11) "Part-time employee" means an employee who as a condition of his hiring knowingly accepts employment that (a) customarily provides for less than forty hours per work week, and (b) that is classified by the employer as a part-time position.

(12) "Payor" means the entity responsible, whether by law or contract, for the payment of benefits incurred by a claimant as a result of a work related injury.

(13) "Wages" means average weekly wage at the time of the accident. The average weekly wage shall be determined as follows:

(a) Hourly wages.

(i) If the employee is paid on an hourly basis and the employee is employed for forty hours or more, his hourly wage rate multiplied by the average actual hours worked in the four full weeks preceding the date of the accident or forty hours, whichever is greater; or

(ii) If the employee is paid on an hourly basis and the employee was offered employment for forty hours or more but regularly, and at his own discretion, works less than forty hours per week for whatever reason, then, the average of his total earnings per week for the four full weeks preceding the date of the accident; or

(iii) If the employee is paid on an hourly basis and the employee is a part-time employee, his hourly wage rate multiplied by the average actual hours worked in the four full weeks preceding the date of the injury.

(iv) A part-time employee, as defined in R.S. 23:1021(9) and who is employed by two or more different employers in two or more successive employments, shall be entitled to receive benefits as follows:

(aa) If an employee is employed by two or more different employers in two or more successive employments and the employee incurs a compensable injury under the provisions of this Chapter in one of the employments, the employer in whose service the employee was injured shall pay the benefits due the employee as provided in this Chapter.

(bb) If the employee is a part-time employee in one of the successive employments, is injured in that employment, but as a result of the injury also incurs loss of income from other successive employments, that employee shall be entitled to benefits computed by determining wages under the provisions of this Subsection using his hourly rate in employment at the time of injury and using the total hours worked for all employers of the part-time employee, but not to exceed his average, actual weekly hours worked or forty hours weekly, whichever is less.

(v) For an employee in seasonal employment, his annual income divided by fifty-two.

(aa) For purposes of this Subparagraph, seasonal employment shall be any employment customarily operating only during regularly recurring periods of less than forty-four weeks annually.

(bb) If the employee was not engaged in the seasonal employment more than one year prior to the accident, his annual income shall be the average annual income of other employees of the same or most similar class working in the same or most similar employment for the same employer or, in the event that the employee was the only individual engaged in that specific employment, then his annual income shall be the average annual income of other employees of the same or most similar class working for a neighboring employer engaged in the same or similar employment.

(b) Monthly wages. If the employee is paid on a monthly basis, his monthly salary multiplied by twelve then divided by fifty-two.

(c) Annual wages. If the employee is employed at an annual salary, his annual salary divided by fifty-two.

(d) Other wages. If the employee is employed on a unit, piecework, commission, or other basis, his gross earnings from the employer for the twenty-six week period immediately preceding the accident divided by the number of days the employee actually worked for the employer during said twenty-six week period and multiplied by the average number of days worked per week; however, if such an employee has worked for the employer for less than a twenty-six week period immediately preceding the accident, his gross earnings from the employer for the period immediately preceding the accident divided by the number of days the employee actually worked for the employer during said period and multiplied by the average number of days worked per week.

(e) Exceptions. For municipal police officers, additional compensation paid by the state pursuant to R.S. 40:1667.3 shall not be included in the calculation and computation of total salary or average weekly wage to the extent such officer continues to receive such additional compensation during the period of his disability.

(f) Income tax. In the determination of "wages" and the average weekly wage at the time of the accident, no amount shall be included for any benefit or form of compensation which is not taxable to an employee for federal income tax purposes; however, any amount withheld by the employer to fund any nontaxable or tax-deferred benefit provided by the employer and which was elected by the employee in lieu of taxable earnings shall be included in the calculation of the employee's wage and average weekly wage including but not limited to any amount withheld by the employer to fund any health insurance benefit provided by the employer and which was elected by the employee in lieu of taxable earnings shall be included in the calculation of the employee's wage and average weekly wage.

(g) Date of accident. In occupational disease claims the date of the accident for purposes of determining the employee's average weekly wage shall be the date of the employee's last employment with the employer from whom benefits are claimed or the date of his last injurious exposure to conditions in his employment, whichever date occurs later.

Amended by Acts 1968, Ex. Sess., No. 25, §1; Acts 1975, No. 583, §1, eff. Sept. 1, 1975; Acts 1983, 1st Ex. Sess., No. 1, §§1, 6; eff. July 1, 1983; Acts 1987, No. 396, §1; Acts 1987, No. 494, §1; Acts 1988, No. 938, §1, eff. Jan. 1, 1989, and July 1, 1989; Acts 1989, No. 260, §1, eff. Jan. 1, 1990; Acts 1989, No. 454, §1, eff. Jan. 1, 1990; Acts 1991, No. 468, §1; Acts 1991, No. 565, §1; Acts 1993, No. 928, §2, eff. June 25, 1993; Acts 1995, No. 1137, §1, eff. June 29, 1995; Acts 1997, No. 423, §1; Acts 1997, No. 536, §1; Acts 1997, No. 1172, §4, eff. June 30, 1997; Acts 1999, No. 751, §1; Acts 1999, No. 1309, §5, eff. Jan. 1, 2000; Acts 2001, No. 288, §2; Acts 2001, No. 486, §2, eff. June 21, 2001; Acts 2001, No. 546, §1; Acts 2001, No. 1014, §§1 and 2, eff. June 27, 2001; Acts 2004, No. 26, §10; Acts 2004, No. 188, §1, eff. June 10, 2004; Acts 2004, No. 561, §1; Acts 2013, No. 337, §1; Acts 2014, No. 158, §§3 and 7.

§1031.1.  Occupational disease

A.  Every employee who is disabled because of the contraction of an occupational disease as herein defined, or the dependent of an employee whose death is caused by an occupational disease, as herein defined, shall be entitled to the compensation provided in this Chapter the same as if said employee received personal injury by accident arising out of and in the course of his employment.

B.  An occupational disease means only that disease or illness which is due to causes and conditions characteristic of and peculiar to the particular trade, occupation, process, or employment in which the employee is exposed to such disease.  Occupational disease shall include injuries due to work-related carpal tunnel syndrome.  Degenerative disc disease, spinal stenosis, arthritis of any type, mental illness, and heart-related or perivascular disease are specifically excluded from the classification of an occupational disease for the purpose of this Section.

C.  Notwithstanding the limitations of Subsection B hereof, every laboratory technician who is disabled because of the contraction of any disease, diseased condition, or poisoning which disease, diseased condition, or poisoning is a result, whether directly or indirectly, of the nature of the work performed, or the dependent of a laboratory technician whose death is the result of a disease, diseased condition, or poisoning, whether directly or indirectly, of the nature of the work performed shall be entitled to the compensation provided in this Chapter the same as if said laboratory technician received personal injury by accident arising out of and in the course of his employment.

As used herein, the phrase "laboratory technician" shall mean any person who, because of his skills in the technical details of his work, is employed in a place devoted to experimental study in any branch of the natural or applied sciences; to the application of scientific principles of examination, testing, or analysis by instruments, apparatus, chemical or biological reactions or other scientific processes for the purposes of the natural or applied sciences; to the preparation, usually on a small scale, of drugs, chemicals, explosives, or other products or substances for experimental or analytical purposes; or in any other similar place of employment.

Except as otherwise provided in this Subsection, any disability or death claim arising under the provisions of this Subsection shall be handled in the same manner and considered the same as disability or death claims arising due to occupational diseases.

D.  Any occupational disease contracted by an employee while performing work for a particular employer in which he has been engaged for less than twelve months shall be presumed not to have been contracted in the course of and arising out of such employment, provided, however, that any such occupational disease so contracted within the twelve months' limitation as set out herein shall become compensable when the occupational disease shall have been proved to have been contracted during the course of the prior twelve months' employment by a preponderance of evidence.

E.  All claims for disability arising from an occupational disease are barred unless the employee files a claim as provided in this Chapter within one year of the date that:

(1)  The disease manifested itself.

(2)  The employee is disabled from working as a result of the disease.

(3)  The employee knows or has reasonable grounds to believe that the disease is occupationally related.

F.  All claims for death arising from an occupational disease are barred unless the dependent or dependents as set out herein file a claim as provided in this Chapter within one year of the date of death of such employee or within one year of the date the claimant has reasonable grounds to believe that the death resulted from an occupational disease.

G.  Compensation shall not be payable hereunder to an employee or his dependents on account of disability or death arising from disease suffered by an employee who, at the time of entering into the employment from which the disease is claimed to have resulted, shall have willfully and falsely represented himself as not having previously suffered from such disease.

H.  The rights and remedies herein granted to an employee or his dependent on account of an occupational disease for which he is entitled to compensation under this Chapter shall be exclusive of all other rights and remedies of such employee, his personal representatives, dependents or relatives.

I.  Notice of the time limitation in which claims may be filed for occupational disease or death resulting from occupational disease shall be posted by the employer at some convenient and conspicuous point about the place of business.  If the employer fails to post this notice, the time in which a claim may be filed shall be extended for an additional six months.

Acts 1952, No. 532, §1; Acts 1958, No. 39, §1; Acts 1975, No. 583, §2, eff. Sept. 1, 1975; Acts 1975, No. 644, §§1, 2; Acts 1980, No. 666, §§1, 2, eff. July 24, 1980; Acts 1989, No. 454, §2, eff. Jan. 1, 1990; Acts 1990, No. 943, §1; Acts 2001, No. 1189, §1, eff. June 29, 2001; Acts 2003, No. 733, §1.

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